Demarcus Sears v. Warden GDCP

USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 1 of 73
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 18-13467
____________________
DEMARCUS ALI SEARS,
Petitioner-Appellant,
versus
WARDEN GDCP,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:10-cv-01983-TWT
____________________
Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 2 of 73
2 Opinion of the Court 18-13467
PER CURIAM:
Petitioner Demarcus Ali Sears sits on death row in Georgia
following his convictions for kidnapping with bodily injury and
armed robbery. He appeals the district court’s denial of his 28
U.S.C. § 2254 petition for a writ of habeas corpus. The district
court and this Court have granted Sears certificates of appealability
on nine combined issues.
After a thorough review of the record and with the benefit
of oral argument, we reverse the district court’s denial of Sears’s
habeas petition and remand for a new penalty-phase proceeding.
I. BACKGROUND
A. Facts of Conviction
The tragic facts underlying Gloria Wilbur’s rape and murder
and Sears’s conviction for it are set forth in detail in Sears v. State,
493 S.E.2d 180, 182–83 (Ga. 1997) (“Sears II”). 1 For the reader’s
convenience, we summarize them below.
On October 7, 1990, Sears and Phillip Williams were
stranded in Atlanta after their car broke down. Id. at 182. Trying
to return home to Ohio, Sears and Williams entered a Waffle
House in Smyrna, Georgia, and asked several patrons for money.
Id. They told the patrons that their car had broken down and they
1 Before Sears filed his direct appeal, the Supreme Court of Georgia adjudi-
cated several pretrial issues he raised on interim review. Sears v. State, 426
S.E.2d 553 (Ga. 1993) (“Sears I”).
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 3 of 73
18-13467 Opinion of the Court 3
were trying to get to Cincinnati. Id. Sears was carrying a briefcase
that contained brass knuckles, a few knives, and a set of old hand-
cuffs. Id. He tried to sell some of the items in the suitcase to make
money. Id. Eventually, a customer gave Sears and Williams direc-
tions and a few dollars for bus fare. Id. The two decided to go to a
nearby Kroger instead, where they were approached by a police
officer who saw them loitering outside the Kroger. Id. The officer
briefly spoke with them but left after receiving a call on his radio.
Id. Shortly afterward, Sears and Williams decided to steal a car to
get back to Ohio. Id.The pair targeted Ms. Wilbur after they saw her park her car
and enter the Kroger. Id. Around 8:00 p.m. that evening, Ms. Wil-
bur returned to her car and put her groceries in her trunk. Id. Sears
approached Ms. Wilbur, hit her with his brass knuckles, and forced
her into the car. 2 Id. Williams got into the driver’s seat and headed
north on I-75. Id. Sears pulled Ms. Wilbur into the back seat, told
her to be quiet, and handcuffed her. Id.Sears and Williams stopped for hamburgers and gas. Id. To
avoid detection, Sears forced Ms. Wilbur in between the seats and
covered her with book bags. Id. On their way to Tennessee, Sears
raped Ms. Wilbur. Id. Around 1:00 a.m., they crossed into Ken-
tucky and stopped the car. Id. Ms. Wilbur pleaded to remain in
2 Sears disputed this fact at trial. He argued that Williams accosted Ms. Wilbur
and stole the car. He also said this in his post-arrest statement to the police.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 4 of 73
4 Opinion of the Court 18-13467
the car, but Sears took her into the bushes bordering I-75 and
stabbed her to death. Id.Ms. Wilbur’s body was found nearly a week later, and her
car was found abandoned in a Cincinnati suburb. Id. In the
backseat, the car had bloodstains that matched Ms. Wilbur and pu-
bic hair that matched Sears. Id. The police suspected Sears and
Williams after obtaining identifications from witnesses at the Waf-
fle House and a tip from an informant in Ohio. Id. at 183. The
police brought them in for questioning, and Sears admitted to steal-
ing the car and kidnapping, raping, and killing Ms. Wilbur. Id.
Sears’s statement was identical to Williams’s statement, except that
Sears claimed it was Williams who had hit Ms. Wilbur with brass
knuckles, while Williams claimed it was Sears. Id. Both stated that
Sears was the only one to rape and stab Ms. Wilbur. Id.
Sears consented to a search of his mother’s house, where he
lived. Id. He accompanied the police during their search and
showed them the briefcase and brass knuckles. Id. Williams pled
guilty and received two life sentences. Id. He testified for the State
at Sears’s trial. Id.
B. State Court Trial Proceedings
On September 22, 1993, a jury sitting in Cobb County Supe-
rior Court convicted Sears of armed robbery and kidnapping with
bodily injury.
During the trial’s penalty phase, Sears’s trial counsel “pre-
sented evidence describing [Sears’s] childhood as stable, loving, and
essentially without incident.” Sears v. Upton, 561 U.S. 945, 947
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 5 of 73
18-13467 Opinion of the Court 5
(2010) (“Sears IV”) (per curiam). Counsel also had witnesses testify
that Sears came from a middle-class background and his family
would be devastated if he were sentenced to death. Id. The miti-
gation theory emphasized “the adverse impact of Sears’ execution
on his family and loved ones.” Id. But that strategy ultimately
backfired.
After a turbulent deliberations period—which included mul-
tiple reports of a deadlock and several notes to the court—the jury
found four statutory aggravating circumstances and recommended
that Sears be sentenced to death. 3 The trial court imposed a death
sentence for the kidnapping-with-bodily-injury conviction and a
life sentence for the armed-robbery conviction.4
On July 18, 1996, the trial court denied Sears’s motion for
new trial.
In Sears’s direct appeal of his convictions and sentence, the
Supreme Court of Georgia affirmed his convictions but remanded
3 The jury found an aggravating factor for each of the three capital felonies
Sears engaged in while he committed the kidnapping: armed robbery, rape,
and murder. The jury found a fourth aggravating factor based on the “outra-
geously vile” nature of the kidnapping.
4 Under Georgia law, a jury may “impose a death sentence for the offense of
kidnapping with bodily injury on the ground that the offense of kidnapping
with bodily injury was committed while the offender was engaged in the com-
mission of the capital felon[y] of murder,” so long as the murder was “suffi-
ciently a part of the same criminal transaction” and was found to be an aggra-
vating circumstance of the kidnapping offense. Potts v. State, 410 S.E.2d 89,
93–94 (Ga. 1991).
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 6 of 73
6 Opinion of the Court 18-13467
the case as to his death sentence for an evidentiary hearing to allow
him to develop the record on his claim of jury misconduct. Sears
II, 493 S.E.2d at 187–88. Following remand, the Supreme Court of
Georgia affirmed Sears’s death sentence. Sears v. State, 514 S.E.2d
426 (Ga. 1999) (“Sears III”). The Supreme Court of the United
States denied Sears’s petition for a writ of certiorari and his petition
for rehearing. Sears v. Georgia, 528 U.S. 934 (1999); Sears v. Georgia,
528 U.S. 1040 (1999).
C. State Court Postconviction Proceedings
Sears filed a petition for a writ of habeas corpus in the Supe-
rior Court of Butts County on January 13, 2000. He raised thirty-
eight claims for relief, but as relevant here, he argued that (1) the
State violated Brady v. Maryland, 373 U.S. 83 (1963); (2) the trial
court’s application of the discovery rule set forth in Sabel v. State,
282 S.E.2d 61 (Ga. 1981), was unconstitutional; and (3) his trial
counsel was constitutionally ineffective for failing to adequately in-
vestigate and present mitigation evidence. The court held an evi-
dentiary hearing in January 2006. Sears presented evidence that he
suffers from organic brain damage and psychiatric problems.
“Two different psychological experts testified that Sears had
substantial deficits in mental cognition and reasoning—i.e., ‘prob-
lems with planning, sequencing and impulse control’—as a result
of several serious injuries he suffered as a child, as well as drug and
alcohol abuse.” Sears IV, 561 U.S. at 949 (quoting Affidavit of Dr.
Tony L. Strickland, Doc. No. 18-27, at 147). One of the experts, a
neuropsychologist, testified that Sears’s “scores on at least two
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 7 of 73
18-13467 Opinion of the Court 7
standardized assessment tests placed him at or below the first per-
centile in several categories of cognitive functioning, ‘making him
among the most impaired individuals in the population in terms of
ability to suppress competing impulses and conform behavior only
to relevant stimuli.’” Id. (quoting Strickland Affidavit at 148). The
neuropsychologist’s testing found that Sears was “plagued by ex-
treme distress, emotional instability and low self-worth.” Strick-
land Affidavit at 149. In addition, the expert testified that “clear and
compelling evidence” showed that Sears suffered from “pro-
nounced frontal lobe pathology”—i.e., brain damage. Sears IV, 561
U.S. at 950 (quoting Testimony of Dr. Tony L. Strickland, Doc. No.
18-25, at 69).
Sears also submitted evidence painting a different picture of
his childhood than the portrait presented to his sentencing jury.
Contrary to the typical middle-class upbringing described at trial,
Sears presented evidence that his home was violent and volatile.
Sears’s father was verbally and physically abusive to his mother,
and his parents fought constantly. Sears’s parents often left him
and his brother with a cousin who purportedly sexually abused
them. Not only that, but Sears’s mother beat him, while his father
used military-style drills and other unconventional methods of be-
havior correction to discipline him. For example, after Sears and
his brother locked themselves in the family room, “horsing
around” and “laughing real loud,” Sears’s father lit a fire outside the
room to “smoke them out.”
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 8 of 73
8 Opinion of the Court 18-13467
On January 9, 2008, the state habeas court denied Sears’s pe-
tition. Doc. No. 21-12. The court dismissed Sears’s Brady claim,
Sabel claim, and ineffective-assistance claim for different reasons.
First, it found that Sears had procedurally defaulted his Brady claim;
second, it concluded that Sears’s Sabel claim was precluded as res
judicata; and third, the state habeas court determined that trial
counsel was constitutionally deficient, but Sears could not establish
prejudice under the standard set forth in Strickland v. Washington,
466 U.S. 668 (1984), and its progeny. On September 28, 2009, the
Supreme Court of Georgia denied Sears’s certificate of probable
cause to appeal the denial of his habeas corpus petition.
Sears sought review in the Supreme Court of the United
States. The Supreme Court granted his petition for a writ of certi-
orari, vacated the state judgment, and remanded for further pro-
ceedings. Sears IV, 561 U.S. at 946. The Supreme Court noted that
trial counsel “failed to conduct an adequate mitigation investiga-
tion,” and it deemed trial “counsel’s initial mitigation investiga-
tion” to be “constitutionally inadequate.” Id. at 951. The Court
further characterized as “[u]nsurprising[]” the fact that the state ha-
beas court “concluded that Sears had demonstrated his counsel’s
penalty phase investigation was constitutionally deficient”; indeed,
the Court described trial counsel’s mitigation investigation as “fa-
cially inadequate.” Id. at 951–52.
Then, the Court turned to the state habeas court’s prejudice
analysis. It found the analysis to be deficient because “it did not
correctly conceptualize how [the prejudice prong] applies to the
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 9 of 73
18-13467 Opinion of the Court 9
circumstances of this case.” Id. at 952. Specifically, the Court found
that the state court’s prejudice analysis contained two errors. First,
the state habeas court “curtailed a more probing prejudice inquiry
because it placed undue reliance on the assumed reasonableness of
counsel’s mitigation theory.” Id. at 953. In other words, the state
habeas court should have “question[ed] the reasonableness” of trial
counsel’s mitigation theory. Id.Second, the state habeas court “failed to apply the proper
prejudice inquiry.” Id. at 954. In particular, the state court found
that because trial counsel had presented “some mitigation evi-
dence,” that court was foreclosed from inquiring “into whether a
facially deficient mitigation investigation might have prejudiced
the defendant.” Id. at 955 (emphasis in original). But the Supreme
Court held that “[a] proper analysis of prejudice under Strickland
would have taken into account the newly uncovered evidence of
Sears’ ‘significant’ mental and psychological impairments, along
with the mitigation evidence introduced during Sears’ penalty
phase trial, to assess whether there is a reasonable probability that
Sears would have received a different sentence after a constitution-
ally sufficient mitigation investigation.” Id. at 956.
After the remand, the Supreme Court of Georgia vacated its
order denying the certificate of probable cause, vacated the Butts
County Superior Court’s order, and remanded the case for further
proceedings consistent with the Supreme Court of the United
States’s opinion in Sears IV.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 10 of 73
10 Opinion of the Court 18-13467
On August 16, 2011, the Butts County Superior Court again
denied Sears’s habeas petition, concluding that he could not
demonstrate prejudice with respect to trial counsel’s performance
during the penalty phase of the trial and otherwise adopting the
prior order denying relief.
The Supreme Court of Georgia granted Sears’s application
for a certificate of probable cause and affirmed. Sears v. Humphrey,
751 S.E.2d 365, 395 (Ga. 2013) (“Sears V”). In Sears V, the court
concluded that trial counsel’s performance was not deficient, and
even if it was, there was no reasonable probability that at least one
juror would have voted for a sentence other than death. Id. at 376,
395. The Supreme Court of the United States denied certiorari re-
view. Sears v. Chatman, 572 U.S. 1118 (2014).
Altogether then, six prior decisions that were issued before
Sears’s federal habeas proceedings began in earnest are relevant to
our decision today. For the reader’s convenience, we recap them
below and provide a brief explanation of their relevance to our de-
cision.
Decision Relevance
Sears brought an interim (direct) appeal
Sears v. State, 426
to the Supreme Court of Georgia before
S.E.2d 553 (Ga. 1993)
his trial. Among the issues was Sears’s
(“Sears I”)
desire to hire a psychiatric expert.
