Travis Clinton Hittson v. GDCP Warden

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

__________________________

No. 12-16103

__________________________

D.C. Docket No. 5:01-cv-00384-MTT

TRAVIS CLINTON HITTSON,

Petitioner – Appellee–Cross Appellant,

versus

GDCP WARDEN,

Respondent – Appellant–Cross Appellee.

__________________________

Appeal from the United States District Court

for the Middle District of Georgia

__________________________

(July 9, 2014)

Before CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.

TJOFLAT, Circuit Judge:

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In April 1992, Travis Hittson and Edward Vollmer, who were enlisted men

in the Navy, brutally killed, mutilated, and dismembered their shipmate Conway

Utterbeck. Hittson confessed to the crime, and in February 1993 he was convicted

of murder in the Superior Court of Houston County, Georgia. During the penalty

phase of his trial, 1 Hittson tried to show that his co-defendant, Vollmer, had

planned the murder and manipulated Hittson into helping him carry it out. This

strategy fell short and the jury returned a unanimous death sentence, finding as an

aggravating factor that the murder “was outrageously or wantonly vile, horrible, or

inhuman.” See O.C.G.A. § 17-10-30(b)(7).

After Hittson exhausted his direct appeal and collateral attack remedies in

the Georgia courts, he petitioned the United States District Court for the Middle

District of Georgia for a writ of habeas corpus pursuant 28 U.S.C. § 2254. In his

petition, Hittson presented twenty separate claims for relief. Those relevant to this

appeal concern the penalty phase of his trial: (1) The trial court erroneously

allowed the State’s psychologist to testify to statements made by Hittson during a

court-ordered mental-health examination, in violation of Hittson’s Fifth

Amendment right against self-incrimination and Sixth Amendment right to the

1

Georgia death-penalty cases proceed in two phases. If a defendant is found guilty of a

capital offense during the guilt phase, then the case proceeds to the penalty phase, during which

the same jury must unanimously find at least one statutory aggravating factor in order to return a

death sentence. See O.C.G.A. §§ 17-10-2(c); 17-10-31(a).

2

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effective assistance of counsel. 2 (2) Hittson’s attorneys failed to properly present

to the jury expert testimony regarding his background and mental condition, thus

denying him his Sixth Amendment right to the effective assistance of counsel.

And (3) the State withheld exculpatory evidence in violation of the Due Process

Clause of the Fourteenth Amendment and the rule of Brady v. Maryland3—to wit,

a Navy psychiatric report diagnosing Vollmer with severe Antisocial Personality

Disorder, and two letters written by Vollmer from jail following his arrest, in

which he discussed the murder.

The District Court found that Hittson was entitled to habeas relief from his

death sentence based on the State psychologist’s testimony. Hittson v. Humphrey,

No. 5:01–cv–384 (MTT), 2012 WL 5497808, at *56 (M.D. Ga. Nov. 13, 2012).

The court found that trial court’s allowance of the psychologist’s testimony denied

Hittson his Fifth and Sixth Amendment rights under Estelle v. Smith, 451 U.S.

454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981),4 and that the testimony had a

“substantial and injurious effect” on the jury’s death sentence and was therefore

2

The Sixth Amendment right to counsel and the Fifth Amendment right against self-

incrimination have been made applicable to the states through the Fourteenth Amendment’s Due

Process Clause. See Duncan v. Louisiana, 391 U.S. 145, 148, 88 S. Ct. 1444, 1447, 20 L. Ed. 2d

491 (1968).

3

373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

4

More accurately, the District Court found, under § 2254(d)(1), that the Georgia

Supreme Court unreasonably applied Estelle in concluding that the trial court’s admission of the

psychologist’s testimony into evidence did not deny Hittson his Fifth and Sixth Amendment

rights.

3

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not harmless, see Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S. Ct. 1710, 1722,

123 L. Ed. 2d 353 (1993). The court denied the remainder of Hittson’s claims for

relief.

On appeal, the State now concedes that the trial court’s admission of the

psychologist’s testimony violated Hittson’s constitutional rights and does not

appeal the District Court’s ruling on this point—leaving only the question of

whether the admission of the testimony was harmless error under Brecht. Hittson

also cross-appealed the District Court’s denial of some of his penalty phase

challenges. The District Court granted Hittson a certificate of appealability

(“COA”) on his Brady claims, and we expanded the COA to include his

ineffective-assistance-of-counsel claim—that counsel failed to present expert

testimony relating to Hittson’s background and mental condition.

We expanded the COA a second time after the Supreme Court decided

Trevino v. Thaler, __ U.S. __, 133 S. Ct. 1911, 1852 L. Ed. 2d 1044 (2013)—by

which point briefing was already underway in this appeal. Trevino recognized

certain circumstances in which a federal court may excuse a habeas petitioner’s

failure to properly raise his claims in state court. __ U.S. at __, 133 S. Ct. at 1920–

21; see also Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309, 1320–21, 182 L. Ed. 2d

272 (2012). Before Trevino came down, Hittson sought leave from the District

Court to add four new claims to his federal petition—claims that he had not raised

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in any of his state proceedings. The District Court denied the motion. Because

Trevino has some bearing on the District Court’s analysis, we expanded Hittson’s

COA to decide:

Whether Hittson should be allowed to amend his federal habeas

petition to include claims of ineffective assistance of trial counsel

which were previously defaulted through prior counsel in state habeas

proceedings in light of the United States Supreme Court’s ruling in

Trevino v. Thaler . . . .

After reviewing the record and entertaining the parties’ arguments in open

court, we (1) reverse the District Court’s grant of habeas relief setting aside

Hittson’s death sentence based on the State psychologist’s testimony, (2) affirm the

District Court’s denial of Hittson’s Brady claims and ineffective-assistance-of-

counsel claim, and (3) hold that Trevino does not enable Hittson to raise new

claims that he failed to litigate in state court.

Part I of this opinion describes the crime, as presented to the jury in the

State’s case in chief, and the law enforcement’s investigation. Part II covers

Hittson’s 1993 trial, his direct appeal to the Georgia Supreme Court, and that

court’s refusal to grant him habeas corpus relief. Part III covers the § 2254

proceedings in the United States District Court and its granting of the writ setting

aside Hittson’s death sentence. Part IV explains the standard we apply under

§ 2254 in reviewing the Georgia courts’ denial of Hittson’s constitutional claims.

In parts V, VI, and VII, we review and dispose of those claims. Part VIII explains

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our reasons for concluding Hittson may not rely on Trevino to excuse his

procedural default. And we briefly conclude in part IX.

I.

A.

In the spring of 1992, Travis Hittson, Edward Vollmer, and Conway

Utterbeck were stationed aboard the USS Forrestal, an aircraft carrier that was

based in Pensacola, Florida, at the time. They were all assigned to the electrical

division of the engineering department. Vollmer and Hittson were on the same

work detail, and Vollmer was Hittson’s Leading Petty Officer. Utterbeck had a

different assignment but worked in a similar capacity in the same area of the ship.

On Friday, April 3, 1992, Vollmer invited Hittson and Utterbeck to come

with him to his parents’ house in Warner Robins, Georgia, for the weekend. His

parents were out of town. Apparently neither Hittson nor Utterbeck was aware that

the other had also been invited until shortly before they left Pensacola. The three

men arrived at Vollmer’s parents’ house late Friday evening, but they did not have

a key, so they spent the night in a storage shed behind the house. On Saturday,

April 4, a friend of Vollmer’s parents came by to check on the house; finding

Vollmer and the two others there, he gave them a key. The three sailors spent most

of the day on Saturday hanging around the house, but sometime Saturday evening,

Hittson and Vollmer went out drinking. They left Utterbeck at the house.

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Early in the morning of Sunday, April 5, after several hours of drinking,

Hittson and Vollmer headed back to the Vollmer residence. According to the

statement later given by Hittson to law enforcement, he was very drunk by that

time. On the drive back, Vollmer worked Hittson up by telling him that Utterbeck

was “going to get us”—that Utterbeck was plotting to kill the two of them—so

“we’ve got to get him” by killing him first. At some point—though it is not clear

when—Vollmer told Hittson that Utterbeck had a hit list with Hittson’s and

Vollmer’s names on it. When they pulled into the driveway, Vollmer put on a

bulletproof vest and a long trench coat and grabbed a sawed-off shotgun and a .22

caliber handgun from his car. He gave Hittson an aluminum bat that was also in

the car and told Hittson that Utterbeck was waiting for them inside the house and

was planning to shoot them. 5 Vollmer instructed Hittson to go in first and “get

him” and then “get him in the kitchen”—so they would not make a mess on the

carpet.

When Hittson entered the house, he found Utterbeck asleep in a recliner in

the living room. Hittson sneaked up on him and hit him in the head with the bat.

5

While Vollmer’s parents did have guns in their house, it has never been established

whether Vollmer (whom Hittson described as “very paranoid”) actually believed that Utterbeck

was planning to kill them that night, or if Vollmer just told Hittson as much to get him to kill

Utterbeck. There is no evidence in the record to indicate that Utterbeck harbored any particular

ill will towards either Hittson or Vollmer, or that Utterbeck had any intention to do them harm

that night. And, other than the crime itself, there is no evidence in the record to indicate that

Vollmer or Hittson had a reason to kill Utterbeck.

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Utterbeck woke up and jumped up out of the chair. Hittson hit him in the head

again, knocking him to the floor. Utterbeck raised a hand to defend himself, so

Hittson hit his hand with the bat and then hit him in the head a third time. The

third hit was apparently enough to subdue Utterbeck. Hittson dragged him by his

hands into the kitchen, where Vollmer was waiting. Utterbeck was still conscious

and asked Hittson, “what did I ever do to you?” Vollmer gave Hittson the .22

pistol and stood on Utterbeck’s hand to keep him from struggling. Utterbeck

screamed “no, no,” and begged for his life, but Hittson shot him point blank in the

forehead. In his own words, “I had no emotion or nothing on my face. I know I

didn’t. I was cold and Vollmer steps on his hand and . . . handed me the gun, I shot

him.”

Hittson and Vollmer stripped Utterbeck’s body, taking the $62 they found in

his pockets. They left the body in the kitchen and went to a nearby Waffle House

to get something to eat. Upon their return, Vollmer told Hittson that they had to

dismember the body and clean up the house to conceal the crime. They initially

tried to cut up the body with a serrated steak knife from the kitchen, but then

switched to a hacksaw from the tool shed out back. They also found a piece of

slate in the shed, which they placed under the body to avoid scratching up the

kitchen floor. Following Vollmer’s directions, Hittson sawed off one of

Utterbeck’s hands and began working on sawing off his head, but got sick and had

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to stop. Vollmer finished sawing off the head, the other hand, and both feet.

Vollmer also skinned part of Utterbeck’s arm and chest with a knife and a pair of

pliers. The autopsy later showed that Utterbeck’s buttocks and penis were partially

skinned and his testicles and rectum were removed. Hittson denied performing the

sexual mutilation and stated that he had not seen Vollmer do it either.

After finishing their grisly task, Hittson and Vollmer wrapped Utterbeck’s

torso and severed body parts in plastic bags and left them in the kitchen while they

drove to a nearby wooded area to dig a shallow grave. As they were returning to

Vollmer’s parents’ house—around 10:30 on Sunday morning—they happened to

pull onto the highway in front of a local woman who was traveling in the same

direction. The woman took notice of Vollmer’s car, which had an out-of-state

license plate and was pulling off of a lightly traveled dirt road that led to an

undeveloped tract of land owned by a friend. Suspicious, she wrote down the

license plate number and a description of the car, which she later turned over to the

Houston County Sheriff’s Office after Utterbeck’s torso was discovered on the

property two months later.

Hittson and Vollmer returned to Vollmer’s parents’ house and began

cleaning the blood off the kitchen floor and the living room carpet. Vollmer’s

sister-in-law (who lived nearby) came by around noon on Sunday, while they were

still cleaning. Vollmer left with her to go grab a bite to eat, without ever letting her

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inside the house. While they were gone, Hittson kept cleaning. When Vollmer

returned, he and Hittson drove back out to the grave to bury Utterbeck’s torso and

then went back to the house to finish cleaning. The family friend who had given

them the key came by Sunday evening to check on the house again. Hittson had to

quickly hide Utterbeck’s clothes and throw a blanket over a lingering blood spot in

the living room. When the family friend asked where the third guy was, Vollmer

told him that Utterbeck was asleep in the back room.

Hittson and Vollmer finally finished cleaning up the house sometime

Sunday evening, and so they packed up and set out for Pensacola. They put

Utterbeck’s severed hands, head, and feet in the trunk of Vollmer’s car, along with

a few other pieces of evidence, including Utterbeck’s clothing, his identification

card, and the .22 shell casing. They threw Utterbeck’s clothing and ID card in a

dumpster close to Vollmer’s parents’ house. Before leaving Warner Robins, they

stopped at Vollmer’s sister-in-law’s for about an hour to say goodbye. As they

drove back to Pensacola, Vollmer tried to find a good place to dump the remaining

body parts, but apparently did not find a spot to his liking.

They made it back to Pensacola around 6 a.m. on Monday, April 6. With

Utterbeck’s body parts still in Vollmer’s trunk, they drove onto the Navy base and

reported for duty aboard the Forrestal. When they got off work that day, they

drove to a wooded area outside of Pensacola and buried the body parts in several

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shallow holes. On their drive back into town, they scattered some remaining

pieces of evidence in a few dumpsters.

B.

When Utterbeck failed to report for roll call on Monday, April 6, the Navy

took note of his unauthorized absence but did not further investigate until later that

month, when Utterbeck’s mother called his division commander to tell him that she

had not heard from her son since the first weekend in April—when he had traveled

to Warner Robins with two shipmates. Inquiries aboard the Forrestal led Navy

personnel to Hittson and Vollmer. When questioned about Utterbeck’s

whereabouts, they confirmed that they had gone to Vollmer’s parents’ house over

the April 3 weekend with Utterbeck, but they claimed that they dropped him off at

a bar in Pensacola sometime in early morning hours of Monday, April 6. On April

27, 1992, the Naval Investigative Service issued a missing persons alert for

Utterbeck, and on May 5 he was declared a Navy deserter.

On June 16, 1992, Utterbeck’s torso was discovered by loggers who were

clearing the wooded property near Vollmer’s parents’ house. The loggers called

the Houston County Sheriff’s Office, who unearthed the torso and sent it to the

state crime lab in Atlanta. The autopsy did not reveal the victim’s identity. Upon

hearing about the dead body, the local woman, who had months earlier written

down Vollmer’s license plate, called the sheriff’s office. The plate number she had

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written down was off by one digit, so the Houston County officials were not able

to immediately trace the car to Vollmer.

On June 23, 1992, after receiving no new leads on Utterbeck’s whereabouts,

Navy investigators broadcast a request to other law enforcement agencies for

information regarding any unidentified bodies matching Utterbeck’s general

description. The Houston County Sheriff’s Office responded the same day,

informing the Navy that they had unearthed the remains of a white male matching

Utterbeck’s characteristics approximately two miles from Vollmer’s parents’

house, with a time of death estimated sometime in early April.

Investigators from Houston County and the Navy interviewed Hittson on

June 25, 1992. Hittson initially stuck to his story—that he and Vollmer had

dropped Utterbeck off at a bar sometime early Monday morning—but after being

confronted with the investigators’ suspicions that they had found Utterbeck’s

dismembered body, Hittson confessed that he and Vollmer had murdered

Utterbeck and buried him there. In a taped statement given to the investigators—

which was later played for the jury—Hittson described the murder,

dismemberment, and disposal of the body parts in detail. After confessing, Hittson

led investigators to the spot outside Pensacola where the remaining body parts

were buried. He also told the investigators where to find the baseball bat, which he

and Vollmer had stashed in the rafters of the shed at Vollmer’s parents’ house.

