Newland v. Hall

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED

U.S. COURT OF APPEALS

No. 05-15981 ELEVENTH CIRCUIT

________________________ May 14, 2008

THOMAS K. KAHN

D. C. Docket No. 03-00146-CV-AAA CLERK

ROBERT L. NEWLAND,

Petitioner-Appellant,

versus

HILTON HALL,

Warden, Georgia Diagnostic Prison,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(May 14, 2008)

Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.

TJOFLAT, Circuit Judge:

On August 14, 1987, the petitioner, Robert Newland, was convicted in the

Superior Court of Glynn County, Georgia of malice murder and aggravated assault

with intent to commit rape.1 The following day, at the conclusion of the penalty

phase of the trial, the jury recommended that petitioner be sentenced to death for

the murder. The court followed the jury’s recommendation and sentenced

petitioner accordingly.2 After exhausting his direct appeal and collateral attack

remedies in state court, petitioner applied to the United States District Court for

the Southern District of Georgia for a writ of habeas corpus, challenging his

convictions and death sentence on several federal constitutional grounds. The

court denied the writ. We granted petitioner a certificate of appealability,

1

Petitioner was charged in separate counts with murder in violation of O.C.G.A. § 16-5-

1(a) (1982); felony murder predicated on aggravated assault with a deadly weapon in violation of

O.C.G.A. § 16-5-1(c); felony murder predicated on aggravated assault with intent to rape in

violation of O.C.G.A. § 16-5-1(c); aggravated assault with intent to commit rape in violation of

O.C.G.A. § 16-5-21(a)(1); and aggravated assault with a deadly weapon in violation of O.C.G.A.

§ 16-5-21(a)(2).

The jury did not return a verdict on the felony murder counts because the court, pursuant

to O.C.G.A. § 16-1-7 (1982), instructed the jury that it could find the defendant guilty of either

malice murder or felony murder since section 16-1-7 prohibits a conviction for both malice

murder and felony murder for the death of a single victim. Nix v. State, 625 S.E.2d 746, 748

(Ga. 2006); Wade v. State, 368 S.E.2d 482, 485 (Ga. 1988). Because the jury convicted

petitioner of malice murder, the court dismissed the felony murder counts. The court dismissed

the aggravated assault with a deadly weapon count because it determined that the charge in that

count “merged with” the malice murder conviction. Section 16-1-7 bars a conviction for a crime

included within a greater offense. Curtis v. State, 571 S.E.2d 376, 379 (Ga. 2002).

2

The court sentenced petitioner to a twenty-year prison term on the aggravated assault

with intent to commit rape count, to run consecutively with the sentence for murder.

2

authorizing an appeal raising five issues.3

In his opening brief, petitioner presents only two of the issues; both

question whether his attorneys provided him the effective assistance of counsel

guaranteed by the Sixth and Fourteenth Amendments of the United States

Constitution. The first issue concerns the admissibility of the confession

petitioner gave the police. Petitioner claims that the confession was involuntary,

the product of police coercion, and that his trial attorney rendered ineffective

assistance of counsel in failing to convince the court that it was inadmissible on

that ground. He claims that his appellate attorney rendered ineffective assistance

of counsel in failing to appeal the trial court’s admission of the confession into

evidence. The second issue concerns the adequacy of counsel’s preparation for

and prosecution of petitioner’s case at the penalty phase of the trial and asks

whether counsel was constitutionally ineffective in failing adequately to search for

and present to the jury certain mitigating evidence.4

3

We granted the certificate of appealability (“COA”) after the district court declined to

do so.

4

Petitioner’s brief presents an issue not included in the COA: whether counsel performed

ineffectively at the guilt phase of the prosecution in failing to “obtain mental health assistance.”

Our review is limited to the issues enumerated in the COA. See Murray v. United States, 145

F.3d 1249, 1251 (11th Cir. 1998). Petitioner’s application for a COA limited the issue of

whether counsel was ineffective in seeking and presenting mitigating evidence to counsel’s

handling of petitioner’s case at the penalty phase of the trial. The application stated that “Mr.