This was Sears’s direct appeal of his
Sears v. State, 493
conviction. The Supreme Court of
S.E.2d 180 (Ga. 1997)
Georgia reviewed his Sabel claim,
(“Sears II”)
among others.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 11 of 73
18-13467 Opinion of the Court 11
Decision Relevance
After remanding Sears’s case to allow
Sears v. State, 514
him to develop a record on his juror-
S.E.2d 426 (Ga. 1999)
misconduct claims, the Supreme Court
(“Sears III”)
of Georgia reviewed those claims.
The state habeas court reviewed Sears’s
Sears v. Hall, No. 2000-
ineffective-assistance-of-counsel claims
V-27 (Ga. Super. Ct.
and concluded that Sears’s counsel per-
Butts Cnty. Jan. 9,
formed deficiently but that the perfor-
2008), Doc. No. 21-12
mance did not prejudice Sears.
The Supreme Court of the United
States granted certiorari, vacated the
Sears v. Upton, 561 U.S.
state habeas court decision, and re-
945 (2010) (“Sears IV”)
manded for reconsideration of the
Strickland prejudice analysis.
The Supreme Court of Georgia con-
Sears v. Humphrey, 751
cluded that Sears’s counsel did not per-
S.E.2d 365 (Ga. 2013)
form deficiently and that there was no
(“Sears V”)
prejudice.
D. Federal Habeas Corpus Proceedings
On June 25, 2010, while his state habeas proceedings were
still ongoing, Sears filed his petition for a writ of habeas corpus un-
der 28 U.S.C. § 2254 in the United States District Court for the
Northern District of Georgia. 5 After Sears exhausted his remedies
5 The district court initially stayed the federal proceedings and held them in
abeyance pending Sears’s exhaustion of state remedies on remand from the
Supreme Court’s decision in Sears IV. After the state proceedings ended, the
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 12 of 73
12 Opinion of the Court 18-13467
in state court, he filed his first amended petition—the operative pe-
tition in this case. On May 23, 2018, the district court issued a final
order denying relief on all Sears’s claims. Sears timely filed a notice
of appeal.
The district court and this Court have allowed Sears to ap-
peal nine claims: (1) whether Sears’s trial counsel was unconstitu-
tionally ineffective for failing to investigate and present mitigation
evidence during the penalty phase of the trial; (2) whether the Sabel
discovery rule violated Sears’s constitutional rights; (3) whether
several jurors committed misconduct, denying Sears a fair trial and
reliable sentencing; (4) whether the State unconstitutionally relied
on an aggravating factor under O.C.G.A. § 17-10-30(b)(7); (5)
whether Sears’s trial counsel provided unconstitutionally ineffec-
tive assistance by failing to perfect the record on the Sabel issue; (6)
whether the State violated Brady; (7) whether the trial court’s ac-
tions and instructions during the penalty-phase deadlock were co-
ercive; (8) whether the trial judge’s failure to recuse himself denied
Sears due process and a fair trial; and (9) whether the cumulative
impact of any errors denied Sears a fair trial.
II. STANDARDS OF REVIEW
“We review de novo the denial of a petition for a writ of
habeas corpus.” Morrow v. Warden, Ga. Diagnostic Prison, 886 F.3d
1138, 1146 (11th Cir. 2018) (quotation omitted). But the
district court reinitiated Sears’s § 2254 petition and allowed him to amend his
petition.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 13 of 73
18-13467 Opinion of the Court 13
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs our review of federal habeas petitions. AEDPA prescribes
a highly deferential framework for evaluating issues previously de-
cided in state court. Pye v. Warden, Ga. Diagnostic Prison, 50 F.4th
1025, 1034 (11th Cir. 2022) (en banc). Under AEDPA, a federal
court may not grant habeas relief on claims that were “adjudicated
on the merits in [s]tate court” unless the state court’s decision (1)
“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) “was based on an unreasonable
determination of the facts in light of the evidence presented in the
[s]tate court proceeding.” 28 U.S.C. § 2254(d).
A state-court decision is “contrary to” clearly established law
if the court arrived at a conclusion opposite to the one reached by
the Supreme Court on a question of law, or the state court con-
fronted facts that are “materially indistinguishable” from Supreme
Court precedent but arrived at a different result. Williams v. Taylor,
529 U.S. 362, 405–06 (2000). A state-court decision is an “unreason-
able application” of clearly established law if the state court identi-
fies the correct governing legal rule from the Supreme Court’s
holdings but unreasonably applies it to the facts of a particular de-
fendant’s case. Id. at 407–08.
As for AEDPA’s unreasonable-application-of-federal-law
provision, “the key word is ‘unreasonable,’ which is more than
simply incorrect.” Sealey v. Warden, Ga. Diagnostic Prison, 954 F.3d
1338, 1354 (11th Cir. 2020). To meet this standard, “a prisoner
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 14 of 73
14 Opinion of the Court 18-13467
must show far more than that the state court’s decision was merely
wrong or even clear error.” Pye, 50 F.4th at 1034 (quoting Shinn v.
Kayer, 141 S. Ct. 517, 523 (2020) (per curiam)). Instead, “[t]he deci-
sion must be ‘so obviously wrong that its error lies beyond any pos-
sibility for fairminded disagreement.’” Id. (quoting Shinn, 141 S.
Ct. at 523). This is “a difficult to meet and highly deferential stand-
ard . . . which demands that state-court decisions be given the ben-
efit of the doubt.” Raulerson v. Warden, 928 F.3d 987, 996 (11th Cir.
2019) (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). Still,
though, AEDPA does not “prohibit a federal court from finding an
application of a principle unreasonable when it involves a set of
facts different from those of the case in which the principle was an-
nounced. The statute recognizes, to the contrary, that even a gen-
eral standard may be applied in an unreasonable manner.” Panetti
v. Quarterman, 551 U.S. 930, 953 (2007) (citation and quotation
omitted).
On each claimed basis for relief, we review “the last state-
court adjudication on the merits.” See Greene v. Fisher, 565 U.S. 34,
40 (2011). But when the state court did not reach the merits of the
claim, “federal habeas review is not subject to the deferential stand-
ard that applies under AEDPA[.]” Cone v. Bell, 556 U.S. 449, 472
(2009). “Instead, the claim is reviewed de novo.” Id. The Supreme
Court has instructed that we should presume “the state court adju-
dicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.” Harrington v. Rich-
ter, 562 U.S. 86, 99 (2011) (citation omitted). There is an “indication
. . . to the contrary” where, for example, the state court has denied
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 15 of 73
18-13467 Opinion of the Court 15
the petitioner’s claim on only one prong of the Strickland test, so
we would review de novo the prong that the state court never
reached. See, e.g., Rompilla v. Beard, 545 U.S. 374, 390 (2005); Wig-
gins v. Smith, 539 U.S. 510, 534 (2003).
We also must defer to a state court’s determination of the
facts unless the state-court decision “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)(2). Section 2254(d)(2)
works much like § 2254(d)(1) in that it requires us to give state
courts “substantial deference.” Brumfield v. Cain, 576 U.S. 305, 314
(2015). “We may not characterize . . . state-court factual determi-
nations as unreasonable ‘merely because we would have reached a
different conclusion in the first instance.’” Id. at 313–14 (quoting
Wood v. Allen, 558 U.S. 290, 301 (2010)) (alteration adopted). We
also presume that the state court’s factual determinations are cor-
rect, absent clear and convincing evidence to the contrary. Pye, 50
F.4th at 1035; 28 U.S.C. § 2254(e)(1).
If a petitioner satisfies § 2254(d)’s requirements, we then
consider whether the state court’s error was harmless. Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993). In collateral cases, a federal
constitutional error is harmless unless it imposed “actual preju-
dice.” Id. at 637–38 (citation omitted). In other words, we examine
“whether the error ‘had substantial and injurious effect or influence
in determining the jury’s verdict.’” Id. at 637 (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)).
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 16 of 73
16 Opinion of the Court 18-13467
In sum, AEDPA sets “a difficult to meet and highly deferen-
tial standard for evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the doubt.” Pinholster,
563 U.S. at 181 (internal quotation marks and citations omitted).
See also Brown v. Davenport, 142 S. Ct. 1510, 1517 (2022) (“When a
state court has ruled on the merits of a state prisoner’s claim, a fed-
eral court cannot grant relief without first applying both the test
this Court outlined in Brecht and the one Congress prescribed in
AEDPA.”). Yet “[e]ven in the context of federal habeas, deference
does not imply abandonment or abdication of judicial review.”
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). In other words, “[d]ef-
erence does not by definition preclude relief.” Id.III. DISCUSSION
We must decide whether the alleged errors during the pen-
alty phase of Sears’s trial violated his constitutional rights. And un-
der AEDPA, we must do so while giving deference to the state
courts that have previously evaluated Sears’s case. After careful
review of the record and with the benefit of oral argument, we con-
clude that Claim II of Sears’s petition warrants relief. Georgia’s in-
equitable discovery rule, enshrined in Sabel v. State, 282 S.E.2d 61(Ga. 1981), violated Sears’s Fourteenth Amendment right to due
process. The Supreme Court of Georgia unreasonably concluded
otherwise in Sears II. And because Sears’s constitutional rights
were violated, and we have a grave doubt about the effects of the
error, he is entitled to a new sentencing proceeding.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 17 of 73
18-13467 Opinion of the Court 17
Our decision first addresses Sears’s Sabel claim. We then ex-
plain why Sears is not entitled to relief on several of the remaining
grounds presented in his petition.
A. Sabel Claim
Sears first claims that the state court’s application of the un-
constitutional rule set forth in Sabel violated his federal due-process
rights. We agree.
In Wardius v. Oregon, the Supreme Court addressed the con-
stitutionality of Oregon’s notice-of-alibi discovery rule. 412 U.S.
470, 471 (1973). The rule required defendants who intended to rely
on an alibi defense to notify the State of the time and place at which
they claimed to be and to provide the names and addresses of wit-
nesses they anticipated calling to support their alibi defense. Id. at
471–72 & n.3. But under the rule, the State had no corresponding
obligation to provide “reciprocal discovery.” Id. at 472. Thus, the
State did not have to provide the defense with notice of the wit-
nesses it expected to use to rebut the alibi defense. Id. at 472 & n.3.
The Court held that “the Due Process Clause of the Fourteenth
Amendment forbids enforcement of alibi rules unless reciprocal
discovery rights are given to criminal defendants.” Id. at 472. The
Court made clear that “discovery must be a two-way street” and
explained that the “State may not insist that trials be run as a ‘search
for truth’ so far as defense witnesses are concerned, while main-
taining ‘poker game’ secrecy for its own witnesses.” Id. at 475.
Such a regime of non-reciprocal discovery, the Court held, was
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 18 of 73
18 Opinion of the Court 18-13467
“fundamentally unfair” and violated the Due Process Clause. Id. at
476.
Despite this guidance, in 1981, the Supreme Court of Geor-
gia enshrined an inequitable discovery rule in Sabel. There, the
criminal defendant sought to retain an expert to examine the evi-
dence that was critical to the case. Sabel, 282 S.E.2d at 68. The
court agreed that the defendant had a right to hire the expert, but
it also required the expert’s written results to be furnished to the
State, even if the defendant did not ultimately call the witness. Id.at 68–69. As the court explained this ruling, “requiring the report
of the defendant’s expert to be reduced to writing and made avail-
able to the state will further the search for the truth.” Id. So Sabel
ensured that even if “the defendant d[id] not call the expert as a
witness,” the State was still entitled to the expert’s reports. Id. And
Sabel allowed the State to “call the defendant’s expert without add-
ing his or her name to the list of witnesses, or [to] argue to the jury
that the defendant would have called the expert had the result of
the testing been favorable to the defendant.” Id. at 69.
Because of this broad authority, the State had wide latitude
to use a defense expert’s potentially unfavorable conclusions
against the defendant, either through tangible evidence such as a
written report or through an adverse inference to the jury. And
the defendant would have no way of knowing in advance how the
retained expert would come out. So by retaining an expert, the
defendant risked dooming his own case.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 19 of 73
18-13467 Opinion of the Court 19
But the government faced no similar Hobson’s choice in de-
ciding whether to retain an expert. Under Georgia law, a defendant
could obtain only “those written scientific reports which the state
will introduce against the defendant at trial.” Rower v. State, 443
S.E.2d 839, 842 (Ga. 1994) (citing O.C.G.A. § 17-7-211). But he
could not “discover scientific reports which the state ha[d] in its
possession, but [did] not intend to use.” Id. So after Sabel, the dis-
covery rule did not apply equally: the State could obtain a defense
expert’s report—whether or not the defendant intended to call the
witness at trial or to otherwise use the report—but the defendant
could not obtain a state expert’s report unless the State planned to
use the report at trial.
At the time of Sears’s trial, Sabel was the law of the land in
Georgia. But after Sears’s trial and before Sears’s motion for a new
trial, the Supreme Court of Georgia decided Rower and expressly
overruled Sabel. Rower, 443 S.E.2d at 842. In Rower, the Supreme
Court of Georgia held that, in accordance with due-process rights,
“with regard to scientific reports, the state is entitled to only those
discovery rights specifically granted to the defendant by O.C.G.A.
§ 17-7-211.” Id. In effect, Rower put the State and the defendant on
the same footing with respect to expert reports because, under
§ 17-7-211, “a defendant may discover only those written scientific
reports which the state will introduce against the defendant at trial,
and may not discover scientific reports which the state has in its
possession, but does not intend to use.” Id. at 841–42.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 20 of 73
20 Opinion of the Court 18-13467
We have acknowledged that Sabel’s inequitable discovery
rule denied defendants due process under Wardius. See Wellons v.
Hall, 554 F.3d 923, 939 (11th Cir. 2009) (“Wellons I”) (“Wardius and
Rower make clear that the trial court’s Sabel ruling in [the defend-
ant’s] case violated the Due Process Clause of the Fourteenth
Amendment because it granted the prosecution greater discovery
rights than [the defendant] possessed in preparing for trial.”), va-
cated on other grounds, 558 U.S. 220 (2010). As we explain later, we
find Wellons I persuasive.