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Hittson was then taken into custody by the Houston County Sheriff’s Office. That

same day, Vollmer was arrested in Houston County, at his parents’ house.

The next day, investigators executed search warrants for Vollmer’s car and

his parents’ house. They found traces of blood and .22 caliber ammunition in the

trunk of Vollmer’s car. They recovered the .22 pistol, the aluminum bat, the

hacksaw, the piece of slate Hittson and Vollmer used during the dismembering,

and other various pieces of evidence from the house, and they found traces of

blood on the kitchen floor and baseboard.

II.

A.

A Houston County grand jury returned an indictment on June 30, 1992,

charging Hittson and Vollmer with four counts: Count One, malice murder; Count

Two, armed robbery; Count Three, aggravated assault; and Count Four, possession

of a firearm during the commission of a crime. At arraignment, both defendants

pled not guilty, and in September 1992, the Houston County District Attorney filed

a notice of the State’s intention to seek the death penalty. The cases against

Hittson and Vollmer were severed; at a joint trial, Hittson’s confession, which

implicated Vollmer, would technically be introduced against Hittson only, but the

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spillover effect would deny Vollmer a fair trial.6 The case against Hittson would

be tried first.

Hittson’s trial began on February 25, 1993, in the Superior Court of Houston

County. During the guilt phase, Hittson’s recorded confession formed the

framework for the State’s case, with various experts and lay witnesses confirming

the gory details Hittson related and a raft of gruesome autopsy photos showing

Utterbeck’s partially-decomposed torso and severed head, hands, and feet. The

State rested its case after three days, and Hittson did not put on a defense to contest

guilt. On Saturday, February 27, 1993, the jury found Hittson guilty on all counts. 7

The penalty phase of the trial began Monday, March 1. Under Georgia law,

to sentence a convicted murderer to death, the jury must return a unanimous

verdict finding at least one statutorily defined aggravating factor. See O.C.G.A.

§ 17-10-31(a). The State, relying on the evidence presented in the guilt phase,

pointed to two such factors in support of a death sentence: the murder was

committed during the commission of an aggravated battery, see id. § 17-10-

30(b)(2), and the murder “was outrageously or wantonly vile, horrible, or inhuman

6

At a joint trial, unless Hittson took the witness stand, which would be highly unlikely,

Vollmer would be unable to examine him about his confession. See generally Reeves v. State,

237 Ga. 1, 3, 226 S.E.2d 567, 568 (1976) (“[T]he admission of a co-defendant’s confession that

implicated another defendant at a joint trial constitutes prejudicial error . . . .” (citing Bruton v.

United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 1622, 20 L. Ed. 2d 476 (1968)).

7

On Count Two, armed robbery, the jury found Hittson guilty of the lesser charge of

theft by taking.

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in that it involved torture, depravity of mind, or an aggravated battery to the

victim,” see id. § 17-10-30(b)(7). 8 The State did not put on any new evidence

during the penalty phase.

A Georgia jury must also consider mitigating factors in deciding whether to

return a death sentence. Id. § 17-10-30(b). Even if the jury finds an aggravating

factor, they may still return a life sentence, with no requirement that they explain

their reasons for doing so. Head v. Thomason, 276 Ga. 434, 436, 578 S.E.2d 426,

429 (2003).

Hittson’s defense against a death sentence took a day and a half; it consisted

of the testimony of twenty lay witnesses who either knew Hittson before he joined

the Navy or worked with him or supervised him on the Forrestal. The witnesses

portrayed Hittson as a good-natured guy who, though somewhat dim-witted, was a

hard worker and was eager to please. His shipmates, some of whom shared an

apartment with him in Pensacola, testified that Hittson drank frequently and

heavily and would sometimes do stupid things when drunk. The defense also

elicited testimony that Hittson grew up in an unaffectionate home and was

constantly in search of affirmation from others, he occasionally grew depressed

8

The State initially proposed a third aggravating factor, that the murder was committed

during the commission of another capital felony (the armed robbery). However, because the jury

found Hittson guilty of theft by taking instead of armed robbery, see note 7, supra, the trial court

only instructed the jury on the two aggravating factors listed above.

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because he thought no one could love him, and he would go to great lengths to be

accepted by others. Several of his shipmates testified that he was impressionable

and gullible and would generally go along with whatever he thought people wanted

from him. His supervisors had similar assessments—e.g., “he was just a kid that

needed some guidance and direction,” and “he had a very fragile personality and

he wanted to fit in.” Lt. Cornelius Mapp, Hittson’s division officer, explained that

“Hittson’s the type of person that you can convince that he’d done anything.” In

his assessment, Hittson wasn’t capable of such a brutal murder—“If he’s guilty, I

think he’s guilty of being in the presence of a crime and he didn’t report it.”

In contrast to painting Hittson as the easily-duped kid with a dependent

personality, the defense sought to portray Vollmer as a violent sociopath who had

plotted the murder and manipulated Hittson into helping him carry it out. Several

witnesses testified that Vollmer was intelligent and domineering; one shipmate

explained that he “wanted people to think he was in control,” and a friend of

Vollmer’s explained that he “liked to play with people’s heads.” The defense

submitted letters written by Vollmer that showed him to be arrogant and violent.9

Shipmates described Vollmer as a “violent guy” who “likes to hold a grudge” and

9

For example, Vollmer bragged about participating in gang fights, dealing drugs, and

putting bounties out on rivals’ heads; he called himself “King of the Knights of Death” and

wrote, “I’m not afraid of dying and I have no problem with killing anyone . . . . Morals are for

losers trying to justify their place in life.”

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was known to keep his bulletproof vest and aluminum bat in his car and

occasionally carry a sawed-off shotgun under his trench coat.

The defense laid out evidence that Vollmer had been contemplating murder

long before the April 3 weekend. On three or four occasions, Vollmer borrowed a

shipmate’s copy of a documentary describing forensic techniques used to detect

and solve murders. He read books about murder. He told several people, both

before and after the murder, that the best way to dispose of a body was to cut it up.

In one of his letters, Vollmer described a detailed plan to murder the boyfriend of a

woman he used to be romantically involved with.10 Regarding Utterbeck, a few

witnesses testified that Vollmer did not like him and, prior to the murder, had told

shipmates who had disagreements with Utterbeck that he would “take care of” him

for them. No one ever identified a concrete motive for either Vollmer or Hittson,

but the inference the defense team wanted the jury to draw was that Vollmer had

been thinking about killing someone for quite a while, and on that April weekend,

Hittson “was led by Mr. Vollmer to do this out of some perverse or demented

fantasy that Mr. Vollmer had entertained.” 11

10

The plan laid out in the letter had no obvious similarities to Utterbeck’s murder.

11

Doc. 56-9, at 95 (testimony given by trial counsel during habeas proceedings before the

Butts County Superior Court).

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According to the defense’s theory, it was no surprise that someone like

Hittson would be vulnerable to manipulation by someone like Vollmer. The

narrative they sought to create was “that basically away from the co-defendant,

[Hittson] was a pretty harmless guy . . . he drank a lot, but, basically, he was sort of

a needy kind of harmless little guy, and that Mr. Vollmer was the brains of this

operation and basically manipulated [Hittson] into doing something that he would

have never done.” 12 One witness during the penalty phase described Hittson as

Vollmer’s “sidekick”—his “dog.” In the words of another witness, “Vollmer was,

you know, he liked to tell somebody what to do, and Hittson was the kind of guy,

you know, if you’re his friend and . . . you tell him something to do, he’ll do it. So

Vollmer had somebody to tell what to do and somebody to do it, and Hittson had

somebody who . . . would tell him what to do.”

To further distinguish Hittson from Vollmer, the defense presented

testimony that, after that April weekend, their relationship deteriorated. Vollmer

continued to be the “same old guy.” He jokingly told his friends that he had killed

Utterbeck and told shipmates that if they shot someone, to shoot them in the heart

instead of the head, because head wounds bleed too much. In comparison, Hittson

stopped hanging around Vollmer after the murder—they even got in a fight shortly

12

Doc. 75-17, at 61–62 (testimony given by trial counsel during habeas proceedings

before the Butts County Superior Court).

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before they were arrested—and Hittson became withdrawn and depressed and

began to drink even more. One night after some heavy drinking, Hittson confessed

to his best friend, Steven Nix, that Utterbeck “wasn’t ever coming back.” When

asked if Hittson appeared remorseful during this conversation, Nix responded,

“[l]ooking back now, maybe, he might have been.”

To rebut Nix’s testimony that Hittson might have been remorseful, the State

called Dr. Robert Storms, the psychologist the State had employed to examine

Hittson prior to trial,13 to testify to statements made by Hittson during the

examination. Prior to trial, the defense team had Hittson examined by a

psychologist and psychiatrist and were considering using some of the experts’

findings as mitigation evidence during the penalty phase. To preserve their right to

present this evidence, a few weeks before the trial began they filed a Notice of

Intent of Defense to Raise Issue of Insanity or Mental Incompetence. See Ga.

Unif. Super. Ct. R. 31.4 (1993) (now Rule 31.5). To allow the State to counter the

defense experts’ findings, the trial court granted the State’s motion for an order

requiring Hittson to submit to an examination by an expert of the State’s choosing,

Dr. Storms. Hittson’s attorneys were allowed to attend the examination, and

13

Dr. Storms was the senior psychologist in the Forensic Services Division of the

Central State Hospital in Milledgeville, Georgia.

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Hittson signed a form waiving his Miranda14 rights before talking to Dr. Storms.

During the interview, Hittson described Utterbeck as a “hillbilly” and an “asshole.”

The defense team eventually decided not to put on any expert opinion testimony of

Hittson’s mental condition; instead, they stuck to the lay testimony they had

already presented and rested their case. Nonetheless, the State, in rebuttal,

proffered in camera the testimony Dr. Storms would give, as a “lay” witness, about

Hittson’s description of Utterbeck—ostensibly to counter Nix’s testimony that

Hittson was remorseful. The defense team strenuously objected to the proffer on

the grounds that Hittson’s waiver of his Miranda right against self-incrimination

was limited to the admission of Dr. Storms’s opinion testimony to rebut the

defense experts’ opinions. The court overruled the objection, and Dr. Storms

testified before the jury in accordance with his proffer.

After stating his name, position, and reason for interviewing Hittson, Dr.

Storms testified as follows:

Q Now, in the course of . . . your interview with [Hittson] did you,

at any time, ask him about his opinion, or to give some statement

about Mr. Conway Utterbeck?

A Yes. I wanted to find out about that relationship.

14

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In signing

the form, Hittson purported to waive his right to remain silent—his right against self-

incrimination—during the examination.

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Q All right. And if you would, please, state what this defendant

said about Conway.

A Well, at one point he stated that Mr. Utterbeck was a “hillbilly,”

and at another point he stated that he was an “asshole.”

Hittson’s attorneys did not cross examine Dr. Storms or present any evidence in

surrebuttal.

In its closing argument to the jury, the State made reference to the “hillbilly”

and “asshole” comments again:

[Y]ou’ve heard one of the defense witnesses talk about, well, as I

think about it now he was remorseful. I think he was remorseful.

Well, members of the jury, there’s your remorse. (Referring to

easel.)[15] As early, or as late, rather, as three weeks ago this is this

defendant’s response when asked about Conway Utterbeck being an

innocent human being. Conway was a hillbilly, he was an asshole. Is

that remorse? What does your common sense tell you? What does

reason tell you?

In the defense’s closing argument, Hittson’s attorney discounted the

comments and sought to mitigate their impact by pointing out Hittson’s

cooperation with investigators—he confessed, led investigators to the body parts,

and told them where to find the bat. In other words, regardless of how Hittson

described Utterbeck, he was clearly overcome with guilt about what he had done—

15

The record does not indicate what was displayed on the easel, but one of Hittson’s

attorneys testified before the Butts County Superior Court, in a hearing on Hittson’s petition for a

writ of habeas corpus, that the District Attorney wrote “hillbilly” and “asshole” on “big poster

boards” and displayed them to the jury during some portion of his closing argument.

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why else would he have confessed and aided investigators in making the case

against him?

The court charged the jury with their task—that, in considering whether to

impose the death penalty, they unanimously find at least one aggravating factor to

exist beyond a reasonable doubt. In explaining the requirements for finding that

the murder was “outrageously or wantonly vile, horrible, or inhuman,” the court

instructed the jury that they must find that the murder involved either “[1]

depravity of mind; or [2] torture of the victim prior to the death of the victim; or

[3] aggravated battery to the victim prior to the death of the victim.” See O.C.G.A.

§ 17-10-30(b)(7). The court further clarified that “[d]epravity of mind is a

reflection of an utterly corrupt, perverted, or immoral state of mind,” and in

deciding whether the murder involved such a mindset, the jury could consider “the

actions of the defendant prior to and after the commission of the murder,”

including whether the defendant “subjected the body of a deceased victim to

mutilation.”

The jury took all of the evidence from the guilt phase with them into

deliberations, including a picture of Utterbeck before the murder; pictures of

Utterbeck’s mutilated torso and severed head, hands, and feet; autopsy photos

showing the mutilation in great detail; and a diagram of Vollmer’s parents’ house

indicating where Hittson hit Utterbeck with the bat, dragged him into the kitchen,

22

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and where he was positioned when Hittson shot him. The jury also had the

defense’s exhibits from the penalty phase, including the letters written by Vollmer,

several pictures of Hittson with his family and as a child, and an art project Hittson

made in school.

During deliberations, the jury sent the court two questions aimed at whether

a “life sentence” actually meant that Hittson would spend the rest of his life in

prison. The court responded to both by repeating its original charge, that a life

sentence meant Hittson would “serve the remainder of life in the penitentiary.”

After approximately four hours, the jury returned a unanimous death sentence.

The aggravating circumstance they found was that the murder was “outrageously

or wantonly vile, horrible, or inhuman, in that it involved depravity of mind.” The

judge imposed Hittson’s death sentence on March 17, 1993.

In October 1993, Vollmer pled guilty to the murder count in exchange for a

life sentence. 16 He is currently eligible for parole.

16

The District Attorney who tried Hittson and offered Vollmer a plea deal explained his

reasons for seeking the death penalty for Hittson, while offering Vollmer a plea, as follows:

[I]t was my impression that [Vollmer] was a manipulator and certainly an evil

person. . . . The problem I had is, in deciding what to do I have to divorce my gut

and my feelings from what the evidence is and what the law is. I felt like, you

know, for all his personality problems and his being evil, whatever you want to

call it, it was Mr. Hittson who swung the bat and got Mr. Utterbeck basically

groggy or dazed or semi-conscious, and it was Mr. Hittson who put the gun

between his eyes and blew his brains out. And so . . . from a factual standpoint,

that’s a stronger case.

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B.

Hittson appealed his convictions and death sentence to the Georgia Supreme

Court, asserting a raft of trial court errors; chief among them was the court’s ruling

that allowed Dr. Storms to testify in accordance with his proffer. Hittson’s brief to

the Supreme Court reiterated his objection at trial, arguing that, to the extent that

he waived his privilege against self-incrimination when he signed the Miranda

waiver form and submitted to the court-ordered examination, that waiver was

limited to allowing the State to rebut defense expert testimony of his mental

condition. Thus, when the trial court allowed Dr. Storms to testify as a lay witness

to rebut Hittson’s evidence of remorse, it went beyond the scope of the waiver and

violated Hittson’s Fifth Amendment right against compelled self-incrimination.

