Robert Earl Butts v. GDCP Warden

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-15691

________________________

D.C. Docket No. 5:13-cv-00194-MTT

ROBERT EARL BUTTS,

Petitioner-Appellant,

versus

GDCP WARDEN,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

________________________

(March 9, 2017)

Before ED CARNES, Chief Judge, TJOFLAT and HULL, Circuit Judges.

ED CARNES, Chief Judge:

Robert Earl Butts, Jr., a Georgia prisoner, murdered Donovan Corey Parks.

Butts was sentenced to death after a jury found him guilty of malice murder, armed

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robbery, hijacking a motor vehicle, possession of a firearm during the commission

of a crime, and possession of a sawed-off shotgun. The district court denied his 28

U.S.C. § 2254 petition for a writ of habeas corpus, in which he raised a number of

claims challenging his convictions and sentence. The court granted him a

certificate of appealability on the question whether “[t]rial and appellate counsel

were ineffective for failing to investigate, develop, and present mitigating evidence

during the sentencing phase of Butts’s trial.”

A complicating factor in considering the issues certified for this appeal is the

fact that in the state collateral proceeding the trial court ruled that Butts had

procedurally defaulted a part of his claim that trial counsel was ineffective for

failing to investigate, develop, and present mitigating evidence. During the unified

appeal, Butts’ new counsel had argued only that trial counsel was ineffective for

failing to offer testimony by family members, who could have made a plea for

mercy, at the sentencing phase of his trial. 1

In his later state habeas petition Butts, represented by yet another set of new

counsel, reiterated his claim about trial counsel’s failure to call family members to

plead for mercy, but he also attempted to expand his claim to allege that trial

counsel had “failed to conduct an adequate pretrial investigation into [his] family

1

Georgia’s Unified Appeal Procedure requires a capital defendant to challenge “the

effectiveness of trial counsel . . . in a motion for new trial” and “if the defendant fails to raise an

ineffective assistance claim in a motion for new trial, such a claim is deemed waived in all

further proceedings.” Williams v. Turpin, 87 F.3d 1204, 1210 (11th Cir. 1996).

2

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life and background to uncover and present to the jury evidence in mitigation.”

The state trial court found that Butts’ failure to preserve that expanded part of his

claim during the unified appeal barred it from considering that part of the claim on

the merits. The court denied the claim based on that procedural bar. It also denied,

on the merits, Butts’ related claim that appellate counsel had rendered ineffective

assistance by failing to adequately raise and preserve during the unified appeal the

trial counsel ineffectiveness claim. The Georgia Supreme Court denied Butts a

certificate of probable cause to appeal the state trial court’s decision denying him

habeas relief.

Butts then filed in federal district court a petition for a writ of habeas corpus.

With limited exceptions, “[w]hen a state court denies a claim as defaulted based on

an adequate and independent state procedural rule, a petitioner may not bring the

claim in federal habeas.” Lucas v. Warden, Ga. Diagnostic & Classification

Prison, 771 F.3d 785, 801 (11th Cir. 2014). One exception occurs when the habeas

petitioner can show cause and prejudice. Id.; Jones v. Campbell, 436 F.3d 1285,

1304 (11th Cir. 2006). In an attempt to lift the procedural bar and have the district

court decide his expanded trial counsel ineffectiveness claim on the merits, Butts

asserted as cause a claim that his appellate counsel was himself ineffective for not

adequately investigating and presenting during the state unified appeal the claim

that trial counsel was ineffective. The district court rejected that contention on the

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ground that the state trial court’s rejection of it was not unreasonable under 28

U.S.C. § 2254(d). In making that decision, the district court considered looking to

the Georgia Supreme Court’s unexplained denial of a certificate of probable cause

to appeal, but it decided instead to look to the trial court’s explained rejection of

the claim. App’x at 12 n.8. We have since held that the denial of a certificate of

probable cause to appeal by the Georgia Supreme Court is a decision on the merits

entitled to deference under § 2254(d), and it is to that decision instead of the

typically more specific trial court decision that a federal habeas court should look.

Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1232–33 (11th Cir.

2016) (en banc), cert. granted, No. 16-6855, __ U.S. __ (Feb. 27, 2017). Because

it does not matter to the result, and to avoid any further complications if the United

States Supreme Court disagrees with our Wilson decision, we have decided this

appeal on the same basis that the district court did: by using the more state-trial-

court focused approach in applying § 2254(d).

The state trial court, the district court, and the parties themselves agree that

appellate counsel’s performance in presenting the ineffective assistance of trial

counsel claim was itself deficient. We accept that proposition for present purposes

and turn to the prejudice requirement. See Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064 (1984) (“Unless a defendant makes both showings

[deficient performance and prejudice], it cannot be said that the conviction or death

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sentence resulted from a breakdown in the adversary process that renders the result

unreliable.”); Brooks v. Comm’r, Ala. Dep’t of Corr., 719 F.3d 1292, 1300 (11th

Cir. 2013) (“Claims of ineffective assistance of appellate counsel are governed by

the same standards applied to trial counsel under Strickland.”) (quotation marks

omitted).

In the state habeas proceeding, the trial court found that Butts had not

established prejudice from his appellate counsel’s failures in investigating and

presenting the trial counsel ineffectiveness claim during the unified appeal. We

accord that decision the deference it is due under § 2254(d). See Harrington v.

Richter, 562 U.S. 86, 100, 131 S. Ct. 770, 785 (2011) (“Federal habeas relief may

not be granted for claims subject to § 2254(d) unless it is shown that the earlier

state court’s decision ‘was contrary to’ federal law then clearly established in the

holdings of [the United States Supreme] Court, § 2254(d)(1), or that it ‘involved an

unreasonable application of’ such law, § 2254(d)(1), or that it ‘was based on an

unreasonable determination of the facts’ in light of the record before the state

court, § 2254(d)(2).”) (one citation omitted).

Determining whether appellate counsel’s failure to adequately investigate

and present the claim of trial counsel’s ineffectiveness prejudiced Butts –– whether

there is a reasonable probability of a different result in the appeal had the claim

been presented in an effective manner — requires determining whether trial

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counsel was ineffective in the first place. If trial counsel was not ineffective, then

any of appellate counsel’s failures in attempting to build a case that he was

ineffective could not have prejudiced Butts. See Hittson v. GDCP Warden, 759

F.3d 1210, 1262 (11th Cir. 2014) (recognizing that a petitioner could not be

prejudiced by his counsel’s failure to raise a meritless claim); Brown v. United

States, 720 F.3d 1316, 1335 (11th Cir. 2013) (“It is also crystal clear that there can

be no showing of actual prejudice from an appellate attorney’s failure to raise a

meritless claim.”). So the question is whether the trial counsel ineffectiveness

claim was meritorious.

The more specific question, because of the deference we owe state courts

under the Antiterrorism and Effective Death Penalty Act, is whether any

fairminded jurist could agree with the state trial court’s decision denying Butts

habeas relief. See 28 U.S.C. § 2254(d); Holsey v. Warden, Ga. Diagnostic Prison,

694 F.3d 1230, 1257 (11th Cir. 2012). “[I]f some fairminded jurists could agree

with the state court’s decision, although others might disagree, federal habeas relief

must be denied.” Holsey, 694 F.3d at 1257 (quotation marks omitted). The district

court issued an exceptionally thorough and persuasive order explaining why Butts

did not meet that standard. We adopt and incorporate as our own the relevant part

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of that order, which is attached as an appendix to this opinion.2 We add, or

emphasize, just a few points beyond what Judge Treadwell said in his order.

First, Butts contends that his trial team, and particularly its lead counsel,

Robert Westin, was inexperienced. To the contrary, we rarely see a trial attorney

who is more experienced in capital defense, or has a better record in capital trials,

than Westin. As the district court pointed out, Westin had represented five capital

defendants before Butts (and an additional three after him), and none of his other

clients received a death sentence. Westin was assisted by a co-counsel who had

handled at least 25 to 50 felony cases before the Butts case. And the paralegal who

rounded out the defense team had worked on several death penalty cases before

this one. It was an experienced capital defense team, and that matters. See

Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000) (en banc) (“When

courts are examining the performance of an experienced trial counsel, the

presumption that his conduct was reasonable is even stronger.”); Reed v. Sec’y,

Fla. Dep’t of Corr., 593 F.3d 1217, 1244 (11th Cir. 2010) (same); Williams v.

Head, 185 F.3d 1223, 1229 (11th Cir. 1999) (“It matters to our analysis that

2

We do not, however, adopt footnote 8 of the district court’s opinion, which anticipated

that we would rule differently than we did in the Wilson case. Our later en banc decision in

Wilson remains the law of the circuit unless and until the Supreme Court overrules it. But

whether that happens does not matter in this case because reviewing the state trial court’s

decision denying relief leads to the same conclusion as reviewing the Georgia Supreme Court’s

decision to deny a certificate of probable cause to appeal. To simplify matters, and prevent them

from being contingent on the Supreme Court’s decision in Wilson, we have made the § 2254(d)

determination based on the state trial court’s explanation for its rejection of Butts’ claim.

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Richard Allen is an experienced criminal defense attorney.”); Provenzano v.

Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998) (“Our strong reluctance to second

guess strategic decisions is even greater where those decisions were made by

experienced criminal defense counsel.”).

Second, Butts contends that his defense team did not investigate any

potential mitigation evidence. Appellant’s Br. at 38 (“Neither counsel conducted

any mitigation interviews or substantive investigation . . . and counsel did nothing

to investigate clear red flags in available records.”). To the contrary, we do not

often see cases in which a defense team investigated mitigating circumstance

evidence more thoroughly than this team did. As the district court recounted:

Trial counsel reviewed Butts’s school records, medical records,

employment records, juvenile and adult criminal records, records from

the Baldwin County Department of Family and Children Services

(“DFACS”), records from the Georgia Department of Human

Resources (“DHR”), records from the Oconee Psychoeducational

Center, and jail records. Trial counsel also reviewed records of

[Butts’ father]’s mental illness and [Butts’ mother]’s alcoholism and

cocaine addiction.

(Footnote and citations omitted). In addition, Butts’ trial team interviewed three of

his four siblings, an uncle, his maternal great-aunt and maternal grandmother, a

friend, other members of a gang Butts was associated with, and all of Butts’

previous employers, supervisors, and co-workers that they could find. They also

attempted to interview Butts’ mother, who was uncooperative.

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Third, Butts contends that trial counsel’s performance was automatically

deficient because they did not follow in lock step the recommendations of the

American Bar Association and the Southern Center for Human Rights. At the time

of the trial, the ABA recommended conducting “a thorough investigation of the

defendant’s life history and background” with “the assistance of investigators and

other assistants.” ABA Guideline 8.1, cmt. (1989). And the Southern Center for

Human Rights recommended considering “[t]he use of social workers and other

experts to present the case in mitigation.” Southern Center for Human Rights

Manual, ch. 1, p. 20.

Counsel must perform reasonably under “prevailing professional norms.”

Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. Those norms, Butts insists, are

established by the recommendations of the ABA and the Southern Center for

Human Rights. They aren’t. Butts argues that the Supreme Court’s decision in

Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527 (2003), establishes that trial

counsel performed deficiently by failing to follow those recommendations. It

doesn’t.

In Wiggins, trial counsel’s investigation into Wiggins’ life history consisted

of reading a one-page description of his personal history from a presentence

investigation report and gathering records about his placements in foster care. Id.

at 523, 123 S. Ct. at 2536. Although those scant records referred to Wiggins’ self-

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described “disgusting” history, trial counsel did no further investigation. Id. at

523–26, 123 S. Ct. at 2536–38. If counsel had investigated, they would have

discovered that Wiggins had suffered “severe physical and sexual abuse . . . at the

hands of his mother and while in the care of a series of foster parents.” Id. at 516–

17, 123 S. Ct. at 2533. And despite asserting up until the day before Wiggins’

sentencing phase began that they intended to introduce mitigation evidence, trial

counsel did not end up presenting any of the probative evidence that they did have.

Id. at 526, 123 S. Ct. at 2537–38. Instead, they put on a “halfhearted mitigation

case” about the general effect of life sentences on prisoners and challenged

Wiggins’ direct responsibility for the murder. Id. at 526, 123 S. Ct. at 2538.

Faced with those facts the Supreme Court held that “[c]ounsel’s decision not

to expand their investigation . . . fell short of the professional standards that

prevailed in Maryland” at the time of Wiggins’ trial. Id. at 524, 123 S. Ct. at 2536.

The Court reached that conclusion in part because trial counsel chose not to obtain

a social history report, even though “standard practice in Maryland in capital cases

at the time of Wiggins’ trial included the preparation of a social history report.” Id.

at 524, 123 S. Ct. at 2536–37. It also noted that “[c]ounsel’s conduct similarly fell

short of the standards for capital defense work articulated by the [ABA] —

standards to which we long have referred as ‘guides to determining what is

reasonable.’” Id. (citations omitted). The specific standard to which the Court

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referred was a guideline providing that “investigations into mitigating evidence

should comprise efforts to discover all reasonably available mitigating evidence.”

Id. at 524, 123 S. Ct. at 2537 (quotation marks omitted). As a result of all the

circumstances, the Supreme Court concluded that counsel’s failure to conduct an

adequate investigation constituted deficient performance. Id. at 534, 123 S. Ct. at

2541–42.

The Wiggins decision did not hold that the guidelines and recommendations

of the ABA or other organizations about how counsel should represent capital

defendants establish prevailing professional norms. The Supreme Court in

Wiggins did not purport to overrule what it had said in Strickland:

Prevailing norms of practice as reflected in American Bar Association

standards and the like . . . are guides to determining what is

reasonable, but they are only guides. No particular set of detailed

rules for counsel’s conduct can satisfactorily take account of the

variety of circumstances faced by defense counsel or the range of

legitimate decisions regarding how best to represent a criminal

defendant. Any such set of rules would interfere with the

constitutionally protected independence of counsel and restrict the

wide latitude counsel must have in making tactical decisions. Indeed,

the existence of detailed guidelines for representation could distract

counsel from the overriding mission of vigorous advocacy of the

defendant’s cause.

Strickland, 466 U.S. 688–89, 104 S. Ct. at 2065 (citation omitted); see also Buck v.

Davis, No. 15-8049, 580 U.S. __, 2017 WL 685534, at *13 (Feb. 22, 2017)

(“Strickland’s first prong sets a high bar. A defense lawyer navigating a criminal

proceeding faces any number of choices about how best to make a client’s case.

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The lawyer has discharged his constitutional responsibility so long as his decisions

fall within the ‘wide range of professionally competent assistance.’ It is only when

the lawyer’s errors were ‘so serious that counsel was not functioning as the counsel

guaranteed . . . by the Sixth Amendment’ that Strickland’s first prong is satisfied.”)

(citations and some quotation marks omitted) (alteration in original). The Supreme

Court has explained that “[r]estatements of professional standards . . . can be

useful as ‘guides’ to what reasonableness entails, but only to the extent they

describe the professional norms prevailing when the representation took place.”

Bobby v. Van Hook, 558 U.S. 4, 7, 130 S. Ct. 13, 16 (2009).

The Wiggins case is different from this one. In that case counsel conducted

almost no personal history investigation even though there was a local professional

norm of commissioning a social history report and clear signs pointing to the need

for a social history report. Wiggins, 539 U.S. at 524–25, 123 S. Ct. at 2536–37. In

this case, by contrast, instead of ignoring signs indicating that Butts’ personal

history might be useful in mitigation, the defense team undertook an exhaustive

investigation into his childhood and upbringing. They personally conducted that

investigation and they did so, the record shows, at a time when mitigation experts

were not routinely used in capital cases in the judicial circuit where this case was

tried. Counsel for Butts performed reasonably under the prevailing professional

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norms of the time and place where the trial took place. See Bobby, 558 U.S. at 7,

130 S. Ct. at 16.

Fourth, Butts faults trial counsel for their decision to pursue a residual doubt

strategy at the sentencing stage. But we have held a number of times that residual

doubt can be an effective strategy at the sentencing stage of a capital case. See

Chandler, 218 F.3d at 1319–20; Terrell v. GDCP Warden, 744 F.3d 1255, 1269

(11th Cir. 2014); Johnson v. Upton, 615 F.3d 1318, 1338 (11th Cir. 2010); Ward v.

Hall, 592 F.3d 1144, 1170 (11th Cir. 2010); Hammond v. Hall, 586 F.3d 1289,

1333–34 & n.18 (11th Cir. 2009); Hannon v. Sec’y, Dep’t of Corr., 562 F.3d 1146,

1154–55 (11th Cir. 2009); Parker v. Sec’y for the Dep’t of Corr., 331 F.3d 764,

787–88 (11th Cir. 2003). We cannot and will not second guess trial counsel’s

strategic decision to focus on residual doubt instead of mitigation evidence,

especially where that decision was made after a thorough investigation into

mitigating circumstances. As the Supreme Court stated in Strickland, “strategic

choices made after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.” 466 U.S. at 690, 104 S. Ct. at 2066.