1. Factual and Procedural Background
Because Sabel controlled when Sears went to trial, it played
a central role in trial counsel’s strategy. Trial counsel knew early
on that they might need a psychological evaluation of Sears to help
explain or mitigate the crimes to which he had admitted. 6 Counsel
explained that they noticed almost immediately that Sears had a
“bizarre affect” and “erratic behavior.” Sears lacked “control or re-
flection concerning the appropriateness of his speech,” and had no
“appreciation of the seriousness of his circumstances.” Along with
counsel’s own observations, in June 1991, two of Sears’s family
friends, one a psychiatric nurse, the other a school guidance
6 Trial counsel provided the state habeas court with a joint affidavit that de-
scribed their decision-making in connection with the mental-health inquiry
and Sabel. Although we describe the contents of that affidavit to help clarify
the background of the claim, because it was not before the Supreme Court of
Georgia when it adjudicated Sears’s Sabel claim on the merits in Sears II, we do
not initially consider its contents in our analysis. See infra Section III.A.2.b;
Pinholster, 563 U.S. at 181.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 21 of 73
18-13467 Opinion of the Court 21
counselor, told counsel that Sears needed some psychiatric help
and had been placed in the Severe Behavior Handicap program in
school. And Sears’s mother said that Sears had behavioral prob-
lems at school.
Trial counsel believed a psychiatrist was needed, so they
moved for funding to hire one. Doc. No. 14-10 at 208–09 (“Motion
11”). But trial counsel were wary that, under Sabel, they would
have to provide the State with their court-funded expert’s conclu-
sions, and they knew that Cobb County prosecutors frequently and
successfully invoked that rule. So trial counsel faced the “Hobson’s
choice” of foregoing any potential mental-impairment evidence or
risking the creation of evidence for the State. Wellons I, 554 F.3d at
931.
In December 1991, the trial court conducted a multi-day
hearing on Motion 11 and other pretrial motions. In support of
Motion 11, Sears’s counsel specifically argued that compelled dis-
closure of a defense expert’s opinions, “if the defendant does not
choose to use an expert at trial,” violated the Due Process Clause.
Doc. No. 14-16 at 24–25. The State’s response was simple: “All of
that flies right in the face of . . . Sable [sic].” Id. at 25.
Trial counsel filed two other motions to try to neutralize Sa-
bel. First, in Motion 14, they moved the trial court to prohibit the
State from calling defense expert witnesses to testify against Sears.
Doc. No. 14-10 at 215–16. Counsel argued that a ruling to the con-
trary would force Sears to “gamble” seeking expert assistance at the
“risk of creating additional evidence for the State.” Id. Second, in
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 22 of 73
22 Opinion of the Court 18-13467
Motion 44, to limit the State’s ability to use damaging statements
or unfavorable findings against Sears, counsel moved the trial court
for the ability to seek a post-verdict, pre-sentencing psychiatric ex-
amination. Doc. No. 14-11 at 289–90.
In response to the pretrial motions, the State invoked Sabel,
and it argued that Sears had not established a need to warrant the
requested experts. It also argued that if Motion 11 were granted,
the State should be able to conduct its own psychiatric evaluation.
Before the court ruled on the motions, Sears’s trial counsel
continued to probe into the potential consequences of undergoing
an evaluation. Doc. No. 14-18 at 254–55. Trial counsel also argued
that Sabel was wrongly decided and that it violated Sears’s due-pro-
cess rights. Doc. No. 14-16 at 34–35. But with no indication from
the court that it would deprive the State of its one-sided discovery
rights under Sabel, counsel determined that they could not move
forward with a psychiatric expert. After all, even if the trial court
had granted Motion 11 and provided funding to hire an expert, Sa-
bel mandated that the State could access the expert’s conclusions
and use them against Sears, even if Sears himself decided not to rely
on the expert. Or the State could use Sears’s decision not to call
the expert to create an adverse inference that the expert’s testi-
mony would be unfavorable. So defense counsel withdrew Motion
11. And before the state habeas court, counsel swore that they did
so only to avoid dangers created by the inequitable discovery rule.
Following the withdrawal of Motion 11, the trial court denied Mo-
tions 14 and 44.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 23 of 73
18-13467 Opinion of the Court 23
Despite the withdrawal of Motion 11, Sabel’s effects still per-
meated Sears’s trial and adversely impacted his defense. For exam-
ple, due to the denial of Motions 14 and 44, the State could have
called any of Sears’s experts—regardless of whether Sears used
them as witnesses—and Sears did not have the right to a post-ver-
dict, pre-sentencing psychiatric examination. Because of these ef-
fects, at the hearing on Motions 14 and 44, Sears’s counsel had ex-
pressly argued that Sabel was “wrongfully decided.” But Sabel re-
mained controlling law in Georgia, so Sears could not avoid its im-
pact. Thus, Sears’s counsel ultimately did not retain a psychiatric
expert to assist with the sentencing phase of his trial.
The next month, in January 1992, trial counsel requested
funds for an odontologist and microanalyst (microbiologist). At
multiple pretrial hearings, counsel once again asserted his objec-
tion to the application of the inequitable discovery rule, arguing
that it would violate “due process” to allow “one side of the case”
to “rid[e] the coat tails of the other side of the case [by] having the
defense develop evidence to be used by the prosecution[.]” Doc.
No. 14-22 at 4–5; Doc. No. 14-21 at 33. Sears’s counsel highlighted
the unfairness of the rule, particularly given that the State sought
the death penalty. Counsel specifically objected to the requirement
that they be forced to disclose the identity of witnesses who would
not be testifying. Again, the State invoked Sabel in response. The
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 24 of 73
24 Opinion of the Court 18-13467
court approved funding for the defense’s experts but compelled dis-
closure of the experts’ identities. 7
Before trial, counsel filed an interim appeal to the Supreme
Court of Georgia on Sears’s claim that he was entitled to a presen-
tencing psychiatric examination. Sears I, 426 S.E.2d at 556–57.
Counsel reiterated the bind Sears faced: a pretrial examination was
necessary to evaluate the issues “relevant to the jury in its determi-
nation of mitigating circumstances,” but it also carried the risk of
disclosing incriminating statements to the State. Br. of Appellant
at 11–12, Doc. No. 14-28. To preserve Sears’s “right to due process
of law,” counsel sought either a pretrial psychiatric examination,
“without waiving the confidence of those communications,” or a
presentencing examination. The court denied Sears’s request and
affirmed the trial court’s decision. Sears I, 426 S.E.2d at 556–57. 8
After Sears was found guilty and sentenced to death, he
moved for a new trial. While his motion was pending, the Su-
preme Court of Georgia decided Rower, which overruled Sabel. 443
S.E.2d at 842. Considering that development, Sears’s postconvic-
tion counsel moved the trial court for funds to retain a mental-
7 Sears ultimately did not consult a microanalyst, and the odontologist’s testi-
mony became unnecessary because Sears stipulated at trial to the victim’s
identity. Sears II, 493 S.E.2d at 183.
8 While Sears I addressed (and rejected) Sears’s claim for a presentencing ex-
amination, the Supreme Court of Georgia did not address Sears’s claim for a
pretrial examination without the risk of creating evidence for the State. See
Sears I, 426 S.E.2d at 556–57.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 25 of 73
18-13467 Opinion of the Court 25
health expert, arguing an expert was needed to show the prejudice
occasioned by Sabel. Doc. No. 16-13 at 3–6. That motion included
two relevant proffers: one showing that Sears suffered from a men-
tal disorder and the other that original trial counsel decided to
forgo the pretrial psychiatric evaluation because they were bound
by Sabel and feared “creating a witness against their client.” It also
offered representations about Sears’s psychiatric deficiencies.
The trial court denied the motion without explanation.
Sears’s direct appeal contained the same representations
about his psychiatric deficiencies, including Sears’s childhood mal-
treatment, his placement in the Severe Behavioral Handicap pro-
gram in school, and trial counsel’s averment that Sears was “a man
with obvious psychiatric problems,” and it asserted that a “mental
health expert was critical.” Br. of Appellant at 54–59, Doc. Nos. 16-
22, 16-23. Postconviction counsel argued that Sabel “had the un-
constitutional effect of deterring Mr. Sears’ counsel from pursuing
. . . important avenues of expert assistance, namely psychiatric as-
sistance,” and therefore “unconstitutionally chilled” his attorneys’
performance and violated Sears’s constitutional rights to “effective
assistance of counsel, due process and equal protection.” Sears’s
attorney explained that the trial court’s orders “forced counsel to
forego essential mental health evaluation and investigation” de-
spite the apparent need for both.
The Supreme Court of Georgia acknowledged that, after
Rower, a defendant is “not required to have the opinions of his ex-
perts reduced to writing nor is he required to produce any report
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 26 of 73
26 Opinion of the Court 18-13467
that he will not offer at trial.” Sears II, 493 S.E.2d at 183. But the
court disagreed that Sears could show any prejudice from the then-
existing Sabel rule: “At no time did the trial court order the defend-
ant’s experts to produce written reports and give them to the state.
Given that Sears withdrew his request for a psychiatrist before any
court ruling . . . he has failed to show any chilling effect or other
harm from the ruling[.]” Id.Sears raised his Sabel claim again in his state habeas petition,
but the state habeas court did not consider the portions of Sears’s
Sabel claim relevant here because they were decided on direct ap-
peal and therefore barred as res judicata.
2. Analysis
Sears argues that the Sabel rule violated his constitutional
rights because it denied him the right to the assistance of a compe-
tent expert necessary to assist in his defense. Sears claims that Sabel
clearly violated Wardius and Ake v. Oklahoma, 470 U.S. 68 (1985). 9
a. The Supreme Court of Georgia adjudicated Sears’s
Sabel claim on the merits.
Because this is a federal habeas case, we must first determine
whether AEDPA’s deferential standard of review applies to Sears’s
Sabel claim. AEDPA’s standard of review applies to claims that
were “adjudicated on the merits” by a state court. 28 U.S.C.
9 Sears also claims the rule violated the Equal Protection Clause under Griffin
v. Illinois, 351 U.S. 12, 18 (1956), and the Eighth Amendment under Lockett v.
Ohio, 438 U.S. 586, 604 (1978).
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 27 of 73
18-13467 Opinion of the Court 27
§ 2254(d). If the claim was adjudicated on the merits, we can grant
relief only if Sears can satisfy § 2254(d).
Sears argues that no state court adjudicated his Sabel claim
on the merits. Even though the Supreme Court of Georgia ruled
on his Sabel claim in Sears II, Sears suggests that the new evidence
developed during the state habeas proceedings transformed his Sa-
bel claim into a new claim because the current version of his claim
relies on additional facts that were not before the court in Sears II.
Thus, Sears urges us to review the Sabel claim de novo. See Reaves
v. Sec’y, Fla. Dep’t of Corr., 872 F.3d 1137, 1151 (11th Cir. 2017) (“If
. . . no state court has adjudicated the merits of a claim that was
properly presented, ‘federal habeas review is not subject to the def-
erential standard that applies under AEDPA. Instead, the claim is
reviewed de novo.’” (quoting Cone, 556 U.S. at 472) (alteration
adopted)).
Our precedent forecloses Sears’s position. We have held
that a habeas petitioner “cannot convert his previously asserted
‘claim’ into a wholly new ‘claim’ merely by coming forward with
new supporting evidence or even new legal arguments.” In re Hill,
715 F.3d 284, 292 (11th Cir. 2013); see also In re Everett, 797 F.3d 1282,
1288 (11th Cir. 2015) (“New supporting evidence and new legal ar-
guments in support of a prior claim are insufficient to create a new
claim.”).10 Thus, we do not find that Sears’s claim to the state
10 Although these cases analyzed whether new evidence can make a new
claim “for purposes of § 2244(b)(1),” In re Dailey, 949 F.3d 553, 558 (11th Cir.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 28 of 73
28 Opinion of the Court 18-13467
habeas court was different from the claim he presented to the court
on direct appeal.
Because we conclude that Sears’s federal Sabel-based habeas
claim satisfies § 2254(d)’s requirements, we assume that the Su-
preme Court of Georgia adjudicated Sears’s Sabel claim on the mer-
its in Sears II. 11 Since the state habeas court rejected Sears’s claim
2020), we see no reason to distinguish between the definition of a “claim” for
purposes of § 2244(b)(1) and § 2254(d). That said, we recognize the Supreme
Court left open the possibility that sometimes, new facts supporting a previ-
ously raised claim “may well present a new claim.” Pinholster, 563 U.S. at 186
n.10. Indeed, many of our sister circuits have acknowledged that new evi-
dence could “fundamentally alter” a claim and thus created a new claim. Dick-
ens v. Ryan, 740 F.3d 1302, 1318–19 (9th Cir. 2014); Fairchild v. Workman, 579
F.3d 1134, 1149 (10th Cir. 2009); Smith v. Quarterman, 515 F.3d 392, 400–01 (5th
Cir. 2008); Richey v. Bradshaw, 498 F.3d 344, 352 (6th Cir. 2007); Landano v.
Rafferty, 897 F.2d 661, 670 (3d Cir. 1990). This idea aligns with our acknowl-
edgment of a line between “a clarified rendition of an exhausted claim,” and a
“new claim altogether.” Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1348
(11th Cir. 2004). But here, because we read Sears’s Sabel claim before the Su-
preme Court of Georgia as having the same “basic thrust or gravamen” as his
claim before the state habeas court, Everett, 797 F.3d at 1288, we cannot con-
clude that the latter claim was new.