Hittson also argued that, by ordering him to submit to Dr. Storms’s examination

without any notice that his statements could be used against him—even if he did

not present expert testimony in his own defense—the trial court denied him any

meaningful assistance of counsel in connection with the examination, in violation

of the Sixth Amendment. Hittson relied on Estelle v. Smith, 451 U.S. 454, 101

The other things, they’re more nebulous. They’re more, you know, on some other

plane they might mean a lot but when you start talking about facts and evidence

and who did what, I had a great concern that the jury would, in the end would say,

well [Vollmer] didn’t pull the trigger, he didn’t swing the bat, and so I felt at that

point a bird in the hand.

Doc. 56-11, at 148–49.

24

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S. Ct. 1866, 68 L. Ed. 2d 359 (1981), as the legal basis for both arguments. For

convenience, we refer to the Fifth and Sixth Amendment violations based on Dr.

Storms’s testimony as Hittson’s “Estelle claims.”

In October 1994, the Georgia Supreme Court upheld Hittson’s convictions

and death sentence. Hittson v. State, 264 Ga. 682, 449 S.E.2d 586 (1994), cert.

denied 514 U.S. 1129, 115 S. Ct. 2005, 131 L. Ed. 2d 1005 (1995). In rejecting his

Fifth Amendment claim, the court explained that Hittson voluntarily waived his

privilege against self-incrimination when he signed the Miranda form prior to the

examination. Id. at 684–85, 449 S.E.2d at 591–92. And the court found no Sixth

Amendment violation because the trial court adequately instructed defense counsel

on the scope and nature of the examination and allowed them to observe it and

voice objections if necessary. Id. at 685, 449 S.E.2d at 592.

C.

In December 1995, Hittson petitioned the Superior Court of Butts County,

Georgia, for a writ of habeas corpus. See O.C.G.A. § 9-14-42. His petition

alleged ineffective assistance of counsel “at virtually every critical stage before and

during trial.” The ineffective-assistance claim before us in the immediate appeal—

that Hittson’s trial counsel, in the penalty phase of his trial, failed to present

mitigating expert testimony regarding his background and mental condition—was

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among the allegations. 17 The petition also raised a “protective” Brady claim,

which generally alleged that the State withheld exculpatory evidence but did not

identify the evidence. Hittson’s petition did not include his Estelle claims—

because the Georgia Supreme Court rejected the claims on direct appeal, he was

precluded from raising them on collateral attack absent an intervening change in

the law. See Bruce v. Smith, 274 Ga. 432, 434, 553 S.E.2d 808, 810 (2001).

The Superior Court held a two-day evidentiary hearing on Hittson’s petition

in October 1997. At the close of the hearing, the court denied Hittson’s protective

Brady claim because he failed to come forward with any exculpatory evidence the

State had withheld at trial. In an order issued in July 1998, the court shaped

Hittson’s ineffective-assistance allegations into eight discrete claims and rejected

all of them under the standard set forth in Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).

In October 1998, Hittson applied to the Georgia Supreme Court for a

certificate of probable cause to appeal (“CPC”), pursuant to O.C.G.A. § 9-14-52.18

He took issue with the Superior Court’s denial of five of his ineffective-assistance

17

We present the facts related to this claim and expound on the state courts’ treatment of

the claim in part VI, infra.

18

Section 9-14-52(a) requires petitioners to obtain a certificate of probable cause before

appealing an adverse decision in the superior court. Rule 36 of the Georgia Supreme Court’s

Rules provides that a certificate of probable cause must be granted “where there is arguable

merit.”

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claims. Finding that his arguments lacked “arguable merit,” the Georgia Supreme

Court denied the CPC in September 2000. See Ga. Sup. Ct. R. 36.

While Hittson’s CPC application was pending, the Georgia Supreme Court

decided Nance v. State, 272 Ga. 217, 526 S.E.2d 560 (2000), in which the court

explicitly overruled its decision in Hittson’s direct appeal on the following point:

[W]hen a defendant must submit to a court-ordered mental health

examination because he wishes to present expert mental health

testimony at his trial, the State expert may only testify in rebuttal to

the testimony of the defense expert or to rebut the testimony of the

defendant himself.

...

To the extent Hittson v. State authorized a State expert to testify in

response to lay witness testimony that the defendant was remorseful,

it is overruled.

Id. at 220, 220 n.2, 526 S.E.2d at 565, 565 n.2 (citations omitted). Hittson did not

seek leave to amend his CPC application to ask the Georgia Supreme Court to

consider the effect of Nance on his Estelle claims (which he had not raised in the

Butts County Superior Court). However, after the Supreme Court denied his CPC

application, Hittson filed a motion for reconsideration, asking the high court to

consider the Estelle claims in light of Nance. The Supreme Court summarily

denied the motion in January 2001, and the United States Supreme Court denied

certiorari review in May 2001, Hittson v. Turpin, 532 U.S. 1052, 121 S. Ct. 2193,

149 L. Ed. 2d 1025 (2001).

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III.

A.

In January 2002, Hittson petitioned the United States District Court for the

Middle District of Georgia for a writ of habeas corpus, pursuant to 28 U.S.C.

§ 2254, setting aside his convictions and death sentence. The petition included

most of the claims he presented to the Georgia Supreme Court on direct appeal and

to the Butts County Superior Court in his habeas petition, including the Estelle

claims, several ineffective-assistance claims, and the protective Brady claim. To

allow Hittson to flesh out his Brady claim, the District Court ordered the State to

turn over the District Attorney’s file on the Utterbeck murder prosecution. When

Hittson’s habeas counsel reviewed the file, they discovered a 1991 Navy

psychiatric report, which diagnosed Vollmer with Antisocial Personality Disorder,

and two letters Vollmer had written from jail that touched on certain aspects of the

murder. Because Hittson had not litigated Brady claims based on this evidence in

the Butts County Superior Court, the District Court stayed further proceedings to

allow Hittson to exhaust the newfound Brady claims in state court.

B.

Accordingly, in July 2005, Hittson returned to the Butts County Superior

Court, filing a second habeas petition. The petition included two new Brady

claims, one based on Vollmer’s psychiatric report and the other on the post-arrest

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letters he wrote from the jail. Hittson also resubmitted his claim that the admission

of Dr. Storms’s lay testimony violated his Fifth Amendment right against self-

incrimination.19 Under Georgia law, a state prisoner may only bring a successive

habeas petition that raises claims “which could not reasonably have been raised in

the original or amended petition.” O.C.G.A. § 9-14-51. Hittson alleged that his

new petition was his first opportunity to bring these claims because (a) he didn’t

have access to the Brady material until the federal district court ordered discovery

of the District Attorney’s file and (b) res judicata barred his Fifth Amendment

claim at the time he prosecuted his first habeas petition—it was only after the

Supreme Court in Nance overruled its decision rejecting his Fifth Amendment

claim in his direct appeal that he was able to assert the claim in a habeas petition.

The Superior Court disagreed. Without conducting an evidentiary hearing,

the court held that all of Hittson’s claims could have been presented while he was

prosecuting his first habeas petition and were thus barred as successive. The

Georgia Supreme Court granted a certificate of probable cause to appeal from this

decision, vacated the Superior Court’s decision, and remanded the case with

instructions that the court conduct an evidentiary hearing.

19

Hittson’s petition did not re-allege his claim that the trial court’s order requiring him

to submit to Dr. Storms’s examination denied him his Sixth Amendment right to counsel.

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With the benefit of a two-day hearing, the Superior Court again denied

habeas relief, in January 2009. In a somewhat convoluted opinion, the court

rejected Hittson’s Fifth Amendment claim on three separate grounds: (1) The claim

was barred by res judicata because the Georgia Supreme Court rejected it on direct

appeal, and even though Nance overruled that decision, Nance did not apply

retroactively because “Nance did not set forth a new rule of constitutional

dimension, but merely narrowed an existing rule of criminal procedure.” (2) The

claim was barred by res judicata because, even if Nance applied retroactively, the

Supreme Court denied Hittson’s CPC application, and motion for reconsideration

of that denial, after Nance was decided. (3) Even if the Fifth Amendment claim

was properly before the court, and even if the admission of Dr. Storms’s testimony

violated Hittson’s privilege against self-incrimination, it was harmless error in light

of the overwhelming evidence in support of the jury’s death sentence.

The Superior Court rejected the Brady claims on alternative grounds too. It

held that the claim based on Vollmer’s psychiatric report was procedurally

defaulted because Hittson’s trial counsel or the attorneys who represented him in

his first habeas proceeding could have obtained the report from a source other than

the Houston County District Attorney through the exercise of reasonable diligence

and Hittson had not shown cause and resulting prejudice to excuse his failure to

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raise the claim on direct appeal or in his first habeas petition. 20 Even so, the court

held that both Brady claims failed on the merits because the Vollmer psychiatric

report and Vollmer’s jailhouse letters were cumulative of the mitigation evidence

presented during the penalty phase and the evidence supporting a death sentence

was overwhelming; thus, even when considered cumulatively, the “withheld”

evidence did not create a reasonable probability of a different result.21

Hittson again sought a certificate of probable cause from the Georgia

Supreme Court. He argued that (1) none of his claims could have been raised at

any point before he filed his second habeas petition; (2) that the allowance of Dr.

Storms’s testimony violated his Fifth and Sixth Amendment rights and the error

was not harmless; and (3) that the suppressed Brady material, considered either

separately or cumulatively, created a reasonable probability that the jury would

have returned a life sentence. The Georgia high court concluded that these

arguments lacked arguable merit and summarily denied Hittson’s CPC application

in October 2010. The United States Supreme Court denied certiorari review in

20

Georgia’s procedural default rules mimic the federal doctrine: “A claim that is subject

to procedural default may nevertheless be considered in habeas corpus proceedings if the

petitioner can satisfy the cause and prejudice test.” Perkins v. Hall, 288 Ga. 810, 822, 708

S.E.2d 335, 346 (2011).

21

See Kyles v. Whitley, 514 U.S. 419, 433, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490

(1995) (explaining that to prevail on a Brady claim, the petitioner must show a “reasonable

probability that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different” (quotation mark omitted)).

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June 2011. Hittson v. Humphrey, __ U.S. __, 131 S. Ct. 3038, 180 L. Ed. 2d 858

(2011).

C.

In July 2011, Hittson returned to the District Court and amended his habeas

petition to include his now-exhausted Brady claims. In November 2012, the

District Court granted the writ, setting aside Hittson’s death sentence based on his

Estelle claims. The court found that the trial court’s admission of Dr. Storms’s

testimony violated Hittson’s Fifth and Sixth Amendment rights and that the

Georgia Supreme Court’s decision on direct appeal (the decision Nance overruled)

unreasonably applied Estelle and its progeny in concluding otherwise. Hittson,

2012 WL 5497808, at *30–35.

The District Court then applied the harmless-error standard from Brecht v.

Abrahamson, 507 U.S. 619, 637–38, 113 S. Ct. 1710, 1721–22, 123 L. Ed. 2d 353

(1993), and concluded that Dr. Storms’s testimony had a “substantial and injurious

effect” on the jury’s death sentence deliberations. Hittson, 2012 WL 5497808, at

*37–40. Accordingly, the court vacated Hittson’s sentence and ordered that the

State conduct a new penalty-phase proceeding or impose a lesser sentence.

The District Court denied the rest of Hittson’s claims, but granted a COA for

his Brady claims. This court then expanded the COA to include one of his

ineffective-assistance-of-counsel claims.

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IV.

“We review de novo the grant or denial of a writ of habeas corpus by a

district court.” Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1071

(11th Cir. 2013). Thus, we review Hittson’s Estelle claims, Brady claims, and

ineffective-assistance claim using the standard established by 28 U.S.C. § 2254, as

amended by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 214—the same standard the District

Court used.

A.

Under AEDPA, if a petitioner’s claims have been “adjudicated on the merits

in State court,” a federal court cannot grant habeas relief unless the state court’s

adjudication of the claims (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 State court proceeding.” 28

U.S.C. § 2254(d).

A state-court decision is “contrary to” federal law if it either “applies a rule

that contradicts the governing law set forth in [Supreme Court] cases”—e.g., by

applying the wrong legal standard to a particular claim—or “confronts a set of

facts that are materially indistinguishable from a decision of [the Supreme] Court

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and nevertheless arrives at a [different] result.” Williams v. Taylor, 529 U.S. 362,

405–06, 120 S. Ct. 1495, 1519–20, 146 L. Ed. 2d 389 (2000).

A state-court decision is an “unreasonable application” of Supreme Court

precedent if the state court “correctly identifies the governing legal rule but applies

it unreasonably to the facts of a particular prisoner’s case.” Id. at 407–08, 120

S. Ct. at 1520. “[A]n unreasonable application of federal law is different from an

incorrect application of federal law.” Id. at 410, 120 S. Ct. at 1522. “[S]o long as

fairminded jurists could disagree on the correctness of the state court’s decision,” a

federal court cannot grant habeas relief. Harrington v. Richter, __ U.S. __, 131

S. Ct. 770, 786, 178 L. Ed. 2d 624 (2011) (citation and quotation marks omitted).

Finally, “AEDPA instructs that, when a federal habeas petitioner challenges

the factual basis for a prior state-court decision rejecting a claim, the federal court

may overturn the state court’s decision only if it was ‘based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.’” Burt v. Titlow, __ U.S. __, 134 S. Ct. 10, 15, 187 L. Ed. 2d 348

(2013) (quoting 28 U.S.C. § 2254(d)(2)). In such cases, “[t]he prisoner bears the

burden of rebutting the state court’s factual findings ‘by clear and convincing

evidence.’” Id. (quoting 28 U.S.C. § 2254(e)(1)). Like the “unreasonable

application” standard in § 2254(d)(1), “a state-court factual determination is not

unreasonable merely because the federal habeas court would have reached a

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different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301, 130

S. Ct. 841, 849, 175 L. Ed. 2d 738 (2010). “[E]ven if reasonable minds reviewing

the record might disagree about the finding in question . . . that does not suffice to

supersede the [state] court’s determination.” Id. (alterations and quotation marks

omitted).

B.

Thus, AEDPA requires that our analysis of Hittson’s constitutional claims be

grounded in the Georgia courts’ adjudication of those claims. Because we are

considering multiple claims that were addressed by multiple state courts, it is

useful at the outset to explain which state-court decisions we look to for purposes

of AEDPA review.

Section 2254(d) requires that we defer to the state court’s adjudication of a

petitioner’s constitutional claims. As this court has observed, “the state court’s

‘adjudication on the merits,’ which triggers our review under [§ 2254], is the same

‘adjudication of the claim’ that we review for its application of federal law. . . .

Therefore, the highest state court decision reaching the merits of a habeas

petitioner’s claim is the relevant state court decision” we review under AEDPA.

Newland v. Hall, 527 F.3d 1162, 1199 (11th Cir. 2008); see also Harris v. Reed,

489 U.S. 255, 263, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989) (instructing

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federal courts to look to the “last state court rendering a judgment in the case” for

the state court’s reasons for rejecting a claim).

In Hittson’s case, the last state court to pass on the merits of the relevant

claims was the Georgia Supreme Court, when it summarily denied a certificate of

probable cause to appeal from the Butts County Superior Court’s denial of

Hittson’s first, and then second, habeas petition. See Newland, 527 F.3d at 1199.

Because the denial of the right to appeal by the state’s highest court does not

always constitute an adjudication on the merits, we briefly describe Georgia’s

habeas appeals process to reveal why the Georgia Supreme Court’s denial of a

CPC in this case constituted an adjudication on the merits.