Newland received ineffective assistance of counsel in violation of the Sixth Amendment . . .

when counsel failed to conduct a life history investigation or obtain mental health assistance at

3

The Georgia courts, applying Supreme Court precedent, found no

constitutional deficiency in counsel’s performance. The district court, in denying

habeas relief, concluded that the Georgia courts properly applied that precedent in

disposing of petitioner’s challenges. We agree with the district court and therefore

affirm its judgment.

This opinion is organized as follows. Part I describes the commission of the

crimes in this case as presented to the jury. Part II discusses the procedural history

of the case as it wound its way through the state courts and the district court on

collateral review. We recount in considerable detail defense counsel’s challenge

to the validity of petitioner’s confession and counsel’s preparation for and

prosecution of petitioner’s case at the penalty phase of the trial. Part III states the

legal standards governing our disposition of petitioner’s claims, and parts IV – VI

dispose of those claims. Part VII concludes our discussion.

I.

A.

Petitioner and Margaret Beggs, his girlfriend of four years, moved to Glynn

County, Georgia in February 1984. Petitioner was self-employed as a drywall

the penalty phase of his capital trial.” In short, neither petitioner’s application for a COA nor the

COA we issued raises the issue of whether counsel should have obtained mental health assistance

at the guilt phase of the trial.

4

construction contractor and Beggs was employed as a social worker in a local

mental health clinic. They lived in a house at 230 Broadway Street on St. Simon’s

Island, across the street from Carol Sanders Beatty, who lived in a duplex at 231

Broadway Street. Over the two years that they were neighbors, Beggs and Beatty

increasingly socialized with each other. Petitioner had infrequent social contact

with Beatty, although they were on friendly terms.

On May 30, 1986, at approximately 4:30 p.m., petitioner and Beggs went to

a local bar, the Sandpiper, where petitioner had several glasses of beer. They left

the bar at around 5:15 p.m., and after purchasing Chinese take-out at Ping’s

Restaurant and a bottle of vodka at a local store, they went home for dinner. After

dining and consuming several Bloody Marys, they went across the street to visit

Beatty. They arrived at around 8:30 p.m., carrying the bottle of vodka and some

Bloody Mary mix with them. While Beatty and Beggs talked – mostly about the

problems Beatty was having with her husband locked up in a Florida prison for

dealing drugs – petitioner and Beggs had several rounds of Bloody Marys,

consuming most of the vodka in the process.5

Petitioner left Beatty’s residence around 9:30-10:00 p.m, announcing that he

5

As Beatty was telling Beggs about her situation, Beatty’s husband called from the

prison, and talked to Beatty and briefly to petitioner.

5

was going home to bed because he had to get up early the next morning to bid a

construction job. Beggs stayed and continued the conversation with Beatty.

Petitioner went home, but did not retire for the night. Instead, he packed some

clothes and other household items in his pick-up truck and drove to a pier on St.

Simon’s Island, where he struck a parked vehicle and immediately fled the scene.

He abandoned his pick-up truck on Forest Park Drive, several blocks from his

Broadway Street residence, and headed on foot to Beatty’s residence. The owner

of the vehicle petitioner had struck, Donald Sanders, had witnessed the collision

and called the police. While these events were unfolding, Beggs remained at

Beatty’s. She left at around 11:00 p.m. After she got home, she discovered that

petitioner was not there. Neither was his truck.

Beatty was in her front yard when she and Beggs parted company. Bonnie

Smith, who lived in the other half of the duplex at 231 Broadway Street, was there

too. Beatty and Smith visited for a few minutes; both then retired for the night. It

was approximately 11:15 p.m.

Shortly after the two women returned to their residences, petitioner entered

Beatty’s backyard. Petitioner described what happened next in his confession to

the police on May 31, after he had been taken into custody. He called to Beatty,

asking her to come outside. Beatty came out and petitioner attempted to kiss her.

6

She refused, and told him to go home or she would tell Beggs. Petitioner again

attempted to kiss her, and she scratched and slapped him. According to his post-

arrest confession to the police, he then “grabbed her and I threw her down and

somehow the knife came in my hand and started stabbing her, I don’t know, I just

lost [sic] out of control . . . I was drunk, I don’t know why I did it. I had no reason

for it.” Petitioner stabbed Beatty in the throat and the abdomen, using a pocket

knife that he regularly carried. During the assault, Beatty screamed and called for

help. When she collapsed, he ran home, discarding the knife as he ran, washed

himself off with a hose in his backyard, put on a new pair of jeans, and entered his

house.