11 We have doubts whether Sears II did, in fact, adjudicate Sears’s claim on the
merits given that part of Sears’s Sabel claim in Sears II depended on evidentiary
proffers regarding Sears’s mental-health problems that were unaddressed by
the Supreme Court of Georgia. See Johnson v. Williams, 568 U.S. 289, 302 (2013)
(“A judgment is normally said to have been rendered ‘on the merits’ only if it
was ‘delivered after the court heard and evaluated the evidence and the par-
ties’ substantive arguments.’” (quoting Black’s Law Dictionary 1199 (9th ed.
2009)) (alteration adopted) (emphasis omitted)). Sears sought to expand the
record in his motion for new trial by seeking funds to conduct a posttrial, post-
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 29 of 73
18-13467 Opinion of the Court 29
on res judicata grounds, we look through that decision to the last
state-court adjudication on the merits. Cone, 556 U.S. at 466–67.
That decision was the Supreme Court of Georgia’s decision on di-
rect appeal. See Sears II, 493 S.E.2d at 183. Our initial review of
Sears II under § 2254(d) is limited to the record that was before the
court in Sears II. Shoop v. Twyford, 142 S. Ct. 2037, 2043–44 (2022);
Pinholster, 563 U.S. at 181–82.
b. Sears II’s analysis of Sears’s Sabel claim was un-
reasonable.
Because we’ve assumed that Sears II’s analysis of Sears’s Sa-
bel claim was an adjudication on the merits, we may grant relief
only if the state court’s decision was either (1) “contrary to, or in-
volved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,” or
(2) “based on an unreasonable determination of the facts in light of
the evidence presented in the [s]tate court proceeding.” 28 U.S.C.
§ 2254(d).
Both § 2254(d) provisions are satisfied here. Sears II’s cur-
sory analysis ignored the substantial evidence that trial counsel
Rower evaluation, but the trial court denied his motion. See Winston v. Kelly,
592 F.3d 535, 555–56 (4th Cir. 2010) (“If [a] record ultimately proves to be in-
complete, deference to the state court’s judgment would be inappropriate be-
cause judgment on a materially incomplete record is not an adjudication on
the merits for purposes of § 2254(d).”); Wilson v. Workman, 577 F.3d 1284, 1291
(10th Cir. 2009) (en banc) (“When the state court has not considered the ma-
terial evidence that a defendant submitted to support the substance of his ar-
guments, it has not adjudicated that claim on the merits.”).
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 30 of 73
30 Opinion of the Court 18-13467
sought psychiatric evaluations of Sears and withdrew their requests
because of Sabel. And Sears II failed to mention—let alone con-
sider—the Supreme Court’s decision in Wardius, which explained
the constitutional violation the Sabel rule perpetuated.
i. The decision in Sears II was based on an un-
reasonable determination of the facts.
When analyzing Sabel’s effects in Sears II, the Supreme Court
of Georgia concluded that Sears “failed to show any chilling effect
or other harm” from the Sabel rule and the trial court’s correspond-
ing orders on Motions 14 and 44. Sears II, 493 S.E.2d at 183. De-
spite Rower and its reversal of the Sabel rule, the court in Sears II
determined that, because of Sabel’s purported lack of harm in this
case, Sears was not entitled to relief. Id. Under our case law, that
inquiry is a mixed question of fact and law. Hall v. Wainwright, 805
F.2d 945, 947 (11th Cir. 1986) (“The determination of whether a
constitutional error is harmless presents a mixed question of fact
and law.”). And when reviewing mixed questions, we have relied
on § 2254(d)(2) to analyze the state court’s factual determinations
that were necessary to deciding the question. See Gore v. Sec’y for
Dep’t of Corr., 492 F.3d 1273, 1297–98 (11th Cir. 2007); Harvey v.
Warden, Union Corr. Inst., 629 F.3d 1228, 1252 (11th Cir. 2011). The
state court’s factual findings are entitled to a “statutory presump-
tion of correctness,” but that presumption does “not [apply] to [the
court’s] mixed determinations of law and fact.” DeBruce v. Comm’r,
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 31 of 73
18-13467 Opinion of the Court 31
Ala. Dep’t of Corr., 758 F.3d 1263, 1266 (11th Cir. 2014) (quoting Par-
ker v. Head, 244 F.3d 831, 836 (11th Cir. 2001)). 12
The Supreme Court of Georgia’s conclusion that Sears
“failed to show any chilling effect or other harm from” Sabel is be-
lied by the record. Sears II, 493 S.E.2d at 183. Sears’s pretrial mo-
tions, posttrial motions, and two appellate briefs teemed with chal-
lenges to and attempts to get around Sabel’s unconstitutional dis-
covery rule. At each opportunity, Sears’s counsel explained their
position that the Sabel rule impeded their ability to provide Sears
with a rigorous defense. In response, the State stood by Sabel and
argued that the decision squarely foreclosed Sears’s arguments.
Sears attempted to mitigate Sabel’s impact by moving to pre-
vent the State from calling defense experts at trial, to allow for a
12 The State suggests that Sears II’s “holding that there was no ‘chilling effect
or other harm’ is a legal conclusion” rather than a factual finding. The State
bases its argument on our decision in Holsey v. Warden, Georgia Diagnostic
Prison, in which we determined a state court’s conclusion that evidence was
“largely cumulative” was likely an application of law to facts. 694 F.3d 1230,
1259 (11th Cir. 2012). That is not like what happened here. Here, Sears II
determined there was no “chilling effect or other harm” from the Sabel rule.
493 S.E.2d at 183. This assessment of trial counsel’s decisions depended on the
state court’s “determination of the historical facts of the case.” Holsey, 694 F.3d
at 1259 (collecting cases involving determinations of historical facts). Indeed,
whether counsel decided not to proceed with an evaluation of Sears’s mental
capabilities because of their concern that they would have to turn over any
results, regardless of what they might turn out to be, requires the court to
assess a historical fact. And even if we assumed this were a purely legal con-
clusion (which it is not), that conclusion would be an unreasonable application
of the Supreme Court’s decision in Wardius, anyway.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 32 of 73
32 Opinion of the Court 18-13467
presentencing evaluation, and once Sabel was overturned, for a
posttrial evaluation. Georgia’s state courts, at the trial and appel-
late levels, blocked Sears at every turn.
Despite this demonstrable record of challenges to the Sabel
rule, the Supreme Court of Georgia determined that Sears “failed
to show any chilling effect or other harm from the ruling that he
must give the name of his experts to the state.” Sears II, 493 S.E.2d
at 183. It based its determination largely on the fact that Sears with-
drew Motion 11—his motion for funds to hire a psychiatrist—be-
fore the court could order Sears to disclose information about his
experts to the State even if those experts would not testify. Id.But counsel’s decision is precisely what shows the harmful
effects of Sabel on the defense here. Put simply, the record reflects
that counsel withdrew Motion 11 because upon prevailing, they
would have been forced to disclose information about the prospec-
tive expert without knowing anything about the expert’s conclu-
sions, and before deciding whether to rely on the expert at trial. So
because of the Sabel rule, even if the trial court had granted Motion
11 and provided Sears with funding to hire a psychiatric expert,
Sears’s counsel could not retain such an expert without taking a
significant risk. And the trial court, which was then bound to apply
Sabel, had no real discretion to blunt Sabel’s impact before Rower.
Yet without any explanation, Sears II ignored Sears’s con-
sistent and persistent challenges to the Sabel discovery rule. By our
count, during the pretrial and posttrial proceedings, Sears’s counsel
made a variant of the argument against application of Sabel’s rule
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 33 of 73
18-13467 Opinion of the Court 33
at least five separate times before the Supreme Court of Georgia
decided Sears II: (1) during the pretrial motions hearing that in-
cluded Motions 11 and 14; (2) during the pretrial hearings to retain
a microanalyst and odontologist; (3) on interim appeal to the Su-
preme Court of Georgia, which resulted in Sears I; (4) to the trial
court to request a new trial after Rower overruled Sabel; and (5) to
the appellate courts on direct appeal.
So Sabel’s “chilling effect” on trial counsel’s decision-making
was abundantly clear. Sears II’s finding to the contrary is not sup-
ported by the record and indeed contradicts it. Sears II based its
decision on counsel’s decision to withdraw the request for funds
before the trial court could issue a ruling. 493 S.E.2d at 183. But it
was clear at the time from counsel’s repeated arguments about the
Sabel rule that the decision to withdraw Motion 11 was spurred by
concern about the application of Sabel and its requirement that
counsel would have to turn over any reports from a psychiatric ex-
pert, regardless of their contents.
And Sears’s Sabel challenges were not made in the abstract;
they were presented in support of Motions 11 and 14. So Sears II
did more than just ignore Sears’s Sabel challenges—it cherry-picked
facts from the record that distorted the picture of the underlying
proceedings. Specifically, Sears II said simply that Sears withdrew
his motion “without presenting any argument at the ex parte hear-
ing[.]” Id.But Sears did argue against Sabel at the prior hearing where
the State was present and participating. There, Sears’s attorney
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 34 of 73
34 Opinion of the Court 18-13467
made it plain that he was concerned Sabel’s discovery rule would
unconstitutionally burden his client’s constitutional rights, includ-
ing the right to seek expert psychiatric assistance. Counsel’s with-
drawal of Motion 11 is directly attributable to the trial court’s ina-
bility to issue a ruling assuring Sears would not be subjected to the
Sabel rule.
Our assessment of the factual record does not only reflect
our own independent review—it also matches the State’s represen-
tation of the record when the State opposed Sears’s petition for a
writ of certiorari to the Supreme Court of the United States. Here
is what the State said:
[T]he record shows that [Sears’s] counsel, in their ar-
dent representation of him, tried to get around the
legal restrictions of Sabel. The defense filed a motion
to preclude the State from interviewing and calling as
witnesses defense experts that the defense had deter-
mined not to use. Further, trial counsel filed a motion
to have [Sears] evaluated after the guilt-innocence
phase but prior to the penalty phase so as to prevent
[Sears’s] own damaging statements being used
against him. The trial court complied with Sabel and
denied the motion to bar the State from calling a non-
testifying defense expert, which confirmed to [Sears’s
counsel] that there would be a risk that [Sears’s] state-
ments to the expert could be used against him in trial
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 35 of 73
18-13467 Opinion of the Court 35
and for that reason, defense counsel chose to withdraw
their motion for funds for a psychological expert.
Respondent’s Brief in Opposition at 15, Sears IV, 561 U.S. 945 (2010)
(No. 09-8854) (emphasis added), Doc. No. 21-21.
Indeed, even the Supreme Court of Georgia has since recog-
nized that Sears’s counsel repeatedly made his Sabel challenges.
When the court assessed the effectiveness of Sears’s trial counsel in
Sears V, it acknowledged that, at two different pretrial hearings,
“trial counsel strenuously argued to the trial court the alleged in-
equities of the Sabel rule and asserted that Sabel was wrongly de-
cided.” Sears V, 751 S.E.2d at 375.
But Sears II did not mention any of those proceedings. It
referenced only the ex parte proceeding, which was designed to al-
low Sears to make the requisite showing that he needed a psychi-
atric evaluation, without being “placed in a position of revealing
his theory of the case.” Brooks v. State, 385 S.E.2d 81, 84 (Ga. 1989).
But at that ex parte hearing, Sears’s counsel had no reason to rehash
their arguments against the Sabel rule, which they had already
made at the prior hearings where the State was present. Yet Sears
II relied on trial counsel’s purported failure to raise the Sabel argu-
ment at this ex parte hearing, without acknowledging that the ar-
gument was, in fact, made at the proper times.
Because the record clearly contradicts Sears II’s determina-
tion about Sabel’s chilling effect, Sears has satisfied his burden to
show that the state court erred. See 28 U.S.C. § 2254(e)(1); Pye, 50
F.4th at 1035 (noting habeas petitioner’s burden to “show[] by clear
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 36 of 73
36 Opinion of the Court 18-13467
and convincing evidence that a particular state-court factual deter-
mination was wrong”). And we further conclude that Sears II’s fail-
ure to consider the full record resulted in an unreasonable determi-
nation of the facts. 28 U.S.C. § 2254(d)(2). Indeed, when state
courts have failed to consider or have mischaracterized record evi-
dence, as Sears II did here, federal habeas courts have concluded
that the state court decision was unreasonable.
For example, in Brumfield, a state court found that the record
failed to raise a question about the impairment of the petitioner’s
adaptive skills. 576 U.S. at 317. But the Supreme Court concluded
that the state court’s determination was unreasonable because “the
evidence in the state-court record provided substantial grounds to
question [the petitioner’s] adaptive functioning.” Id. at 319. The
Court highlighted the “substantial” record evidence that the state
court neglected and observed that the state court’s decision relied
on irrelevant evidence. Id. at 317–19. The state court’s failure to
consider all the evidence in the record amounted to an unreasona-
ble determination of the facts. Id. at 319–22. 13
13 In Brumfield, the Supreme Court also relied on the fact that the petitioner
“had little reason to investigate or present evidence relating to [his] intellectual
disability” at his trial because his trial was held before the Supreme Court’s
decision in Atkins v. Virginia, 536 U.S. 304 (2002), which recognized that the
execution of an intellectually disabled person violates the Eighth Amendment.
576 U.S. at 321. Brumfield explained that the state court “should have taken
into account” the effect of the subsequent change in law on the evidence pre-
sented. Id. at 321–22.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 37 of 73
18-13467 Opinion of the Court 37
We have reached similar conclusions when a state court’s
decision did not align with the record. In Ward v. Hall, a petitioner
argued that his right to a fair trial was violated when a bailiff im-
properly responded to a juror’s question about parole during the
penalty phase of his trial. 592 F.3d 1144, 1173 (11th Cir. 2010). Af-
ter the state habeas court found that there was no evidence that an
improper question was posed, we concluded that the state court’s
findings were “incorrect and an unreasonable determination of the
facts” because there was “clear” record evidence that contradicted
the state court’s conclusion. Id. at 1177–78 (internal quotation
marks omitted).