Georgia habeas petitioners are required to obtain a certificate of probable

cause from the Georgia Supreme Court before appealing a superior court decision

denying relief. 22 O.C.G.A. § 9-14-52(b). The standard for granting a CPC is set

forth in Rule 36 of the Georgia Supreme Court Rules, which provides that “[a]

certificate of probable cause to appeal a final judgment in a habeas corpus case

involving a criminal conviction will be issued where there is arguable merit.” Ga.

22

In Pope v. Rich, 358 F.3d 852 (11th Cir. 2004) (per curiam), we held that a Georgia

prisoner who did not apply for a certificate of probable cause to appeal failed to exhaust his

state-court remedies as required by § 2254(b)(1). Id. at 854; see also O’Sullivan v. Boerckel,

526 U.S. 838, 845, 119 S. Ct. 1728, 1732, 144 L. Ed. 2d 1 (1999) (“[S]tate prisoners must give

the state courts one full opportunity to resolve any constitutional issues by invoking one

complete round of the State’s established appellate review process.”).

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Sup. Ct. R. 36 (emphasis added); see also Sears v. Humphrey, 294 Ga. 117, 117,

751 S.E.2d 365, 368 (2013) (explaining that a CPC denial rests on the Supreme

Court’s conclusion that a claim lacks “arguable merit”). “In order for the Supreme

Court to consider fully the request for a certificate,” § 9-14-52(b) directs the

superior court clerk to transfer the record and transcript of the proceedings below

to the Supreme Court. As the Supreme Court has explained, the purpose of

transcribed evidentiary hearings in the superior courts is, at least in part, “to assist

the parties in preparing and opposing the application for a certificate of probable

cause to appeal” and “to assist the [Supreme] Court in considering the application.”

Edwards v. State, 288 Ga. 459, 460, 707 S.E.2d 335, 336 (2011).

Therefore, in denying Hittson’s CPC applications to appeal the denial of his

first and second habeas petitions, the Supreme Court was not exercising

discretionary review akin a denial of a petition for certiorari review. See generally

Ga. Sup. Ct. R. 34. Instead, the court was required to grant a CPC if it found

arguable merit to any of the arguments in the application.23 In concluding that

Hittson’s claims lacked arguable merit, the Supreme Court had the benefit of the

record from prior proceedings, the transcripts of the hearings held on his habeas

23

Because Georgia prisoners are required to apply for a CPC before they have exhausted

their state remedies, see note 22, supra, claims not in Hittson’s CPC application are unexhausted.

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petitions,24 and briefing on the merits of his constitutional claims. Such a standard

clearly constitutes an adjudication on the merits for AEDPA purposes. See

Johnson v. Williams, __ U.S. __, 133 S. Ct. 1088, 1097, 185 L. Ed. 2d 105 (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 parties’

substantive arguments.” (alteration, emphasis, and quotation marks omitted)).

While the Georgia high court denied each CPC without explaining why it

found Hittson’s arguments to be meritless, there is no AEDPA requirement that a

state court explain its reasons for rejecting a claim; “Section 2254(d) applies even

where there has been a summary denial.” Cullen v. Pinholster, __ U.S. __, 131

S. Ct. 1388, 1402, 179 L. Ed. 2d 557 (2011). “When a federal claim has been

presented to a state court and the state court has denied relief, it may be presumed

that the state court adjudicated the claim on the merits in the absence of any

indication or state-law procedural principles to the contrary.” Richter, __ U.S. at

__, 131 S. Ct. at 784–85. Our task in these situations is to review the record before

the Georgia Supreme Court to “determine what arguments or theories supported or,

24

In fact, the Supreme Court granted Hittson’s application for a CPC to appeal the

Superior Court’s first denial of his second habeas petition and remanded with instructions that

the court conduct an evidentiary hearing.

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as here, could have supported, the state court’s decision.”25 Id. at __, 131 S. Ct. at

786. Hittson may only obtain federal habeas relief “by showing there was no

reasonable basis for the state court to deny relief.” Id. at __, 131 S. Ct. at 784.

With this standard in mind, we turn to Hittson’s constitutional claims.

25

Prior to Richter, this circuit applied the Supreme Court’s pre-AEDPA decision, Ylst v.

Nunnemaker, 501 U.S. 797, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991), to “look through”

summary decisions by state appellate courts—reviewing, under § 2254(d), “the last reasoned

decision” by a state court. See McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1261 n.12 (11th

Cir. 2009); Powell v. Allen, 602 F.3d 1263, 1268 n.2 (11th Cir. 2010) (“When the last state court

rendering judgment affirms without explanation, we presume that it rests on the reasons given in

the last reasoned decision.”). In light of Richter’s directive—“[w]here a state court’s decision is

unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing

there was no reasonable basis for the state court to deny relief,” __ U.S. at __, 131 S. Ct. at

784—we explained that “state appellate court[s’] [summary] affirmances warrant deference

under AEDPA because ‘the summary nature of a state court’s decision does not lessen the

deference that it is due,’” Gill v. Mecusker, 633 F.3d 1272, 1288 (11th Cir. 2011) (quoting

Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002)). Accordingly, we declined to “look

through” a summary decision by a state appellate court and instead reviewed the record to see

“whether the outcome of the state court proceedings permits a grant of habeas relief in this case.”

Id. (emphasis added); see also Jones v. GDCP Warden, No. 11-14774, slip op. at 23–24 (11th

Cir. Apr. 24, 2014) (“Though the Georgia Supreme Court did not give reasons for its decision [to

deny the petitioner’s CPC application], ‘[w]here a state court’s decision is unaccompanied by an

explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable

basis for the state court to deny relief.’” (quoting Richter, __ U.S. at __, 131 S. Ct. at 784)).

While some decisions of this court have continued to apply Ylst to ascribe the reasoning

of a lower court to the decisions of later state courts, see, e.g., Adkins v. Warden, Holman CF,

710 F.3d 1241, 1250 n.6 (11th Cir. 2013); Price v. Allen, 679 F.3d 1315, 1320 n.4 (11th Cir.

2012); Madison v. Comm’r, Ala. Dep’t of Corr., 677 F.3d 1333, 1336 n.1 (11th Cir. 2012), we

are bound to follow the earliest of our post-Richter decisions, which is Gill (decided a month

after Richter), see Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003) (“[W]hen

circuit authority is in conflict, a panel should look to the line of authority containing the earliest

case, because a decision of a prior panel cannot be overturned by a later panel.”) (quotation

marks and citation omitted). Accordingly, we do not review the reasoning given in the Butts

County Superior Court decision; rather, we review the decision of the Georgia Supreme Court, in

accordance with Richter’s instructions.

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V.

We begin with the two Estelle claims. The first Estelle claim is that

Hittson’s Fifth Amendment right against self-incrimination was denied when the

trial court, over Hittson’s objection, permitted Dr. Storms to testify before the jury

in conformance with his in camera proffer. The second claim is that the trial court

deprived Hittson of any meaningful assistance of counsel when it ordered him to

submit to an examination by Dr. Storms after waiving his Miranda rights. The

State now concedes the denial of Hittson’s Fifth and Sixth Amendment rights and,

accordingly, does not challenge the District Court’s conclusion, reached under

§ 2254(d)(1), that the Georgia Supreme Court unreasonably applied Estelle in

denying both claims. But that does not end our inquiry. We must decide whether

these violations, which yielded Dr. Storms’s testimony, prejudiced Hittson’s

defense in the penalty phase so to entitle Hittson to habeas relief.

A.

In § 2254 proceedings, federal courts must evaluate constitutional errors

under the harmless-error standard articulated in Brecht v. Abrahamson, 507 U.S.

619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).26 As Brecht explained, “[federal]

26

The District Court and the parties have devoted considerable attention to the fact that

the Butts County Superior Court applied the Brecht harmless-error standard when it denied

Hittson’s second habeas petition. Georgia habeas courts typically apply the more petitioner-

friendly standard from Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705

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habeas petitioners may obtain plenary review of their constitutional claims, but

they are not entitled to habeas relief based on trial error unless they can establish

(1967), which requires the State to show harmlessness beyond a reasonable doubt. See Horne v.

State, 281 Ga. 799, 808, 642 S.E.2d 659, 667 (2007). But state (and federal) courts are only

required to use Chapman on direct review. See Fry v. Pliler, 551 U.S. 112, 116, 127 S. Ct. 2321,

2325, 168 L. Ed. 2d 16 (2007). The Supreme Court has not established a harmless-error standard

for state collateral review. Because we are not reviewing the reasoning announced by the

Superior Court, we need not decide how to treat that court’s (seemingly anomalous) application

of Brecht. In his CPC application to the Georgia Supreme Court, Hittson argued that the

Chapman standard applied, under Georgia law, and that the admission of Dr. Storms’s testimony

was not harmless beyond a reasonable doubt. In concluding that his application lacked arguable

merit, the Supreme Court could have concluded either that Dr. Storms’s testimony did not violate

Hittson’s constitutional rights, or that the error was harmless under Chapman.

Either way, we would apply the Brecht standard, because Brecht is an independent hurdle

to obtaining relief under § 2254. See Mansfield v. Sec’y, Fla. Dep’t of Corr., 679 F.3d 1301,

1307–08 (11th Cir. 2012); Fry, 551 U.S. at 119, 127 S. Ct at 2327 (“[Section 2254(d)] sets forth

a precondition to the grant of habeas relief . . . not an entitlement to it.”). Where a state court

finds an error harmless under Chapman, a federal habeas court could conclude that the state court

unreasonably applied Chapman’s harmless-beyond-a-reasonable-doubt standard (which would

allow the federal court to issue the writ under § 2254(d)(1)), but nonetheless deny the writ

because the error did not cause “actual prejudice” under Brecht. See Fry, 551 U.S. at 119–20,

127 S. Ct. at 2327; Mansfield, 679 F.3d at 1307–08. Because Brecht’s “actual prejudice”

standard is more stringent than AEDPA review of the state court’s Chapman determination, it

“makes no sense to require formal application of both tests” because the Brecht standard

“obviously subsumes” the “more liberal AEDPA/Chapman standard.” Fry, 551 U.S. at 119–20,

127 S. Ct. at 2327. Accordingly, federal habeas courts apply Brecht both where the state court,

in rejecting a constitutional claim, failed to recognize the error (and thus did not conduct its own

harmless error review) and where the state court found harmless error under Chapman. Fry 551

U.S. at 121–22, 127 S. Ct. at 2328.

Even if we were faced with a state court decision applying Brecht, we still would have no

need to decide how to treat that decision under AEDPA, because we conclude that Dr. Storms’s

testimony did not cause “actual prejudice” under our own application of Brecht. See Berghuis v.

Thompkins, 560 U.S. 370, 390, 130 S. Ct. 2250, 2265, 176 L. Ed. 2d 1098 (2010) (“Courts can

. . . deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear

whether AEDPA deference applies . . . .”); Mansfield, 679 F.3d at 1308 (“[A] federal habeas

court may deny relief based solely on a determination that a federal constitutional error was

harmless under the Brecht standard.”); see also Hodges v. Fla. Att’y Gen., 506 F.3d 1337, 1343

(11th Cir. 2007) (“[I]f the state court did not apply the correct harmless error standard . . . federal

habeas relief is still due to be denied if the constitutional error was harmless [under Brecht].”).

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that it resulted in ‘actual prejudice.’” Id. at 637, 113 S. Ct. at 1722. To find

“actual prejudice,” a federal habeas court must conclude that the error “had

substantial and injurious effect or influence in determining the jury’s verdict.” Id.

(quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90

L. Ed. 1557 (1946)).

The District Court concluded that Dr. Storms’s testimony had a “substantial

and injurious effect” on the jury’s deliberations over Hittson’s sentence. We

review this decision de novo; therefore, we review the record to determine if Dr.

Storms’s testimony had a “substantial or injurious effect” on the jury’s

deliberations. In conducting this review, “[t]he inquiry [is not] merely whether

there was enough to support the result, apart from the phase affected by the error.

It is rather, even so, whether the error itself had substantial influence.” Kotteakos,

328 U.S. at 764–65, 66 S. Ct. at 1248. If there is “more than a reasonable

possibility that the error contributed to the conviction or sentence,” then the error is

not harmless. Mansfield v. Sec’y, Fla. Dep’t of Corr., 679 F.3d 1301, 1313 (11th

Cir. 2012).

Because Georgia law requires a jury to unanimously find at least one

statutorily defined aggravating factor to return a death sentence, O.C.G.A. § 17-10-

31, “habeas relief is warranted in this case if we believe even one of the jurors who

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voted in favor of the death penalty likely was substantially influenced” by the

error, Duest v. Singletary, 997 F.2d 1336, 1339 (11th Cir. 1993) (per curiam).

Because the error in Hittson’s trial resulted in the improper admission of

evidence, we must measure the impact of Dr. Storms’s testimony on the jury in

light of the body of evidence before them at the time. See Kotteakos, 328 U.S. at

764, 66 S. Ct. at 1248 (“[Courts] must take account of what the error meant to [the

jury], not singled out and standing alone, but in relation to all else that

happened.”). We analyze this impact by “looking at several factors, including ‘the

importance of the witness’[s] testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, . . . and, of course,

the overall strength of the prosecution’s case.’” Mason v. Allen, 605 F.3d 1114,

1123–24 (11th Cir. 2010) (per curiam) (quoting Delaware v. Van Arsdall, 475 U.S.

673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674 (1986)).

B.

We begin with the jury’s sentence. The jury found, after deliberating for

four hours, that Hittson should be sentenced to death on account of the

“outrageously or wantonly vile, horrible, or inhuman” nature of the murder. See

O.C.G.A. § 17-10-30(b)(7). The trial court instructed the jury that, in order to rely

on this aggravating factor, it must find that the murder was both “outrageously or

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wantonly vile, horrible, or inhuman” and that it involved “depravity of mind; or

torture to the victim prior to the death of the victim; or aggravated battery to the

victim prior to the death of the victim.” As the court explained it, “[d]epravity of

mind is a reflection of an utterly corrupt, perverted, or immoral state of mind,” and

in evaluating Hittson’s mindset, the jury could consider his actions “prior to and

after the commission of the murder,” including whether he “subjected the body of

a deceased victim to mutilation.”

It is abundantly clear that the jury could have relied on this aggravating

factor in the absence of Dr. Storms’s testimony. The jury heard Hittson’s taped

confession, during which he calmly described his role in the murder: how he found

Utterbeck (who, according to Vollmer, was planning to ambush them) asleep in the

living room, hit Utterbeck in the head with a baseball bat three times, dragged him

to the kitchen so as not to make a mess on the living room carpet, and shot him in

the forehead while he begged for his life. After stripping Utterbeck’s corpse and

leaving it to bleed out on the kitchen floor, Hittson and Vollmer left to grab a bite

to eat. Upon their return, they meticulously sawed off Utterbeck’s head, hands,

and feet, and at least one of them castrated him, skinned his penis and buttocks,

and cut out his rectum. They tossed Utterbeck’s mutilated torso in a shallow

grave, spent the better part of a day cleaning his blood off the interior of the house,

and headed back to Pensacola with his severed head, hands, and feet in the trunk—

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stopping off to say “bye” to Vollmer’s sister-in-law on the way out of town.

Clearly, the crime itself justified the jury’s conclusion that Hittson carried out an

“outrageously or wantonly vile, horrible, or inhuman” murder with “depravity of

mind.”

While Brecht “does not require a showing that but for the error the jury

would have rendered a verdict in favor of the defendant,” Duest, 997 F.2d at 1338,

the overwhelming amount of evidence that supports the aggravating factor found

by the jury—particularly the post-mortem dismemberment and mutilation, which

the court explicitly mentioned in its charge—convinces us that Dr. Storms’s

testimony did not meaningfully influence the jury’s reliance on the “vile, horrible,

and inhuman” aggravating factor. See Mansfield, 679 F.3d at 1313 (“[T]he

erroneous admission of evidence is likely to be harmless under the Brecht standard

where there is significant corroborating evidence . . . .”).