At 11:22 p.m., Glynn County Police Department Detectives Barry Moore

and James Brundage received a report of a woman screaming in the Broadway

Street neighborhood. While they were responding to the call, they received a call

from Bonnie Smith, who told them that a woman was screaming in her backyard,

behind her residence at 231 Broadway Street. They drove to that address, heard

someone run through the backyard, and gave chase. In the course of their pursuit,

Brundage discovered petitioner’s pick-up truck parked nearby on Forest Drive.

The truck matched the description of the vehicle involved in the hit and run

Sanders had reported.

7

Unable to find the person they were chasing, the detectives returned to

Beatty’s residence. Brundage found Beatty in the backyard, laying in the garden,

and still alive. Paramedics were summoned and transported Beatty to Glynn-

Brunswick Memorial Hospital. According to Dr. Irwin Berman, one of her

treating surgeons, Beatty had

a slash wound [in] her neck, which had exposed the entire cross section of

her windpipe . . . In addition to that, she had multiple wounds of her great

vessels of neck . . . There were smaller wounds of the flank . . . and a stab

wound of the abdomen through which . . . some of the organs of the, of the

abdomen were protruding.

After Beatty had been taken to the hospital, petitioner, dressed in jeans but

without a shirt or shoes, entered his house through the backyard. Beggs was

awake. She noticed scratches on his face and chest. When she asked about them,

petitioner told her that he fell in some bushes on the way back from Beatty’s.6

Beggs then observed the flashing lights of police cars across the street, at Beatty’s,

and went over to find out what had happened. She learned that Beatty had been

attacked and taken to the hospital.

Beggs returned home and told petitioner that “something terrible had

happened to Carol.” Petitioner told her “he didn’t do it.” He asked Beggs to find

6

Beggs recounted this episode during her testimony as a prosecution witness at

petitioner’s trial.

8

his truck, because he could not remember where he had left it, and attempted to

crawl into a small attic space, telling Beggs he was going to hide. Beggs,

increasingly distraught at petitioner’s bizarre behavior, left the house in an attempt

to find the truck. She also wanted to get away from petitioner, to collect her

thoughts.

Beggs drove by Beatty’s duplex for a minute or two, searched the

neighborhood for petitioner’s vehicle and, failing to find it, drove to a local

convenience store to purchase cigarettes. After that, she drove to the same pier

petitioner had headed for earlier, to have a smoke and collect her thoughts before

returning home.

At around 12:15 a.m., Dr. Berman noticed that Beatty was mouthing words,

apparently in an attempt to communicate. He notified Detective Greg McMichael,

who was standing by, and McMichael came to her bedside. The Georgia Supreme

Court, in Newland v. State, related what followed:

McMichael . . . asked the victim who had attacked her and read her lips to

say the name, ‘Bob.’ He then sounded out the name, ‘Bob’ and asked the

victim if this was correct. She nodded her head affirmatively. When asked

the last name of her assailant, the victim mouthed a word McMichael could

not understand. He then asked the victim if the name began with an ‘A.’

She shook her head negatively. McMichael proceeded in this manner

through the alphabet until he asked about the letter ‘N.’ The victim ‘nodded

her head vigorously’ and squeezed his hand. By this procedure McMichael

was able to elicit affirmative shakes of the head from the victim to the

9

letters, ‘N E W L A.’ McMichael then asked the victim if the last name was

‘Newland.’ The victim ‘nodded her head again very vigorously,’ and

squeezed McMichael’s hand.

366 S.E.2d 689, 692–93 (Ga. 1988).

In like manner, Beatty was able to give McMichael petitioner’s phone

number and the name of the street where he lived. Relying on this information,

the Glynn County Police Department dispatched several officers, including

Detectives Bill Williams and Dennis Krauss, to petitioner’s residence. They

arrived at 1:10 a.m. and found petitioner sitting up in his bed and pulling on a pair

of jeans, as if he had just awakened. They placed petitioner under arrest for

aggravated assault and transported him to the police department headquarters in

nearby Brunswick.

Beggs came home shortly after the police left with petitioner. Several

officers were still there, and they asked her, and she agreed, to accompany them to

the headquarters. She was not under arrest.

B.