Finally, Butts contends that trial counsel left unrebutted evidence that the

State presented at sentencing about Butts’ membership in a gang, and that the

failure to rebut that evidence was due to counsel’s failure to investigate and present

mitigating evidence about his upbringing. The factual premise of that contention is

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false; as we have already explained, counsel did investigate Butts’ life story,

including his upbringing.

In addition, Butts did not preserve this particular claim by properly

presenting it in the district court. He made only a passing reference to it (in his

memorandum in support of his habeas petition), which is why it escaped the

district court’s attention. Passing references are not enough to present and preserve

an issue. See Landers v. Warden, 776 F.3d 1288, 1296 (11th Cir. 2015) (“[T]he

petitioner has waived this claim . . . . he failed to present this claim before the

district court.”); Gennusa v. Canova, 748 F.3d 1103, 1116 (11th Cir. 2014)

(holding that a “single, passing reference” to an argument “unaccompanied by any

discussion or elaboration” is insufficient to preserve an issue); Dupree v. Warden,

715 F.3d 1295, 1299 (11th Cir. 2013) (“A habeas petitioner must present a claim in

clear and simple language such that the district court may not misunderstand it.”).

But even if Butts had presented and preserved this part of his claim in the district

court, we would hold that it lacks merit.

We agree with the district court that Butts has not established that the

Georgia trial court unreasonably rejected his claim that trial counsel failed to

investigate, develop, and present mitigating evidence at sentencing, or that Butts

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was prejudiced by appellate counsel’s failure to investigate and adequately present

that claim during the unified appeal procedure.3

AFFIRMED.

3

True to the finest traditions of the Bar, Butts’ current attorneys have represented him

pro bono throughout this federal habeas proceeding. They have devoted a great deal of time to

the task and have done good work.

15

APPENDIX

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

ROBERT EARL BUTTS, JR., :

:

Petitioner, :

:

vs. :

: CIVIL ACTION NO. 5:13-CV-194 (MTT)

WARDEN, Georgia Diagnostic and :

Classification Prison, :

:

Respondent. :

___________________________ _____:

ORDER

ROBERT EARL BUTTS, JR. was sentenced to death for the murder of Donovan

Corey Parks. He petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. Although he alleges numerous errors on the part of the state courts that

considered his claims, he raises four principal contentions: (1) trial counsel were

ineffective for failing to investigate and present mitigating evidence during the penalty

phase of his trial, and appellate counsel handled this issue ineffectively on appeal; (2) trial

counsel were ineffective when they failed to rebut or object to evidence of gang activity;

(3) the trial court failed to give a “mere presence” instruction to the jury; and (4) the

prosecutor’s argument that Butts was the triggerman was inconsistent with his argument

in Butts’s co-defendant’s trial, who was also sentenced to death. After considering these

claims, and other alleged constitutional errors,1 the Court determines that it must deny

habeas relief.

1

The Court instructed Butts to brief all outstanding issues that he wished to pursue and this Order

addresses only those claims that he argued in his briefs. Any claim not briefed is deemed abandoned.

Blankenship v. Terry, 2007 WL 4404972 at *41 (S. D. Ga. Dec. 13, 2007) (explaining that claims not briefed

are abandoned because “mere recitation in a petition, unaccompanied by argument, in effect forces a judge

to research and thus develop supporting arguments—hence, litigate—on a petitioner’s behalf”).

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I. BACKGROUND AND PROCEDURAL HISTORY

A. Facts

The Georgia Supreme Court summarized the facts of this case in Butts’s direct

appeal:

[O]n the night of March 28, 1996, Butts and Marion Wilson, Jr., drove in

Butts’s automobile to a local Wal–Mart store and began searching for a

victim. Butts entered the store wearing a coat, under which he likely

concealed the murder weapon. A witness observed Butts and Wilson

standing behind Donovan Corey Parks in a checkout line. The cashier for

that checkout line also remembered Butts being in her line. The store's

receipts showed that Butts purchased a pack of chewing gum immediately

after Parks made his purchase of pet supplies.

A witness overheard Butts asking Parks for a ride. After Parks moved

items in his automobile to make room for Butts and Wilson, Butts sat in the

front passenger seat and Wilson sat in the back seat behind Parks.

According to a witness to whom Butts confessed, Butts revealed the

shotgun a short distance away, and Parks was ordered to stop the

automobile. Wilson dragged Parks out of the automobile by his tie and

ordered him to lie facedown on the pavement. Butts then fired one fatal

shot to the back of Parks’s head with the shotgun. Witnesses nearby

heard the shot, believing it to be a backfiring vehicle.

After murdering Parks, Butts and Wilson drove to a service station in Gray,

Georgia, where they refueled Parks’s automobile and where Wilson was

filmed by the service station’s security camera. Butts and Wilson then

drove to Atlanta in an unsuccessful attempt to exchange Parks’s

automobile for money at a “chop shop.” The pair purchased two cans of

gasoline, drove to a remote location in Macon, Georgia, and set fire to

Parks’s automobile. They then walked to a nearby public phone, where

Butts called his uncle and arranged a ride for himself and Wilson back to the

Wal–Mart to retrieve Butts’s automobile.

Investigators had recorded the license plate numbers of the vehicles parked

in the Wal–Mart parking lot on the night of the murder, and Butts’s

automobile was among them. A shotgun loaded with an uncommon type

of ammunition was found under Wilson’s bed during a search, and a

witness testified that Butts had given the weapon to Wilson to hold

temporarily. Two of Butts’s former jail mates testified that he had admitted

to being the triggerman in the murder.

Butts v. State, 273 Ga. 760, 761-62, 546 S.E.2d 472, 477-78 (2001).

-2-

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B. Procedural history

On November 20, 1998, a jury found Butts guilty of malice murder, armed robbery,

hijacking a motor vehicle, possession of a firearm during the commission of a crime, and

possession of a sawed-off shotgun. Id. at 761 n.1, 546 S.E.2d at 477 n.1. On

November 21, 1998, the jury found beyond a reasonable doubt that the murder was

committed during the commission of the capital felony of armed robbery and he was

sentenced to death. Id.

Butts filed a motion for new trial, and a hearing was held on August 13, 1999.

(Doc. 10-11).2 On August 18, 1999, the Court denied the motion. (Doc. 8-5 at 81).

Butts filed a notice of appeal on August 20, 1999. (Doc. 8-1 at 6). Also on August 20,

1999, the Court relieved trial counsel, Robert Westin and Cassandra Montford-Ford, of

their representation and appointed Guy Notte3 and Christopher Huskins to represent

Butts on direct appeal. (Doc. 8-5 at 83).

Because Butts raised claims of ineffective assistance of trial counsel, the Georgia

Supreme Court, on February 25, 2000, remanded the case to the trial court for an

evidentiary hearing on these claims. (Docs. 10-13 at 37-49; 10-15). The trial court held

that hearing on August 22, 2000 and on October 4, 2000 denied Butts’s motion for new

trial. (Docs. 10-16; 10-17 at 14).

Butts filed a notice of appeal, and on April 30, 2001, the Georgia Supreme Court

affirmed his conviction and sentence. (Doc. 10-17 at 2); Butts, 273 Ga. at 761, 546

2

Because all documents have been electronically filed, this Order cites to the record by using the

document number and electronic screen page number shown at the top of each page by the Court’s

CM/ECF software.

3

Notte was subsequently replaced by J. David McRee on October 13, 1999, and McRee was replaced by

Green Berry Moore, III on October 21, 1999. (Doc. 10-17 at 4-7).

-3-

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S.E.2d at 477. The United States Supreme Court denied his petition for certiorari on

January 7, 2002 and denied his motion for rehearing on March 4, 2002. Butts v.

Georgia, 534 U.S. 1086 (2002); Butts v. Georgia, 535 U.S. 922 (2002).

Butts filed a Petition for Writ of Habeas Corpus in the Superior Court of Butts

County, Georgia on August 30, 2002. (Doc. 11-4). After conducting an evidentiary

hearing, the state habeas court denied relief in an order filed April 11, 2011. (Docs. 13-1

to 16-5; 16-23). Butts filed a notice of appeal and an application for certificate of

probable cause to appeal (“CPC application”) with the Georgia Supreme Court. (Docs.

16-24; 16-25). In an order dated January 22, 2013, the court summarily denied his CPC

application. (Doc. 16-28).

On May 31, 2013, Butts filed a Petition for Writ of Habeas Corpus by a Person in

State Custody in this Court. (Doc. 1). The Respondent filed his answer, and the Court

denied Butts’s motion for discovery and an evidentiary hearing. (Docs. 6, 22). Both

parties have now briefed exhaustion, procedural default, and the merits of Butts’s various

claims. (Docs. 24, 27, 29, 32, 33).

II. STANDARD OF REVIEW

A. Exhaustion and procedural default

Procedural default bars federal habeas review when a habeas petitioner has failed

to exhaust state remedies that are no longer available or when the state court rejects the

habeas petitioner’s claim on independent state procedural grounds. Michigan v. Long,

463 U.S. 1032, 1040-42 (1983) (explaining that an adequate and independent finding of

procedural default will generally bar review of the federal claim); Frazier v. Bouchard, 661

F.3d 519, 524 n.7 (11th Cir. 2011); Ward v. Hall, 592 F.3d 1144, 1156-57 (11th Cir. 2010).

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There are two exceptions to procedural default. If the habeas respondent

establishes that a default has occurred, the petitioner bears the burden of establishing

“cause for the failure to properly present the claim and actual prejudice, or that the failure

to consider the claim would result in a fundamental miscarriage of justice.” Conner v.

Hall, 645 F.3d 1277, 1287 (11th Cir. 2011) (citing Wainwright v. Sykes, 433 U.S. 72,

81-88 (1977); Marek v. Singletary, 62 F.3d 1295, 1301-02 (11th Cir. 1995)). A petitioner

establishes cause by demonstrating that some objective factor external to the defense

impeded his efforts to raise the claim properly in the state courts. Spencer v. Sec’y,

Dep’t of Corr., 609 F.3d 1170, 1180 (11th Cir. 2010) (quoting Henderson v. Campbell,

353 F.3d 880, 892 (11th Cir. 2003)). A petitioner establishes prejudice by showing that

there is a reasonable probability that the result of the proceeding would have been

different. Id. Regarding what is necessary to establish the narrowly-drawn

fundamental miscarriage of justice exception, the Eleventh Circuit has stated:

To excuse a default of a guilt-phase claim under [the fundamental

miscarriage of justice] standard, a petitioner must prove “a constitutional

violation [that] has probably resulted in the conviction of one who is

actually innocent.” To gain review of a sentencing-phase claim based

on [a fundamental miscarriage of justice], a petitioner must show that

“but for constitutional error at his sentencing hearing, no reasonable juror

could have found him eligible for the death penalty under [state] law.”

Hill v. Jones, 81 F.3d 1015, 1023 (11th Cir. 1996) (citations omitted).

B. Claims that were adjudicated on the merits in the state courts

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides the

standard of review. This Court may not grant habeas relief with respect to any claim that

has been adjudicated on the merits in state court unless the state court’s decision was (1)

contrary to clearly established Federal law; (2) involved an unreasonable application of

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clearly established Federal law; or (3) 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)(1)-(2); see also Harrington v. Richter, 562 U.S. 86, 100 (2011). The phrase

“clearly established Federal law” refers to the holdings of the United States Supreme

Court that were in existence at the time of the relevant state court decision. Thaler v.

Haynes, 559 U.S. 43, 47 (2010); Williams v. Taylor, 529 U.S. 362, 412 (2000).

“The ‘contrary to’ and ‘unreasonable application’ clauses of § 2254(d)(1) are

separate bases for reviewing a state court’s decisions.” Putman v. Head, 268 F.3d 1223,

1241 (11th Cir. 2001) (citing Williams, 529 U.S. at 404-05).

Under § 2254(d)(1), “[a] state court’s decision is ‘contrary to’... clearly

established law if it ‘applies a rule that contradicts the governing law set

forth in [the United States Supreme Court’s] cases’ or if it ‘confronts a set of

facts that are materially indistinguishable from a decision of [the United

States Supreme] Court and nevertheless arrives at a [different] result….’”

Michael v. Crosby, 430 F.3d 1310, 1319 (11th Cir. 2005) (quoting Mitchell v. Esparza, 540

U.S. 12, 15-16 (2003)).

A state court’s decision involves an “unreasonable application” of federal law when

“‘the state court identifies the correct governing legal rule but unreasonably applies it to

the facts of the particular state prisoner’s case, or when it unreasonably extends, or

unreasonably declines to extend, a legal principle from Supreme Court case law to a new

context.’” Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1286 (11th Cir. 2012)

(quoting Greene v. Upton, 644 F.3d 1145, 1154 (11th Cir. 2011)). An “unreasonable

application” and an “incorrect application” are not the same:

We have explained that an unreasonable application of federal law is

different from an incorrect application of federal law. Indeed, a federal

habeas court may not issue the writ simply because that court concludes in

its independent judgment that the relevant state-court decision applied

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clearly established federal law erroneously or incorrectly. Rather, that

application must be objectively unreasonable. This distinction creates a

substantially higher threshold for obtaining relief than de novo review.

AEDPA thus imposes a highly deferential standard for evaluating

state-court rulings and demands that state-court decisions be given the

benefit of the doubt.

Renico v. Lett, 559 U.S. 766, 773 (2010) (citations and quotation marks omitted).

Pursuant to 28 U.S.C. § 2254(d)(2), district courts can “grant habeas relief to a

petitioner challenging a state court’s factual findings only in those cases where the state

court’s decision ‘was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.’” Price v. Allen, 679 F.3d 1315, 1320

(11th Cir. 2012) (quoting 28 U.S.C. § 2254(d)(2)). A state court’s factual finding is not

unreasonable simply because the federal habeas court might have made a different

finding had it been the first court to interpret the record. Burt v. Titlow, 134 S. Ct. 10, 15

(2013) (citing Wood v. Allen, 558 U.S. 290, 301 (2010)). Also, a state court’s factual

determination is “presumed to be correct,” and this presumption can only be rebutted by

“clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

III. PETITIONER’S CLAIMS

A. Claim One: Butts was deprived of his right to the effective assistance of

counsel at all stages of his pretrial, trial, motion for new trial, and direct

appeal proceedings.

Butts makes several ineffective assistance claims: (1) trial and appellate counsel

failed to investigate, develop, and present mitigating evidence; (2) trial and appellate

counsel were ineffective in their handling of evidence of gang activity; and (3) trial counsel

failed to argue in the sentencing phase that a sentence of death was disproportionate

and, therefore, precluded by Enmund v. Florida, 458 U.S. 782 (1982).4

4

In addition, Butts argues that trial counsel failed to object to irrelevant and prejudicial victim impact

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1. The clearly established federal law

Strickland5 is “the touchstone for all ineffective assistance of counsel claims.”

Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008). “A convicted defendant's

claim that counsel’s assistance was so defective as to require reversal of a conviction or

death sentence has two components. First, the defendant must show that counsel’s

performance was deficient.… Second, the defendant must show that the deficient

performance prejudiced the defense.” Strickland, 466 U.S. at 687; Wong v. Belmontes,

558 U.S. 15, 16 (2009). To establish deficient performance, Butts must show that

“counsel’s representation fell below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688. The Court must apply a “‘strong presumption’ that counsel’s

representation was within the ‘wide range’ of reasonable professional assistance.”

Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689). “To overcome that

presumption, [Butts] must show that counsel failed to act ‘reasonabl[y] considering all the

circumstances.’” Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (quoting Strickland,

466 U.S. at 688). To establish prejudice, Butts must show “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. When determining if prejudice

exists, “it is necessary to consider all the relevant evidence that the jury would have had

evidence and trial counsel failed to request a jury instruction on mere presence. The Court addresses

these two claims as part of Butts’s claim that the trial court made improper rulings and other errors that

deprived him of a fair trial. Butts also argues that trial counsel failed to object to the prosecution’s

presentation of inconsistent arguments. This claim is reviewed with Butts’s claim that misconduct by the

prosecutor deprived him of a fair trial.

5

Strickland v. Washington, 466 U.S. 668 (1984). Although the Strickland test was announced in the

context of an ineffective assistance of trial counsel claim, the same test applies to claims of ineffective

assistance of appellate counsel. Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991).