And in Jones v. Walker, we observed that the record belied
the Supreme Court of Georgia’s description of an attorney’s testi-
mony because the record showed that the attorney never gave the
particular testimony that the Supreme Court of Georgia described.
540 F.3d 1277, 1288 & n.5 (11th Cir. 2008) (en banc). We explained
that, by mischaracterizing the record, the state court “unreasona-
bly determined the facts” and we therefore “d[id] not owe the state
court’s findings deference under AEDPA.” Id.Our conclusion today mirrors those decisions. There is no
support for Sears II’s finding that Sears “failed to show any chilling
effect or other harm” from the Sabel rule. Sears II, 493 S.E.2d at
183. To the contrary, the record abundantly reflects that Sears’s
counsel argued that Sabel inflicted significant prejudice on Sears’s
defense. And Sears II mischaracterized the record when it faulted
Sears’s counsel for not arguing against the Sabel rule at the ex parte
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 38 of 73
38 Opinion of the Court 18-13467
hearing because that argument had already been raised at the
proper time. In sum, the state habeas court’s finding that the rec-
ord failed to support Sears’s assertion that the trial court applied
the Sabel rule was “an unreasonable determination of the facts in
light of the evidence presented.” 28 U.S.C. § 2254(d)(2).
ii. The decision in Sears II was based on an un-
reasonable application of Wardius.
Alternatively and additionally, to the extent the state court
required Sears to move forward with his motion for a psychiatric
evaluation to show a chilling effect or harm, that conclusion is un-
tenable in light of Wardius. We have previously considered a case
in which a state trial court held under Sabel that the defendant had
to disclose the identity and reports of all mental-health experts con-
sulted even if they would not testify at trial. Wellons I, 554 F.3d at
938. In Wellons I, we explained that “Wardius and Rower make clear
that the trial court’s Sabel ruling in [the defendant’s] case violated
the Due Process Clause of the Fourteenth Amendment because it
granted the prosecution greater discovery rights than [the defend-
ant] possessed in preparing for trial.” Id. at 939. 14 But Sears II does
14 The Supreme Court vacated our judgment in Wellons I in full based on its
assessment of a different claim presented in that case. Wellons v. Hall, 558 U.S.
220 (2010). As a result, Wellons I is void and even its discussion of Sabel is de-
prived of legal effect. United States v. Sigma Int’l, Inc., 300 F.3d 1278, 1280 (11th
Cir. 2002) (en banc). And because, on remand, we did not address the peti-
tioner’s Sabel claim, see Wellons v. Warden, Ga. Diagnostic & Classification Prison,
695 F.3d 1202 (11th Cir. 2012), the Wellons decisions provide no binding
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 39 of 73
18-13467 Opinion of the Court 39
not include any discussion of Wardius nor any consideration of the
impact of the Sabel rule on Sears’s constitutional rights. This defi-
ciency alone requires us to conclude that the state court unreason-
ably applied clearly established federal law. See 28 U.S.C.
§ 2254(d)(1).
In Wardius, the defendant sought to introduce alibi witness
testimony without complying with Oregon’s notice-of-alibi discov-
ery statute. 412 U.S. at 472–73. Similar to the lopsided Sabel rule,
the Oregon statute required the defense to give the State notice of
its alibi witnesses without requiring the State to provide the de-
fense with notice of its rebuttal witnesses. Id. at 471–72. After the
trial court prohibited the alibi witness from testifying, the defend-
ant brought an inequitable discovery challenge to the Supreme
Court of the United States. Id.In the Supreme Court, the State argued that because the de-
fendant failed to give the State notice of his alibi witness, he never
provided the state court with an opportunity to demonstrate its
willingness to permit reciprocal discovery. Id. at 476–77. As the
State saw things, the defendant was trying to “litigate the reciproc-
ity issue in the abstract in federal court after bypassing an
assessment of Sabel. That sequence does not impact our decision here,
though, because we conclude—independent of Wellons I—that Sears II unrea-
sonably applied Wardius. And to the extent we discuss Wellons I’s assessment
of Sabel, we find it to be persuasive and adopt it as our own. See Friends of the
Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1218 (11th Cir. 2009) (“We
are free to give statements in a vacated opinion persuasive value if we think
they deserve it.”).
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 40 of 73
40 Opinion of the Court 18-13467
opportunity to contest the issue concretely before the state judici-
ary.” Id. at 477.
The Supreme Court rejected the State’s argument. The
Court emphasized that “[a]t the time [the defendant] was forced to
decide whether or not to reveal his alibi defense to the prosecution,
he had to deal with the statute as written with no way of knowing
how it might subsequently be interpreted.” Id. Wardius acknowl-
edged the “considerable risk” to defendants posed by the State’s
suggested course of action. Id. If the defendant had revealed his
alibi witness to the State, in the hope that the trial court would re-
quire the State to disclose its rebuttal witnesses, he could not “re-
tract” his disclosure “should it turn out later that the hoped-for re-
ciprocal discovery rights were not granted.” Id.
Here, the Sabel rule placed Sears in a similar position: even
if the trial court had granted Motion 11 and allowed Sears to move
forward with the expert evaluation, Sears would have been forced
to disclose the information he sought to keep confidential if the
trial court later required non-reciprocal discovery (as it did in this
case). And if Sears had initially retained but ultimately opted not
to call an expert psychiatrist, the State could have “argue[d] to the
jury that the defendant would have called the expert had the result
of the testing been favorable to the defendant.” Sabel, 282 S.E.2d
at 69.
Under Sabel, then, Sears’s decision to pursue an expert psy-
chiatrist would have carried the “considerable risk” of a potential
adverse inference to the jury. Wardius, 412 U.S. at 477. And as in
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 41 of 73
18-13467 Opinion of the Court 41
Wardius, Sears “could not have retracted” his decision once he had
retained an expert and obtained an evaluation because he would
have already provided evidence to the State, whether in the form
of tangible discovery of the expert’s report or an adverse inference
if the expert was not called to testify. Id. So Wardius requires that
we acknowledge that Sears, too, “had to deal with the [Sabel deci-
sion] as written with no way of knowing how it might subse-
quently be interpreted.” Id. Under Wardius, Sears “cannot be
faulted for taking [Sabel] at its word.” Id. at 478.
The Supreme Court of Georgia’s decision to fault trial coun-
sel for “taking [Sabel] at its word” plainly contradicted Wardius. We
are thus not bound to defer to its adjudication of Sears’s Sabel claim.
Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1260 (11th Cir.
2016).
c. The Sabel error was not harmless.
Our conclusion that the state court’s resolution of Sears’s Sa-
bel claim was unreasonable under § 2254(d) does not end our anal-
ysis because we must also determine whether the state court’s er-
ror was harmless. Brecht, 507 U.S. at 637–38.
As we’ve explained, in habeas cases, a federal constitutional
error is harmless unless “actual prejudice” results from it, meaning
that the error had a “substantial and injurious effect or influence”
on the jury’s verdict. Id. (internal quotation marks and citations
omitted). That standard “is more favorable to and ‘less onerous’
on the state,” than the “beyond a reasonable doubt standard” be-
cause it is designed to reflect “the ‘states’ interest in finality,’ the
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 42 of 73
42 Opinion of the Court 18-13467
states’ ‘sovereignty over criminal matters,’ and the limitation of ha-
beas relief to those ‘grievously wronged[.]’” Mansfield v. Sec’y, Dep’t
of Corr., 679 F.3d 1301, 1307 (11th Cir. 2012) (quoting Brecht, 507
U.S. at 637) (alteration adopted).
To make this determination, “we must examine the [Sabel]
ruling in the context of [Sears’s] trial to assess the extent of any
prejudicial effect.” Wellons I, 554 F.3d at 939. See also Al-Amin v.
Warden, Ga. Dep't of Corr., 932 F.3d 1291, 1301 (11th Cir. 2019) (ex-
plaining that when conducting harmless-error analysis under
Brecht, we “must consider the specific context and circumstances of
the trial to determine whether the error contributed to the ver-
dict”). Under Brecht, an error is not harmless if, after reviewing the
record, we are left with a “grave doubt about the effect of the er-
ror.” O’Neal v. McAninch, 513 U.S. 432, 436 (1995); see also Davis v.
Ayala, 576 U.S. 257, 267–68 (2015).
i. Even without the psychiatric mitigation evi-
dence, the jury nearly imposed a life sentence.
Our assessment of the harm the Sabel rule imposed on
Sears’s trial is impacted by the facts surrounding the jury’s penalty-
phase deliberations. The circumstances of those deliberations re-
veal that Sears nearly received a life sentence.
After deliberating for around six hours during the penalty
phase, the jury sent the trial court a note announcing that it was
deadlocked eleven to one in favor of the death penalty. Sears III,
514 S.E.2d at 430. The jury asked the court how it should complete
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 43 of 73
18-13467 Opinion of the Court 43
the verdict form. Id. The trial court responded with the following
instruction:
You all have been deliberating on this case for six
hours. I would like you all to consider continuing
your deliberations and see what you can do with the
case. I’m not putting any pressure on you to [do] an-
ything one way or another. Whatever your decision
is, that’s [your] decision. But I feel like you need to
deliberate on the case longer.
Id. (alterations in original). 15
The jury resumed deliberations for another three hours. At
that point, the jury sent a second note which read,
[W]e have reviewed the case from start to finish and
we are still deadlocked eleven to one in favor of the
death penalty. All twelve jurors agree that there is a
hopeless deadlock with no hope of resolution. Delib-
erations have ceased. What do we do now? All minds
are closed.
Id. (alteration in original)
15 In Romine v. State, the Supreme Court of Georgia held that a trial court can
instruct a jury to continue its deliberations to “endeavor to reach unanimity
one way or the other on the question of sentence.” 350 S.E.2d 446, 450 (Ga.
1986) (internal quotation marks omitted). A Romine charge is a modified ver-
sion of an Allen charge. See Allen v. United States, 164 U.S. 492 (1896).
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 44 of 73
44 Opinion of the Court 18-13467
Sears asked the court to accept the jury’s “verdict” and im-
pose a life sentence. The court declined and instead again charged
the jury to keep deliberating. Id. The instruction said,
I believe it’s appropriate to give you some further in-
structions at this time. You’ve been deliberating a
while, and I deem it proper to advise you further in
regards to the desirability of agreement, if possible.
This case has been exhaustively and carefully tried by
both sides. It has been submitted to you for a decision
and verdict, if possible. While the verdict must be the
conclusion of each juror, and not a mere acquies-
cence of the jurors in order to reach agreement, it is
still necessary for all of the jurors to examine the is-
sues and questions submitted to them with candor
and fairness and with proper regard and deference to
the opinion of each other. A proper regard for the
judgments of others will greatly aid us in forming our
own judgments. Each juror should listen to the argu-
ments of other jurors. If the members of the jury
differ in their views of the evidence, or the mitigating
or aggravating circumstances, such differences of
opinion should cause them all to scrutinize the evi-
dence more closely and to re-examine the grounds of
their opinion. It’s your duty to decide the issues that
have been submitted to you, if you can conscien-
tiously do so. Do not hesitate to change an opinion if
you become convinced it’s wrong. However, you
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 45 of 73
18-13467 Opinion of the Court 45
should never surrender honest convictions or opin-
ions in order to be congenial or reach a verdict solely
because of the opinions of other jurors.
Id. at 430–31.
The jury was then excused for the evening. Id. at 431. The
jury resumed deliberations the following morning. Id. After an
hour and a half, the court was informed that one of the jurors had
a Sony Walkman on her head and had been asked to give it to the
bailiffs. Id. Additionally, the foreman had asked the bailiffs to re-
move all reading materials from the jury room. Id. The court ad-
vised counsel that it had received two notes from the jury room:
one from the foreman and one from the juror with the Walkman,
Juror Fisher. The note from the foreman (which contained blanks
instead of pronouns to “protect the gender of the juror” in ques-
tion) read,
In the jury selection process, each juror was read the
charges in this case. Murder was not one of the
charges. The reason that the juror who has stead-
fastly maintained [ ] position from the outset of delib-
erations has given for [ ] decision is that [ ] cannot vote
on the death penalty because the Defendant was not
convicted of murder. Can you provide the jury with
a transcript of the questions and answers as to their
position on the death penalty? We need to know what
questions were asked and how the jurors responded.
We would also like for you to provide to the jury a
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 46 of 73
46 Opinion of the Court 18-13467
definition of perjury and the penalty for the commis-
sion of perjury.
Id.
The note from Fisher read,
I am concerned about the actions of the foreman of
this jury. This letter is in reference to the foreman’s
most recent letter to you. [The foreman] wrote this
letter prior to our jury deliberations today. He in-
formed us that he was submitting the letter to you
whether we wanted him to or not. I don’t think this
type of behavior is appropriate for a foreman. I will
not sit on a jury where I am singled out. I am not
being treated fairly in this deliberating process. I am
also being singled out by the foreman, also he is over-
stepping his boundaries as a foreman of a jury. To my
understanding, a foreman should be a leader, not a
dictator. Please explain the duties and responsibilities
of a jury foreman. Should he be able [to] question a
juror’s response to the Court during jury selection?
Id.
The trial court brought the jury in, summarized the contents
of the notes, and informed the jury that it would not read the voir
dire transcript nor would it define perjury. Id. at 431. In doing so,
the court identified the foreman and Fisher by name, as the authors
of the respective notes. Id. at 438 (Fletcher, P.J., dissenting). The
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 47 of 73
18-13467 Opinion of the Court 47
court explained that the role of the foreman is to lead deliberations,
but “[i]n matters of voting, all jurors stand the same.” Id. at 431.