In reaching the opposite conclusion, the District Court explained:

Dr. Storms’ testimony that Hittson called Utterbeck an asshole and a

hillbilly certainly helped the State prove depravity of mind. The jury

was instructed that they could consider Hittson’s actions after the

commission of the crime. Dr. Storms’ testimony was the only

evidence that months after the crime, and with Vollmer completely

out of the picture, Hittson possessed a “corrupt” or “immoral state of

mind.”

Hittson, 2012 WL 5497808, at *40. We flatly reject the District Court’s

conclusion that the jury found Hittson’s statements to Dr. Storms, made long after

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the crime, to be probative of the “vile, horrible, and inhuman” nature of the murder

or his “utterly corrupt, perverted, or immoral” state of mind. The trial court told

the jury that, in evaluating Hittson’s mindset during the murder, they should

consider whether he committed aggravated battery, torture, or mutilation. 27 The

jury heard, from Hittson’s own mouth, a detailed description of how he and

Vollmer cut Utterbeck up and stuffed him into garbage bags, and the State paraded

a raft of grisly photos before the jury to give life to Hittson’s words. In light of the

trial court’s instructions and the overwhelming evidence supporting the jury’s

aggravating factor, we do not believe that the jury, in faithfully executing their

duty, gave any weight to Dr. Storms’s testimony in concluding that Hittson carried

out the “vile, horrible, and inhuman” murder with “depravity of mind.” 28

But the aggravating factor merely allowed the jury to return a death

sentence. They could have still sentenced Hittson to life imprisonment based on

mitigating circumstances, and so we must also assess the effectiveness of Dr.

Storms’s testimony as a rebuttal of Hittson’s mitigation evidence—the purpose for

27

Likewise, in urging the jury to find “depravity of mind,” the District Attorney

explained, “you can consider the dismemberment, you can consider the decapitation, you can

consider the fact that they went to the Waffle House, you can consider the fact that the body was

strewn all over the place.” Doc. 74-11, at 6.

28

“We presume that jurors, conscious of the gravity of their task, attend closely the

particular language of the trial court’s instructions in a criminal case and strive to understand,

make sense of, and follow the instructions given them.” United States v. Olano, 507 U.S. 725,

740, 113 S. Ct. 1770, 1781, 123 L. Ed. 2d 508 (1993) (alteration and quotation marks omitted).

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which it was admitted. Hittson claims that “Dr. Storms’s testimony was absolutely

devastating to Mr. Hittson’s defense . . . that Mr. Hittson was remorseful, burdened

and ashamed.” Hittson Appellee Br. at 26–27. This argument overstates both the

strength of the “remorse” evidence and the ability of Dr. Storms’s testimony to

rebut that evidence.

Over the course of two days and twenty witnesses, the only mention of

remorse during the penalty phase came from Hittson’s best friend on the Forrestal,

Steven Nix. Nix testified that, when Hittson told him Utterbeck was never coming

back, Hittson seemed “kind-of sad, kind-of down, kind-of depressed.” Doc. 74-9,

at 43. When asked if Hittson seemed remorseful, Nix responded, “Maybe. . . .

Looking back now, maybe, he might have been. . . . I didn’t notice it at the time.”

Id. at 48. The only other evidence of Hittson’s remorse during trial came from one

of the detectives who interviewed Hittson. He testified, during the guilt phase, that

prior to confessing:

I felt that [Hittson] had possibly been involved in something that he

was not extremely proud of, something that he had been a part of that

he might not have necessarily been the instigator of; and that there

was a possibility that he had been at the wrong place at the wrong

time; and that this was something that I wasn’t real sure that he could,

he could live with; that it might would be to his best interest to clear

his conscience, to tell what really happened.

Doc. 74-4, at 63.

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Hittson now attempts to convert these isolated, equivocal statements into

“powerful mitigating evidence” that was subsequently “dismantle[d]” by Dr.

Storms’s testimony. Hittson Appellee Br. at 27, 30. As is evident, though, the

defense had a weak case for remorse and, accordingly, did not spend much time

developing it. Instead, they spent the two-day penalty phase trying to prove that

Hittson had been overborne by the evil, controlling Vollmer. 29 Remorse was an

afterthought to the main strategy, and so, even if Dr. Storms had dismantled their

perfunctory attempts to show remorse, the impact of his testimony on the jury’s

death sentence deliberations still would not have amounted to much. Cf. Randolph

v. McNeil, 590 F.3d 1273, 1277 (11th Cir. 2009) (per curiam) (rejecting a habeas

29

In Hittson’s first state habeas proceedings—in which Hittson’s Estelle claims were not

at issue—Steve Hollman (lead counsel at trial) engaged in the following colloquy with Hittson’s

habeas counsel:

Q [I]n fact, your whole theory in mitigation, part of your theory in mitigation

was, that Mr. Hittson was, in fact, remorseful; correct?

[objection overruled]

A Well, I don’t know that, you know, it seems to me that the point that we

were trying to make was that Travis was, was a guy who was pretty

impressionable, and that basically away from the co-defendant, he was a pretty

harmless guy, that he was, you know, just that he drank a lot, but, basically, he

was sort of a needy kind of harmless little guy, and that Mr. Vollmer was the

brains of this operation and basically manipulated Travis into doing something

that he would have never done. I don’t know how much the notion of remorse

played into the case in mitigation.

Doc. 75-17, at 61–62.

Likewise, Bill Shurling (appointed by the court to advise Hittson’s two trial lawyers)

characterized trial counsel’s mitigation strategy as follows: “[T]hey were not trying to bring out

remorse. What they were trying to do is . . . show this [crime] is out of character with this

particular defendant . . . .” Doc. 75-18, at 113.

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petitioner’s argument that an isolated statement that he lacked remorse had a

substantial effect on the jury’s death sentence, where there was an abundance of

evidence to support the aggravating factors relied on by the jury).

But Dr. Storms’s testimony did not necessarily rebut the little evidence of

remorse that the defense mustered. Certainly, Hittson’s unflattering description of

his victim was illustrative of his indiscretion (and perhaps his dim-wittedness that

the defense witnesses testified to), but these bare statements did not convert

Hittson into a “brazen, unrepentant man.” See Hittson, 2012 WL 5497808, at *39.

Put simply, Hittson could regard Utterbeck as a hillbilly and an asshole and could

also regret murdering him.

Stripped of embellishment, Dr. Storms’s testimony suggested that Hittson

disliked Utterbeck. As damning as Hittson now tries to make it, we are skeptical

as to whether this information was truly detrimental. 30 Certainly, evidence that

Hittson called Utterbeck a hillbilly and an asshole after the murder seems

prejudicial when considered in isolation. But, in context, if Hittson had been fond

of Utterbeck, his willingness to murder him on command would have made Hittson

more culpable, not less. Since the State never identified a concrete motive for the

30

We do not doubt the reaction by one of Hittson’s attorneys—“It was like getting hit in

the head with a board. I mean, it was, it was just, it was like getting gutted.” Doc. 56-10, at 24.

While we understand the distress felt by an attorney when the jury hears evidence he tried to

keep from them, that visceral response does not absolve this court of its duty to rationally assess

the evidence in the full context of all that was said and done at trial.

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murder, Hittson’s statements at least provide some alternative (albeit a weak one)

to the inference that the murder was nothing more than a senseless act of violence.

In fact, in this very appeal, Hittson maintains that his trial counsel failed to

fulfill their Sixth Amendment duty because they didn’t present expert testimony of

his mental condition—testimony that, had it been put before the jury, would have

allowed the State to call Dr. Storms in rebuttal. His state habeas counsel

discounted trial counsel’s “strategic” concerns with Dr. Storms’s testimony as

follows:

Mr. Hollman’s [(lead trial counsel)] concern over Dr. Storms’

potential testimony . . . was exaggerated and unfounded. Mr. Hollman

was not concerned about Dr. Storms’ professional assessment of Mr.

Hittson, but feared only that Dr. Storms would testify to remarks Mr.

Hittson made during their pre-trial interview. During that interview,

Mr. Hittson referred to the victim as a “hillbilly” and, at another point,

an “asshole.” However, given that Mr. Hittson had just been found

guilty of a horrific murder, these offhand remarks hardly outweighed

the benefits of introducing favorable psychological evidence.

Doc. 76-1, at 39 (citation omitted). We agree with the assertion underlying this

argument; given that Hittson murdered, mutilated, and dismembered Utterbeck, the

fact that he later called Utterbeck a “hillbilly” and an “asshole” was simply not that

significant.

Therefore, we cannot say that the erroneous admission of Dr. Storms’s

testimony had a substantial effect on the jury’s finding that Hittson committed an

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“outrageously or wantonly vile, horrible, or inhuman” murder with “depravity of

mind.” We reverse the District Court’s holding to the contrary.

VI.

Hittson’s next claim is that he was denied his Sixth Amendment right to

counsel because his trial team failed to put on expert testimony regarding his

mental condition during the penalty phase of his trial.

To prevail on an ineffective assistance claim, a habeas petitioner must

establish both that his counsel’s performance was constitutionally deficient and

that the deficient performance prejudiced his defense. Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Under

Strickland’s performance prong, a petitioner must show that his attorneys’ conduct

“fell below an objective standard of reasonableness”—i.e., that it was not

“reasonable[] under prevailing professional norms.” Id. at 688, 144 S. Ct. at 2064–

65. And under the prejudice prong, he must show “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 694, 144 S. Ct. at 2068.

The Georgia Supreme Court rejected Hittson’s ineffective-assistance claim.

Hittson now argues that the court unreasonably applied Strickland. The District

Court disagreed, and so do we.

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A.

Hittson’s trial team consisted of three court-appointed lawyers: Walter “Bo”

Sammons, Steve Hollman, and William Shurling. Sammons was appointed first, in

June 1992, and Hollman was appointed a few months later (the trial began in

February 1993). At the time, neither had tried a death-penalty case through to

verdict and sentencing, and so after the State indicated its intention to seek the

death penalty (in September 1992), the trial court appointed Shurling, who had

tried a handful of capital cases, to advise Sammons and Hollman. Shurling

appeared in court and attended strategy sessions, but Sammons and Hollman did

most of the work and had the final say on important decisions.31

Hittson’s defense team had him evaluated twice by a psychologist and once

by a neuropsychiatrist, and they had a social worker research and prepare a

detailed analysis of his upbringing and family dynamics. Sammons and Hollman

also interviewed a number of lay witnesses (many of whom testified during the

penalty phase) and compiled various records from Hittson’s adolescence and Naval

service. They traveled to Hittson’s hometown in Nebraska to interview family,

friends, counselors, and teachers; Hollman traveled to Pensacola and Philadelphia

to interview sailors aboard the Forrestal; and both lawyers spent dozens of hours

talking to Hittson.

31

As Hollman put it, “Mr. Shurling did virtually nothing.” Doc. 75-17, at 28.

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Because of what their experts found, Hittson’s attorneys filed a notice of

their intent to raise Hittson’s mental condition at trial. In accordance with Georgia

law, the trial court required Hittson to submit to an examination by the State’s

chosen expert and the court’s expert. Hittson’s trial team eventually decided not to

put on their experts because they felt that the overall weight of the expert

testimony would hurt Hittson. Hittson claims that this decision amounted to

constitutionally-deficient conduct. We thus examine the attorneys’ decision,

starting with their efforts to develop mitigating expert testimony and then

describing their ultimate decision not to use the fruits of their labor.

1.

In July 1992 (shortly after Sammons was appointed), Sammons successfully

petitioned the trial court for funds to have Hittson examined by a psychologist.

According to Sammons, “[w]e were hopeful that it would be determined that

Travis was mentally retarded or that he had some sort of psychiatric condition that

would truly render sympathy, you know, from the jury.” Doc. 75-16, at 74.

Sammons hired Dr. Michael Prewett, a clinical psychologist from Macon, Georgia.

Dr. Prewett interviewed Hittson twice, in July 1992 and January 1993, and

administered a battery of psychometric tests, including the then-current versions of

the widely-used Wechsler Adult Intelligence Scale (“WAIS”) and Minnesota

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Multiphasic Personality Inventory (“MMPI”). 32 Dr. Prewett also reviewed

Hittson’s school records, counseling records, and letters written by Hittson. Dr.

Prewett did not prepare a report; he just discussed his findings with Sammons and

Hollman.

Based on interviews with Hittson, Dr. Prewett concluded that “he was a

serious alcoholic who suffered from alcoholic blackouts,” and “engaged in very

aggressive behavior” when drinking. Doc. 74-8, at 38; Doc. 72-5, at 7. His father

was an alcoholic and his family was dysfunctional, and, as a result, so was Hittson.

He had a hard time maintaining stable relationships; in fact, “he really never had

anything resembling a meaningful relationship with anybody,” including his

family. Doc. 75-18, at 22. At the same time, “he was so desperate to belong some

place, that the first person that was nice to him he was going to kind of fall in

with.” Id. at 24–25. Hittson had also contemplated suicide as an adolescent.

Dr. Prewett pegged Hittson’s IQ at 86—in the low-average range of

intelligence. His MMPI test results suggested a number of possible diagnoses:

depression, schizophrenia, schizoid personality disorder, schizo-typical personality

32

Dr. Prewett also administered the Personal Problems Checklist, Wide Range

Achievement Test, Luria-Nebraska Neuropsychological Test Battery, Trail Making Test, and

Bender–Gestalt Test.

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disorder, and borderline personality disorder. 33 Of those possibilities, Dr. Prewett

believed that Borderline Personality Disorder was the correct diagnosis—based on

Hittson’s history of unstable interpersonal relationships, substance abuse, suicidal

ideation, difficulty controlling his anger, and efforts to avoid abandonment. 34

On account of this diagnosis, Dr. Prewett believed that it was possible that

Hittson could have experienced brief psychotic episodes, triggered by extreme

stress. As he explained to the state habeas court:

Individuals with severe characterlogical disturbance, when they are

under stress, their behavior will frequently deteriorate to the point that

for a brief period of time, they may, in fact, be out of touch with

reality or have very poor reality testing. He was capable of doing that,

and perhaps had done that on at least one or two occasions.

Doc. 75-18, at 26. Dr. Prewett could not determine whether Hittson had

experienced a psychotic episode on the night of the crime:

[H]e was severely intoxicated on the night of the incident. That

would have masked anything that was going on, so it would have been

impossible to make any determination of what was happening at that

particular moment and time.

Id.

33

The MMPI consists of several hundred true-false questions, which are then “scored” by

a computer (the questions are statistically correlated to certain psychological traits). The

disorders listed above are correlated to Hittson’s raw score; however, the results are subject to

interpretation, which is why an expert (in this case, Dr. Prewett) is needed to reach a diagnosis.

34

These characteristics tracked the entry for Borderline Personality Disorder in the then-

current edition of the DSM, which Dr. Prewett relied on in making his diagnosis. See Am.

Psych. Ass’n, Diagnostic and Statistical Manual of Mental Disorders, at 346–47 (3d ed., rev.

1987) (hereinafter “DSM-III-R”).

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With respect to the crime, Hittson “expressed a good deal of remorse and

disbelief that he could have done something like this.” Id. Prior to the murder, he

was not particularly close to Utterbeck, nor did he harbor any ill will towards

him—they had a “neutral relationship.” But Hittson had a “very strange

relationship” with Vollmer; he “felt controlled by this individual [and] alternated

between very intense hatred for this person versus almost hero worship at times.”

Id. at 22.