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before it if [Butts’s counsel] had pursued the different path–not just the mitigation

evidence [Butts’s counsel] could have presented, but also the [aggravating evidence] that

almost certainly would have come in with it.” Wong, 558 U.S. at 20 (citing Strickland, 466

U.S. at 695-96, 700); see also Porter v. McCollum, 558 U.S. 30, 40-41 (2009).

Federal courts must “take a ‘highly deferential’ look at counsel’s performance

through the ‘deferential lens of § 2254(d).’” Pinholster, 131 S. Ct. at 1403 (quoting

Strickland, 466 U.S. at 689; Knowles v. Mirzayance, 556 U.S. 111, 121 n.2 (2009)).

Butts must do more than satisfy the Strickland standard. “He must also show that in

rejecting his ineffective assistance of counsel claim the state court ‘applied Strickland to

the facts of his case in an objectively unreasonable manner.’” Rutherford v. Crosby, 385

F.3d 1300, 1309 (quoting Bell v. Cone, 535 U.S. 685, 699 (2002)). That is, “[t]he

question is not whether counsel’s actions were reasonable” but “whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter,

562 U.S. at 105.

2. Claims that trial and appellate counsel failed to investigate, develop, and

present mitigating evidence

Butts argues that trial counsel’s most glaring deficiency was their failure to

investigate his family life and background so they could develop and present mitigating

evidence during the sentencing phase of his trial. (Doc. No. 24 at 47). He also alleges

that appellate counsel’s failure to raise adequately trial counsel’s defective performance

and resulting prejudice constituted ineffective assistance during his motion for new trial

and direct appeal.

Multiple state courts have addressed these ineffective assistance claims. Thus,

“it is useful at the outset to explain which state-court decisions we look to for purposes of

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AEDPA review.” Hittson v. GDCP Warden, 759 F.3d 1210, 1231 (11th Cir. 2014).

Looking first at trial counsel, Butts argued on direct appeal that trial counsel were

ineffective for not presenting mitigating testimony and pleas for mercy from family

members. (Docs. 10-22 at 9-10, 41; 24 at 47). The Georgia Supreme Court rejected

this claim on the merits and the state habeas court found the claim was res judicata.

Butts, 273 Ga. at 769-70, 546 S.E.2d at 483; (Doc. 16-23 at 5). The state habeas court’s

conclusion that this claim was res judicata does not bar federal habeas review.6 Cone v.

Bell, 556 U.S. 449, 465-67 (2009); Owens v. Sec’y for Dep’t of Corr., 568 F.3d 894, 915

n.23 (11th Cir. 2009).

The state habeas court found the following trial counsel ineffective assistance

claims were procedurally defaulted because they were not raised on direct appeal, and

Butts failed to establish cause and prejudice or a miscarriage of justice to excuse the

default: trial counsel’s failure to secure a neuropsychologist and have

neuropsychological and neurological testing performed; trial counsel’s failure “to conduct

an adequate pretrial investigation into [Butts’s] family life and background to uncover and

present to the jury evidence in mitigation of punishment”; and trial counsel’s failure “to

present a picture of [Butts’s] background and fail[ure] to call any witness who could

present the jury with testimony of [Butts] as a unique human being.” (Doc. 16-23 at 8,

14).

6

The Court reviews this claim as part of Butts’s broader claims that trial and appellate counsel were

ineffective when they failed to investigate, develop, and present mitigating evidence. When the Georgia

Supreme Court denied this particular ineffective assistance of trial counsel claim, it had only the limited

evidence presented at the motion for new trial evidentiary hearing to review. This Court, however,

considers the expanded record before the state habeas court. Ferrell v. Hall, 640 F.3d 1199, 1224-25

(11th Cir. 2011) (allowing for review of the “radically expanded record of mitigating evidence” when

addressing a trial counsel ineffective assistance claim through an ineffective assistance of appellate

counsel claim).

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This Court cannot review claims the state habeas court found to be procedurally

defaulted unless Butts establishes cause for, and actual prejudice from, the default or

establishes that failure to review the claim would result in a fundamental miscarriage of

justice. Lucas v. Warden, 771 F.3d 785, 801 (11th Cir. 2014). Butts argues that

inadequate assistance of counsel on direct appeal establishes cause to overcome the

default. (Doc. 24 at 49).

An ineffective assistance of appellate counsel claim may, “if both exhausted and

not procedurally defaulted, … constitute cause” to excuse procedural default. Ward v.

Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (citing Hill v. Jones, 81 F.3d 1015, 1031 (11th

Cir. 1996)). Butts’s ineffective assistance of appellate counsel claims7 meet this criteria.

The state habeas court addressed these claims on the merits and, thereafter, Butts raised

his ineffective assistance of appellate counsel claims in his CPC application, which the

Georgia Supreme Court summarily denied. (Docs. 16-23 at 17; 16-25 at 2, 30-43;

16-28). This denial is the final state court determination of Butts’s ineffective assistance

of appellate counsel claims and, under recent Eleventh Circuit precedent, the only

question for this Court is whether there was any reasonable basis for the Georgia

Supreme Court to deny relief. Hittson, 759 F.3d at 1232-33 (explaining that post-Richter,

Ylst v. Nunnemaker, 501 U.S. 797 (1991), no longer applies and federal courts reviewing

under § 2254(d) are not required to “look through” the Georgia Supreme Court’s summary

denials of CPC applications to the reasons given in the “‘last reasoned decision’ by the

state court.”) (quoting Ylst, 501 U.S. at 804); Lucas, 771 F.3d at 792 (reasoning of the

7

State habeas counsel argued that appellate counsel were ineffective for failing to raise various errors

made by trial counsel; failing to investigate and present mitigating evidence at the motion for new trial

hearing; and failing to obtain a mitigation and/or gang expert to testify at the motion for new trial hearing.

(Doc. 16-23 at 16).

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state habeas court is irrelevant and petitioner must show there was no reasonable basis

for the Georgia Supreme Court to deny relief).8

The state habeas court found that appellate counsel performed deficiently:

The Court finds that appellate counsel’s failure to conduct an independent

mitigation investigation constitutes deficient performance especially in light

of the fact that appellate counsel alleged that trial counsel was ineffective in

failing to present mitigating evidence. In raising such a claim, a reasonably

competent attorney would have looked beyond trial counsel’s investigation

to determine whether trial counsel’s performance was reasonable.

(Doc. 16-23 at 17). Respondent does not contest this finding, and this Court agrees that

appellate counsel’s complete failure to conduct any mitigation investigation amounted to

8

This procedure, which calls for the federal courts to ignore the reasons given by the state habeas court for

denying relief and hypothesize reasons why the Georgia Supreme Court could have denied the CPC

application, has been called into question. In Hittson v. Chatman, 135 S. Ct. 2126 (2015) (Ginsburg and

Kagan, JJ., concurring in denial of certiorari), Justice Ginsburg stated, “[t]he Eleventh Circuit plainly erred in

discarding Ylst.” Id. at 2127. She explained that the instruction given in Ylst, that federal courts reviewing

an unexplained state court order upholding a prior reasoned judgment “should presume that [the] ‘later

unexplained order[] upholding that judgment or rejecting the same claim rest[s] upon the same ground,’”

was not disturbed by Richter. Id. (quoting Ylst, 501 U.S. at 803). Thus, federal courts are to look at the

last reasoned decision from the state court (the decision from the state habeas court in this case) and

determine whether it “was contrary to, or involved an unreasonable application of, clearly established

Federal law” or “was based on an unreasonable determination of the facts in light of the evidence

presented.” 28 U.S.C. § 2254(d). The courts are not to “hypothesize reasons that might have supported

the [Georgia Supreme Court’s] unexplained order.” Hittson, 135 S. Ct. at 2127. Three days after the

Supreme Court denied certiorari in Hittson, it decided Brumfield v. Cain, 135 S. Ct. 2269 (2015). In

Brumfield, the Court observed that when “conducting the § 2254(d)(2) inquiry, we, like the courts below,

‘look through’ the Louisiana Supreme Court’s summary denial of Brumfield’s petition for review and

evaluate the state trial court’s reasoned decision ….” Id. at 2276 (citing Johnson v. Williams, 133 S. Ct.

1088, 1094, n.1 (2013) and Ylst, 501 U.S. at 806). The Court confirmed what Justice Ginsburg said in

Hittson: Richter applies only “where there is no ‘opinion explaining the reasons relief has been denied.’”

Brumfield, 135 S. Ct. at 2283 (quoting Richter, 562 U.S. at 98). On July 30, 2015, the Eleventh Circuit

granted en banc review in Wilson v. Warden, Ga. Diagnostic Prison, No. 14-10681. The question for

review is whether a federal habeas court is required to look through a state appellate court’s summary

decision that is an adjudication on the merits to the reasoning in a lower court decision when deciding

whether the state appellate court’s decision is entitled to deference under 28 U.S.C. § 2254(d). In short,

there is a good chance that the Eleventh Circuit will abandon Hittson and return to Ylst. Accordingly, the

Court has reviewed the factual findings and legal conclusions given by the state habeas court when that

court’s order provides the last reasoned analysis of a claim. The Court has determined that the state

habeas court’s factual findings were reasonable and the legal conclusions were not contrary to, or

unreasonable applications of, Supreme Court precedent. 28 U.S.C. § 2254(d). Having found the state

habeas court’s bases for denying relief were reasonable, the Court necessarily finds that there were

“arguments or theories [that] … could have supported” the Georgia Supreme Court’s denial of relief.

Richter, 562 U.S. at 102.

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deficient performance.9

However, the state habeas court concluded no prejudice resulted from appellate

counsel’s deficient performance. (Doc. 16-23 at 17-18). The court found “that the best

evidence of what appellate counsel would have discovered in an independent mitigation

investigation [was] the evidence presented in the instant proceeding by present counsel.”

(Doc. 16-23 at 17-18). The court determined that, had that evidence been presented,

there was “no reasonable probability that the result of the Motion for New Trial or the

direct appeal would have been different.” (Doc. 16-23 at 18). The question is whether

this ruling is contrary to Strickland, or unreasonable either legally or factually.

To answer this question, this Court, like the state courts, must analyze trial

counsel’s actions. This effectively means that the procedural default of most of Butts’s

ineffective assistance of trial counsel claims has little practical effect on this Court’s

analysis. It is necessary to review these ineffective assistance of trial counsel claims

because they are central to (1) Butts’s claim that appellate counsel were ineffective when

they failed to raise trial counsel’s ineffectiveness and (2) his argument that he has

9

Christopher Huskins was appointed on August 20, 1999 and Green Berry Moore, III was appointed on

October 21, 1999. (Doc. 8-5 at 83; 10-17 at 4-7). Moore was lead appellate counsel, responsible for all

issues except those involving voir dire and the jury, for which Huskins was responsible. (Doc. 13-2 at 38).

Moore and Huskins raised several ineffective assistance claims, including that trial counsel were ineffective

for failing to offer mitigating evidence and pleas for mercy from family members. Butts, 273 Ga. at 762-63,

765-70, 546 S.E.2d at 478-84; (Doc. 10-13 at 9-11). Because appellate counsel alleged ineffective

assistance of trial counsel, the Georgia Supreme Court, on February 25, 2000, remanded that the case to

the trial court so it could conduct an evidentiary hearing. (Doc. 10-15). To prepare for the hearing, Moore

reviewed trial counsel’s files, read the trial transcript, spoke with Westin, and spoke with Butts once or twice.

(Doc. 13-2 at 40, 50). Huskins could not recall speaking with Butts or Westin or conducting any type of

investigation beyond reading the trial transcript. (Doc. 13-2 at 73). Neither appellate counsel conducted

any additional investigation to determine whether there was mitigating evidence that trial counsel should

have presented. (Doc 13-2 at 41). Instead, Moore just selected issues from the trial transcript that he

thought trial counsel should have handled differently. (Doc. 13-2 at 53-54, 58-61). The motion for new

trial hearing took place on August 22, 2000 and no witnesses other than Westin were called to testify.

(Doc. 10-16). Thus, during the year leading up to the evidentiary hearing, appellate counsel did little more

than briefly speak with Butts and Westin, review Westin’s file, and review the trial transcript. (Doc. 13-2 at

40-56). Without conducting any type of mitigation investigation, there was no way for appellate counsel to

specify what evidence trial counsel should have presented.

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established cause and prejudice necessary to entitle him to judicial review of these

procedurally defaulted claims.

When a petitioner alleges that appellate counsel were ineffective for failing to raise

ineffectiveness of trial counsel claims, the Eleventh Circuit has recognized that, “the state

court could not effectively review appellate counsel’s performance in challenging trial

counsel’s effectiveness in mitigation without re-examining trial counsel’s performance as

well.” Ferrell v. Hall, 640 F.3d 1199, 1224-25 (11th Cir. 2011); DeYoung v. Schofield,

609 F.3d 1260, 1283 n.22 (11th Cir. 2010) (reasoning that “[r]ather than wade through

[the] complexities” of whether ineffective assistance of appellate counsel excused

procedural default of trial counsel ineffectiveness claims, the court would “discuss the

merits of [petitioner’s] trial counsel claims, as that alone resolves the case”).

In other words, whether appellate counsel failed to properly challenge trial

counsel’s mitigation inquiry focuses on essentially the same corpus of

evidence and the same legal questions underlying trial counsel’s

effectiveness—which strategies did trial counsel pursue, were those

strategies reasonable under the circumstances, and what kinds of penalty

phase evidence was developed, or could reasonably have been developed.

Ferrell, 640 F.3d at 1225. The state habeas court recognized this and explained that,

although Butts’s “ineffective assistance of trial counsel claims are procedurally barred or

procedurally defaulted, the [c]ourt considers the conduct of trial counsel as part of its

analysis of [Butts’s] ineffective assistance of appellate counsel.” (Doc. 16-23 at 5 n.2,

14).

Thus, in the context of considering whether the state habeas court reasonably

concluded no prejudice resulted from appellate counsel’s deficient performance when

litigating the ineffectiveness of trial counsel, this Court must review trial counsel’s

performance.

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The record reveals the following:

a. Trial counsel’s experience

Cassandra Montford-Ford was the first attorney10 appointed to represent Butts.

(Doc. 13-15 at 41). She had been practicing law since 1991 and had been a sole

practitioner in the Ocmulgee Judicial Circuit since 1993, handling family law matters and

bankruptcies, as well as appointed misdemeanor and felony criminal cases. (Doc. 13-15

at 30-34). Between 1993 and the time of Butts’s trial, she was appointed to handle one

to two criminal cases per week and no more than two of the criminal cases went to trial

each year. (Doc. 13-15 at 35, 38). While she had handled numerous felony cases, she

had never handled a murder case. (Doc. 13-15 at 123-24). Montford-Ford met with

Butts approximately three times and attended his commitment hearing prior to the trial

court’s July 25, 1996 appointment of Robert Westin as lead counsel. (Docs. 8-1 at 24;

13-15 at 41-42).

Westin graduated law school in 1979 and had been practicing criminal law in the

Ocmulgee Judicial Circuit for approximately 17 years at the time of Butts’s trial. (Doc.

10-16 at 29). He was known as the “de facto public defender” in Wilkinson County,

handling more than 90 percent of the criminal cases in that county. (Doc. 10-16 at 30,

32). Westin was lead or co-counsel in approximately 15 to 20 jury trials per year and,

over his legal career, had been involved in approximately 350 to 400 jury trials total, 175

to 200 of which were criminal jury trials. (Doc. 10-16 at 32). Prior to his appointment to

represent Butts, Westin had handled 16 to 18 murder cases. (Doc. 10-16 at 31). He

had been second-chair in five capital cases, and none of those five defendants were

10

The date of Montford-Ford’s appointment is unclear. (Doc. 13-15 at 41). Her appointment would have

occurred between April 4, 1996, the date arrest warrants were issued, and July 25, 1996, the day Robert

Westin was appointed. (Doc. 8-1 at 8-17, 24)

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sentenced to death. (Docs. 10-16 at 35-39; 13-1 at 102).11

Butts alleges that the state habeas court’s determination that Butts “was

represented by a death-qualified, experienced death penalty litigator” was unreasonable

because Westin and Montford-Ford had never been lead counsel in a death penalty case.

(Doc. 16-23 at 19). As noted, Westin had substantial experience trying criminal cases.

(Doc. 10-16 at 29-33). He “literally tried at least half and probably more of” his third

capital case. (Doc. 10-16 at 42). Westin was assisted by Montford-Ford, who had been

handling criminal cases since 1993, and a paralegal, Cindy Crawford, who had helped

prepare several death penalty cases in the past. (Docs. 10-16 at 41-42; 13-15 at 33-34).

There is no clearly established Supreme Court precedent holding that if trial counsel in a

death penalty case does not have a certain amount of experience he is per se ineffective.