Finally, the court added,
A juror is responsible to deliberate in the jury deliber-
ations. A juror is supposed to listen to his or her fel-
low jurors. A juror is supposed to vote their ideas and
positions. A juror is supposed to participate. It is in-
appropriate for any juror to do anything other than
fully participate in jury deliberations.
Id. at 431–32.
The jury was sent back for further deliberations and two and
a half hours later, the jury announced it had reached a verdict. Id.
at 432. The final verdict found each of the statutory aggravating
factors and sentenced Sears to death. Id. Each juror was polled and
stated that the verdict was his or her verdict and that it was freely
and voluntarily rendered. Id.
When Fisher later testified at an evidentiary hearing held to
assess the coerciveness of the verdict, 16 she said that the foreman’s
perjury threat “frightened” her and led her to change her mind
16 In the context of Sears’s juror-coercion claim, the district court used the
Federal Rules of Evidence to limit its consideration of the scope of the evi-
dence that was introduced in the state evidentiary hearing and relied upon by
the Supreme Court of Georgia in Sears III. But during the evidentiary hearing,
the trial court applied Georgia’s rules of evidence and admitted Fisher’s testi-
mony. So we consider the testimony here in assessing any prejudice from the
Sabel error.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 48 of 73
48 Opinion of the Court 18-13467
because she feared that the “system [could] be manipulated such
that they may have, you know, some way had me, you know, on
trial for perjury.” And she testified that the other jurors were “yell-
ing” and “cursing” at her because they wanted her to change her
mind.
ii. The psychiatric mitigation evidence yields a
grave doubt about the outcome.
With this background, we turn to the mitigation evidence
that was not presented at trial because the Sabel rule prevented
Sears’s counsel from relying on a psychiatric expert. During his
state habeas proceedings—once the Sabel rule no longer posed a
risk to his defense—Sears was evaluated by two different experts.
The parties dispute whether we can consider the evidence Sears
developed in state habeas proceedings in our Brecht analysis. We
conclude that we can and, in fact, we must.
Under AEDPA, our initial review of whether a state-court
decision was reasonable is limited to the record at the time of the
state court’s decision. Pinholster, 563 U.S. at 181–82. But at the
prejudice analysis that Brecht requires, we are not so limited be-
cause we’ve already determined that Sears II was based on an un-
reasonable determination of the facts and an unreasonable applica-
tion of Supreme Court precedent. So “we are unconstrained by
§ 2254’s deference and must undertake a de novo review of the rec-
ord.” Daniel, 822 F.3d at 1260 (citation omitted). In other words,
we are “no longer bound by § 2254(d) or limited to consideration
of the facts developed in the state court record when evaluating the
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 49 of 73
18-13467 Opinion of the Court 49
merits of [Sears’s Sabel] claim.” Id. at 1280; see also Jones, 540 F.3d
at 1288 n.5 (“Because the Georgia Supreme Court unreasonably
determined the facts relevant to [petitioner’s constitutional] claim,
we do not owe the state court’s findings deference under AEDPA.
We therefore apply the pre-AEDPA de novo standard of review to
[petitioner’s] habeas claims.”).
In fact, under our precedent, we could not limit our harm-
less-error analysis to the record before the Supreme Court of Geor-
gia in Sears II. In McWilliams v. Commissioner, Alabama Department
of Corrections, after the Supreme Court of the United States held
that a state-court decision was unreasonable, we sought to deter-
mine whether the error imposed prejudice. 940 F.3d 1218 (11th
Cir. 2019). But there was no “record from which we could assess
prejudice, because there ha[d] been no evidentiary hearing” to de-
termine the effect of the state court’s error. Id. at 1226. Our answer
was not to perform the Brecht analysis based on the state-court rec-
ord, but rather, we concluded that “[p]rejudice must be pre-
sumed.” Id.So the State’s suggestion that our Brecht review is limited to
the record that was before the state court in Sears II is not correct.
If there were no subsequent record to determine the effect of Sears
II’s error, McWilliams instructs that we presume that the error im-
posed prejudice. In other words, we presume prejudice only when
there is no subsequent record to look to. But when a subsequent
evidentiary record exists, we must examine it to assess whether the
error inflicted prejudice. Here, an evidentiary record was
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 50 of 73
50 Opinion of the Court 18-13467
developed after Sears II, allowing us to evaluate whether Sears II’s
errors about the impact of the Sabel rule prejudiced Sears.
And because of the structure of the Sabel rule, the eviden-
tiary record to assess the rule’s prejudice could be developed in the
posttrial proceedings only. Sears’s trial counsel could have pre-
sented the court with a proffer of the relevant psychiatric evidence
only if they had retained an expert in the first place. And as we’ve
discussed, if they had retained an expert, that expert’s report would
have been turned over to the State, which could have used the re-
port against Sears, called the expert to testify even if Sears chose
not to, or used Sears’s decision to retain and not call an expert to
obtain an adverse inference. In other words, in the initial trial pro-
ceedings, Sears’s counsel was caught in the proverbial catch-22—
they could not develop a record about the Sabel rule’s harm with-
out the “considerable risk” of creating unfavorable evidence that
could be used against Sears. Wardius, 412 U.S. at 477. So this is not
a case in which a litigant could have presented the trial court with
evidence about the rule’s impact but failed to do so. The record
relevant to assessing the Sabel rule could be developed only after
Sears’s trial, when Sabel no longer posed a risk to Sears’s defense.
Notably, when we conduct the prejudice inquiry here, we
do not consider the Supreme Court of Georgia’s conclusion in Sears
V that any deficient performance by Sears’s trial counsel did not
impose prejudice under the standard set forth in Strickland. That is
so because the Strickland prejudice standard “is more stringent
(from a petitioner’s perspective) than the Brecht ‘substantial and
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 51 of 73
18-13467 Opinion of the Court 51
injurious effect’ standard.” Hittson v. GDCP Warden, 759 F.3d 1210,
1251 n.49 (11th Cir. 2014). 17 Indeed, the Strickland prejudice stand-
ard imposes a “higher burden” on the defendant than does the
Brecht standard. Kyles v. Whitley, 514 U.S. 419, 435–36 (1995); see
also United States v. Dominguez Benitez, 542 U.S. 74, 86 (2004) (Scalia,
J., concurring in the judgment) (describing Strickland standard as
“less defendant-friendly” than Brecht standard). So Sears V's analysis
under the Strickland standard is distinct from our analysis under the
Brecht standard.
As we consider the effect of Sears II’s Sabel error, our only
concern is whether that error had a “substantial and injurious effect
or influence” on the jury’s verdict, Brecht, 507 U.S. at 637–38—in
other words, whether we have a “grave doubt about the effect of
the error,” O’Neal, 513 U.S. at 436. If we are “‘in virtual equipoise
as to the harmlessness of the error’ under the Brecht standard, [we]
should ‘treat the error as if it affected the verdict.’” Fry v. Pliler, 551
U.S. 112, 121 n.3 (2007) (quoting O’Neal, 513 U.S. at 435) (altera-
tions adopted). 18
17 Hittson arose in the context of the “materiality” standard set forth in Brady
v. Maryland, 373 U.S. 83, 87 (1963). Hittson, 759 F.3d at 1251. Hittson relied on
cases decided in the Strickland prejudice context (such as Sears IV) because that
test is “identical” to the Brady materiality test. Id. at 1251 n.48.
18 The district court erred in its consideration of Sears’s Sabel claim because it
did not appreciate the difference between the Brecht standard and the Strick-
land standard and therefore deferred to Sears V’s prejudice analysis under
Strickland when the court should have considered the mitigation evidence de
novo under Brecht.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 52 of 73
52 Opinion of the Court 18-13467
After reviewing the entire record, we have more than a
“grave doubt” that the Sabel error had a substantial and injurious
effect on the jury’s death sentence. At trial, the mitigation evidence
centered on the argument that Sears’s crimes were completely out
of character and that a death sentence would have an adverse im-
pact on his family. Sears V, 751 S.E.2d at 377–80.
But the expert-related evidence developed during the habeas
proceeding provided different and powerful mitigation arguments.
In particular, once Sears’s postconviction counsel no longer feared
the inequities that the Sabel rule imposed, they were able to pro-
cure critical expert evidence about Sears’s mental-health deficien-
cies and present that evidence to the state habeas court.
Dr. Tony Strickland, a neuropsychologist, submitted an affi-
davit and gave both deposition and live testimony. Id. at 387. He
testified that he performed a neurological assessment of Sears. Id.According to Dr. Strickland, Sears “scored in the severely impaired
range on three out of four tests that measure higher executive func-
tion and abstract problem solving skills.” Id. at 388. Dr. Strickland
opined that the test results were consistent with “frontal/executive
deficits likely caused predominantly by the synergistic effects of re-
peated traumatic brain insults and chronic marijuana and cocaine
use.” Id. He explained that, “with a high degree of predictability,”
people with deficits like those Sears suffers from “generally make
poor decisions, become increasingly disorganized under stress, and
have problems with planning, sequencing, and impulse control.”
Id.USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 53 of 73
18-13467 Opinion of the Court 53
Sears also submitted an affidavit and testimony from Dr.
Richard Dudley, a psychiatrist. Dr. Dudley conducted a ten-hour
interview with Sears and reviewed many of the same documents
Dr. Strickland used. Id. Dr. Dudley found that Sears’s “profound
cognitive deficits . . . and gross psychiatric disturbances” are “pro-
foundly debilitating.” Affidavit of Richard G. Dudley, Jr., M.D. at
5, Doc. No. 18-28. He also found that Sears “exhibits extreme im-
pulsivity, drastically impaired executive functioning, inappropriate
affect, mood disturbance and grandiose thinking . . . .” Id. And he
concluded that those symptoms could have played a role in the
crime. Id. at 35–36.
When the Supreme Court of the United States reviewed this
evidence in Sears IV, the Court highlighted the fact that “[t]wo dif-
ferent psychological experts testified that Sears had substantial def-
icits in mental cognition and reasoning—i.e., ‘problems with plan-
ning, sequencing and impulse control,’—as a result of several seri-
ous head injuries he suffered as a child, as well as drug and alcohol
abuse.” Sears IV, 561 U.S. at 949 (quoting Strickland Affidavit at
147).
Because of his brain damage, the Court continued, Sears’s
“scores on at least two standardized assessment tests placed him at
or below the first percentile in several categories of cognitive func-
tion, ‘making him among the most impaired individuals in the pop-
ulation in terms of ability to suppress competing impulses and con-
form behavior only to relevant stimuli.’” Id. (quoting Strickland
Affidavit at 148). Specifically, “[o]n the Stroop Word Interference
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 54 of 73
54 Opinion of the Court 18-13467
Test, which measures response inhibition, 99.6% of those individ-
uals in [Sears’s] cohort (which accounts for age, education, and
background) performed better than he did.” Id. at 950 (citing
Strickland Testimony at 36–37). And “[o]n the Trail-Making B test,
which also measures frontal lobe functioning, Sears performed at
the first (and lowest) percentile.” Id. (citing Strickland Testimony
at 37–38). So Dr. Strickland concluded that “[t]here is ‘clear and
compelling evidence’ that Sears had ‘pronounced frontal lobe pa-
thology’” and that he suffered from “substantial cognitive impair-
ment.” Id. (quoting Strickland Testimony at 68).
Dr. Strickland’s assessment “also revealed that Sears’ ‘ability
to organize his choices, assign them relative weight and select
among them in a deliberate way is grossly impaired.’” Id. (quoting
Strickland Affidavit at 149). And his “‘history is replete with multi-
ple head trauma, substance abuse and traumatic experiences of the
type expected’ to lead to these significant impairments.” Id. (quot-
ing Strickland Affidavit at 150).
But the jury that sentenced Sears to death was not privy to
any of this information. And the Sabel rule is largely the reason.
Sears’s trial counsel could not pursue a psychiatric expert evalua-
tion because of the risk of an unfavorable result that would be dis-
closed to the State. If Sears’s trial counsel had been able to escape
the Sabel rule and secure an evaluation, Dr. Strickland believed that
Sears’s “serious cognitive impairment and emotional instability
[would] have been captured on tests administered” in the early
1990s, and that those tests “likely would have revealed more
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 55 of 73
18-13467 Opinion of the Court 55
profound deficits than those that existed at the time of [Dr. Strick-
land’s] testing” in 2004. Strickland Affidavit at 150.
But with Sabel looming, Sears’s counsel could not risk the
possibility of an unfavorable report that would be used against
Sears. So counsel was forced to pursue a different mitigation strat-
egy in which the jury was incorrectly led to believe—by both the
State and the defense—that Sears lived a charmed and comfortable
life with few obstacles. Because of Sabel, Sears’s trial counsel could
not effectively pursue the relevant mitigation evidence that would
have allowed the jury to consider Sears’s psychiatric disorders as it
made its sentencing decision.
Given the severity of Sears’s organic limitations, with the
added insight into Sears’s psychiatric disorders, the jury well could
have determined that Sears’s culpability was sufficiently mitigated
to spare his life. This is especially true here when only one juror’s
vote was required to impose a sentence other than death. See
Ward, 592 F.3d at 1180 (finding actual prejudice after “[b]earing in
mind that only one vote in favor of life imprisonment was needed
to avoid a death sentence”).
We think the strength of the psychiatric mitigation evidence
alone is sufficient to yield a “grave doubt” that the Sabel error af-
fected the outcome. But the jury’s hesitation to impose a death
sentence even without this evidence furthers our concerns. In Wig-
gins, the Supreme Court made clear that prejudice exists when
“there is a reasonable probability that at least one juror would have
struck a different balance.” 539 U.S. at 537. There, after evaluating
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 56 of 73
56 Opinion of the Court 18-13467
the powerful mitigation evidence uncovered in the posttrial pro-
ceedings, the Court found that “had the jury been confronted with
this considerable mitigating evidence, there is a reasonable proba-
bility that it would have returned with a different sentence.” Id. at
536. It did so, in part, because under the relevant state law, a death
sentence could be imposed only when the jury was unanimous. See
id. at 537. So any single juror’s vote to spare the defendant’s life
would have been sufficient.