Dr. Prewett also believed that Hittson might have “some degree” of brain

damage—possibly the result of a mild concussion or Hittson’s alcohol abuse. Dr.

Prewett suggested that Hittson’s attorneys hire Dr. Norman Moore, a

neuropsychiatrist who also practiced in Macon, to further evaluate Hittson—in

particular, to evaluate the existence or extent of his brain damage. Hittson’s trial

team again successfully petitioned the court for funds, and in January 1993, Dr.

Moore examined Hittson.

Dr. Moore did not find any evidence of brain damage, but he nonetheless

prepared a detailed report of his observations. The report recounted Hittson’s

troubled childhood, including suicide attempts, heavy drinking, an alcoholic father,

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and a dysfunctional family life. 35 Dr. Moore observed that Hittson “has a quick

temper but cools down quickly,” and “does not get violent when sober but was

always hostile and very violent on alcohol, especially liquor.” Doc. 75-20, at 39.

Dr. Moore also noted past misbehavior by Hittson, including stealing $1500 from

his father and a burglary arrest while enlisted in the Navy.

Aboard the Forrestal, Hittson said that he tried to avoid working with

Vollmer because Vollmer played “mind games.” Vollmer was higher in rank,

though, and apparently hand-picked Hittson to be a part of his work crew. Hittson

said that Vollmer would try to “get him drunk, and as a test, take him out to pick

up a hooker and use an electric zapper on her,” but Hittson refused. Id. at 38. On

the night of the murder, Hittson claimed that Vollmer “filled him with alcohol”

before he told him that Utterbeck was going to kill them. Id. While he did not

deny his participation in the murder, Hittson expressed disbelief at how he could

have done the things he did. When discussing his findings with the attorneys, Dr.

Moore stated his belief that the crime had homosexual overtones, although he did

not think that Hittson was a homosexual, and he characterized Hittson as “just

mean” and told his attorneys that he would say as much if called to testify. Doc.

75-16, at 100, 124.

35

Dr. Moore’s evaluation was based solely on his interview with Hittson. Dr. Moore

noted in his report, though, that “he impressed me with his openness and frankness and I have no

reason to doubt the truthfulness of his statements.” Doc. 75-20, at 39–40.

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Dr. Moore did not administer any psychometric tests; however, based on the

interview, he diagnosed Hittson with alcoholism and Antisocial Personality

Disorder. He also opined that Hittson “may have” experienced Induced Psychotic

Disorder on the night of the murder. As Dr. Moore explained it:

The central feature of this disorder is a delusional system that

develops in a second person (Mr. Hittson) as a result of a close

relationship with another person (the primary case, Mr. Vollmer) who

already has a psychotic disorder with delusions. The same delusions

are partly shared by both persons. The content of the delusion is

usually within the realm of possibility, and is often based on common

past experiences of the two people. Usually the primary person (Mr.

Vollmer) with the psychotic disorder is the dominant one in the

relationship and gradually imposes his or her delusional system on the

more passive and initially healthy second person (Mr. Hittson).

Doc. 75-20, at 40. Dr. Moore pointed out that, for Hittson to have shared

Vollmer’s psychotic delusion on the night of the murder, Vollmer himself would

have had to have had a psychotic delusion that Utterbeck intended to kill the two of

them—something that Dr. Moore had no way of determining. Nonetheless, Dr.

Moore noted that “[e]ven if Mr. Vollmer’s belief did not reach delusional level,

many of the other criteria were present,” and so, it was his opinion “that Mr.

Hittson was unduly influenced by Mr. Vollmer.” Id.

Finally, in early February 1993, defense counsel obtained funds from the

court to hire a social worker, Mary Shults, to work up a profile of Hittson’s family.

Shults traveled to Nebraska to interview family, friends, and teachers; she

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interviewed Hittson in jail; and she reviewed some of the same records provided to

Dr. Prewett.

Her research confirmed much of Hittson’s account of his upbringing. There

was a history of alcohol abuse on both sides of Hittson’s family; Hittson’s father

was an alcoholic who had emotionally abused Hittson when he was drunk;

Hittson’s three siblings struggled with alcohol dependency; and Hittson himself

began drinking at a very young age—when he was a teenager, he was twice

referred to treatment but never went. The Hittson home had been a “chaotic

environment” to grow up in. When Shults visited, the house was in disrepair, the

inside was “extremely cluttered, in disarray, and dirty,” and family members

“looked rather unkempt.” Doc. 75-20, at 6. Shults believed that Hittson’s parents

“failed to provide clean appropriate clothing for themselves and their children, had

poor hygiene skills, and failed to teach their children cleanliness and good

hygiene.” Id. at 9–10. Family dynamics paralleled living conditions—as Shults

put it, “Hittson’s family can only be described as dysfunctional.” Id. at 9. Shults

believed Hittson’s parents to be emotionally neglectful; they “were very ineffective

in providing nurturing and love for any of their children, but they neglected Travis

even more than the rest.” Id. at 10. Because of the lack of affection at home,

Hittson spent a lot of time at a friend’s house and became very attached to his

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friend’s family—he even took to calling the friend’s mother “mom.” 36 At school,

Hittson was “extremely needy, both emotionally and academically”; not

surprisingly, he performed poorly and was thought to have a learning disability.

Id. at 8. And he was teased by other children because he had poor hygiene and

dressed “awkwardly and clumsily” in “outdated and often dirty clothing.” Id.

In Shults’s opinion, Hittson’s upbringing “hampered . . . his ability to form

appropriate relationships and interact appropriately with society” and led him to

“develop[] a pattern of seeking . . . attention and love from others.” Id. at 10, 11.

Neither Shults nor Hittson’s attorneys believed that this information would excuse

Hittson’s participation in the murder, but they hoped it would at least explain

“some of the forces that went to mold Travis Hittson” and possibly show “how he

might be a bit more vulnerable . . . to being overwhelmed by the will of Mr.

Vollmer.” Doc. 75-17, at 46.

2.

On February 5, 1993, the defense team filed a notice of their intent to use

Hittson’s insanity or mental incompetence as a defense—as required if they wanted

the option of using any of their experts at trial. See Ga. Unif. Super. Ct. R. 31.4

(1993) (now Rule 31.5). In response, the State sought discovery of any expert

36

Mrs. Evie Fletcher—the friend’s mother—testified to this during the penalty phase of

Hittson’s trial.

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reports and requested that its own expert be allowed to evaluate Hittson. On

February 11, 1993, the trial court ordered him to submit to an examination by Dr.

Storms, the psychologist the State employed. 37 The court also appointed its own

expert, Dr. Paul Coplin, to examine Hittson, pursuant to O.C.G.A. § 17-7-130.1. 38

Hittson’s trial counsel were permitted to attend both examinations, but the court

cautioned them not to disrupt the interviews, else they would lose the right to

present their own experts. The court also stated that both sides could talk to Dr.

Coplin before trial.

Drs. Storms and Coplin independently interviewed Hittson over the course

of the next few days. 39 Sammons attended most of Dr. Storms’s interview—he

observed and took notes but did not interfere—but none of Hittson’s attorneys

attended Dr. Coplin’s interview. In addition to interviewing Hittson, both doctors

administered a handful of psychometric tests (including the WAIS and MMPI) and

37

See generally Motes v. State, 256 Ga. 831, 832, 353 S.E.2d 348, 349 (1987) (“[I]f a

defendant wants to tell his story to a jury through the mouth of an expert, the state should have

an equal opportunity to tell that story through the mouth of an expert, and . . . the state could not

practically possess this opportunity unless their expert gained access to the defendant.”).

38

“When notice of an insanity defense is filed, the court shall appoint at least one

psychiatrist or licensed psychologist to examine the defendant and to testify at the trial.”

O.C.G.A. § 17-7-130.1.

39

Dr. Coplin interviewed Hittson on Friday, February 12; Dr. Storms interviewed him on

Saturday, February 13 and Sunday, February 14. Jury selection for Hittson’s trial (which

commenced on February 25) began on Tuesday, February 16.

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reviewed some limited information on Hittson’s background and the crime. 40 They

each prepared a report stating their findings.

The reports contained much of the same background information. Hittson

did not have a close relationship with his parents; his father was an alcoholic; he

started drinking in high school; and he had contemplated suicide. Dr. Storms

reported that Hittson was “somewhat vague concerning his relationship with Mr.

Vollmer” but at one point stated that “Vollmer ‘considered me to be his protégé.’”

Doc. 70-4, at 18. Dr. Storms’s report included Hittson’s characterization of

Utterbeck—as a “hillbilly” and an “asshole”—but noted that “there was no

apparent intense feeling one way or the other between Mr. Hittson and his alleged

victim.” Id. Dr. Storms did not find any motive for the murder, other than

Vollmer’s statements telling Hittson that Utterbeck was going to kill them. When

he asked Hittson how he felt just before he killed Utterbeck, Hittson indicated “that

he was afraid” and “that he was not thinking.” Id. at 21.

Dr. Storms scored Hittson’s IQ at 105, placing him squarely in the average

range, and he found no evidence of brain damage. Dr. Storms noted that the

MMPI scores indicated that “Hittson was attempting to unconsciously exaggerate

40

Dr. Storms administered the WAIS, MMPI, Rorschach Inkblot Test, and Trail Making

Test. Dr. Coplin administered the WAIS, MMPI, Bender–Gestalt Test, Adult Sentence

Completion Test, Draw-A-Person Human Figure Drawing Test, and Beck Depression Inventory.

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his psychological problems,” 41 but he nonetheless believed that the test results fit

with his impressions from the interview:

[Hittson] has basically led a passive-dependent life style overlayed on

mild depression. He seemingly has been one to unquestioningly go

along with others who are perceived to have more personal power

than he, however, he has, at times, acted out, especially when he has

been drinking.

...

He tends to solve problems by “trial and error” and tends to not think

through the ramifications of his actions before he acts. . . . . He

usually has enough psychological resources to control and direct his

actions; however, under extraordinary circumstances, his controls may

falter.

Id. at 20–21. Dr. Storms did not find anything that would have impaired Hittson’s

ability to distinguish right from wrong on the night of the murder. He noted that

Hittson was drunk that night, and opined that alcohol tends to exacerbate Hittson’s

“natural style” of “act[ing] before he thinks.” Id. at 21.

Like Dr. Storms, Dr. Coplin found Hittson’s IQ to be average (93) and did

not find evidence of brain damage. Dr. Coplin’s test results showed Hittson to be

passive-dependent, depressed, anxious, and intrapunitive (“blaming himself for all

problems in his life situation”). Hittson had elevated MMPI scores on several

41

The MMPI has built-in validity tests in the form of questions that are designed to ferret

out individuals who may be trying to exaggerate or minimize their problems.

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scales 42—including the “Psychopathic Deviant” scale43—but Dr. Coplin did not

diagnose him with any personality disorders or otherwise find “any psychiatric

symptoms or psychiatric history that would render him not responsible for the

charges against him.” Doc. 70-5, at 16. He did note that Hittson was probably an

alcoholic.

42

The true–false answers given in response to MMPI questions correlate to numerical

scores on one or more of ten MMPI clinical scales. Elevated scores on a given scale, or

combinations of scores, are statistically correlated to certain personality traits or personality

disorders. The psychometrician who analyzed Hittson’s MMPI scores (as part of Dr. Coplin’s

examination) described Hittson’s score profile as follows:

[H]e tends to be anxious, tense and jumpy. He worries excessively and is

vulnerable to real and imagined threat[s]. He may anticipate problems before

they occur and over-react to minor stress. Somatic symptoms are common,

involve vague complaints of fatigue, tiredness, bored[om], insomnia, and other

physiological features. Depression is evident. He may not report feeling

especially sad or happy but shows symptoms of clinical depression including slow

personal tempo, slowed speech, and retarded thought processes. He is pessimistic

about the world in general and more specifically about the likelihood of

overcoming his problems. He may broo[d] and ruminate about his problems

much of the time. Although he has a strong need for achievement and recognition

for accomplishments, he feels guilty when he falls short of his goals. He tends to

be rather indecisive and harbors feelings of inadequacy, insecurity, and

inferiority. He is intrapunitive, blaming himself for all problems in his life

situation. He is rigid in his thinking and problem solving and meticulous and

perfectionistic in daily activities. He tends to be rather passive-dependent in his

relationships with other people. He has the capacity for forming deep emotional

ties and in times of stress may become overly clinging and dependent. He tends

to elicit nurturance and helping behavior from others.

Doc. 70-5, at 14.

43

Sammons later testified in the state habeas proceedings that Hittson’s elevated

Psychopathic Deviant score worried him, but neither party presented evidence in the state court

to explain what an elevated Psychopathic Deviant score is understood to mean. Cf. Cullen v.

Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011). (“[R]eview under

§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on

the merits.”).

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These findings remained unknown to the defense team when the guilt phase

of the trial began on February 25, 1993. The court did not require the parties to

disclose their experts’ findings before trial, and the court did not disclose Dr.

Coplin’s findings, because the defense had yet to definitively commit to putting on

evidence of Hittson’s mental condition. While Sammons had attended Dr.

Storms’s interview, he was not privy to Dr. Storms’s professional opinion. None

of Hittson’s attorneys attended Dr. Coplin’s interview or tried to talk to Dr. Coplin

before trial.

The defense team waited to commit to a course of action until the start of the

penalty phase—when they could wait no longer. Following the parties’ opening

statements, they proffered Dr. Prewett’s testimony to see if the court would let him

testify to some of his findings without opening the door to the State’s introduction

of Drs. Coplin and Storms.

They did not present anything from Dr. Moore; in fact, it appears that the

State was never aware of Dr. Moore’s involvement. Later, during the state habeas

proceedings, Sammons explained his fear “that [Dr. Moore] would testify that

Travis was just mean, and that he just did this because he is mean.” Doc. 75-16, at

101. Apparently, after talking to Dr. Moore, Sammons did not think they should

put on any mental health evidence: “I was scared to death that Dr. Moore’s

testimony would come in, that Dr. Prewett would testify that he had a consultation

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with Dr. Moore, and that Dr. Moore would have been called, and he was our

psychiatrist, and he would have testified that Travis was just mean.” Id. at 102. “I

didn’t think that there was anything worth doing to take the risk of putting, of

having the State put our psychiatrist on the stand to testify that our client was just

mean.” Id. at 103. While Hollman was less troubled by Dr. Moore’s possible

testimony (which presumably explains why they still proffered Dr. Prewett’s

testimony), he still felt that Dr. Moore’s findings were not very helpful to their

mitigation theory, and he wanted to avoid having Dr. Moore testify before the jury,

if possible.

After Dr. Prewett gave a condensed version of his testimony outside the

jury’s presence, Hittson’s counsel engaged in a lengthy colloquy with the court and

District Attorney regarding their ability to present some or all of Dr. Prewett’s

findings without allowing rebuttal from Drs. Storms or Coplin (even though they

were not yet aware of either doctor’s findings). The court rejected their arguments

and made it clear that, if they called Dr. Prewett, the State could call Drs. Storms

or Coplin. Before forcing them to decide what course to pursue, the court gave

both sides Dr. Coplin’s report—cautioning Hittson’s attorneys that, “I don’t think

y’all are going to find that that’s going to be for the benefit of Mr. Hittson.” Doc.

74-8, at 47. And the court required the State to turn over Dr. Storms’s report.

Trial counsel then had a thirty-minute recess to review the reports—Dr. Prewett

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was still present and also read the reports, but did not recall having an in-depth

discussion with the attorneys.