Strickland, 466 U.S. at 681 (explaining that experience is just one factor to consider when

determining whether counsel’s strategic choices were reasonable). The Court knows of

no requirement that counsel have previous experience as lead counsel in a capital case.

Clearly, the state habeas court’s determination that Butts was represented by

experienced trial counsel was reasonable.

b. Trial counsel’s mitigation investigation

In Westin’s previous death penalty cases, he “was always the mitigation man” and

“was involved in mostly the sentencing phase of the case.” (Doc. 13-1 at 102-03). His

role shifted in Butts’s case, and he did not focus solely on mitigation but took “overall

control of the case,” making “organizational decisions, how to approach the case, [and

deciding] … the trial strategy.” (Doc. 13-1 at 103-04).

11

After Butts’s trial, but prior to the state habeas evidentiary hearing, Westin handled three more death

penalty cases, and in none of the three did his client receive a death sentence. (Doc. 13-1 at 97-98).

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Trial counsel hired Crawford to assist in preparation for trial.12 (Doc. 13-26 at

22-23). Crawford had assisted Westin on at least three of his previous death penalty

cases. (Docs. 10-16 at 42; 13-27 at 18). Prior to Butts’s trial, Crawford had worked on

approximately 600 criminal cases, including at least four capital cases. (Doc. 13-27 at

17-19).

Westin testified that although he hoped Butts would not be convicted of murder,

they still focused “[a] great deal of” effort on the sentencing phase. (Doc. 13-1 at 55).

Westin, Montford-Ford, and Crawford met every weekend to work on Butts’s case.

(Docs. 13-2 at 3). Westin testified that he reviewed the American Bar Association

handbook on death penalty cases and the Southern Center for Human Rights Manual.

(Doc. 13-1 at 53-54). He also contacted Michael Mears and Palmer Singleton, who were

with the Southern Center for Human Rights, to discuss the case and to get assistance

preparing for trial. (Docs. 13-1 at 128; 13-22 at 67). Westin reviewed the district

attorney’s file and interviewed witnesses listed in the file. (Doc. 13-1 at 105-06).

Westin, Montford-Ford, and Crawford met with Butts on numerous occasions.

(Docs. 10-16 at 39-41; 13-15 at 49). Crawford had Butts complete a form regarding his

personal history and background. (Docs. 13-1 at 68; 15-19 at 2-16). Westin explained

that he never suspected Butts suffered from any mental illness or any mental deficiency.

(Doc. 13-1 at 111). Thus, he thought using the form was appropriate, and he believed

12

It is unclear exactly when Crawford was hired. At the time she was deposed on March 30, 2007, she did

not have any of her files regarding Butts’s case because they were all destroyed when her office burned in

March 2004. (Doc. 13-26 at 2, 16). The record shows that trial counsel’s motion for funds for paralegal

and investigative services was filed June 23, 1997. (Doc. 8-1 at 101-02). On June 26, 1997, the trial

court held an ex parte hearing and granted $8,000.00 for trial counsel to use as they “deem[ed] fit.” (Doc.

8-7 at 3). The trial court’s order granting “funds for support staff, paralegal services, investigative services,

and psychological testing” was not filed until September 30, 1998. (Doc. 13-28 at 53). However, billing

records show that trial counsel had a conference with Crawford on September 4, 1996 regarding her

“becoming [the] paralegal on [Butts’s] case” and she actually first interviewed Butts on September 6, 1996.

(Docs. 13-26 at 22-23; 13-28 at 30).

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Butts could provide correct information in response to the questions. (Doc. 13-1 at 110).

On the questionnaire, Butts reported he received normal medical attention while growing

up; the family always had food; he spent a lot of time at his grandmother’s house; his “real

father [was] never around”; and he had never been physically or sexually abused.

(Docs. 13-1 at 111; 15-19 at 2-16).

Crawford spoke with Butts’s family members, including his half-brothers and his

younger half-sister, Tameica Butts.13 (Doc. 13-26 at 122-23). Crawford spoke with

Butts’s uncle, Earnest Waller, briefly on one occasion. However, Waller was intoxicated

at the time, and when she returned to ask additional questions, she was told that he did

not wish to speak with her. (Doc. 13-26 at 133-34). Montford-Ford testified that she

stayed in touch with family members but, by the time of her February 12, 2007 deposition,

she could not recall anything specific about his family or the conversations she had with

them. (Doc. 13-15 at 57). Westin spoke with Butts’s younger half-brother, Dominique

Hurt, and Butts’s uncle, Ernest Waller. (Doc. 13-1 at 121-22). According to Westin,

Butts’s mother, Laura Butts, refused to participate in the case. (Doc. 10-16 at 46). He

called her a “nonplayer,” explaining she would not visit his office, refused to talk to

members of the defense team, would not attend hearings, and did not attend Butts’s trial.

(Doc. 13-1 at 63). Laura’s testimony at the state habeas evidentiary hearing supported

Westin’s recollection. Following Butts’s arrest, she met with Montford-Ford once after a

pretrial hearing and met with Westin once or twice for five or ten minutes. (Doc. 13-6 at

123, 132). Laura testified she managed to “sober[] up” in time to attend only one day of

13

As noted, Crawford’s files were destroyed in 2004. (Doc. 13-26 at 16). When she gave her deposition

on March 30, 2007, almost nine years after Butts’s trial, she had difficulty remembering exactly what tasks

she performed in Butts’s case. Thus, the extent of Crawford’s mitigation investigation is unclear. (Doc.

13-26 at 34, 44, 49-50, 54, 57, 106, 114).

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her son’s trial—the day he was sentenced. (Doc. 13-6 at 124, 133-34). Trial counsel

was unable to locate Butts’s father, Robert Butts, Sr. (Doc. 10-16 at 45-46). Westin

testified that Butts’s maternal great-aunt, Doris Cooper, and maternal grandmother, Mary

Frances Waller, stayed in constant contact with trial counsel, provided background

information, and attended every day of Butts’s trial. (Docs. 10-16 at 46; 13-15 at 58-59).

On the questionnaire that Butts completed, he listed his former girlfriend, Angela

Simmons, and Westin spoke with her. (Docs. 13-1 at 115; 15-19 at 6). Butts listed

Antonio Redding as a friend, and Crawford spoke with him, as well as other members of

the FOLKS gang, on several occasions. (Docs. 13-26 at 52-55, 61; 15-19 at 5).

Westin testified he spoke with all of Butts’s previous employers and co-workers.

(Docs. 10-16 at 57; 13-22 at 3-4). He explained that Butts had six or seven jobs in the

past, all of which he had lost due to his inability to get along with people. (Doc. 10-16 at

56-58). For example, Butts lost one job because he got into a fight with a customer.

(Doc. 10-16 at 57).

Trial counsel reviewed Butts’s school records,14 medical records, employment

records, juvenile and adult criminal records, records from the Baldwin County Department

of Family and Children Services (“DFACS”), records from the Georgia Department of

Human Resources (“DHR”), records from the Oconee Psychoeducational Center, and jail

records. (Docs. 13-1 at 70; 13-2 at 8-12; 13-15 at 129-30; 13-16 at 3; 14-15 at 38 to

14-23 at 90). Trial counsel also reviewed records of Butts, Sr.’s mental illness and

Laura’s alcoholism and cocaine addiction.15 (Docs. 13-2 at 12-13, 27; 14-24 at 1-30).

14

According to Westin, Butts’s school records revealed that he was an average student until he lost interest

in his education at age 15 or 16. (Doc. 13-2 at 9). At that time he was placed “in the alternative school a

couple of times and finally just quit after failing the tenth grade twice.” (Doc. 13-2 at 9).

15

During the August 22, 2000 motion for new trial hearing, Westin testified that family members reported

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On September 4, 1998, the State moved for Butts to undergo a mental evaluation

and he was examined by Dr. Jerold Lower on September 22, 1998. (Docs. 8-3 at

115-17; 10-9 at 66). On November 10, 1998, Lower reported to trial counsel, the district

attorney, and the trial court that

[f]ormal intellectual testing yielded a score which falls at the bottom of the

mild range of mental retardation, in the lowest one thousandth of the

general population. The psychomotor testing also yielded one score at the

bottom of the borderline range and one score at the bottom of the critical

range, indicating possible organic impairment of the central nervous

system. However, in my opinion this testing is invalid. School records

revealed that Mr. Butts, in his first year of high school, earned passing

grades in all except one of his courses (which appeared to constitute a

standard high school curriculum). This is markedly inconsistent with the

test results or with a diagnosis of retardation….

My strong impression is that Mr. Butts was definitely not attempting to give

his best performance on the intellectual test and that his score in no way

reflects his true ability. Moreover, on the psychomotor tests I had the

distinct impression that his errors were primarily the result of carelessness

and lack of involvement in the task.

(Doc. 10-9 at 68-69). Lower opined that Butts “suffers from a long-standing personality

disorder characterized by … poor judgment and impulse control, disregard for social

mores, [and an] inability to form close relationships or become involved in others …

complicated by a great deal of substance abuse.” (Doc. 10-9 at 69). According to

Lower, this personality disorder would be “quite resistant to modification.” (Doc. 10-9 at

70). Lower found Butts was competent to stand trial, was not suffering from any mental

Butts, Sr. had psychological “issues,” and that led him to get records from Central State Hospital. (Doc.

10-16 at 45-46). He explained that Butts, Sr. had been in and out of Central State Hospital as a long-term

patient and had “some significant issues.” (Doc. 10-16 at 45-46). Seven years later, at the September

2007 state habeas evidentiary hearing, Westin at first testified that he was not aware of Butts Sr.’s

psychological problems, and he did not obtain any records of such. (Doc. 13-1 at 71). However, when his

testimony from the motion for new trial was read to him, Westin recalled getting Butts Sr.’s mental health

records. (Doc. 13-2 at 13). The transcript from a June 26, 1997 pretrial hearing confirms that Westin

knew Butts’s “family has a history of treatment at Central State Hospital,” and Westin’s notes showed Butts

Sr. was “in 1/2 way house @ Central State.” (Docs. 8-8 at 42; 15-6 at 57). Thus, it appears Westin

investigated Butts, Sr.’s mental health. However, the Court cannot locate Butts, Sr.’s Central State

Hospital records in the record.

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disorder that would have prevented him from knowing right from wrong at the time of the

crime, had no major disorder of mood or thought, and was not mentally ill or mentally

retarded. (Doc. 10-9 at 69-70).

Trial counsel had Butts examined by psychologist James E. Stark. (Doc. 15-12 at

3-4). Stark reported to trial counsel that: Butts had low-average intelligence; was

antisocial and impulsive; was frequently in trouble with society or the law; lacked

self-control; was hostile toward, and very suspicious of, others; did not have “any organic

brain dysfunction”; might occasionally have had psychotic episodes; and was “quite

impulsive.” (Doc. 15-12 at 3-4). Stark’s diagnosis was “mood disorder with occasional

psychotic episodes” with “[u]nderlying … antisocial and possibly schizotypal personality

disorder.” (Doc. 15-12 at 4).

Butts contends this pre-trial investigation was inadequate. (Doc. 24 at 51).

When preparing a capital case, trial counsel “‘has a duty to conduct a reasonable

investigation, including an investigation of the defendant’s background, for possible

mitigating evidence.’” Grayson v. Thompson, 257 F.3d 1194, 1225 (11th Cir. 2001)

(quoting Porter v. Singletary, 14 F.3d 554, 557 (11th Cir. 1994)). “Counsel has ‘no

absolute duty to investigate particular facts or a certain line of defense,’ although in some

circumstances, ‘a complete failure to investigate may constitute deficient performance of

counsel.’” DeYoung, 609 F.3d at 1283 (quoting Parker v. Sec’y for the Dep’t of Corr.,

331 F.3d 764, 787 (11th Cir. 2003)). Nor is counsel “required to pursue every path until it

bears fruit or until all hope withers.” Chandler v. U.S., 218 F.3d 1305, 1318 (11th Cir.

2000) (citation and quotation marks omitted). In this case, the state habeas court found

“that trial counsel’s investigation into [Butts’s] background was reasonable and thorough.”

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(Doc. 16-23 at 32).

Butts argues this finding is unreasonable for several reasons. He alleges that the

state habeas court ignored the fact that trial counsel’s sole focus was the guilt phase of

the trial and they, therefore, conducted only a cursory mitigation investigation. (Doc. 24

at 53). According to Butts, had the state habeas court “scrutinize[d]” Westin’s testimony,

along with that of Montford-Ford and Crawford, it would have realized that trial counsel

interviewed only Butts’s mother, grandmother, and aunt. (Doc. 24 at 64). The record

verifies that trial counsel did consider guilt or innocence to be the “heart” of Butts’s case.

(Doc. 10-16 at 45). Additionally, as the state habeas court acknowledged, it was

“unclear … which member of the defense team was primarily responsible for the pretrial

mitigation investigation.” (Doc. 16-23 at 23). However, the record shows trial counsel

and Crawford spoke with various persons in addition to Butts’s mother, grandmother, and

aunt, including Butts’s half-brothers,16 half-sister Tameica,17 uncle,18 former co-workers

and employers, ex-girlfriend, Redding, and other FOLKS gang members. (Docs. 10-16

at 57-58; 13-1 at 115-16, 122; 13-2 at 17-18; 13-22 at 2-4; 13-26 at 121-23, 133-34; 13-27

at 1, 27).

16

Citing testimony from Westin’s February 2007 deposition and September 2007 state habeas evidentiary

hearing, Butts alleges Westin “was under the false impression that Mr. Butts had only one sibling, a younger

brother….” (Doc. 24 at 53). What Westin actually said at the state habeas evidentiary hearing was that

he was sure they knew Butts had several half-brothers and half-sisters, he just could not remember them at

the time, which was almost nine years after Butts’s trial. (Doc. 13-1 at 65). Trial counsel were aware of

Butts’s siblings because Butts listed them on the questionnaire trial counsel had him complete and

numerous records obtained by trial counsel showed their names. (Docs.14-23 at 43, 57, 79, 86; 15-19 at

3).

17

Crawford recalled Tameica “didn’t really have anything to say to [her]. She just wanted [Crawford] to

answer all of her questions.” (Doc. 13-26 at 123).

18

Crawford recalled speaking briefly with an intoxicated uncle, Ernest Waller. (Doc. 13-26 at 133-34).

When she returned on a later occasion to interview him, she was told to leave. (Doc. 13-26 at 134).

Westin testified that he spoke with Ernest Waller, and he “didn’t want to testify” at Butts’s trial. (Doc. 13-1

at 122).

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Butts argues that trial counsel should have interviewed more family members,19

his former school teachers, or Laura’s various boyfriends. But “there comes a point at

which evidence from more distant relatives can reasonably be expected to be only

cumulative, and the search for it distractive from more important duties.” Bobby v. Van

Hook, 558 U.S. 4, 11 (2009). Given what trial counsel learned from Butts, family

members, co-workers, employers, ex-girlfriend, Redding, two psychologists, and various

records, their “‘decision not to seek more’ mitigating evidence from [Butts’s] background

‘than was already in hand’ fell within the range of professionally reasonable judgments.’”

Id. at 11-12 (quoting Strickland, 466 U.S. at 699).

Butts argues the state habeas court unreasonably ignored the unrebutted

testimony from numerous family members and acquaintances who stated that they were

never contacted by trial counsel, but had they been, they would have been willing to

testify for Butts. (Doc. 24 at 54). This Court cannot assume the state habeas court

ignored testimony from Butts’s family members simply because it did not discuss or cite

such testimony in its order. A state court is not required to “accompany its decision with

any explanation, let alone an adequate one.” Gissendaner v. Seaboldt, 735 F.3d 1311,

1329 (11th Cir. 2013) (citations omitted). Fully explained or not, this Court must give the

state court’s opinion the “benefit of the doubt.” Lee v. Comm’r Ala. Dep’t of Corr., 726

F.3d 1172, 1212 (11th Cir. 2013) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).

The state habeas court obviously believed Westin, Montford-Ford, and Crawford’s

testimony that they contacted several family members, but they were unable to find any of

19

Butts faults trial counsel for failing to interview his biological father. Apparently they were not able to find

him. As discussed, trial counsel knew Butts, Sr.’s was Butts’s biological father and that he had mental

issues. (Doc. 10-16 at 45-46). Westin testified that they were “never able to locate him.” (Doc. 10-16 at

45-56). It is not clear what Butts, Sr. could have added. He did not testify or provide an affidavit during

the state habeas proceeding.

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them willing to testify for Butts.20 (Docs. 10-16 at 46-47; 13-1 at 120-21; 13-15 at 106-07;

13-27 at 32-33). According to Westin:

[T]here’s nothing you would like better in a case like this to have a mom or

grandmom or an aunt or somebody get up here and cry and say, he’s a

good boy. Made the wrong decision…. And, you know, they wouldn’t do

it. I mean they would not do it. I begged them to do it and they would not.