At some point early that morning, on May 31, the police obtained a search

warrant for petitioner’s residence. They found a blood-stained shirt and a pair of

socks on the back porch, and a pair of blood-stained blue jeans in a shed in the

backyard.

10

At 1:30 a.m., Detective Williams questioned petitioner in an interview room

at the police department headquarters.7 Williams was the only officer present.

Petitioner smelled of alcohol but his speech was not impaired.

Williams began by informing petitioner of his Miranda rights. He then

asked petitioner what he had done the previous evening. Petitioner said that his

truck had broken down early in the afternoon and that he had left it on Forest Park

Drive. Later that afternoon, he had gone to the Sandpiper bar with Beggs, had

three glasses of beer, picked up Chinese food at Ping’s Restaurant, and gone home

for dinner. After dinner, they went over to Beatty’s place, where he and Beggs

had several Bloody Marys. At around 8:30 p.m., they left Beatty’s to go home.

On the way, he stumbled, because he had been drinking “quite a bit,” and fell in

some bushes, which accounted for the scratches on his face. Once home, he went

to bed and fell asleep. Beggs awakened him to say that the police were at

Beatty’s. He told her that this was the neighbor’s problem and went back to sleep.

He was sleeping when the police arrived to arrest him. Williams asked petitioner

if he had gotten drunk that evening; he replied that he had been drinking, but was

not drunk. Petitioner asked Williams why he was being questioned – whether he

7

This interrogation was recorded and the transcript thereof was used by defense counsel

in cross-examining Williams at trial.

11

had been charged with anything.8 Williams gave no answer.

The interrogation lasted about half an hour. Around 2:00 a.m., the police

had his blood alcohol content (“BAC”) tested. Officer Richard Strickland

performed the test, which revealed a .12 percent BAC. Petitioner was placed in a

holding cell following the test.

While petitioner was submitting to the BAC test, Williams began

questioning Beggs, who had arrived at the headquarters (as Williams was

questioning petitioner).9 This interrogation began approximately at 2:00 a.m. and

was broken into two sessions, which combined lasted no more than two hours.10

Williams began the first session by informing Beggs that she was not under arrest.

He then asked her to tell him what had transpired the previous evening up to the

moment she arrived at the department headquarters. Beggs’s account of the first

part of the evening was consistent with the account petitioner had provided

Williams. She stated that they had gone to a local bar, picked up Chinese food,

8

The police had already placed petitioner under arrest for aggravated assault, but

petitioner apparently was oblivious of that fact.

9

As indicated in the following text, the police questioned Beggs, in two sessions,

between 2:00 and 3:30 a.m. that morning, and again from 9:00 a.m. till noon the same day, at

which time she was placed under arrest for aggravated assault.

10

Williams was the only officer present during the two sessions. Both were recorded, and

a transcript thereof was made part of the record of the superior court hearing on petitioner’s

post-conviction petition for a writ of habeas corpus.

12

gone home to eat, and then gone over to Beatty’s.

At this point, her account began to diverge from petitioner’s. She stated

that petitioner left Beatty’s before she did and that when she returned home, she

saw petitioner lying in bed. Moments later, she saw police lights flashing at

Beatty’s and went there to find out what had happened. She learned that Beatty

had been stabbed and hastened home to tell petitioner. He was asleep and did not

respond. She went back to Beatty’s because she was concerned about her friend

and wanted to learn more. After a brief conversation with a police officer, she

drove to a local convenience store to purchase cigarettes and from there to the St.

Simon’s Island pier. Distraught about Beatty’s situation, she stayed at the pier for

a few minutes, smoking and trying to calm down. She returned home only to find

the police waiting. Williams asked her if she had observed any scratches on

petitioner, and she said that she had not.

Williams confronted Beggs with the inconsistencies between her account

and petitioner’s. He pointed out the contradictions concerning whether they

returned from Beatty’s together or separately and whether petitioner had scratches

on his face. Williams asked her if she was lying; she denied it. The first session

ended with Williams telling Beggs to sit down on a couch outside the interview

room and “think about everything again,” warning her that she would “go down

13

with [petitioner]” if she was trying to cover up for him.