As a result, when we have evaluated prejudice, we have fre-
quently considered the circumstances of the jury’s decision to as-
sess whether there is “a reasonable probability that at least one ju-
ror would have struck a different balance.” Wiggins, 539 U.S. at
537. After all, the contemporaneous facts surrounding the jury’s
decision will often bear on the ultimate question of whether a juror
may have changed her vote if presented with additional mitigation
evidence. In other words, a jury that (twice) describes itself as
“hopelessly deadlocked” is far more likely to strike a different bal-
ance in the face of new mitigating evidence than a jury that reached
a death sentence without the documented turmoil that Sears’s jury
experienced. And the jury’s difficulty in reaching a consensus pro-
vides the best available insight into whether the outcome would
have changed if the jury had been presented with the new mitiga-
tion evidence.
Indeed, we have previously found prejudice based on the
context of the jury’s deliberations in a case in which, “even with-
out” the compelling mitigation evidence that emerged in later
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 57 of 73
18-13467 Opinion of the Court 57
stages, “the jury still came within a single vote of recommending
life.” Hardwick v. Sec’y, Fla. Dep’t of Corr., 803 F.3d 541, 564 (11th
Cir. 2015) (citing Wiggins, 539 U.S. at 537); see also Daniel, 822 F.3d
at 1276 (finding prejudice partially because “if one more juror
voted for a sentence of life without parole, there could have been
no recommendation for death”); Cave v. Singletary, 971 F.2d 1513,
1519 (11th Cir. 1992) (“[D]espite the presentation of no mitigating
circumstances, [petitioner] came within one vote of being spared
execution.”); Blanco v. Singletary, 943 F.2d 1477, 1505 (11th Cir.
1991) (finding that “there was a reasonable probability that [peti-
tioner’s] jury might have recommended a life sentence” “[g]iven
that some members of [petitioner’s] jury were inclined to mercy”);
Lawhorn v. Allen, 519 F.3d 1272, 1297 (11th Cir. 2008) (finding prej-
udice after noting that “one juror voted to recommend life instead
of death” so defendant “needed only to convince two other jurors
to alter the outcome of the proceedings”).
Our sister circuits have also confronted cases in which the
trial jury “initially reported a deadlock regarding [petitioner’s] sen-
tence,” and concluded that “[e]ven a slightly more compelling case
for mitigation . . . might have altered the outcome of the sentencing
phase of [petitioner’s] trial.” Mason v. Mitchell, 543 F.3d 766, 780
(6th Cir. 2008). When considering prejudice, “[t]he jury’s initial
hesitance in reaching a verdict in the penalty phase . . . weighs to-
wards a finding of prejudice,” and “[a] jury note indicating hesi-
tance in reaching a penalty phase verdict suggests that a death sen-
tence for [petitioner] was not a foregone conclusion.” Sanders v.
Davis, 23 F.4th 966, 994–95 (9th Cir. 2022) (internal quotation
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 58 of 73
58 Opinion of the Court 18-13467
marks and citation omitted) (alteration adopted); see also Stankewitz
v. Wong, 698 F.3d 1163, 1175 (9th Cir. 2012) (“Another indicator of
prejudice . . . is the difficult time the jury had reaching a unanimous
verdict on death.”); Williams v. Stirling, 914 F.3d 302, 318 (4th Cir.
2019) (“[P]ersuasive mitigating evidence for a jury—particularly a
deadlocked one—considering the death penalty” could be “out-
come-determinative[.]”).
The record here reveals that even with the limited mitiga-
tion evidence that was presented during the penalty phase, due
largely to the Sabel rule, the jury still struggled to reach a consensus
regarding a death sentence. The jury engaged in contentious de-
liberations, and only after numerous declarations of deadlock and
several hostile exchanges did the jury return a “unanimous” verdict
sentencing Sears to death. Without Sabel, Sears’s counsel could
have obtained a psychiatric evaluation before the penalty phase
and presented the additional mitigation evidence, which could
have persuaded at least one juror to impose a sentence other than
death. Even without that evidence, a juror came close to doing so.
To be sure, the crimes here were horrific. And the jury, even
after learning that Sears was severely disabled and brain damaged,
may have still decided that Sears should be put to death. But the
trouble is that we can’t say we are without “grave doubt” about
that. As the Supreme Court of the United States put it in this very
case, the mitigation evidence “might not have made Sears any
more likable to the jury, but it might well have helped the jury un-
derstand Sears, and his horrendous acts—especially in light of his
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 59 of 73
18-13467 Opinion of the Court 59
purportedly stable upbringing.” Sears IV, 561 U.S. at 951. The
Court has also reminded us that the “qualitative difference be-
tween death and other penalties calls for a greater degree of relia-
bility when the death sentence is imposed.” Lockett v. Ohio, 438
U.S. 586, 604 (1978). See also Monge v. California, 524 U.S. 721, 732
(1998) (“Because the death penalty is unique ‘in both its severity
and its finality’ we have recognized an acute need for reliability in
capital sentencing proceedings.” (quoting Gardner v. Florida, 430
U.S. 349, 357 (1977))).
Our “grave doubt” regarding the “substantial and injurious”
impact of the absence of this evidence on the jury’s sentencing de-
termination requires us to conclude that the state court’s Sabel er-
ror was not harmless. Ayala, 576 U.S. at 268 (quotation omitted).
Even if the record left us only at “virtual equipoise” on the question
of prejudice, Supreme Court precedent tells us to treat the Sabel
error as harmful. See Fry, 551 U.S. at 121 n.3; O’Neal, 513 U.S. at
435. For these reasons, we grant Sears’s habeas petition as to this
issue and remand for a new sentencing hearing.
B. Remaining Claims
We briefly address Sears’s remaining claims.19
19 Because we hold that Sears is entitled to relief on his Sabel claim, we need
not and do not consider his claims that his trial counsel provided constitution-
ally ineffective assistance during the penalty phase of his trial or that his trial
counsel was constitutionally ineffective for failing to perfect the Sabel issue for
direct appeal. See Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328, 1331 n.1 (11th
Cir. 2011). Nor do we reach Sears’s claim concerning cumulative error.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 60 of 73
60 Opinion of the Court 18-13467
1. Brady
Sears argues that the State violated his rights under Brady v.
Maryland, 373 U.S. 83 (1963), when it failed to disclose that his co-
defendant Williams was prosecuted and convicted of assault while
incarcerated in the Cobb County jail. Sears argues this information
would have supported his theory that Williams initiated the kid-
napping of Ms. Wilbur. That evidence, according to Sears, could
have also been used to impeach Major Bruns’s testimony that Sears
“was the worst inmate at the Cobb County” jail.
A successful Brady claim requires proof that the government
withheld “evidence that is favorable to the defense and material to
the defendant’s guilt or punishment.” Smith v. Cain, 565 U.S. 73, 75
(2012). “Evidence is ‘material’ within the meaning of Brady when
there is a reasonable probability that, had the evidence been dis-
closed, the result of the proceeding would have been different.”
Turner v. United States, 582 U.S. 313, 324 (2017) (quotation omitted)
(alteration adopted).
Under AEDPA deference or de novo review, Sears has not
shown that, if he was aware of Williams’s assault conviction, the
result of his trial—at either the guilt or penalty phase—would have
been different. See Thompson v. Wainwright, 787 F.2d 1447, 1453
(11th Cir. 1986) (finding no prejudice where although new evi-
dence supported theory that co-defendant “initiated the beatings,”
the defendant “took over” and raped and beat the victim).
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 61 of 73
18-13467 Opinion of the Court 61
2. Coerced Verdict
Sears argues that his jury’s verdict was unconstitutionally
coerced by pressures from the trial judge, the foreman, and some
of the fellow jurors. In Sears’s view, the trial judge’s Romine
charges, the foreperson’s threat to seek perjury charges against the
lone holdout juror (Juror Fisher), and the other jurors’ “personal
attacks” against Fisher coerced her vote for a death sentence. In
Sears III, the state court concluded that Fisher’s vote for death was
not coerced but simply the product of the “normal dynamic of jury
deliberations.” 514 S.E.2d at 433 (quoting United States v. Cuthel,
903 F.2d 1381, 1383 (11th Cir. 1990)).
In Sears III, the Supreme Court of Georgia assessed Sears’s
claim that Fisher was coerced into voting for death. Because that
decision was adjudicated on the merits, it is also entitled to AEDPA
deference. As we’ve previously noted, we may grant relief on this
claim only if the determination in Sears III was (1) “contrary to, or
involved an unreasonable application of, clearly established Fed-
eral law, as determined by the Supreme Court of the United
States,” or (2) “based on an unreasonable determination of the facts
in light of the evidence presented in the [s]tate court proceeding.”
28 U.S.C. § 2254(d).
“Any criminal defendant, and especially any capital defend-
ant, being tried by a jury is entitled to the uncoerced verdict of that
body.” Lowenfield v. Phelps, 484 U.S. 231, 241 (1988). “Coercion
does not mean ‘simple pressure to agree.’” Brewster v. Hetzel, 913
F.3d 1042, 1053 (11th Cir. 2019) (quoting Smith v. United States, 542
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 62 of 73
62 Opinion of the Court 18-13467
A.2d 823, 824 (D.C. 1988)). “Pressure becomes coercive when the
actions of the court result in ‘a minority of the jurors sacrificing
their conscientious scruples for the sake of reaching agreement.’”
Id. (quoting Green v. United States, 309 F.2d 852, 854 (5th Cir. 1962))
(alterations adopted).
Assessing whether a verdict was coerced is a mixed question
of fact and law, which requires examination of “the totality of the
circumstances to see if the court’s actions created a substantial risk
that one or more jurors would be coerced into abandoning their
honest convictions.” Id. (citing United States v. Woodard, 531 F.3d
1352, 1364 (11th Cir. 2008)). See Gilbert v. Mullin, 302 F.3d 1166,
1171 (10th Cir. 2002) (“Whether a jury has been improperly co-
erced by a judge is a mixed question of law and fact.”). 20 A list of
relevant, but not exhaustive, circumstances include the following:
(1) the total length of deliberations; (2) the number of
times the jury reported being deadlocked and was
20 The Eighth Circuit has held that a state court’s juror-coercion determina-
tion raised questions of historical fact that were entitled to deference under
the pre-AEDPA version of 28 U.S.C. § 2254(d). See Stallings v. Delo, 117 F.3d
378, 381 (8th Cir. 1997). But even Stallings acknowledged that whether the
underlying facts give rise to a constitutional due-process violation is a legal
determination. Id. at 380. And when we do not owe AEDPA deference, we
review juror-coercion claims de novo, Brewster, 913 F.3d at 1053, which further
shows that we’ve treated this inquiry as a mixed question of fact and law and
not a purely factual determination. Cf. United States v. Lewis, 674 F.3d 1298,
1302–03 (11th Cir. 2012) (explaining ruling on motion to suppress is mixed
question of fact and law based on the totality of the circumstances with factual
findings reviewed for clear error and application of law reviewed de novo).
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 63 of 73
18-13467 Opinion of the Court 63
instructed to resume deliberations; (3) whether the
judge knew of the jury’s numerical split when he in-
structed the jury to continue deliberating; (4)
whether any of the instructions implied that the ju-
rors were violating their oaths or acting improperly
by failing to reach a verdict; and (5) the time between
the final supplemental instruction and the jury’s ver-
dict.
Brewster, 913 F.3d at 1053 (citations omitted).
Here, the court in Sears III concluded Fisher’s verdict was
not coerced. 514 S.E.2d at 433. Sears III noted that Fisher “knew
that she had not lied under oath.” Id. So even though she “felt
bullied by the threat of perjury” and “felt intense pressure from the
other jurors,” the court concluded that “she voted for the death
penalty because she felt pressured to do so only as a result of the
‘normal dynamics of jury deliberations.’” Id. (quoting Cuthel, 903
F.2d at 1383).
Three justices dissented. Id. at 438–40 (Fletcher, P.J., dis-
senting). The dissent identified several problems with the penalty-
phase deliberations that culminated, in their view, in a coerced ver-
dict.
First, the trial court learned of the numerical division of the
deadlock during the second day of deliberations: eleven to one in
favor of death. Id. at 439. The dissent cited Brasfield v. United States,
272 U.S. 448 (1926), for the principle that it is reversible error for a
trial court to ask a jury the nature of its split. Id. The dissent
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 64 of 73
64 Opinion of the Court 18-13467
acknowledged that in this case, the jury revealed the division with-
out being asked but concluded that the “danger” of coloring the
jury’s understanding of the judge’s instructions was still present in
this context. Id. (citing Williams v. United States, 338 F.2d 530, 532–
33 (D.C. Cir. 1964)). The dissent highlighted that Fisher testified
that she believed the judge wanted her to change her vote since he
kept sending them back for continued deliberations despite know-
ing that she was the lone vote for life. Id.Second, the dissent emphasized that after the trial court or-
dered the jury to continue deliberating for the third time, the court
failed to remind the jury that it was not to “surrender honest con-
victions in order to be congenial or to reach a verdict solely because
of the opinions of the other jurors.” Id. (citing United States v.
Berroa, 46 F.3d 1195, 1197 (D.C. Cir. 1995) (failure to instruct jury
that “that no juror should surrender his honest conviction as to the
weight or effect of the evidence solely because of the opinion of his
fellow jurors, or for the mere purpose of returning a verdict[]” was
reversible error)).