(Doc. 10-16 at 46-47).

Moreover, Westin worried that family members’ testimony might not be helpful:

[T]heir opinion of him, even these two, the aunt and the grandmother said

he was a cold-blooded killer. His brother looked up to him because he was

in a gang, and his mother wouldn’t even come to the hearing, she didn’t

care. She never came to the pretrial hearing. She didn’t come to the trial.

I mean, I was told by the people who probably knew him better than

anybody, probably his real people who raised him, he was going down the

wrong road early on and they weren’t surprised at all that he was involved in

this.

(Docs. 13-22 at 3). Westin stated that Butts’s aunt and grandmother, “who were

probably the closest people to [Butts]” told him “they couldn’t get up and say a good thing

about [Butts], they’d have to tell the truth.” (Doc. 13-1 at 120).

Butts acknowledges that trial counsel “collect[ed] a number of records … prior to

trial.” (Doc. 24 at 69). He claims, however, that they failed to “identify red-flags, gather

additional investigative leads, and … assess the value of the records as evidentiary

20

Butts argues that Laura’s testimony at the state habeas evidentiary hearing directly contradicts Westin’s

testimony that she would not talk to trial counsel, attend hearings, or testify at trial. (Doc. 24 at 55-56). At

the state habeas evidentiary hearing, Laura stated that she would have testified at trial if she had been

asked and if she had been sober. (Doc. 13-6 at 123-24). Butts calls this testimony “particularly

instructive” and argues that it shows “no one on the defense team ever conducted a substantive interview of

her.” (Doc. 24 at 56-58). He also argues that the fact she testified at the state habeas evidentiary hearing

when asked proves she would have testified at Butts’s trial if asked. (Doc. 24 at 57). It does not. Butts’s

trial occurred nine years before the state habeas evidentiary hearing, and Laura admitted she was too

intoxicated from alcohol and/or drugs to even show up for his trial until the very last day. (Doc. 13-6 at

121-23; 130-31). When her testimony is read as a whole, it supports Westin’s recollection that they were

unable to get Laura involved in Butts’s case—she would not attend meetings, failed to show up for hearings,

and would not even talk to them. (Doc. 13-1 at 63).

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exhibits during the penalty phase.” (Doc. 24 at 69). Trial counsel obtained most, if not

all, of the records that were submitted by state habeas counsel. (Docs. 13-1 at 70; 13-2

at 5, 8-14; 13-15 at 129-30; 13-16 at 3; 14-15 at 38 to 14-23 at 90). From these records,

trial counsel learned of Laura’s drug and alcohol abuse, Butts, Sr.’s mental health issues

and his absence from the home, and Dominique’s behavioral problems. (Docs. 10-16 at

45-46; 13-2 at 8-13; 14-23 at 36-90). They knew the records suggested that Butts had

been neglected, but there was nothing in the records about physical or sexual abuse, and

Butts denied any such abuse.21 (Docs. 13-1 at 111-13; 13-2 at 14-15). School records

verified that Butts was an average student until around age 15 or 16 when he had to be

placed in an alternative school for behavioral problems. (Docs. 13-1 at 112; 14-15 at 47,

49, 77, 87; 14-16 at 6, 28, 32-33; 14-17 at 3, 5, 35-37).

Butts argues that if trial counsel had carefully reviewed the records, they would

have learned that Laura left 13 to 15 year old Butts and his siblings alone for days at a

time while she abused crack cocaine and alcohol. (Doc. 24 at 71). The record shows

trial counsel were aware that Butts’s mother “wasn’t around very much” and Butts, Sr.

was not involved in Butts’s life. (Doc. 13-1 at 113, 122-23). Westin testified that he

knew Laura was a neglectful mother, who “didn’t care much about what was going on with

her son.” (Doc. 13-1 at 64). He explained,

the two that I spent the most time with was his grandmother and his aunt

and you’ve got to remember, I think this is his mother’s mother, okay? …

I’m almost certain. And so she didn’t want to say an awful lot of bad stuff

about his mother, but it was pretty clear that he didn’t have a lot of guidance

21

At the state habeas evidentiary hearing, the only testimony of any type of physical abuse was Laura’s

statement that one of her boyfriends, Isaac Jones, once threw Butts to the floor, put his knee in Butts’s back,

and pulled Butts’s arms behind his back. (Doc. 13-6 at 118). Butts’s half-sister testified that she could not

recall any type of physical abuse, and Butts’s mitigation expert testified that Butts was not physically

abused. (Doc. 13-4 at 76-77, 109-10). Prior to trial, Butts reported that he had not been physically or

sexually abused. (Doc. 15-19 at 3-4).

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when he was growing up. It was pretty clear. Men in and out, didn’t know

his father, mother apparently had some problems, criminal, drug, alcohol. I

know she was just nonexistent during the trial….

(Doc. 13-1 at 122-23).

However, Westin testified that his “impression” and what he was actually told by

Butts and his family members is that Butts’s grandmother and aunt, who “were just

wonderful people,” “essentially raised … Butts.” (Doc. 13-2 at 14-15). Butts reported

that he “spent a lot of time at [his grandmother’s] house [and] she helped raise him.”

(Doc. 15-19 at 5). The records they obtained verified this. Butts’s school records and

probation file showed his grandmother as the contact person. (Doc. 13-7 at 24-25).

Additionally, records obtained from DHR and DFACS showed his grandmother, uncle,

and Harold Burton, one of Laura’s long-term live-in boyfriends, took care of the Butts

children. (Doc. 13-7 at 17-18).

In its conclusion regarding trial counsel’s sentencing phase investigation, the state

habeas court found:

The record is clear that trial counsel obtained [Butts’s] background records

and information regarding [Butts’s] family members. Trial counsel were

aware of the substance abuse problems of [Butts’s] mother, the mental

health problems of [Butts’s] father, the behavioral problems of [Butts’s]

brother Dominique, and [Butts’s] dysfunctional family life, which trial

counsel described as neglectful. [Butts] has failed to establish that trial

counsel were deficient in their investigation prior to trial.

(Doc. 16-23 at 32-33). This Court is unable to say that “no ‘fairminded jurist’ could agree

with” this determination. Holsey v. Warden, 694 F.3d 1230, 1257 (11th Cir. 2012)

(quoting Richter, 562 U.S. at 101). Therefore, the state habeas court’s finding that trial

counsel’s pretrial mitigation investigation was sufficient was reasonable and cannot be

upset by this Court.

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c. Trial counsel’s failure to hire a mitigation expert

According to Butts, the 1989 American Bar Association Guidelines for the

Appointment and Performance of Counsel in Death Penalty Cases (“Guidelines”) and the

capital case training manual (“Manual”) published by the Southern Center for Human

Rights both stress the need to employ a “mental health clinician or forensic social worker,

who could explain the significance of [a defendant’s] social and family history.” (Doc. 24

at 95). Trial counsel did not hire such an expert, and the state habeas court found their

failure to do so did not amount to deficient performance. (Doc. 16-23 at 35 n.9). Butts

argues this ruling constituted an unreasonable application of Strickland because the

Guidelines and Manual show trial counsel’s conduct “‘fell below prevailing professional

norms.’” (Doc. 24 at 98) (quoting Strickland, 466 U.S. at 688). Also, he claims the state

habeas court’s decision was based on the unreasonable factual determination that

Westin could develop mitigating evidence without the assistance of a mitigation expert.

(Doc. 24 at 98).22

The Guidelines and Manual are “are ‘only guides’ to what reasonableness means,

not its definition.” Van Hook, 558 U.S. at 8 (quoting Strickland, 466 U.S. at 688). Butts

cites no Supreme Court precedent holding that trial counsel must retain a mitigation

expert, and his reliance on Wiggins v. Smith, 539 U.S. 510 (2003), is misplaced. In

Wiggins, testimony revealed that it was “standard practice in Maryland in capital cases at

the time of Wiggins’s trial” to have a social history report prepared. Id. at 524. “Despite

the fact that the Public Defender’s office made funds available for the retention of a

forensic social worker, counsel chose not to commission such a report.” Id. Thus, trial

22

The Court has already determined that Westin, along with Montford-Ford and Crawford, conducted a

reasonable mitigation investigation.

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counsel’s actions fell below “the professional standard that prevailed in Maryland” at the

time of Wiggin’s trial. Id. The Court “did not find counsel’s failure to utilize a social

worker per se ineffective; rather, it was that such failure rendered counsel’s performance

deficient under the relevant professional standards.” Newland v. Hall, 527 F.3d 1162,

1206 (11th Cir. 2008) (citing Wiggins, 539 U.S. at 524-25).

Butts proffered no evidence that professional standards in the Ocmulgee Judicial

Circuit or Georgia in 1998 required using a mitigation expert. To the contrary, testimony

revealed that mitigation experts were not routinely used in death penalty cases. Westin

stated that he employed mitigation experts in two previous cases in which mental health

issues warranted it. (Doc. 13-1 at 61-62, 67). However, he had “never been a big …

fan of them unless [he] had a specific issue.” (Doc. 13-1 at 68). He opined that “if you

were to talk to a lot of people that have been death penalty qualified, have tried a lot of

cases like I have, they would probably agree that they’re not all they’re cut out to be.”

(Doc. 13-1 at 68). District Attorney Fred Bright, who had been a prosecutor in the

Ocmulgee Judicial Circuit for 13 years at the time of Butts’s trial, testified that he did not

believe it was “effective to have both witnesses and an expert who can explain what all

those witnesses’ testimony means.” (Doc. 13-6 at 35). He explained that he rarely

sees mitigation experts testify in death penalty cases. (Doc. 13-6 at 33). In fact, he had

been involved in approximately 25 death penalty cases and he could recall only one

mitigation expert testifying during sentencing. (Doc. 13-6 at 33-34). Of course, the

Court is not suggesting that prosecutors can set performance standards for defense

counsel. The point is that neither legal authority nor actual experience supports Butts’s

argument that a defense lawyer must hire a mitigation expert.

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Therefore, the state habeas court’s finding that trial counsel did not perform

deficiently when they failed to hire a mitigation expert was not factually or legally

unreasonable.

d. Trial counsel’s trial strategy and presentation

Westin testified that trial counsel’s mitigation investigation yielded little helpful

information. (Doc. 10-16 at 56-57). The investigation revealed Butts had a “tough

upbringing” as “do a lot of kids,” but Westin did not think Butts’s “upbringing was

extremely different from anybody else’s, many other young men.” (Doc. 13-1 at 123).

Westin felt that jurors in the Ocmulgee Judicial Circuit were not as sympathetic to the fact

that someone had a bad childhood as they may have been at one time. (Doc. 13-2 at

12-13). He explained, “there’s just been too many high publicity cases where people

claim that they were victims and so now somehow that mitigates what they may or may

not have done.” (Doc. 13-2 at 13).

Specifically, Westin testified that no former employer would speak favorably about

Butts. (Doc. 13-1 at 119). Also, no family member was willing to testify for Butts.

(Doc. 10-16 at 47). Westin stated he “[c]ouldn’t have drug them up there with wild

horses.” (Doc. 13-1 at 123). Westin could not call jailers to speak favorably about Butts

because he had been in a fight with another inmate, threatened to hit a guard, and started

a fire in his cell. (Docs. 10-6 at 33-35; 10-7 at 1-13). Westin explained that “[o]utside

of his aunt and grandma, there was nobody that could say a kind word about him,” and

even they refused to testify on his behalf. (Docs. 10-16 at 58; 13-1 at 120).

Instead of using mitigation witnesses, trial counsel opted to use a residual doubt or

lingering doubt theory at sentencing. Their theory of the case was that Wilson, who was

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the leader of the FOLKS gang and already serving a death sentence, led Butts down the

wrong path, and it was Wilson who actually killed Parks. (Docs. 13-1 at 57; 13-2 at 16).

“Our strategy from the very beginning in this case was to shift all of … the blame … to Mr.

Wilson…. Our … trial strategy from early on was that Mr. Butts was an unknowing and

unwilling participant in this really unfortunate event.” (Doc. 10-16 at 8). The “thrust”

was that Butts should be acquitted but, if not, residual doubt should prevent the imposition

of the death penalty. (Doc. 10-16 at 18-19). Westin explained:

We had a real shot at – if not an outright acquittal – a verdict of something

less than first degree murder…. [W]e felt like even … if we lost in the guilt

and innocence phase … and he gets convicted of murder…. residual doubt

… was going to flow right through to the sentencing phase and … coupled

with Mr. Wilson’s prior record, and the fact that he was already on death

row, that … was an effective argument to make to this jury that there was

just one gunshot and there’s already a man on death row for that killing.

(Doc. 10-16 at 18-19). Westin summed up his strategy for sentencing: “I was just trying

to keep it as simple as I could…. [T]he lowest common denominator, basically, in this

case …was who done it … and if he didn’t do the shooting, then he shouldn’t get the death

penalty.” (Doc. 13-2 at 36).

In his opening statement and closing argument during the guilt phase, Westin

argued that Butts was guilty of only stealing Parks’s car. (Docs. 9-7 at 61; 10-4 at 21).

He was not guilty of murder because Butts did not know, or have reason to know, that

Wilson would murder Parks. (Doc. 9-7 at 52-57, 61). He claimed Butts never saw

Wilson with a gun on the night of the murder, and, other than asking Parks for a ride, there

was nothing linking Butts to Parks’s murder. (Docs. 9-7 at 58-60; 10-4 at 34). Westin

claimed that Butts did not exit the car while Wilson and an unidentified third person in a

truck murdered Parks. (Doc. 9-7 at 51-53). The jury was told that Wilson had been

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found guilty of murdering Parks and sentenced to death. (Doc. 9-7 at 51, 64).

Through witnesses called during the guilt phase, Westin tried to establish that

Wilson owned the murder weapon, but he did not have it in the car on the night of the

murder. Instead, a third person, with whom Wilson had contact that night, had the gun

and brought it to Felton Drive, where this other person and Wilson used it to murder Parks

while Butts waited in the car.23 (Docs. 9-7 at 122, 129-30, 133; 9-8 at 69, 72-73, 82; 10-1

at 127, 130, 10-2 at 14-16, 91).

During the guilt phase, Butts testified24 that on the night of the murder, he and

Wilson were driving around looking for a car to steal because Wilson needed money.

(Doc. 10-2 at 116-17). He explained that Wilson lost all of his money gambling and had

no way of making more because his drugs had been stolen. (Doc. 10-2 at 116). Wilson

hoped to steal a car to sell to a chop-shop in Atlanta. (Doc. 10-2 at 116-17). When they

were unable to locate a car to steal, Wilson instructed Butts that he should ask someone

for a ride so they could steal the person’s car. (Doc. 10-2 at 120). Butts agreed and

they drove to the Wal-Mart where Wilson talked to “some guy” in the parking lot. (Doc.

10-2 at 121). Butts entered the Wal-Mart to purchase gum and when he returned,

Wilson instructed him to ask Parks for a ride. (Doc. 10-2 at 123). Butts did so and when

Parks agreed, Butts got in the front passenger seat, Wilson got into the back seat behind

Parks, and the other man, to whom Wilson had been speaking, got into the backseat

beside Wilson. This other person exited the car before Parks, Wilson, and Butts left the

23

The State countered this version of events with evidence that Butts told two of his fellow inmates that he

was the one who actually shot Parks. (Doc. 9-14 at 43-45, 102).

24

Westin stated that Butts wanted to testify on his own behalf, and Westin agreed with his decision, thinking

it would provide an opportunity to “humanize” Butts. (Doc. 13-20 at 29). Westin spent 12 to 15 hours

preparing Butts to testify. (Docs. 10-16 at 47; 13-20 at 29).

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parking lot in Parks’s car. (Doc. 10-2 at 124). As Wilson directed Parks to turn onto

Felton Drive, a truck drove up behind Parks’s vehicle and flashed its lights. (Doc. 10-2 at

125). Wilson told Parks to stop the car because he thought he knew the driver of the

truck. (Doc. 10-2 at 125). When Parks stopped, Wilson exited the car, opened the

driver’s side door, “snatched [Parks] out [of] the car by his tie,” and drug him to the back of

the car. (Doc. 10-2 at 125-26). While Butts remained in Parks’s car, he overheard

someone say “give us all your money,” and then heard a gunshot. (Doc. 10-2 at 126).