A short time later, Williams resumed the questioning. Beggs admitted that

she had not actually seen petitioner at home when she returned from Beatty’s but

had assumed he was there, telling Williams, “that’s the part I covered up.” She

explained that after she returned to her house, she saw the flashing police car

lights at Beatty’s, walked over there and then back home, at which point she saw

petitioner in the bedroom and they talked. She admitted that during this

conversation, she saw scratches on his face and asked him what had happened. He

said he had fallen.

Williams challenged Beggs’s account and told her that Beatty had identified

petitioner as her attacker. He asked Beggs if she was sure about her story and

reminded her that “this is your friend laying out there in the garden.” Beggs,

reconsidering, told Williams that she had not seen petitioner at home – after she

crossed the street to inquire about the police car lights. He did not arrive until

later, when he entered the house from the backyard. It was then that they talked

about the scratches on his face. Williams asked her about the knife used in the

attack on Beatty. He accused her of disposing of the knife to protect petitioner.

Beggs denied doing anything with the knife. The interrogation ended around

approximately 3:30 a.m. Beggs was taken to a waiting area at the police

14

headquarters where she sat for the next two hours.

At 3:50 a.m., Williams resumed questioning petitioner after advising him of

his Miranda rights.11 Williams began by asking petitioner to recount again the

events of the previous evening. Petitioner repeated what he had told Williams

earlier, but stated that after he left Beatty’s, he drove off in his pick-up truck to go

to the store, but the truck had “died” on Forest Park Drive. He left the truck there,

returned home, and went to sleep. Beggs awakened him later. Williams asked

petitioner whether his truck died during the evening hours or in the afternoon, and

petitioner stated that it died that evening. Once again petitioner asked Williams

why he was being questioned. Williams said he was being questioned because he

had attacked Beatty, and confronted him with the inconsistencies between his

story and Beggs’s. He told petitioner that a bloody shirt and pair of pants had

been found at his residence. Petitioner responded to Williams’s accusation that he

had attacked Beatty by stating, “I have no idea, no remembrance, if I did anything

like that.”

Petitioner reinforced this statement by repeatedly saying that he had no

memory of attacking Beatty. He attributed this to the quantity of vodka he had

11

Williams was the only officer present during the interrogation. The interrogation was

recorded.

15

consumed; he was not used to consuming that amount of alcohol. Williams

challenged petitioner’s no-memory claim as inconsistent with the rest of

petitioner’s account of the evening. He asked petitioner how he could remember

falling in the bushes and conversing with Beggs after they got home, but not

remember the attack. Although he had previously told Williams about his

conversation with Beggs, he said he could not recall it. He could not explain why

he remembered falling in the bushes.

Williams attempted to prod petitioner’s memory by confronting petitioner

with the possibility that “if that girl dies, you [will be] charged with murder” and

Beggs will be charged as an accessory to murder.12 Their first exchange involving

Beggs went as follows:

WILLIAMS: You remember enough to lie about it. You remember enough

to lie about it and you don’t even care enough about Peggy, her ass is going

to jail.

PETITIONER: I do care about Peggy.

WILLIAMS: . . . her ass is going to jail, too.

PETITIONER: For what?

WILLIAMS: For accessory.

PETITIONER: Accessory to what?

WILLIAMS: To murder.

In their second exchange about Beggs, Williams was more specific about

12

Williams prefaced this statement with this remark: “[T]hat girl is almost dead . . . if

they don’t get enough blood in her she is going to die.”

16

the basis for potential charges against Beggs:

PETITIONER: I was in my bed when y’all came.

WILLIAMS: Yea, but you hadn’t been asleep. You hadn’t been in bed very

long at all, I know that for a cact [sic]. Well, I think Peggy carried that

knife off and hid it for you. Because the knife has disappeared.

PETITIONER: Are you thinking that or do you know that?

WILLIAMS: No, I think that she, you know, and my boss wants to charge

her as an accessory, so you know, if you know where the knife is, if you

don’t want her to go to jail . . .

PETITIONER: . . . I have no idea, I have no idea, I’m just being straight

with you, I just don’t know.

The prospect of Beggs being charged as an accessory to murder did not

cause petitioner to alter his account of the evening; he continued to claim that he

did not remember attacking Beatty. The interrogation ended at approximately 5:00

a.m.