Upon seeing the doctors’ findings, Sammons and Hollman were convinced

that whatever benefit they might gain from having Dr. Prewett testify would be

outweighed by the other experts’ findings. In particular, Sammons recalled being

worried about Dr. Coplin’s MMPI test results showing Hittson to have an elevated

Psychopathic Deviant score. In his words, “I felt like if the jury heard that—you

know, you look at the photographs, you look at the crime, the jury hears that he is

elevated on a scale for being a psychopathic deviant, you know, it was my feeling

that that is what they would remember.” Doc. 75-17, at 14. Sammons was also

worried because Dr. Coplin did not find any evidence of brain damage—which

conflicted with Dr. Prewett’s findings (of the four doctors that examined Hittson,

Dr. Prewett was the only one that found any indication of brain damage). Hollman

likewise felt that the balance of the psychological testimony would not benefit

Hittson: “we were very concerned that the State and the Court’s, that is Dr.

Storms[’s] and Dr. Coplin’s opinions of Mr. Hittson’s mental state would have

been very difficult for us to overcome and would have been potentially even

frightening to the jury.” Id. at 67.

Shurling was more ambivalent; he testified in the state habeas proceedings

that, “[a]s a general proposition, I think one could say that all of the psychologies

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and psychological evaluations taken together were very, well, they were

unfavorable.” Doc. 75-18, at 91. But later he stated that, had it been his call, he

might have risked the rebuttal testimony because, in his experience, he preferred to

put on all the evidence he has at his disposal and let the jury sort it out. Shurling

was not the primary decisionmaker, though, and notwithstanding his inclination to

put on all available evidence, he apparently did not object to Sammons’s and

Hollman’s decision to forego expert testimony.

Following their review of the expert reports, trial counsel proffered Shults’s

testimony—again to see if they could have her testify without triggering rebuttal

from Drs. Storms or Coplin. They again struck out. The court made it clear that if

they put on Shults, then the State could call its own mental health experts to not

only rebut Shults’s testimony, but also to state their own conclusions based on their

independent evaluation of Hittson.

Faced with an all-or-nothing proposition, the defense decided to forego

expert testimony and just stick with their lay witnesses. In an abundance of

caution, they even asked the court, “[i]f we put up lay witnesses to testify about

[Hittson’s] character, you won’t let them put up Coplin and Storms?” To which

the court replied “Right.” Doc. 74-8, at 77. As recounted earlier, the defense

team’s twenty lay witnesses testified that Hittson was a pretty good guy—he was

not the brightest and he drank a lot, but he was pretty much harmless—and that

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Hittson was particularly impressionable and emotionally needy. And, as discussed

in detail, one lay witness testified that Hittson “might have been” remorseful about

the murder, which led to Dr. Storms’s “lay” testimony that Hittson called

Utterbeck a “hillbilly” and an “asshole” during his interview.

Following Dr. Storms’s brief rebuttal testimony, Hittson’s trial team did not

try to re-open their case in chief to put on their experts, despite the fact that at least

some of the testimony they had hoped to keep from the jury had now slipped out.

When asked why Dr. Storms’s testimony did not change their calculus, Sammons

pointed out that he was still worried about the specter of Dr. Moore’s testimony.

Likewise, Hollman “didn’t see the value” in having Dr. Prewett testify after Dr.

Storms but conceded that, “at that point, I’m not sure any of us really knew what to

do.” Doc. 75-17, at 59, 62.

3.

In his first state habeas petition, Hittson claimed that his trial counsel failed

to render effective assistance because they did not call Dr. Prewett or Ms. Shults

during the penalty phase—even after Dr. Storms testified. After the evidentiary

hearing, Hittson elaborated on this claim, arguing in his post-hearing brief that

“counsel’s decision to withhold psychological evidence during the penalty phase of

trial was uninformed,”—and therefore, by definition, not strategic—because

counsel “inexplicably failed to interview Dr. Coplin prior to trial.” Doc. 76-1, at

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31, 34. In the alternative, Hittson contended that, “[e]ven if the investigation could

be said to be reasonable . . . [c]ounsel’s purported reason for withholding the

evidence” was unreasonable because they only spent thirty minutes reviewing Drs.

Coplin’s and Storms’s reports—leading to “a non-strategic rush to judgment.” Id.

at 36–37. Because of such “blind decision-making,” counsel failed to recognize

that “Dr. Coplin’s report was mostly positive,” and their “concern over Dr.

Storms’s potential testimony also was exaggerated and unfounded.” Id. at 38, 39.

Moreover, “any basis for withholding [Dr. Prewett and Ms. Shults] disappeared

when Dr. Storms recounted [Hittson’s ‘hillbilly’ and ‘asshole’] statements . . . .”

Id. at 39.

In denying habeas relief, the Butts County Superior Court held that Hittson

had failed to show that his attorneys’ conduct fell below the “objective standard of

reasonableness” required by the Sixth Amendment, and, in the alternative, that

Hittson had not been prejudiced by the complained-of conduct—i.e., he failed to

establish either of Strickland’s prongs.

The Superior Court found the defense attorneys’ assessment of the mental

health evidence to be reasonable:

[T]rial counsel’s decision to forego mental health evidence was

reasonable based [solely] upon the fear that Dr. Moore might

testify . . . .

...

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[Moreover], in light of the contradictions to Dr. Prewett’s testimony

which are presented by the reports of Coplin and Storms, the possible

negative inferences which could be drawn from the psychological

reports, as well as the conclusions drawn in the reports concerning

Hittson’s responsibility for the crime, the Court concludes that it was

reasonable for trial counsel to conclude that the reports of Storms and

Coplin were unfavorable. [Therefore] trial counsel’s decision not to

present the testimony of Dr. Prewett and Ms. Shults, which was based

on the aforementioned reasonable conclusion was not unreasonable.

Doc. 76-4, at 17, 19 (citation omitted). Even after Dr. Storms testified, the court

believed that enough unfavorable evidence remained—unrelated to the “hillbilly”

and “asshole” statements—to support counsel’s decision not to call their experts.

And the court brushed aside the “uninformed judgment” argument because, in the

court’s view, thirty minutes was sufficient time to digest Drs. Coplin’s and

Storms’s reports, “as the reports are not lengthy [(together they totaled sixteen

pages)], and Dr. Coplin’s report contains a summary which would make it possible

to determine the substance of his testimony within that period of time.” Id. at 17.

In the alternative, the court held that, even if trial counsel had been

constitutionally deficient, the expert testimony did not create a reasonable

probability of a different result:

[I]n light of all the evidence adduced, including the crime committed,

the gruesome nature of that crime, Petitioner’s characterization of the

victim after the crime, the mitigation evidence which was actually

presented, and the possibly unfavorable psychological testimony

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which includes not only [Drs. Prewett’s, 44 Coplin’s, and Storms’s

findings], but the possibility of Dr. Moore, the defense’s own expert,

testifying that Travis was “just mean,” the Court does not believe

there to be a reasonable probability that the jury would have returned

with a sentence of life had Ms. Shults and Dr. Prewett been presented

in the penalty phase.

Id. at 21 (citations omitted).

Hittson applied to the Georgia Supreme Court for a certificate of probable

cause, claiming error in the Superior Court’s application of both Strickland prongs.

He maintained that thirty minutes was not enough time for his attorneys to assess

the reports and, in their rush to judgment (which they manufactured by failing to

interview Dr. Coplin before trial), “[t]hey overlooked helpful material in the

reports and misinterpreted irrelevant material as harmful.” Doc. 76-6, at 26. The

Supreme Court found no merit to his arguments and accordingly denied a CPC.

In his federal habeas petition, Hittson contended that the state courts

unreasonably applied Strickland when they found the defense team’s assessment to

be reasonable: “In these circumstances, counsel could not possibly make an

informed decision to withhold psychiatric evidence”; “[i]n their rush during a 30

minute recess, the lawyers misread the reports, overlooking helpful material, and

misinterpreting irrelevant material as harmful.” Am. Pet. for Writ of Habeas

44

The court pointed out that some of Dr. Prewett’s testimony could have worked against

Hittson’s interests—e.g., the Borderline Personality Disorder diagnosis and his opinion that

Hittson was violent and impulsive.

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Corpus, ECF no. 45, at 48. The District Court evaluated the experts’ findings and

agreed with the Butts County Superior Court’s reasons for holding that Hittson’s

counsel acted reasonably—going as far as to note that “trial counsel more likely

would have been ineffective if they had opened the door to the damaging testimony

of Dr. Coplin, Dr. Storms, and Dr. Moore,”—“regardless of the mitigation strategy

that capital defense lawyers choose, they are often damned if they do, and damned

if they don’t when they decide to use, or not use, mental health testimony.”

Hittson, 2012 WL 5497808, at *48 (quotation marks omitted).

B.

Like the District Court, we review the state courts’ rejection of Hittson’s

ineffectiveness claim through the lens of AEDPA and, accordingly, look only to

whether the Georgia Supreme Court had a reasonable basis in the record to

conclude that Hittson’s ineffective-assistance claim was meritless.

AEDPA review of a state court’s adjudication of a Strickland claim is an

especially onerous standard for a federal habeas petitioner to overcome. We begin

with Strickland’s performance prong, which, in staking out the standard for

constitutionally defective representation, demands that courts give considerable

deference to trial counsel’s judgment. See Richter, __ U.S. at __, 131 S. Ct. at 788

(“Unlike a later reviewing court, the attorney observed the relevant proceedings,

knew of materials outside the record, and interacted with the client, with opposing

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counsel, and with the judge.”). Because it would be “all too easy for a court,

examining counsel’s defense after it has proved unsuccessful, to conclude that a

particular act or omission of counsel was unreasonable . . . a court must indulge a

strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at

2065. This presumption insulates all but those errors that are “so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. at 687, 104 S. Ct. at 2064.

To show that an attorney failed to discharge his Sixth Amendment duty, a

petitioner must establish that the attorney’s conduct “amounted to incompetence

under ‘prevailing professional norms.’” Richter, __U.S. at __, 131 S. Ct. at 788

(quoting Strickland, 466 U.S. at 690, 104 S. Ct. at 2066) (emphasis added). “The

[Strickland] test has nothing to do with what the best lawyers would have done.

Nor is the test even what most good lawyers would have done.” White v.

Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992). “[A] petitioner must establish

that no competent counsel would have taken the action that his counsel did take.”

Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc)

(emphasis added).

Thus, “[e]ven under de novo review, the standard for judging counsel’s

representation is a most deferential one.” Richter, __ U.S. at __, 131 S. Ct. at 788.

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But “[e]stablishing that a state court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The standards created by Strickland and

§ 2254(d) are both highly deferential, and when the two apply in tandem, review is

doubly so.” Id. (citations and quotation marks omitted). “The question is not

whether a federal court believes the state court’s determination under the

Strickland standard was incorrect but whether that determination was

unreasonable—a substantially higher threshold.” Knowles v. Mirzayance, 556

U.S. 111, 123, 129 S. Ct. 1411, 1420, 173 L. Ed. 2d 251 (2009) (quotation marks

omitted). If there is “any reasonable argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not disturb a state-court decision

denying the claim. Richter, __ U.S. at __, 131 S. Ct. at 788.

Hittson has come nowhere close to satisfying this combined Strickland–

AEDPA standard. At best, he has demonstrated that his attorneys faced a tough

choice—they had to let the jury hear all the expert testimony or none of it and,

based on their assessment of the evidence, they decided that this would do more

harm than good. Such a showing is not enough to establish ineffectiveness under a

de novo application of Strickland—much less justification for upsetting the

Georgia high court’s decision under § 2254(d)(1).

We need not rehash the expert evidence. It suffices to say what should be

evident: The experts’ findings were a mixed bag (even after the “hillbilly” and

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“asshole” statements came in)—some of what they had to say would have been

good for Hittson, and some would have been bad. The defense team’s judgment

that the findings were more aggravating than mitigating is precisely the type of

game-time decision that Strickland insulates from Monday-morning

quarterbacking. See Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en

banc) (“Which witnesses, if any, to call, and when to call them, is the epitome of a

strategic decision, and it is one that we will seldom, if ever, second guess.”).

Hittson tries to avoid the broad deference owed to defense counsel’s best

judgment by arguing that their “decision” was just guesswork, because they failed

to fully investigate the other experts’ findings. The record does not support this

argument. First, even without considering Drs. Storms’s and Coplin’s findings,

trial counsel had reason enough to forego Dr. Prewett’s testimony based solely on

the risk that the State (and then the jury) would hear from Dr. Moore. A

reasonable attorney could have concluded, as Sammons did, that “there was [not]

anything worth doing to take the risk of . . . having the State put our psychiatrist on

the stand to testify that our client was just mean,” Doc. 75-16, at 103—not to

mention Dr. Moore’s Antisocial Personality Disorder diagnosis, his observation

that Hittson was “always hostile and very violent on alcohol,” and the report’s

references to Hittson’s burglary arrest and theft from his parents, Doc. 75-20, at

38–39.

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Even so, the team reserved judgment until after they had access to Drs.

Coplin’s and Storms’s reports and after the court ruled that Dr. Prewett’s or Ms.

Shults’s testimony would allow the state to call Drs. Coplin or Storms in rebuttal.

Hittson’s contention that thirty minutes was not enough time for three attorneys

and a psychologist to digest two eight-page reports is little more than wishful

thinking.45 The trial team was already familiar with Hittson’s psychological

profile from their discussions with Drs. Prewett and Moore, and the trial judge told

them, point blank, “I don’t think y’all are going to find that [Dr. Coplin’s report is]

going to be for the benefit of Mr. Hittson.” Doc. 74-8, at 47. As we have just said,

their assessment of the evidence was objectively reasonable, and Hittson has done

nothing to overcome the strong presumption that counsel “made all significant

decisions in the exercise of reasonable professional judgment.” Strickland, 466

U.S. at 690, 104 S. Ct. at 2066.

45

Hittson quibbles with some of the aggravating parts of the reports that his trial

attorneys highlighted in the state habeas proceedings. He forgets, though, that he bears the

burden of proving his attorneys’ incompetence; it is not up to defense counsel to articulate each

and every reason they had for a single decision made in the course of an entire trial, litigated

years ago. Richter, __ U.S. at __, 131 S. Ct. at 790 (“[C]ourts may not . . . insist [that] counsel

confirm every aspect of the strategic basis for his or her actions. There is a strong presumption

that counsel’s attention to certain issues to the exclusion of others reflects trial tactics rather than

sheer neglect.” (quotation marks omitted)); see also Chandler, 218 F.3d at 1315 n.16 (“To uphold

a lawyer’s strategy, we need not attempt to divine the lawyer’s mental processes underlying the

strategy.”). The only “evidence” Hittson puts forth to support his argument that the defense

team’s decision was uninformed is the very fact that the defense team found the reports to be, on

the whole, unfavorable. In other words, Hittson argues that the attorneys’ assessment of the

expert evidence was unreasonable because it was uninformed, and as proof that it was

uninformed, he points to their unreasonable assessment. Needless to say, such tautology is

unpersuasive.

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That the attorneys might have been able to glean some information from Dr.

Coplin before trial is irrelevant.46 For context, we note that Dr. Coplin interviewed

Hittson on Friday, February 12, 1993; Dr. Storms interviewed Hittson on Saturday

and Sunday February 13 and 14; and jury selection began on Tuesday, February

16. Assuming that the attorneys could have found time to run down Dr. Coplin

(before the state habeas court, Hittson never asked the attorneys why they didn’t

interview Dr. Coplin), Hittson has produced no evidence to show that he would

have told them anything other than what was in his report (Hittson did not call Dr.

Coplin during the state habeas proceedings). At most, Hittson has shown that trial

counsel might have been able to learn—slightly earlier—the same information they

got from Dr. Coplin’s report.