Butts testified that he never got out of the car, and he never saw Wilson with a gun the

night of the murder. (Doc. 10-2 at 117, 127). After hearing the gunshot, Butts claimed

that he was “scared,” “upset,” “sick at the stomach,” and afraid of Wilson. (Doc. 10-2 at

128-29).25

During the sentencing phase, the State presented evidence of Butts’s criminal

history. In March and April 1994, when he was 16, Butts committed three burglaries and

one attempted burglary. (Doc. 10-5 at 36-44, 59-65, 108-10). Although Butts agreed to

return the items he had stolen, he never did. (Doc. 10-5 at 65). He failed to report to his

probation officer on a regular basis, showing up only two or three times between August

1994 and May 1996. (Doc. 10-5 at 123). In March 1996, his probation officer filed a

petition to revoke Butts’s probation because of his failure to report and pay restitution.

(Doc. 10-5 at 126-28). His probation was not revoked because Butts was employed at

the time and the court wanted to give him an opportunity to pay restitution to the burglary

victims. (Doc. 10-5 at 127-28). He never did. He paid only $50.00 of the $1,223.23

restitution he owed. (Doc. 10-5 at 121).

25

After Butts’s testimony and closing arguments, it took the jury approximately one hour and five minutes to

find him guilty on all counts. (Doc. 10-5 at 11, 15).

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In January 1995, 17 year old Butts pumped gas into his car and drove off without

paying. (Doc. 10-5 at 132).

In October 1995, Milledgeville police officers responded to a call that shots were

being fired in the vicinity of the Milledgeville Manor Apartments (“the Manor”).26 (Doc.

10-6 at 13). When an officer stopped Butts and several other men in the area, Butts

threw down a matchbox and started to walk away. (Doc. 10-6 at 13-14). At gunpoint,

the officer ordered him to stop and retrieved the matchbox, which contained crack

cocaine. (Doc. 10-6 at 14). Officers frisked Butts and found a loaded .380 caliber

semi-automatic handgun. (Doc. 10-6 at 16). Butts was charged with violation of the

Georgia Controlled Substances Act, possession of cocaine, and carrying a concealed

weapon. (Doc. 10-6 at 17).

In November 1995, Butts was fined $500.00 and placed on 12 months probation

for shoplifting. (Docs. 10-5 at 151-52; 10-6 at 7-9).

In January 1996, Butts pled nolo contendre to driving under the influence. (Doc.

10-5 at 140-42).

Also at sentencing, the State presented evidence that police found cocaine and a

holster in Butts’s car when it was searched following his arrest for Parks’s murder. (Doc.

10-7 at 17-19, 38). They also found FOLKS gang paraphernalia in Butts’s home, room,

and car. (Docs. 10-5 at 67, 69, 73-74, 86; 10-7 at 29 32, 34-37).

The State also presented evidence that after Butts was jailed for Parks’s murder,

he had been in a fight with another inmate, threatened a guard, started a fire in his cell,

26

The Milledgeville Manor Apartments are referred to in various places in the record as “the Manor.”

(Docs. 9-8 at 71; 9-11 at 143; 10-2 at 144-45). It is a low income housing project that is “notorious” for

gang-related and non-gang-related crime. (Doc. 13-3 at 29-30).

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and wrote OG27 on his tennis shoes. (Docs. 10-6 at 33-35; 10-7 at 1-13).

Through cross-examination of the State’s sentencing phase witnesses, trial

counsel established that none of the gang paraphernalia found in Butts’s home had his

name on it, and that it may have belonged to one of his siblings; Butts’s name was not on

the list of known gang members, and, until Park’s murder, the authorities had no

information that Butts was involved in gang activity; Wilson was the leader of the local

FOLKS gang; and, while Butts was not a model inmate, he was not the worst prisoner

jailers had encountered. (Docs. 10-5 at 103-04; 10-6 at 1, 40; 10-7 at 42-43).

Trial counsel presented the testimony of an expert polygraphist, Georgia Bureau of

Investigation (“GBI”) special agent David Rush. (Doc. 10-7 at 54). Rush testified that

he performed a voluntary polygraph examination of Wilson. (Doc. 10-7 at 61-62). Rush

testified that “[i]t was [his] opinion, based on the polygraph exam that Mr. Wilson was the

shooter.” (Doc. 10-7 at 67).

Trial counsel had Sheriff Howard Sills read a portion of his testimony from Wilson’s

trial. (Doc. 10-7 at 78). In this testimony, Sills stated that Butts had committed no

violent felonies in the past. (Doc. 10-7 at 80, 84). His criminal records consisted mainly

of misdemeanor convictions, and his only prior felonies were violation of the Georgia

Controlled Substances Act, possession of a firearm during commission of a crime, and

concealing a weapon; all of which stemmed from his October 1995 arrest. (Doc. 10-7 at

80-81).

In his closing argument, Westin told the jury that they did not have to sentence

Butts to death just because the State proved Parks was robbed and murdered. Instead,

they should consider the “principle ... called residual doubt.” (Doc. 10-7 at 109). He

27

OG stands for “original gangster” in gang terminology. (Doc. 10-7 at 12-13).

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argued Butts was young and mistakenly let Wilson lead him into this situation. While

Butts was culpable, “his culpability may not rise to the level of execution.” (Doc. 10-7 at

112). Westin told the jury that the following facts made it more likely that Wilson, not

Butts, was the shooter: the murder weapon was found at Wilson’s home; Wilson was a

violent person with an “extensive criminal history,” while Butts’s criminal career was brief

and consisted of mainly misdemeanors; Wilson was the leader of the FOLKS gang, but

Butts was not even known to be a gang member; and there was testimony that Butts was

in a daze following the murder.28 (Doc. 10-7 at 110-13).

The state habeas court found that trial counsel, after conducting the defense

investigation, made a strategic decision “to present a mitigation theory of residual doubt”

instead of evidence of Butts’s family life or background. (Doc. 16-23 at 32). The court

found this strategy was reasonable. (Doc. 16-23 at 31-33). Next, the state habeas

court determined that trial counsel’s actual presentation of evidence and argument to

support the residual doubt theory was reasonable. (Doc. 16-23 at 34-35). Butts argues

that these findings were factually and/or legally unreasonable. (Doc. 24 at 83-95).

Westin testified that trial counsel made the “conscious decision” to use residual

doubt:

Q. You collected all of this information and evidence on [Butts’s]

background, and you previously stated that you made a conscious decision

not to put it up. What was your reason for that?

A. Most of it really wasn’t positive. The only spin today that I can put on it

that would be positive is that because his mother had some, a lot of issues

and neglected him and unfortunately he didn’t, either the aunt and the

grandmother came in too late, but for whatever reason, he was, I could have

used that spin, he was a victim because he was brought up in a neglected

household, was able to run the streets, nobody could control him, he didn’t

have a father figure, he was a victim, society made him what he was. But

28

The jury returned a death sentence in approximately 48 minutes. (Doc. 10-7 at 136).

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that almost gives up the point that he wasn’t the killer. You see what I’m

saying? On the one hand you’re trying to get this jury to say, to understand

our position, that he didn’t shoot Mr. Parks, but if you’re saying that he was

a victim, they made him do this, then you’re sort of counterproductive, if that

makes any sense.

But I will say this. I laid awake … hours upon hours upon hours, and I

talked it through with myself, I talked it through with my staff or the people

that were working for me, [Crawford], [Montford-Ford], the aunt, the

grandmother. This wasn’t a decision I made by myself but it was a

conscious decision to do it just as it was done, no more and no less. It

probably could have been done better but –

Q. And that conscious decision was to focus on residual doubt during

mitigation?

A. Residual doubt. I felt like if we could carry the fact over from the – I

mean, if he was convicted, which there was a high probability, there is no

question about that, I mean, he’s a party to the crime …, but it’s better than

being the shooter in this case. And I felt like the jury might give him the

benefit of the doubt since … Wilson had already had been convicted. They

already had their man. He was already up here on death row, and there

was only one shot fired. So, that was how we, that’s how I approached it.

(Doc. 13-2 at 22-23).

Despite this testimony, Butts argues that one phrase Westin said in his closing

argument—“taking into account what I believe I could easily infer to you as a lack of any

family structure”—shows Westin did not strategically choose to exclude such evidence.

(Docs. 10-7 at 122; 24 at 35). Westin ended his closing argument by saying

I stand here hat in hand. Robert cannot stand here. Unfortunately, he

has to rely on – on me. I may not have done a very good job talking for him

and on his behalf. But I’m the only one here who can talk for him. And I’m

going to just do some real talking right now. I’m standing here hat in hand,

asking you to think about all of the–the facts and circumstances of this case;

all of the dynamics involved; what may have happened and what may not

have happened; taking into account the youth of this young man; taking into

account what I believe I could easily infer to you as a lack of any family

structure; taking into account his—his getting with older men—other young

men, but older than him who were influencing him down a very bad road;

taking into account the lure of being—trying to be older than we really are.

Very common. Taking all that into consideration and weighing it

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against—weighing it right along with the fact that whatever happens to

Robert as a result of your sentence will not change the pain that anyone in

this courtroom’s feeling. And I am asking you, hat in hand, to find a reason,

if you would, just do that one favor for me, think about it, and give life a

chance. Thank you.

(Doc. 10-7 at 121-22).

Looking at the phrase, “taking into account what I believe I could easily infer to you

as a lack of any family structure,” in context, the Court cannot find it undermines Westin’s

assertion that he deliberately chose to use residual doubt instead of background

evidence during sentencing. Rather, Westin’s closing argument as a whole, along with

the evidence presented during both phases of trial, all support trial counsel’s “strategy …

to shift all of that attention—to actually shift the blame in this case to Mr. Wilson.” (Doc.

10-16 at 8). Certainly, this phrase alone would not allow the Court to say that no

“fairminded jurist” could agree with the state habeas court’s factual finding that trial

counsel strategically chose to use residual doubt instead of background evidence. See

Richter, 562 U.S. at 101 (holding factual finding unreasonable only if no “fairminded jurist”

could agree with it); Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998)

(explaining that “[t]he question of whether an attorney’s actions were actually the product

of a tactical or strategic decision is an issue of fact, and a state court’s decision

concerning that issue is presumptively correct”).

Butts argues that “Westin’s claim … that ‘residual doubt’ was a carefully thought

out strategy … is … undermined” by Westin’s concession during his closing that the State

had proven the existence of the alleged statutory aggravating circumstance—that the

murder was committed during the commission of an armed robbery.29 (Doc. 24 at 88).

29

Butts also argues that, in addition to casting doubt on whether trial counsel were deliberately pursuing a

strategy of residual doubt, Westin’s concession that the statutory aggravating factor had been proven

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After telling the jury that the State had proven the killing took place during an armed

robbery, Westin told the jury that their “inquiry goes much deeper.” (Doc. 10-7 at 109).

He told them that they did not have to sentence Butts to death “simply because [they] …

found a statutory aggravating circumstance.” (Doc. 10-7 at 109). Instead, they should

consider that Wilson was likely the triggerman because the gun was found at his home,

he was the leader of the FOLKS gang, and he was a violent person with an extensive

criminal record. (Doc. 10-7 at 110-11). Westin asked the jury not to impose the ultimate

penalty of death if they thought Wilson was the shooter and if they believed Butts’s

culpability did “not rise to the level” of execution. (Doc. 10-7 at 112). Thus, conceding

that the jury could find Parks was killed during the commission of an armed robbery did

not undermine trial counsel’s strategy to put as much blame as possible on Wilson and

make the jury believe Wilson was the actual shooter.

When making the factual determination that Westin strategically chose to use

residual doubt, the state habeas court quoted Westin’s testimony from the motion for new

trial hearing. (Docs. 10-16 at 19; 16-23 at 20). Westin testified that Wilson’s criminal

record was part of the reason he chose to use residual doubt, and he “brought in Mr.

amounted to ineffective assistance. (Doc. 24 at 88). On appeal, the Georgia Supreme Court denied this

claim. Butts, 273 Ga. at 770, 546 S.E.2d at 484. The court held that “[b]ecause the jury had just found

Butts guilty of armed robbery beyond a reasonable doubt in the guilt phase, it was reasonable for counsel to

concede that point and to argue for a sentence less than death based on other factors.” Id. Without

citation to authority, Butts argues this finding was unreasonable because “[i]t is simply per se unreasonable,

if trial counsel’s strategy was allegedly residual doubt, to concede to the jury the presence of an aggravating

factor.” (Doc. 24 at 89). Trial counsel informed the jury that the court would instruct them that they did

“not have to sentence Robert to death simply because [they] … found a statutory aggravating

circumstance.” (Doc. 10-7 at 109). Instead, they should consider “residual doubt” regarding whether

Butts was the actual shooter. (Doc. 10-7 at 109-11). Westin implored them to consider that it was more

likely that Wilson, not Butts, shot Parks and, therefore, Butts’s “culpability [did] not rise to the level of that

most final of all sentences.” (Doc. 10-7 at 112). The Georgia Supreme Court’s decision—that trial

counsel were not ineffective when they argued for a sentence less than death based on these “other

factors”—was not legally or factually unreasonable. Butts, 273 Ga. at 770, 546 S.E.2d at 484. Indeed, if

anything is “per se unreasonable,” it is Butts’s argument that Westin should have argued to jurors, who had

found Butts guilty of armed robbery based on essentially undisputed evidence that an armed robbery had

occurred, that there was no robbery.

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Wilson’s prior record; … [and] read from the sentencing phase of Mr. Wilson’s trial, that he

had shot at least two people that I recall; shot a dog.” (Docs. 10-16 at 19; 16-23 at 20).

Butts correctly points out that trial counsel did not present Wilson’s record to the jury.

(Doc. 29 at 42). Butts argues Westin was trying to “bolster his allegedly tactical decision

to pursue a strategy of residual doubt” by misstating the evidence that he presented at the

sentencing phase and the state habeas court unreasonably “rubber stamp[ed]” his

testimony. (Doc. 29 at 42). Notwithstanding the inaccuracy of Westin’s recollection of

what he presented during sentencing, the state habeas court’s factual finding that Westin

made the strategic decision to pursue residual doubt remains supported. Westin

testified that he chose residual doubt because they were unable to locate family members

who would testify for Butts, there was no physical evidence linking Butts to the murder

weapon, Wilson was older than Butts and was a gang leader, and Wilson had already

been found guilty of murdering Parks and was on death row. (Doc. 10-16 at 18-19).

The Court finds that the state habeas court’s ultimate conclusion that Westin made the

strategic choice to use residual doubt rests on sufficient factual bases apart from any

unreasonable finding regarding what Westin ultimately presented at the sentencing

hearing.30 Pineda v. Warden, Calhoun State Prison, 2015 WL 5521565, at *2 (11th Cir.

2015) (determining that the state court’s ultimate conclusion was entitled to deference

because it was based on adequate facts in spite of one incorrect and unreasonable

factual finding); Gill v. Mecusker, 633 F.3d 1272, 1292 (11th Cir. 2011) (questioning

whether the state court’s ultimate determination rests on a sufficient factual basis apart

30

Perhaps a better argument would be that trial counsel were ineffective for failing to present Wilson’s

record during sentencing. In a September 4, 1998 pretrial hearing, trial counsel discussed their desire to

present Wilson’s criminal record, including his juvenile record, during sentencing. (Doc. 8-10 at 92-95). It

is unclear why Wilson’s record was not presented. However, Butts did not raise this argument before the

state courts, and he does not make it here.

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from erroneous factual finding).

In addition to finding that trial counsel made a strategic choice to use residual

doubt instead of background evidence, the state habeas court found their decision to do

so was reasonable. (Doc. 16-23 at 19-22). As explained above, trial counsel

conducted a thorough investigation into Butts’s life history.31 They determined that “[t]his

was not so much a case where we had a lot of mitigation”: although Butts was neglected

by his mother and father, his grandmother and aunt “raised him”; there was no evidence

that he was ever physically or sexually abused; the family had adequate food; he received

adequate medical care; he was an average student until age 15 or 16, when he “went to

alternative school twice … for class disruptions, fights”; employment records revealed he

managed to find employment but lost most of his jobs due to fighting with co-workers,

supervisors, or customers; and jail records showed he had to be transferred for fighting

with other inmates and starting a fire in his jail cell. (Docs 10-16 at 18, 56-57; 13-1 at

110, 119; 13-2 at 7-9; 14-15 at 38; 14-17 at 37). While Westin thought that Butts’s

childhood had been difficult and knew that his mother was addicted to alcohol and drugs,

he believed, based on his years of experience in the Ocmulgee Judicial Circuit, that “the

bad childhood thing doesn’t play as well as it did at one time…. Jurors aren’t as

sympathetic to … the fact that somebody’s just had a, kind of a bad” childhood. (Doc.

13-2 at 12). Also, no family members were willing to testify for Butts or about Butts’s

background. (Docs. 10-16 at 46-47, 58; 13-1 at 120-23).