Third, and “most troubling,” according to the dissent, was
that “the trial court ignored the specter of a perjury prosecution
while forcing continued deliberations.” Id. at 438. The court iden-
tified Fisher by name, notifying the rest of the jurors that she had
been the recipient of a perjury threat, yet it “did nothing to dispel
the threat of a perjury prosecution against” her. Id. at 439. Instead,
it gave “open-ended” instructions regarding the duties of a fore-
man.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 65 of 73
18-13467 Opinion of the Court 65
The dissent acknowledged that the “final two notes revealed
a serious personal conflict within the jury room, which the evi-
dence on remand confirmed.” Id. Given the length of the deliber-
ations, the nature of the division, the judge’s awareness of the divi-
sion, the threatened perjury prosecution against the lone holdout,
the court’s inadequate final instructions, and the three-hour verdict
turnaround (despite the lack of progress in the previous ten-and-a-
half hours of deliberation), the dissent concluded that Sears’s death
verdict was coerced. Id. at 440.
Were we reviewing the propriety of the verdict de novo, we
would agree with the dissenting justices. The many issues with the
deliberations are apparent. Rather than accept the jury’s verdict
after the announced deadlocks, the trial court called out Fisher as
the recipient of the perjury threat, failed to assure her of its impro-
priety, and then exercised its discretion to compel continued delib-
erations (for a third time). In doing so, the court failed to remind
the jurors that they were not to sacrifice their honest beliefs for the
sake of building consensus or appeasing their peers. And worse
still, the court’s failures came after it knew the nature of the jury’s
division and that Fisher was the sole holdout juror.
The trial court ignored Fisher’s pleas for help against the
foreman’s threat that if she didn’t agree to a death sentence, she’d
be prosecuted for perjury. And rather than admonishing the jury
to be civil and focus on the facts and law as given (and not juror-
initiated prosecutions), the trial court again gave facially neutral in-
structions that could have been meant for only Fisher. When the
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 66 of 73
66 Opinion of the Court 18-13467
court sent Fisher back to the hostile deliberation room one last
time, it failed to caution the jurors against surrendering their hon-
estly held beliefs. Sears III, 514 S.E.2d at 439 (Fletcher, P.J., dissent-
ing) (“The failure to include these cautionary statements weighs in
favor of a finding of coercion.”). At that point, Fisher had little
choice but to surrender. So the pressure imposed on Fisher to
change her vote was improperly coercive, and the sentencing ver-
dict here could not stand under the criteria we explained in Brewster
if that were the controlling standard.
But under AEDPA, we must defer to Sears III so long as Sears
III did not unreasonably determine the facts in light of the evidence
presented or was not decided contrary to, or an unreasonable ap-
plication of, clearly established federal law as determined by the
Supreme Court. And here, Sears cannot meet the AEDPA standard
on either ground.
With respect to its factual determinations, Sears III re-
counted the circumstances leading to the verdict. 514 S.E.2d at
430–32. It then analyzed Fisher’s testimony and determined that
“it is clear that she voted for the death penalty because she felt pres-
sured to do so only as a result of the ‘normal dynamic of jury delib-
erations.’” Id. at 433 (quoting Cuthel, 903 F.2d at 1383).
While we do not endorse Sears III’s conclusion that the pres-
sure imposed on Fisher was in any way “normal,” we also cannot
agree that there is clear and convincing evidence that Sears III erred
in its factual determinations. Sears’s arguments depend on specu-
lation about what would have happened if Fisher disavowed her
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 67 of 73
18-13467 Opinion of the Court 67
vote during the polling process or what she would have testified
about her reasons for changing her vote if she had testified in full.
But even if we agree with Sears’s suggested inferences, the record
lacks clear and convincing evidence to establish their accuracy. So
we must defer to Sears III’s determinations.21
Nor can we conclude that Sears III unreasonably applied the
Supreme Court’s case law. The Court’s case law on the constitu-
tional rule against coerced verdicts is sparse. When Sears III was
decided, the primary case on this topic was Lowenfield. And in Low-
enfield, the Court held that the jury’s penalty-phase verdict was not
coerced after the trial court polled the jurors regarding whether
further deliberations would be helpful and then instructed the jury
to continue deliberating. 484 U.S. at 240–41.
To be sure, Lowenfield indicated that juror coercion can give
rise to a constitutional claim and that this inquiry is based on the
totality of the circumstances. 484 U.S. at 237–38; see also Wong v.
21 The result here differs from the result on Sears’s Sabel claim because, as we
explained in our discussion of Sears’s Sabel claim, Sears II omitted and mischar-
acterized key record evidence to reach its conclusion that the Sabel rule did
not impose a chilling effect on Sears’s trial counsel. These failures led to our
conclusion that Sears II unreasonably determined the facts underlying the Sabel
claim, given the evidence presented, and required us to conduct a de novo
review. By contrast, Sears III included the record evidence that was relevant
to the coerced-verdict claim. Our disagreement with Sears III’s conclusion is
insufficient to conclude that its determination was unreasonable. Brumfield,
576 U.S. at 313–14 (“We may not characterize these state-court factual deter-
minations as unreasonable merely because we would have reached a different
conclusion in the first instance.” (citation omitted) (alteration adopted)).
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 68 of 73
68 Opinion of the Court 18-13467
Smith, 562 U.S. 1021, 1023 (2010) (Alito, J., dissenting from denial
of certiorari) (“About all that can be said is that coercive instruc-
tions are unconstitutional, coerciveness must be judged on the to-
tality of the circumstances, and the facts of Lowenfield . . . were not
unconstitutionally coercive.”). But the Supreme Court has not
elaborated on times when juror coercion violates a defendant’s
constitutional rights. So we cannot conclude that Sears III unrea-
sonably applied existing federal law.
Sears points to two other cases in which the Court reversed
convictions based on jury instructions given in federal prosecu-
tions. See Jenkins v. United States, 380 U.S. 445 (1965) (per curiam);
United States v. U.S. Gypsum Co., 438 U.S. 422 (1978). But the Su-
preme Court has since explained that Jenkins and Gypsum Co. were
both based on the Court’s “supervisory power over the federal
courts, and not on constitutional grounds.” Lowenfield, 484 U.S. at
239 n.2; Early v. Packer, 537 U.S. 3, 10 (2002) (per curiam). So both
Jenkins and Gypsum Co. “are off the table as far as § 2554(d) is con-
cerned.” Packer, 537 U.S. at 10.
Without further explanation from the Supreme Court about
the constitutional claim against coercive instructions, even though
we would have reached a different conclusion, we cannot hold that
Sears III unreasonably applied clearly established federal law. We
therefore deny Sears’s petition on this ground.
3. Biased Juror
Sears argues that he was deprived of a fair and impartial jury
because one of the jurors (Juror Makant) failed to disclose his
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 69 of 73
18-13467 Opinion of the Court 69
daughter’s rape during jury selection and then raised the incident
during jury deliberations once his fellow juror announced she
made up her mind to vote for a life sentence. From Sears’s per-
spective, as a defendant prosecuted for rape, 22 it is fundamentally
unfair for a juror to withhold this information during jury selec-
tion, only to openly discuss it during jury deliberations after a fel-
low juror has revealed her decision to vote against a death sen-
tence. Sears’s trial attorney later testified that, if Makant had dis-
closed the fact of his daughter’s rape during jury selection, it would
have been “an absolute disqualifier[.]” Trial counsel testified that
he would have moved to strike Makant for cause, and if need be,
he would have exercised a peremptory strike to get him off the
jury.
Because the Supreme Court of Georgia adjudicated this
claim on the merits, see Sears III, 514 S.E.2d at 433–34, we must ap-
ply AEDPA deference to its decision. And we treat the state court’s
determination that the juror was not biased as a finding of historical
fact. Patton v. Yount, 467 U.S. 1025, 1036–37 (1984). Through
AEDPA’s lens, we cannot find the court “managed to blunder so
badly that every fair-minded jurist would disagree[]” with its ulti-
mate conclusion. Mays v. Hines, 141 S. Ct. 1145, 1149 (2021) (per
curiam).
22 While the State did not charge Sears with rape, it used the allegation of rape
as an aggravating factor to statutorily justify imposition of the death penalty.
See O.C.G.A. § 17-10-30.
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 70 of 73
70 Opinion of the Court 18-13467
To receive a new trial based on a juror’s incorrect answer
during jury selection, a defendant must demonstrate (1) that the
juror was dishonest and (2) that if the juror provided the correct
information, it “would have provided a valid basis” to strike the
juror “for cause.” McDonough Power Equip., Inc. v. Greenwood, 464
U.S. 548, 556 (1984).
Here, the state court found that Makant’s answer to the
question of whether any member of his family had “ever been the
victim of a violent crime” was not dishonest. Sears III, 514 S.E.2d
at 433. Makant testified at a posttrial hearing that he believed the
question referred to circumstances in which “there [had] been [a]
conviction or, you know, court proceeding on it.” Id. Because the
individual who raped Makant’s daughter had not been arrested or
prosecuted, he believed his negative answer to the question was
true. Id. The court found that Makant “answered the question
truthfully, as he understood it.” Id. In the alternative, the court
found that Makant’s answer, even if it were found to be dishonest,
“would not have provided a valid basis for a challenge for cause.”
Id. at 434 (citations omitted).
The truthfulness of Makant’s response is questionable given
that the same questionnaire, in the very next few lines, asked if the
crime led to anyone’s arrest or conviction. Id. at 433. Our concern
about truthfulness is amplified by Makant’s subsequent discussion
of the crime during the jury deliberations. Id. at 434. But we can-
not say that the Sears III court’s conclusion that a correct response
would not have provided a valid basis for cause was erroneous
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 71 of 73
18-13467 Opinion of the Court 71
“beyond any possibility for fairminded disagreement.” Shoop v.
Hill, 139 S. Ct. 504, 506 (2019) (per curiam) (quoting Richter, 562
U.S. at 103). Although Sears’s attorneys may have surely moved to
strike Makant for cause, we cannot say that the state court’s con-
clusion that Makant would not have been stricken for cause was
unreasonable. See, e.g., Fields v. Brown, 503 F.3d 755, 774 & n.12
(9th Cir. 2007) (“Being the spouse of a rape victim is not, in and of
itself, such an ‘extreme’ or ‘extraordinary’ situation that it should
automatically disqualify one from serving on a jury in a case that
involves rape.”); Gonzales v. Thomas, 99 F.3d 978, 989 (10th Cir.
1996) (“[A] rape victim as a matter of law [is not] incapable of being
impartial in the trial of an accused rapist.”).
4. Eleventh Hour Statutory Aggravating Factor
Sears argues that the State’s reliance on the “outrageous or
wantonly” vile aggravating factor, O.C.G.A. § 17-10-30(b)(7), with-
out providing him of notice of its intent to do so violated his con-
stitutional right to due process. This argument is foreclosed by our
decision in Grim v. Secretary, Florida Department of Corrections, 705
F.3d 1284, 1288–89 (11th Cir. 2013).
5. Failure to Recuse
Sears argues that his initial trial-court judge (who presided
over pretrial motions, not the trial) was not impartial, as he had a
social and professional relationship with the victim and her hus-
band. Thus, Sears submits his right to a fair trial was violated. See
Marshall v. Jerrico, Inc., 446 U.S. 238, 250 (1980) (A judge’s “impar-
tiality serves as the ultimate guarantee of a fair and meaningful
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 72 of 73
72 Opinion of the Court 18-13467
proceeding in our constitutional regime.”); In re Murchison, 349 U.S.
133, 136 (1955) (“A fair trial in a fair tribunal is a basic requirement
of due process.”).
But in state court, Sears raised his recusal challenge in Sears
I under only state law. So his claim is unexhausted, and he is not
entitled to relief. See 28 U.S.C. § 2254(b)(1)(A).
Ordinarily, a “mixed petition” with both exhausted and un-
exhausted claims should be dismissed, “leaving the prisoner with
the choice of returning to state court to exhaust his claims or of
amending or resubmitting the habeas petition to present only ex-
hausted claims.” Rose v. Lundy, 455 U.S. 509, 510 (1982). But we
have explained that “[d]ismissing a mixed petition is of little utility
. . . when the claims raised for the first time at the federal level can
no longer be litigated on the merits in state court because they are
procedurally barred.” Kelley v. Sec. for Dep’t of Corr., 377 F.3d 1317,
1351 (11th Cir. 2004). So we “forego the needless ‘judicial ping-
pong’ and just treat those claims now barred by state law as no ba-
sis for federal habeas relief.” Snowden v. Singletary, 135 F.3d 732,
736 (11th Cir. 1998).
Here, it is clear to us that Sears could no longer pursue his
recusal claim in state court. He presented this claim in his interim
appeal to the Supreme Court of Georgia, where it was decided on
the merits in Sears I. 426 S.E.2d at 554–55. And he does not include
any new facts here that were not before the court in Sears I. In such
circumstances, Georgia courts do not reconsider claims that were
already decided simply because a petitioner raises new or different
USCA11 Case: 18-13467 Document: 61-1 Date Filed: 07/19/2023 Page: 73 of 73
18-13467 Opinion of the Court 73
arguments. See Humphrey, 717 S.E.2d at 178 (“We reject [peti-
tioner’s] argument that his . . . claim should be re-opened, because
we find that he has pointed merely to a new means by which the
relevant facts might be proven rather than to any new underlying
facts.” (emphasis in original)). So the recusal claim that Sears brings
here would also fail in state court.
IV. CONCLUSION
Our review of the record compels the conclusion that Sears
is entitled to relief on Claim II of his First Amended Petition for
Writ of Habeas Corpus. We therefore affirm in part and reverse in
part the district court’s determination and remand with instruc-
tions that the district court issue a writ of habeas corpus vacating
Sears’s death sentence and conduct any further proceedings con-
sistent with this opinion.
AFFIRMED IN PART and REVERSED AND
REMANDED IN PART.