Courts are not in the business of micromanaging attorney trial prep. See

Richter, __ U.S. at __, 131 S. Ct. at 788 (“[I]ntrusive post-trial inquiry threaten[s]

the integrity of the very adversary process the right to counsel is meant to serve.”

46

In his federal habeas petition and brief to this court, Hittson claims that his counsel also

should have interviewed Dr. Storms before trial. The first time Hittson made this claim was in

his CPC application to the Georgia Supreme Court. Putting aside Hittson’s failure to present this

argument to the Butts County Superior Court, there is no support in the trial record (and

obviously none in the collateral record) for the proposition that Hittson’s attorneys could have

obtained Dr. Storms’s findings prior to trial. In the pretrial hearing in which the trial court

ordered Hittson to submit to an examination by Dr. Storms, the court explained that neither side

had an obligation to disclose their respective experts’ findings until the defense team decided

whether they were going to use their expert evidence. Thus, Dr. Storms had no obligation to

disclose his findings to the defense team. In fact, after Dr. Storms interviewed Hittson,

Sammons tried to ask him about his impressions in the parking lot, but Dr. Storms rebuffed his

inquiries.

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(quotation marks omitted)); Strickland, 466 U.S. at 490, 104 S. Ct. at 2066

(“Intensive scrutiny of counsel and rigid requirements for acceptable assistance

could dampen the ardor and impair the independence of defense counsel . . . .”).

We are all too familiar with the strain of claims alleging ineffective assistance

because an attorney could have interviewed one more witness, read one more

document, or chased down one more loose end. In the face of these claims, courts

have explained ad nauseam that attorneys are not required to conduct an exhaustive

investigation of each and every decision made at trial—merely a reasonable one.

See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066 (“[C]ounsel has a duty to make

reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary.”); Richter, __ U.S. at __, 131 S. Ct. at 789 (“Counsel

[is] entitled to . . . balance limited resources in accord with effective trial tactics

and strategies.”).

With unlimited time and resources, there is always something more that

might have been done in a capital case—such allegations “prove[] at most the

wholly unremarkable fact that with the luxury of time and the opportunity to focus

resources on specific parts of a made record, post-conviction counsel will

inevitably identify shortcomings in the performance of prior counsel.” Waters, 46

F.3d at 1514. Hittson takes this worn-out argument one step further—

complaining, not that his attorneys failed to investigate a particular line of inquiry,

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but that they didn’t investigate it fast enough. We refuse to stretch the Sixth

Amendment to include such a right.

In sum, Hittson has failed to show that his attorneys’ decision to forego

expert testimony fell below an objective standard of reasonable attorney conduct—

much less that the state courts unreasonably applied Strickland in rejecting his

Sixth Amendment claim. The District Court’s rejection of habeas relief on

Hittson’s Strickland claim is, accordingly, affirmed.

VII.

Hittson’s final constitutional claim is that the State withheld Vollmer’s

psychiatric report and post-arrest letters he wrote from jail, in violation of Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) .

Under Brady, “the suppression by the prosecution of evidence favorable to

an accused . . . violates due process where the evidence is material either to guilt or

to punishment.” Id. at 87, 83 S. Ct. at 1196–97. But “the Constitution is not

violated every time the government fails or chooses not to disclose evidence that

might prove helpful to the defense.” Kyles v. Whitley, 514 U.S. 419, 436–37, 115

S. Ct. 1555, 1567, 131 L. Ed. 2d 490 (1995). To prevail on a Brady claim, a

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defendant must establish three elements: “[1] The evidence at issue must be

favorable to the accused, either because it is exculpatory, or because it is

impeaching; [2] that evidence must have been suppressed by the State, either

willfully or inadvertently; and [3] prejudice must have ensued.” Strickler v.

Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286 (1999).

We focus on the third element. 47 To show “prejudice,” or “materiality,”

under Brady, the petitioner must show that “there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would

have been different.” Kyles, 514 U.S. at 433, 115 S. Ct. at 1566 (quotation mark

omitted). This process, “will necessarily require a court to ‘speculate’ as to the

effect of the new evidence.” Sears v. Upton, __ U.S. __, 130 S. Ct. at 3259, 3266,

177 L. Ed. 2d 1025 (2010). 48 “The question is not whether the defendant would

more likely than not have received a different verdict with the evidence, but

whether in its absence he received a fair trial, understood as a trial resulting in a

47

There has been considerable debate as to whether Hittson’s trial counsel or first state

habeas counsel could have, or in fact did, obtain the psychiatric report. Because we conclude

that the report would not have made a difference, we need not wade into the quagmire that has

developed over whether or why the report was unavailable. Cf. Strickler, 527 U.S. at 295, 119

S. Ct. at 1955 (interchangeably using the Brady materiality requirement and the procedural-

default prejudice requirement).

48

Sears explained this in the context of Strickland prejudice, but the point obviously

holds true for the identical Brady materiality test.

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verdict worthy of confidence.” 49 Kyles, 514 U.S. at 434, 115 S. Ct. at 1566. In

conducting this analysis, courts first evaluate the effect of each suppressed item on

its own and then weigh the cumulative impact of all of the suppressed evidence.

Id. at 436 n.10, 115 S. Ct. at 1567 n.10.

Vollmer’s psychiatric report was prepared in February 1991—more than a

year before the murder—by R. J. Dusan, a social worker in the psychiatric

department of the Naval Hospital in Jacksonville, Florida, where the Forrestal was

stationed at the time. The Forrestal’s flight surgeon requested the psychiatric

evaluation because Vollmer’s attitude was affecting his work performance and

causing interpersonal problems aboard the ship. After interviewing Vollmer and

reviewing his medical and military records, Dusan diagnosed Vollmer with

“severe” Antisocial Personality Disorder and recommended that he be discharged

from the Navy. The hospital’s chief of psychiatry, Dr. Donald Gibson, signed off

on the report—he did not interview Vollmer or prepare the report.

The two jailhouse letters were addressed to Joleen Ward, a sailor on the

Forrestal and friend of Vollmer’s; they were written after Vollmer was arrested but

before Hittson’s trial. The letters are a few pages each and ramble through a

49

The Brady materiality test is more stringent (from a petitioner’s perspective) than the

Brecht “substantial and injurious effect” standard that we applied to Hittson’s Estelle claims.

See Kyles v. Whitley, 514 U.S. 419, 435–36, 115 S. Ct. 1555, 1566–67, 131 L. Ed. 2d 490

(1995).

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variety of topics, including the murder investigation, Vollmer’s ex-wife, Ms.

Ward’s boyfriend, foreign affairs, recollections of good times with friends, sports,

jokes, and poetry. Of chief relevance to Hittson’s Brady claim are Vollmer’s

references to his impending prosecution, in which he casually dismisses the

likelihood of a conviction because of police incompetence and because “[t]hey’re

in my hometown . . . with my hand picked judge and my hand picked jury.” Doc.

56-15, at 8. He also wrote, “only two people actually know what happened, and

I’ve never talked to any cops or made a confession, so it looks like the whole

world[’]s gonna have to wait till August to hear me speak, and only if I feel like

it.” Id. at 17.

As recounted earlier, in rejecting Hittson’s second state habeas petition, the

Butts County Superior Court concluded that Hittson could have obtained

Vollmer’s psychiatric report during trial or in his first state habeas proceeding, and

so the report claim was procedurally defaulted. Nonetheless, the court analyzed

the report under Brady’s materiality requirement, along with the post-arrest letters,

and concluded that the suppressed evidence was not material, either individually or

collectively, because it was duplicative of other evidence put on by the defense

during the penalty phase. In his CPC application, Hittson argued that his

psychiatric report claim was properly before the court on the merits, and that the

suppressed evidence was material, both individually and cumulatively. The

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Georgia Supreme Court summarily denied his CPC application. As explained

above, this was a rejection on the merits, and so our task is to review the record

before the Georgia Supreme Court to determine if there is any reasonable basis to

support the court’s denial of relief. See Richter, __ U.S. at __, 131 S. Ct. at 784.

We find ample support in the record for the conclusion that Vollmer’s

psychiatric report and post-arrest letters did not create a reasonable probability of a

different result. We examine this evidence separately and then cumulatively.

A.

In analyzing the materiality of the psychiatric report—as with any piece of

evidence—we must necessarily determine how Hittson would have used it at trial

and then weigh the “tendency and force” of the evidence as it would have been

presented to the jury. See Kyles, 514 U.S. at 436 n.10, 115 S. Ct. at 1567 n.10.

Throughout his state and federal habeas proceedings, Hittson has brandished

Vollmer’s diagnosis as if it were dispositive proof of every attribute his trial team

sought to ascribe to Vollmer during the penalty phase. But Hittson has

consistently failed to explain how the evidence he produced to this effect in the

2005 to 2009 time frame, when he was litigating his state habeas petition, relates

back to his trial in 1993. More importantly, Hittson has lost sight of the fact that

Vollmer was not the one on trial. He apparently assumes that anything that would

have made Vollmer look bad necessarily would have helped him, but culpability

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for this crime was not a zero-sum game. Hittson has not carefully traced the

inferences the jury could have drawn about Vollmer to the jury’s ultimate decision

to return a death sentence. Thus, we must parse the record to answer the only two

questions that matter: what would the jury have heard or seen during Hittson’s

1993 trial, and what effect would that have had on the jury’s conclusion that

Hittson deserved the death penalty.

In the habeas proceedings before the Butts County Superior Court, Hollman

testified that he would have either called the Navy personnel who prepared the

report, or submitted the report as an exhibit, to “acquaint the jury with Mr.

Vollmer’s psychological condition” as a way to “buttress[] the defense” that

“Vollmer was the stronger personality and the more intelligent of the two and that

he, in fact, had induced Mr. Hittson to participate in this crime.” Doc. 56-9, at 115.

We assume, for sake of discussion, that the report would have been admissible and

Hittson’s attorneys could have called Mr. Dusan (the social worker who

interviewed Vollmer and prepared the report) or Dr. Gibson (the psychiatrist who

signed off on the report) to testify regarding the contents of the report or meaning

of the diagnosis.50 See generally Gissendaner v. State, 272 Ga. 704, 714, 532

50

Hittson also claims that, with the benefit of Vollmer’s report, his trial counsel would

have decided to put on their own experts (we presume that he means Dr. Prewett) who would

have then been able to explain the relevance of Vollmer’s diagnosis in light of his assessment of

Hittson. We can give short shrift to this assertion. As we have just discussed in detail, Hittson’s

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S.E.2d 677, 688–89 (2000) (explaining that the Georgia rules of evidence are

relaxed in the penalty phase of a capital case). We also assume that, in admitting

evidence of Vollmer’s mental condition, Hittson would not have opened the door

to damaging rebuttal evidence—in particular, his own Antisocial Personality

Disorder diagnosis made by Dr. Moore.

We agree that, when used in this manner, the report could have supported

Hittson’s mitigation theory during the penalty phase; however, it is not the silver

bullet that Hittson tries to make it out to be. See Strickler, 527 U.S. at 289, 119

S. Ct. at 1952 (“[The suppressed evidence] might have changed the outcome of the

trial. That, however, is not the standard . . . . He must [show] that there is a

reasonable probability that the result of the trial would have been different . . . .”)

(quotation marks omitted).

As an initial matter, we are skeptical as to how probative the report would

have been to the crux of Hittson’s mitigation theory—that he was acting under

Vollmer’s control on the night of the crime. In his report, Dusan made the

defense team had a number of well-founded reasons not to call their experts—not the least of

which was that they would have risked the State calling Dr. Moore to testify that he had

diagnosed Hittson with Antisocial Personality Disorder. In his state habeas proceedings related

to the Brady claims, Hittson did not submit a scrap of evidence from Drs. Prewett or Moore, and

neither Hollman nor Sammons could say that the added value of Vollmer’s psychiatric report

would have changed their risk calculus and led them to put on one or all of their experts. Thus,

we limit our materiality review to the admission of the psychiatric report and testimony from Mr.

Dusan or Dr. Gibson explaining the report.

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following observations—drawn from an hour-and-a-half interview and a review of

Vollmer’s medical and military records:

This patient admits that as child there was lying, stealing, truancy,

vandalism, initiating fights, and running away from home. Presently

he is unable to sustain consistent work behavior. He frequently

becomes intoxicated, is promiscuous and has no remorse for his

actions as they affect others.

Doc. 56-15, at 4. This paragraph recites—nearly verbatim—the diagnostic criteria

for Antisocial Personality Disorder listed in the Diagnostic and Statistical Manual

of Mental Disorders (“DSM”) in print in 1991. See Am. Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders, at 344–46 (3d ed., rev.

1987) (hereinafter “DSM-III-R”). According to the DSM-III-R, a person with

Antisocial Personality Disorder typically “fail[s] to conform to social norms and

repeatedly perform[s] antisocial acts that are grounds for arrest, such as destroying

property, harassing others, stealing, and having an illegal occupation.” Id. at 342.

They also “tend to be irritable and aggressive and to get repeatedly into physical

fights and assaults,” “[t]ypically . . . are promiscuous,” “they generally have no

remorse about the effects of their behavior on others; they may even feel justified

in having hurt or mistreated others,” and they have “the conviction (often correct)

that others are hostile towards them.” Id. at 342–43.

Dr. Gibson testified in the state habeas proceedings that a “severe” diagnosis

was typically given to indicate “that this patient has a personality disorder that is of

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such severity as to preclude further military service”—“so people will know that

we’re not just kidding, this is something that’s serious and needs to be taken care

of right away.” Doc. 56-11, at 109, 110. Dr. Gibson also explained that a person

with severe Antisocial Personality Disorder, “has adaptability problems. He has

interpersonal problems. He has problems with authority. He has problems doing

what he’s supposed to do. He’s done illegal things, things for which if he had

gotten caught doing them he would have been arrested. He violates the rights of

everybody.” Id. at 110. This testimony also tracks the DSM-III-R’s description of

the disorder (Dr. Gibson did not evaluate Vollmer and, understandably, did not

recall signing off on the 1991 report when he testified in 2007 before the state

habeas court).

Critically lacking is any support for the theory that Vollmer had a propensity

for manipulating or controlling others. Neither the report, the DSM, nor Dr.

Gibson’s description indicate that a person with Antisocial Personality Disorder in

general, or Vollmer in particular, is adept at bending others to his will. 51 The

“essential feature” of the disorder is described as “a pattern of irresponsible and

antisocial behavior”—i.e., a “fail[ure] to conform to social norms.” DSM-III-R, at

51

The DSM lists, as one of the diagnostic criteria for the disorder, “no regard for the

truth, as indicated by repeated lying, use of aliases, or ‘conning’ others for personal profit or

pleasure.” DSM-III-R, at 345. Dusan did not rely on this criterion in reaching his diagnosis (the

DSM lists ten diagnostic criteria, of which a doctor must find four in order to reach a diagnosis).

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342. While this type of behavior might include attempts to control others, there is

nothing in the report or the diagnosis that indicates that Vollmer possessed this

particular attribute among the host of traits that could be deemed “antisocial.”

Hittson submitted an affidavit to the Butts County Superior Court from Dr.

Jerry Lee Brittain, a neuropsychologist who, in 2002, reviewed Vollmer’s military

and medical records along with the various expert assessments of Hittson that were

prepared for trial. Dr. Brittain gave the following opinion:

The combination of Mr. Vollmer’s extremely high level of

intelligence[52] with an Antisocial Personality Disorder suggests a very

manipulative, clever, sophisticated con artist—this is typically a

person who often gets away with their infractions because they are

smart enough to avoid getting caught, many times at the expense of a

weaker codefendant.

Doc. 56-16, at 48. In forming this opinion, Dr. Brittain relied on the

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