31

Butts argues that even if trial counsel’s strategy was to use residual doubt, their choice “was not based on

a sound investigation and therefore was unreasonable and deserves no deference.” (Doc. 24 at 86). The

Court has already considered the record and determined that trial counsel’s investigation into possible

mitigating evidence was reasonable. (See pages 16 to 26 of this Order).

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With these factors in mind, and after discussing the issue on numerous occasions,

trial counsel decided to use a residual doubt strategy. (Doc. 10-16 at 43). Such

decisions, when “made after thorough investigation of law and facts relevant to plausible

options[,] are virtually unchallengeable….” Strickland, 466 U.S. at 690. Also, Westin’s

“sense of the jury’s reaction to testimony or evidence is a sound basis on which to make

strategic decisions.” Spaziano v. Singletary, 36 F.3d 1028, 1040 (11th Cir. 1994). To

prove trial counsel’s strategy was “outside the wide range of reasonable professional

assistance,” Butts must show “’that the approach taken by defense counsel would not

have been used by professionally competent counsel.’” Id. at 1041 (quoting Harich v.

Dugger, 844 F.2d 1464, 1470 (11th Cir. 1988)). He has not made such a showing. “At

most, he has established that his present counsel would not have pursued the same

strategy, a showing which misses the target by a wide mark.” Id.

Butts argues that to be reasonable, trial counsel’s strategy had to include evidence

concerning the impact of Butts’s dysfunctional family and background. However, there is

“[n]o absolute duty … to introduce mitigating or character evidence” during the sentencing

phase of trial. Chandler, 218 F.3d at 1319. In fact, the Eleventh Circuit has noted “that

residual doubt is perhaps the most effective strategy to employ at sentencing.”

Chandler, 218 F.3d at 1320 n.28 (citing Tarver v. Hopper, 169 F.3d 710, 715-16 (11th Cir.

1999)).

[F]ocusing on acquittal at trial and then on residual doubt at sentencing

(instead of other forms of mitigation) can be reasonable. Especially

when—as in this case—the evidence of guilt was not overwhelming, we

expect that petitioners can rarely (if ever) prove a lawyer to be ineffective for

relying on this seemingly reasonable strategy to defend his client.

Id. at 1320 (citing Tarver, 159 F.3d at 715-16).

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One of the reasons trial counsel offered for not presenting background evidence is

that do so

almost gives up the point that [Butts] wasn’t the killer…. On the one hand

you’re trying to get this jury to say, to understand our position, that he didn’t

shoot Mr. Parks, but if you’re saying that he was a victim, they made him do

this, then you’re sort of counterproductive ….

(Doc. 13-2 at 22). Quoting this testimony, the state habeas court ruled that the Georgia

Supreme Court and the Eleventh Circuit have recognized such concerns can reasonably

“preclude[ ] the presentation of potentially mitigating evidence of this type.” (Doc. 16-23

at 42-43) (citing Turpin v. Christenson, 269 Ga. 226, 244, 497 S.E.2d 216, 231 (1998),

Chandler, 218 F.3d at 1319, and Dill v. Allen, 488 F.3d 1344, 1357 (11th Cir. 2007)).

Butts argues this ruling was “unreasonable as a matter of law,” and the reasonable

strategy would have been for trial counsel to argue residual doubt and present evidence

of Butts’s difficult childhood to explain how he came to make a series of unfortunate

choices on the night of Parks’s murder. (Doc. 24 at 89-90). Butts may, or may not, be

correct that combining these two strategies would have been beneficial. However, trial

counsel is not required to present every possible theory that might be helpful to his client.

Dill, 488 F.3d at 1357. “[C]ounsel’s reliance on particular lines of defense to the

exclusion of others—whether or not he investigated those other defenses—is a matter of

strategy and is not ineffective unless the petitioner can prove the chosen course, in itself,

was unreasonable.” Chandler, 218 F.3d at 1318. Butts has not made such a showing.

After finding that trial counsel’s decision to use residual doubt at sentencing was

strategic and reasonable, the state habeas court found that trial counsel’s presentation of

evidence and argument to support this strategy was reasonable. (Doc. 16-23 at 35).

Starting in the guilt phase of the trial, trial counsel argued and presented evidence that

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Butts was not the shooter. (Docs. 9-7 at 52-57, 61, 122, 129-30, 133; 9-8 at 79, 72-73,

82; 10-1 at 127, 130; 10-2 at 14-16, 91, 126-29). At sentencing, Rush testified that he

administered a voluntary polygraph to Wilson, and, based on the results of that

examination, he concluded Wilson was the shooter. (Doc. 10-7 at 54, 62, 67-68).

Sills’s testimony from Wilson’s trial, which was read into the record, established that Butts

did not have a violent criminal history. (Doc. 10-7 at 79-80). In closing, trial counsel

argued that a “youthful” Butts made a foolish mistake when he was led into this situation

by Wilson. (Doc. 10-7 at 111). In an effort to convince the jury that Wilson was the

triggerman, trial counsel argued Wilson had “a propensity to be a violent person,” “a very

extensive criminal history,” and was known to be “right at the top of the list of the F[OLK]

Gang membership.” (Doc. 10-7 at 110-11). In contrast, Butts had a “brief,” nonviolent

criminal career, and, prior to Park’s murder, was not on local law enforcement’s list of

gang members. (Doc. 10-7 at 111-13). Westin stressed that Butts’s culpability, or the

“unwarranted actions of [Butts] … under the tutorledge [sic] of Marion Wilson, who … is

already on death row,” did “not rise to the level of that most final of all sentences.” (Doc.

10-7 at 112, 118). After careful examination of the record, the Court finds that the state

habeas court’s determination that trial counsel made a reasonable presentation to

support their residual doubt strategy did not involve an objectively unreasonable

application of Strickland, nor was it based on any unreasonable determination of the

facts.

e. The prejudice allegedly suffered because trial counsel failed to

investigate and present mitigating evidence

Butts presented 16 witnesses at the state habeas evidentiary hearing, eight of

whom were family members, friends, teachers, and a guidance counselor who offered

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personal background information about Butts and his family. He also presented

testimony from a former DFACS case worker and an expert “clinical social worker with

expertise in conducting biopsychosocial assessments for the courts in capital cases.”32

(Doc. 13-4 at 98).

Butts’s mother, Laura, testified that her biological father and mother never married,

and she grew up with a verbally and physically abusive stepfather. (Doc. 13-6 at

100-02). Laura’s brother, Johnny Waller, provided similar testimony. (Doc. 13-6 at

70-72). Laura explained that she was suspended from school at least seven times for

fighting and ultimately dropped out of school in the ninth grade. (Doc. 13-6 at 103-04).

She became pregnant at age 16 and in 1975 gave birth to her first child, Tammy. (Doc.

13-6 at 104-05, 109). She never married or lived with Tammy’s father. (Doc. 13-6 at

108).

Although Laura had long been married to Robert Butts, Sr., they lived together for

only 11 months after Butts was born on May 14, 1977. (Docs. 13-6 at 109-10; 13-13 at

80). Laura testified that she left Butts, Sr. because of his increasingly bizarre behavior,

and neither she nor her children had any contact with him again. (Doc. 13-6 at 109-10,

129; 13-13 at 80). She said that Butts, Sr. had been in and out of mental institutions and

prisons since that time. (Doc. 13-6 at 110-11).

When Laura left Butt’s Sr., she, Tammy, and Butts moved into Riverbend

Apartments in Milledgeville, Georgia. (Doc. 13-6 at 111-12). They, along with Laura’s

various male companions, lived in this apartment for the next 12 years. (Doc. 13-6 at

32

The other witnesses were Westin; Moore; Huskins; Detective Ricky Horn; John Hagedorn, a gang expert;

and District Attorney Fred Bright. (Doc 13-1 at 10-11).

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111). Jerome Wright, who is the father of Laura’s third child, Tamayo,33 lived with Laura

and her children for two and one-half years before leaving for unknown reasons. (Doc.

13-6 at 112-13). Next, Calvin Hurt, Dominique’s34 father, moved in for approximately two

to three years. (Doc. 13-6 at 114). Hurt drank heavily and was physically abusive to

Laura. (Doc. 13-6 at 114). Next, Harold Burton, Tameica’s35 father, lived with the Butts

family for approximately eight to ten years.36 (Doc. 13-6 at 115, 126-27). When Burton

moved out, Laura became involved with Isaac Jones, a drug dealer, who physically

abused her. (Doc. 13-6 at 117-18). Laura recalled one occasion when Jones threw

Butts on the floor, put his knee in his back, and pulled his arms behind his back. (Doc.

13-6 at 118). After breaking up with Jones, Laura dated Harold Jimerson, a drug dealer

who was married to someone else during the 12 years he and Laura were together.

(Doc. 13-6 at 119).

Laura testified that she started abusing alcohol as a teenager and began using

crack cocaine in 1986. (Doc. 13-6 at 105-06). The only period of time during which she

did not drink to excess was a six-year span that started after Butts’s trial ended.37 (Doc.

33

Tamayo was born on May 16, 1980. (Doc. 13-11 at 4).

34

Dominique Hurt, Laura’s fourth child, was born on December 1, 1982. (Doc. 13-11 at 4).

35

Tameica, Laura’s fifth child, was born on July 5, 1986. (Doc. 13-11 at 4).

36

It is unclear exactly how long Burton lived with, or was involved with, the Butts family. In his affidavit,

Burton stated he became involved with Laura in approximately 1985 and lived with the family “on and off” for

approximately nine years. (Doc. 13-13 at 77). Jan Vogelsang, Butts’s mitigation expert, estimated that

Burton was involved with the Butts family from 1986 until 1995. (Doc 13-4 at 127). Laura estimated that

she and Burton lived together for eight years. (Doc. 13-6 at 126-27). Tracy Burton, Harold Burton’s

sister-in-law, testified that Burton and Laura were together for approximately ten years, until at least 1996.

(Doc. 13-4 at 50). On the undated questionnaire that Butts completed following Westin’s appointment in

July 1996, he indicated that his mother and Burton “broke up about 7 weeks ago.” (Docs. 13-1 at 111;

15-19 at 4).

37

Laura’s oldest daughter, Tammy, testified that her mother did not drink alcohol between 1997 and 2003.

(Doc. 13-4 at 65). Tameica testified that she remembered her mother was sober from 1998 until 2004.

(Doc. 13-6 at 65). Laura testified she was sure she did not stop drinking until after Butts’s trial was over.

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13-6 at 106). She stopped using crack cocaine four months before the September 2007

state habeas evidentiary hearing. (Doc. 13-6 at 106). Laura stated she consumed

alcohol during all five of her pregnancies,38 and ended up on welfare after losing various

jobs because of her alcoholism and drug addiction. (Doc. 13-6 at 105, 113).

According to Laura, when she used crack cocaine, she would stay away from

home for months at a time, spend all of her money on drugs, and pawn whatever she had

to get money for drugs. (Doc. 13-6 at 108). Laura explained she left home to smoke

crack cocaine because she was not comfortable taking drugs in front of her children.

(Doc. 13-6 at 108). When she was absent from the home, the children sometimes were

left alone, but her grandmother Mary Lee Waller, mother Mary Frances Cooper, aunt

Doris Cooper, brother Johnny Waller, or boyfriend Burton frequently kept the children.

(Doc. 13-6 at 126-27). Laura testified that she went through at least seven detoxification

and rehabilitation programs. (Doc. 13-6 at 107).

Laura admitted she was never involved in Butts’s life. She never spoke with his

teachers, did not know what school activities or sports he was involved in, did not take him

to church, did not know that he had to repeat the tenth or eleventh grades, did not know

he had dropped out of school, and did not know that he was arrested for burglary and

attempted burglary in 1994 or shoplifting in 1995. (Doc. 13-6 at 121-22, 130-31). She

did know that Butts was arrested in 1995 for possession of cocaine, possession of a

firearm during the commission of a crime, and carrying a concealed weapon. (Doc. 13-6

at 130). However, she did not go to juvenile court with Butts when he pled guilty to these

(Doc. 13-6 at 106). In fact, she was too impaired to attend any day of his trial except the last. (Doc. 13-6

at 123-24).

38

There was testimony that her alcohol consumption did not impact Butts’s birth. (Doc. 13-4 at 118).

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charges, and she never spoke with his probation officer. (Doc. 13-6 at 130).

Tammy, Butts’s older half-sister, testified that she could not recall ever living with

Butts, Sr., but she knew he was mentally ill and frequently in jail. (Doc. 13-4 at 59).

Tammy testified that Dominique’s father, who lived with them for a period of time, was

physically and verbally abusive to Laura and would “whip” or “spank” Butts and Tamayo to

discipline them. (Doc. 13-4 at 62). Tammy could not recall ever being physically

abused by any of her mother’s various boyfriends. (Doc. 13-4 at 76-77). She testified

that Burton lived with their family for “over ten years,” and he was “a decent guy” who

worked and took care of them when their mother was not home. (Doc. 13-4 at 65-66).

Tammy testified that after working at various factory jobs, her mother went on

welfare and received food stamps. (Doc. 13-4 at 61-62). She recalled that her mother

always abused alcohol and, in 1985 or 1986, started abusing crack cocaine. (Doc 13-4

66). She said Laura and various other people drank alcohol and used drugs in their

home.39 (Doc. 13-4 at 71-72). When her mother drank alcohol to excess, she “fussed,

cursed, was loud, [and] wanted her way.” (Doc. 13-4 at 64). After Laura started using

drugs, “[s]he would stay away from home for days at the time.” (Doc. 13-4 at 66).

Tammy recalled that either Burton or her grandmother took care of the children when

Laura was gone. (Doc. 13-4 at 66, 68). She explained that her grandmother and aunt

“were always constant providers” for her and her siblings. (Doc. 13-4 at 78). In

approximately 1990, Tammy moved in with her grandmother. (Doc. 13-4 at 78).

Tameica, Butts’s younger half-sister, testified that she could never depend on

Laura because she was under the influence of drugs and alcohol more often than not.

39

Tammy explained that she never saw anyone actually using any drugs. However, she “saw them come

out of the bathroom where they did something with … [a] Coca-Cola can.” (Doc. 13-4 at 71). She did not

“exactly know what particular drug [the can] was used for.” (Doc. 13-4 at 71).

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(Doc. 13-6 at 53-54). She stated that when Laura disappeared for days or weeks at a

time, she would go to her grandmother’s home, Tracy Burton’s40 home, or stay with

Burton. (Doc. 13-6 at 55, 59-62). She recalled that after Burton moved out, various

men who abused Laura spent time in the Butts’s home. However, she did not recall

seeing any of these men use drugs while in the home. (Doc. 13-6 at 55-57). She

testified that Butts cooked and helped her with homework when Laura was not at home.

(Doc. 13-6 at 58).

Johnny, Butts’s uncle, described Butts as a quiet child who had no direction or

guidance. (Doc. 13-6 86). He acknowledged that he also abused drugs and alcohol

and would frequent Laura’s house to drink and use drugs. (Doc. 13-6 at 83-84). Johnny

explained that when Laura was absent, he, his mother, or Burton cared for the children.

(Doc. 13-6 at 79).

Burton testified that he lived with Laura from the mid-1980’s until approximately

1991 or 1992.41 (Doc. 13-4 at 20-21, 35). He said Laura was addicted to crack cocaine,

was frequently absent from the home for weeks at the time, and would regularly pawn

household items to get drug money. (Doc. 13-4 at 22-24). Burton testified that he

cooked, cleaned, disciplined the children, and made sure they attended school. (Doc.

13-4 at 24-25). DFACS records verify that he worked with the school to resolve the

children’s problems. (Doc 13-7 at 18).

Burton stated that after he moved from the home, Isaac Jones moved in. (Doc.

13-4 at 26). Although Jones was controlling, Burton was not sure if he physically abused

40

Tracy Burton is Harold Burton’s former sister-in-law. (Doc. 13-4 at 40).

41

As explained previously, other witnesses testified that Burton lived with the Butts’s family off-and-on until

1996. See footnote 36 above.

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Laura, and Burton did not indicate that Jones abused Butts or his siblings. (Doc. 13-4 at

26).

Burton confirmed that Butts’s grandmother and aunt helped care for the children.

(Doc. 13-4 at 32). He testified that there was always food to eat, and the children had a

television, Nintendo, radios, and various toys. (Doc. 13-4 at 32-33). He said Laura

never physically abused Butts or any of his siblings. In fact, she did not even like to

spank them. (Doc. 13-4 at 33).

Tracy Burton, Burton’s former sister-in-law, testified that Laura was a good mother

before she became addicted to crack cocaine in 1986. (Doc. 13-4 at 45, 49). After she

began using drugs, however, she “would disappear for days and weeks” at a time. (Doc.