A short time after petitioner’s second interrogation ended, Williams

escorted petitioner to a rest area within the headquarters building, where petitioner

was allowed to speak with Beggs in Williams’s presence. Their conversation

lasted less than ten minutes. Petitioner told Beggs that he could not remember

what had happened that evening.

After this, Beggs returned to a waiting area. At around 6:00 a.m., the police

informed her that she could leave, and a sister picked her up at around 6:20 a.m.

During the interim, petitioner was taken to the Glynn-Brunswick Hospital, where

17

his blood was drawn at 6:55 a.m. for its BAC and blood type. The police then

transported petitioner to the Glynn County Detention Center.

Later in the morning, the Detention Center contacted a local mental health

hospital that provided emergency psychiatric services for the Center and requested

that someone evaluate petitioner. Frederick Dodd, Jr., Ph.D., a psychiatric social

worker, who was on-call, met with petitioner for roughly an hour. Petitioner

appeared to Dodd to be “extremely tearful,” “pretty agitated,” and “very

confused.” At Dodd’s request, the Detention Center placed petitioner on suicide

watch.13

Police officers brought Beggs back to the police headquarters around 9:00

a.m., where she was questioned for the next several hours. At noon, she was

arrested for aggravated assault and taken to the Detention Center.

At 9:35 p.m., on May 31, Beatty died from excessive blood loss caused by

the injuries she had suffered. The following morning, June 1, at around 10:00

a.m., Detectives Krauss and Putnam went to the Detention Center in order to

inform petitioner that Beatty had expired and that he was now being charged with

13

Dodd’s report of his interview with petitioner states: “suicidal watch recommended and

instituted by officers.” There is no other reference in the record to the suicide watch or when it

was lifted.

18

murder.14 Petitioner was escorted from his cell out to a holding cell to meet with

the detectives.15 Before Detective Krauss began speaking to petitioner, petitioner

stated: “I just want to plead guilty and get out of town.” Krauss instructed

petitioner not to say anything else and advised him of his Miranda rights.

Petitioner signed a form waiving those rights. Krauss then asked petitioner to tell

him what happened the night of May 30. Petitioner, despite his expressed desire

to plead guilty, said nothing inculpatory. Instead, he told Krauss that he did not

remember assaulting Beatty and did not want to continue talking. Krauss

informed petitioner that Beatty had died and that he was being charged with

murder. Petitioner became upset and started to cry, but did not make any

inculpatory statements. Since petitioner had stated he did not wish to continue

talking, Krauss asked that he be taken back to his cell. As petitioner was being

escorted out of the holding cell, he asked Krauss about Beggs’s status. Krauss

told him that Beggs was in the Detention Center and that he was about to inform

14

The detectives carried a tape recorder with them, to record the encounter, but the

recorder malfunctioned. The sole account of what transpired between them and petitioner was

given by Krauss – at the January 21, 1987 pretrial hearing on petitioner’s motion to suppress his

statements to the police and, later, at petitioner’s trial.

15

At the January 21, 1987 pretrial hearing, Detective Krauss described the holding cell as

follows: “It’s not a very big place. It has bars between the officers and the prisoners, and it’s

pretty much a private place, and usually that’s where we go and question someone that’s in the

Detention Center being held if we have anything to talk to them about.” The cell was located on

the third floor of the Detention Center.

19

her that she also was being charged with murder. Petitioner then confessed to

killing Beatty.

Petitioner stated that Beggs was not with him when he went to Beatty’s

backyard the night of May 30. According to Krauss, petitioner said that he “tried

to kiss her that, that she pushed him away, and they got into a struggle, and he got

very angry about it. He . . . hit her and then threw her to the ground. He . . .

pulled out his knife and just started cutting her.” Krauss asked him where the

knife was, and he said he could not remember. Petitioner cried as he recounted the

assault and expressed his remorse. The confession, including Krauss’s questions,

lasted for ten to fifteen minutes.