13-4 at 43). During Laura’s absences, Burton or the children’s grandmother took care of

the children. (Doc. 13-4 at 45, 49-50). Tracy explained that Burton made sure the

children were well fed, attended school, and had clothes and toys. (Doc. 13-4 at 49-50).

She described Burton as a “great father figure” for Butts and his siblings. (Doc. 13-4 at

43).

Two teachers, Lois Reeves and Henrietta Taylor, testified. Reeves, who taught

Butts in the second grade, described him as a nice, but sad, child who needed special

attention. (Doc. 13-4 at 9-10). She never saw Butts’s mother and thought that Butts

could have done better in school if he had a better support system. (Doc. 13-4 at 10-11).

Reeves acknowledged having no contact with Butts since he left her second grade class..

(Doc. 13-4 at 14).

Taylor, who taught Butts health in the ninth or tenth grade, described Butts as quiet

and respectful, but noted that he started missing class and became inattentive when he

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began associating with the “wrong crowd.” (Doc. 13-3 at 129-31). Taylor spoke with

Butts and told him that she “was worried that he was headed in the wrong direction.”

(Doc. 13-13 at 96). Because he was living with his grandmother at the time, Taylor

expressed her concerns to Mary Frances. (Doc. 13-3 at 130; 13-13 at 96). Taylor

acknowledged her only contact with Butts occurred during this one school year. (Doc.

13-4 at 5).

Jan Vogelsang, a licensed “clinical social worker with expertise in conducting

biopsychosocial assessments for the courts in capital cases,” testified that she conducted

a biopsychosocial assessment of Butts. (Doc. 13-4 at 98). She defined a

biopsychosocial assessment as “a professional social work method of gathering

extensive information across a broad spectrum of sources in an effort to … shed light on a

person’s behavior.” (Doc. 13-4 at 93). Vogelsang interviewed Butts’s family members;

schoolteachers; a DHR caseworker; Dr. John Hagedorn (an expert on gangs); Wayne

Rogers (an attorney); Dr. George Woods (a neuropsychiatrist in Oakland, California); Dr.

Alex Morton (a doctor at the Medical University of South Carolina); and Dr. Jim Evans (a

psychiatrist retained by Butts’s state habeas counsel).42 (Docs. 13-4 at 99; 13-7 at

13-14). She reviewed school records; employment records; affidavits from friends and

family members; mental health and medical records of Butts, Butts, Sr., Laura, and

Dominique; DHR and DFACS records; Department of Corrections and probation records;

depositions; and Lower’s and Stark’s evaluations of Butts. (Doc. 13-4 at 99-100).

Although Vogelsang can diagnose patients, she was not asked to diagnose Butts, and

she did not prepare a report or evaluation of Butts. (Doc. 13-7 at 9, 14).

42

State habeas counsel did not call Evans to testify at the state habeas evidentiary hearing.

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Vogelsang testified about Butts’s family history, much of which had already been

provided by other witnesses: Laura grew up watching her mother get physically abused

by her drunk stepfather (Doc. 13-4 at 114-15); Butts, Sr. grew up watching his stepfather

abuse his mother, who had been diagnosed as a schizophrenic paranoid type (Doc. 13-4

at 116-17, 120); Laura dropped out of school in the ninth grade because she was

pregnant and “getting in a lot of fights” (Doc. 13-4 at 115-16); Laura began drinking and

was sexually promiscuous at a young age (Doc. 13-4 at 115); Butts, Sr. had a mental

breakdown shortly after Butts’s birth, quit his employment, and began engaging in bizarre

behavior (Doc. 13-4 at 119-20); Butts, Sr. was admitted to Central State Hospital in

September 1978 and diagnosed as schizophrenic paranoid type (Doc. 13-4 at 120);

Butts, Sr. was admitted to Central State Hospital approximately 30 times in 16 years (Doc.

13-4 at 120); Butts, Sr. was absent from Butts’s life (Doc. 13-4 at 108); Laura was a crack

addict who disappeared for weeks at a time (Doc. 13-4 at 108-09); when Laura was

absent, Butts had to be the primary caregiver for his brother Dominique, who was

“severely mentally disturbed” (Doc. 13-4 at 109); and Laura invited a series of violent,43

drug-abusing men in and out of the home during Butts’s childhood (Doc. 13-4 at 109-10).

Voselsang testified that Butts’s life grew “increasingly worse” as he progressed

through childhood into adolescence. (Doc. 13-4 at 122-23). During his early childhood,

his home was filled with turmoil, which caused him to be a sad, worried, and withdrawn

child. (Doc. 13-4 at 124-26). During his middle childhood, Burton moved in with Laura

and her children. (Doc. 13-4 at 127-28). Burton paid the bills, fed the children, bought

the children gifts, and made sure they attended school. (Doc. 13-4 at 129-30).

43

Vogelsang testified that these men did not physically abuse Butts. The abuse was directed at Laura.

(Doc. 13-4 at 109-10).

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Vogelsang testified that although Burton, their grandmother, aunt Doris, and uncle

Johnny were present in their lives, the children were frequently left alone and Butts was

forced to care for his younger siblings.44 (Doc. 13-4 at 128-29).

Vogelsang testified that Laura’s relationships with Jones and Jimerson, both of

whom were cruel and abusive to Laura, had a detrimental effect on Butts. (Docs. 13-4 at

133-34; 13-5 at 1). According to Vogelsang, Jones was involved with Laura from the

time Butts was ten until he was 15.45 (Doc. 13-5 at 1). When Butts was 15, Laura

became involved with Jimerson, a drug dealer, who introduced Butts to guns.46 (Doc.

13-5 at 1). During this time Laura was in and out of detox facilities, and Butts was forced

to be the primary caretaker of Dominique, who suffered from “severe behavioral

disorders” and was uncontrollable. (Docs. 13-5 at 14-15). According to Vogelsang,

Laura started pressuring Butts to sell drugs and/or buy drugs for her. (Doc. 13-5 at 6-7,

21). Vogelsang opined that all of this resulted in the erosion of Butts’s resilience and

“[h]e just gave up.” (Doc. 13-5 at 4). He started missing school, receiving failing

grades; associating with the wrong crowd, drinking alcohol, smoking marijuana, selling

crack cocaine, burglarizing homes, and carrying a gun. (Doc.13-5 at 4-5).

Based on this, Vogelsang opined that Butts suffered from emotional abuse and

neglect, which can be difficult to detect. (Doc. 13-5 at 22-25). She said this could

44

According to Vogelsang, Tammy, as the oldest child, was initially responsible for taking care of her

siblings. (Doc. 13-4 at 129). However, when Tammy moved out of the home and went to live with her

grandmother, Butts had to become the primary caretaker of his siblings. (Doc. 13-4 at 129).

45

There is obviously overlap between Laura’s relationship with Jones and her relationship with Burton. If

Laura dated Jones from 1987 to 1992, this is during the time Burton lived with the Butts family. (Doc. 13-4

at 127-29). According to Vogelsang, at some point between 1987 and 1992, Laura, not her children,

moved in with Jones and he introduced her to crack cocaine. (Doc. 13-4 at 128-29). During this time,

Butts apparently continued to live with Burton. (Doc. 13-4 at 129).

46

Vogelsang testified that on one occasion, Jimerson had 15 year-old Butts use a gun to threaten another

man with whom Laura was spending time. (Doc. 13-5 at 1). However, on the questionnaire he completed

for trial counsel, Butts stated that he had never even met Jimerson. (Docs. 13-1 at 111; 15-19 at 4).

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explain why DHR and DFACS caseworkers failed to remove Butts and his siblings from

the home.47 (Doc. 13-5 at 26-27). According to Vogelsang, Butts was not physically

abused, but there were always “threats of abuse” or “threats of harm” in the home. (Doc.

13-7 at 1-2).

On cross-examination, Vogelsang acknowledged Butts knew the difference

between right and wrong, yet he chose to hang around the wrong people, violate the

conditions of his probation, drink alcohol, and use drugs. (Doc. 13-7 at 41-43, 47).

Vogelsang also acknowledged that Stark diagnosed Butts as having an antisocial

personality disorder, and Lower found he had a “longstanding personality disorder,” the

characteristics of which were “poor judgment, impulse control, disregard for social mores,

inability to form close relationships or become involved in others.” (Doc. 13-7 at 46-47).

State habeas counsel also tendered affidavits from childhood friends, family

members, teachers, and a guidance counselor stating that Butts was intelligent,

well-mannered, sensitive, lonely, nice, quiet, pleasant, polite, friendly, and

nonaggressive. (Doc. 13-13 at 76, 85, 88, 89, 95, 96; 13-14 at 3).

The state habeas court found “[e]ven if this Court were to determine that the failure

to present evidence of [Butts’s] background and home life … constituted deficient

performance on the part of either trial or appellate counsel, the Court finds no prejudice:

there is a not a reasonable probability that the result of the trial or appeal would have been

different if such evidence had been presented at either stage.” (Doc. 16-23 at 45-46).

47

Celia Cooper, a former child protective services worker with DFACS in Baldwin, Wilkinson, and Fulton

Counties, testified “generally about some of the DFACS policies” in Baldwin County. (Doc. 13-3 at 119).

She explained that case workers are assigned to handle a large number of cases each month and it is

difficult to substantiate emotional abuse or neglect. (Doc. 13-3 at 119-20). Also, it is a lengthy and

tedious process to remove a child from a neglectful or abusive home. (Doc. 13-3 at 119-25). However,

Cooper had absolutely no recollection of Butts or his family. (Doc. 13-3 at 119).

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The court also determined that Butts did not establish he was prejudiced by trial counsel’s

failure to hire a mitigation expert. (Doc. 16-23 at 35 n.9). Butts argues the state habeas

court’s decision was unreasonable because the court “failed to weigh the new mitigating

evidence against the original aggravating evidence.” (Doc. 24 at 100). He also

maintains that the court’s decision is “unreasonable substantively, as no reasonable jurist

could deny a reasonable probability that the powerful new mitigating evidence could have

altered the outcome.” (Doc. 24 at 101).

Contrary to Butts’s assertion, the state habeas court did not fail to “reweigh the

evidence in aggravation against the totality of available mitigating evidence.” Wiggins,

539 U.S. at 534. The court provided a detailed analysis of the evidence presented at the

state habeas evidentiary hearing. (Doc. 16-23 at 35-46). The court determined that the

testimonial and documentary evidence presented showed that Laura was frequently

absent from her children’s lives and used drugs; Butts, Sr. was mentally ill and had no role

in Butts’s life, and Butts’s younger brother Dominique had behavioral problems. (Doc.

16-23 at 36-37). It also found that trial counsel knew all this prior to trial. (Doc.16-23 at

33). The record supports these findings.

The state habeas court also found that Vogelsang, Butts’s mitigation expert,

testified about four significant influences in Butts’s life: his mentally-ill father; his

drug-abusing, alcoholic, and neglectful mother; his mentally disturbed younger brother;

and the use and sale of drugs by Laura’s various boyfriends. (Doc. 16-23 at 36). The

court determined that Vogelsang’s testimony was undermined or contradicted in several

respects:

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 Vogelsang was not licensed in the State of Georgia, and she was not a licensed

medical doctor, psychologist, or psychiatrist48 (Doc. 16-23 at 36);

 When performing her biopsychosocial assessment, she never spoke with Lower or

Stark, the psychologists who examined Butts prior to trial, or Nancy Bowers, the

school social worker who Vogelsang acknowledged “had an enormous amount of

contact with the family”49 (Doc. 16-23 at 36);

 Although she concluded Butts, Sr.’s mental illness may somehow mitigate Butts’s

sentence and a large portion of her presentation and evidence concerned his

mental illness, Butts’s last contact with Butt’s, Sr. occurred when he was

approximately one year old;50 (Doc. 16-23 at 36-37);

 While Voglesang testified that ten-year-old Butts was left home alone to be the

primary care-taker of his “severally mentally handicapped younger brother,”51

numerous witnesses testified and documentary evidence showed that Butts’s

grandmother, aunt, uncle, and Burton took care of Butts and his siblings while their

mother was absent52 (Doc. 16-23 at 37-39); and

48

Butts argues this is the “wrong standard” because “[a] mitigation expert does not need to be licensed as

a medical doctor, psychologist, or psychiatrist in order to testify.” (Doc. 24 at 110). The state habeas

court did not find that Vogelsang could not testify, and it did not completely discount her testimony because

she was not a doctor, psychologist, or psychiatrist. Her credentials were just one factor the state habeas

court considered when it determined that there was not a reasonable probability that her testimony would

have resulted in a different sentence for Butts. See Sears v. Upton, 561 U.S. 945, 949 (2010) (noting that

the petitioner’s expert was a “well-credentialed” psychologist).

49

Again, Butts argues this is the “wrong standard,” and these facts should simply have been used as a

basis for cross-examination. (Doc. 24 at 110). Butts’s point is not at all clear; they were used as a basis

for cross-examination. (Doc. 13-7 at 12-13). On direct, Vogelsang testified that she gathered “extensive

information across a broad spectrum of sources in an effort to … shed light on [Butts’s] behavior.” (Doc.

13-4 at 93). On cross-examination, she admitted that she did not speak with two psychologists who

evaluated Butts prior to trial or Bowers, a social worker who was very familiar with the Butts’s family. (Doc.

13-7 at 12-13). Vogelsang acknowledged that she thought “it was very important to get with” Bowers, but

she was unable to do so despite making “every effort.” (Doc. 13-7 at 13). It was appropriate for the state

habeas court to consider her failure to speak with these three individuals, all of whom unquestionably had

insight into Butts and/or his family. Her failure goes toward the weight a jury—or motion for new trial or an

appellate court—may have given Vogelsang’s testimony.

50

Butts argues this was an unreasonable factual finding. However, Laura testified that she left Butts, Sr.

approximately 11 months after Butts was born and neither she, nor Butts, had any contact with him after

that. (Doc. 13-6 at 110, 129).

51

While Vogelsang variously described Dominique as “profoundly disturbed,” “severely emotionally

disturbed,” or “severely mentally handicapped,” his initial diagnosis was “minimal brain damage,” which was

the original term for Attention Deficient Hyperactivity Disorder (“ADHD”). (Docs. 13-4 at 133; 13-5 at 11,

14, 31-32, 36). He was later diagnosed as having ADHD and a conduct disorder. (Doc. 13-7 at 31).

Despite these behavioral or conduct disorders, both Bowers and Vogelsang said he was actually a “bright

boy.” (Doc. 13-7 at 33).

52

Tammy testified that her grandmother and aunt “were always constant providers” for her and her siblings.

(Doc. 13-4 at 78). Tameica testified that Burton or her grandmother kept them when her mother was

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 Vogelsang was completely unaware of the facts of the crime Butts was convicted

of committing because she “did not go into it.” (Docs. 13-7 at 47).

Notably, Vogelsang’s assertions that Butts suffered from emotional abuse,

neglect, and abandonment while he lived in an “unsettled home” under a “constant threat

of harm or constant threat of violence” were undercut by testimony from Nancy Bowers,

who worked with Dominique from 1991 to 1993 while she was employed as a parent

worker or social worker with the Oconee Psychoeducational Program. (Docs. 13-5 at

36; 13-6 at 143; 13-12 at 46-47, 53). Bowers testified that DFACS investigated the Butts

family but did not remove the children because they were not “in any immediate danger.”

(Docs. 13-13 at 21; 14-29 at 68-72). She recalled that Butts’s grandmother, aunt, and

Burton provided financial support and helped take care of the children when Laura was

absent or unable to care for them. (Doc. 13-12 at 70, 72-74, 77). Bowers testified:

[T]hat’s my memory, that there was a lot of family support. And that’s what

we expect when we see an adult, a parent struggling, that family usually

steps in. And that’s what we want because we don’t want children in foster

care. We want the family to come in and support the children and give

them what they need short of their own mother being able to do it or their

parents.

And so, that’s what we saw a lot going on in this family. That if she wasn’t

absent. (Doc. 13-6 at 55, 60-61). Johnny Waller, Butts’s uncle, testified that he, his mother, or Burton

cared for the children when Laura was absent. (Doc. 13-6 at 79). Burton testified that he cared for the

children when Laura was not there and he acknowledged that Butts’s grandmother and aunt helped care for

them. (Doc. 13-4 at 24-25, 32). Tracy Burton testified that Burton or the children’s grandmother took care

of them while Laura was away. (Doc. 13-4 at 45, 50). Butts’s former ninth grade teacher, Taylor, testified

that when Butts was in her class, he was living with his grandmother. (Doc. 13-3 at 130). Records

obtained by trial counsel and submitted during the state habeas evidentiary hearing verified that other

family members or Burton cared for t

This text is long and has been trimmed here. Open the source document for the complete record.