Krauss informed Williams of petitioner’s confession. Because the

confession had not been recorded, Williams decided to visit petitioner to have him

repeat his confession. Accompanied by Detective McMichael and armed with a

recorder, he went to the Detention Center to speak with petitioner. At 1:05 p.m.,

Williams and McMichael spoke with petitioner in an interview room. Williams

informed petitioner of his Miranda rights, and petitioner signed a waiver-of-rights

form. Petitioner again confessed to the murder. But it was not recorded; the

20

recorder’s batteries had expired.16

Realizing that the confession had not been recorded, Williams went to see

petitioner again, at 11:10 a.m. the following day, June 2. He came alone, but this

time he brought a functioning tape recorder. As he had done on the previous

occasions, he informed petitioner of his Miranda rights. He did not ask him to

sign a waiver-of-rights form, opting instead to have petitioner verbalize a waiver

through the tape recorder. The interrogation lasted for fifteen minutes. Williams

asked petitioner to repeat what he had told him the previous day, and petitioner did

so, giving a detailed statement of his involvement in the killing. The statement

was recorded and transcribed and published to the jury.

In his statement, petitioner essentially repeated what he had told Detective

Krauss on June 1. He also stated several times that he lost control and attacked

Beatty because he was intoxicated. He explained that after stabbing Beatty, he ran

home, washed himself off in his backyard, changed clothes, and then entered the

house, where he spoke with Beggs. She asked him what had happened and how

his face had gotten scratched. He told her nothing had happened. “[S]he went

over next door, the next thing I remember I was being arrested.” He claimed that

16

Like the confession to Krauss, this confession was not recorded. Petitioner has not

alleged any improper conduct by officers during these two unrecorded interrogations.

21

he did not remember getting into an accident with his pick-up truck and what he

had done with the knife. Petitioner expressed remorse throughout the

interrogation.

On June 3, Beggs, now represented by counsel, gave an affidavit to the

police describing petitioner’s behavior on May 30 – 31. In exchange for the

affidavit, the State reduced her charge from murder to giving a false statement to

law enforcement officials. And that charge was eventually dropped.

II.

A.

On June 4, Donald Manning, the Glynn County Public Defender, met with

petitioner at the Detention Center. Petitioner was indigent, and Manning informed

him that he was appointed to represent him.17 Under Georgia law, petitioner,

17

Manning was born and raised in Glynn County. He left the county in 1971 to pursue

educational and employment opportunities and returned in 1978. He became an assistant public

defender for Glynn County in 1979. In May 1983, he became the Public Defender. Manning

was appointed a Glynn County juvenile judge in 1988. He was serving in that position at the

time the superior court heard petitioner’s application for writ of habeas corpus challenging his

convictions and death sentence in the Beatty case.

Prior to petitioner’s trial, Manning had served either as lead or assistant trial counsel or

appellate counsel in nine capital cases in Georgia. Of these nine cases, he served as lead trial

counsel in one case that went to trial and two other cases disposed of by plea-bargained guilty

pleas. Before taking on petitioner’s representation, Manning had tried, as defense counsel, 57

felony cases.

John Davis, an assistant public defender, assisted Manning in preparing for petitioner’s

trial but did not attend the trial. Davis had been a trial lawyer, a superior court judge for

Lafayette County, Georgia, and a member of the U.S. House of Representatives from Georgia.

He had moved to St. Simon’s Island and become an assistant public defender following his

22

having been detained without bail, was entitled to a commitment hearing.18

Because a commitment hearing gives the accused an opportunity to discover the

essence of the State’s case, Manning, on June 10, informed the assistant district

attorney handling the case, Robert Crowe, that he would be requesting a

commitment hearing. Crowe replied that a grand jury would be convened the next

day and would consider the Beatty case, and that if petitioner were indicted, a

preliminary hearing would be unnecessary. Crowe nonetheless agreed not to

oppose Manning’s request for a preliminary hearing.

On June 11, the grand jury returned a five–count indictment against

petitioner, charging him with malice murder, aggravated assault with intent to

rape, aggravated assault with a deadly weapon, and two counts of felony murder

predicated on the aggravated assault charges. On July 1, the Glynn County

Magistrate Court held a commitment hearing.

To show that the State had probable cause to detain petitioner for the Beatty

congressional service.

18

Georgia law provides that an arrestee who has not been released on bail may request a

commitment hearing to determine whether probable cause exists to hold him on the charge for

which he has been arrested. See O.C.G.A. § 17-7-20 (1980); Lamberson v. State, 462 S.E.2d

706, 708 (Ga. 1995). The commitment hearing can also serve an important strategic function for

the defendant because it provides defense counsel with the opportunity to obtain discovery in the

early stages of pretrial preparation. See Jack Goger, Georgia Criminal Trial Practice § 11–2

(2007). At the hearing, defense counsel may subpoena witnesses and question them under oath.

O.C.G.A. § 17-7-28 (1973).

23

assault, Crowe presented the testimony of three witnesses: Bonnie Smith, Beatty’s

next–door neighbor, and Detectives McMichael and Williams. Smith testified

about calling the police after hearing a woman screaming in Beatty’s backyard

and seeing what appeared to be a man, whom she could not identify, running

away. Manning cross-examined her about the relationship between Beatty and

petitioner. Smith described the relationship as one of friendly neighbors.

McMichael told of being summoned to Beatty’s hospital bed and Beatty’s

identification of petitioner as her assailant, and Williams described his

interrogation of petitioner and the incriminating content of petitioner’s statements.

Manning cross-examined both detectives; in doing so, he learned of other

incriminating evidence the police had obtained. The commitment hearing ended

after Williams finished testifying.19

On October 21, the Glynn County Superior Court judge convened an “initial

pretrial proceeding,” as required by the Georgia Unified Appeal Procedure

(“UAP”).20 Judge Blenn Taylor, Jr., presided and handled the case to its

19

The record does not indicate whether, at the conclusion of the commitment hearing, the

court found probable cause to detain petitioner. The grand jury indictment had rendered such a

finding unnecessary.

20

The UAP, established in 1980, prescribes certain procedures for the pretrial, trial,

sentencing, and appeal stages of capital cases. See O.C.G.A. 17-10-36 (1980); Smith v. Zant,

887 F.2d 1407, 1415 n.19 (11th Cir. 1989) (en banc). The UAP requires the trial court to

conduct at least two pretrial hearings: the “initial pretrial proceeding,” which takes place prior to

24

conclusion. Crowe, appearing for the State, announced that the State would seek

the death penalty and provided Manning with written notice in accordance with

O.C.G.A. § 17-10-30 (7).21 Following the UAP format, the court instructed

Manning that he must “locate and interview all persons whose testimony might be

helpful in . . . mitigation of the punishment” and he acknowledged that such was

his responsibility as defense counsel. When the initial pretrial proceeding

concluded, the court arraigned petitioner.

On November 10, Manning filed twenty motions. Among them were a

motion to suppress the statements petitioner gave the police and requests for

discovery, including a list of the witnesses the State intended to call in its case in

chief. On January 15, Manning moved the court for the appointment of a

psychiatrist and a neurologist to examine petitioner to determine both his

the arraignment, and the “motion hearing,” at which all motions are heard. Unified Appeal

Procedure, Rule II(C)-(D). The UAP also establishes a “Checklist,” which enumerates legal

errors that might occur at each stage of the prosecution and thus form the basis for an appeal.

The trial judge must review the “Checklist” with counsel at the pretrial hearings and at trial. In

addition, at the pretrial hearings and during the guilt and penalty phases of the defendant’s trial,

the judge must question the defendant regarding his satisfaction with trial counsel’s performance.

In petitioner’s case, the court questioned petitioner as the UAP required, and at no time did he

voice any objection to Manning’s representation.

21

Section 17-10-30(7) authorizes the death penalty if the jury concludes that “the offense

of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture,

depravity of mind, or an aggravated battery to the victim.”

25

competency to stand trial and his sanity at the time of the offense.22

The court heard Manning’s motions on January 21, 1987. Arguing his

January 15 motion, Manning told the court that he wanted a neurological (as well

as a psychiatric) examination because he had reason to believe that petitioner had

a “neurological disorder.”23 If Georgia Forensic Services (“GFS”) could not

provide a neurological examination, he said, he would request that petitioner be

seen by William Clary, M.D., a neurologist in private practice in Savannah,

Georgia. The court granted Manning’s motion in full.

After Crowe agreed to provide Manning with the discovery he requested,

the court turned to Manning’s motion to suppress petitioner’s statements to the

police and asked counsel if they were ready to proceed with an evidentiary

hearing. They responded that they were ready to go forward.

Crowe called Detectives Williams and Krauss to the stand. They testified

that petitioner had been informed of his Miranda rights at the time of his arrest and

22

Specifically, pursuant to O.C.G.A. §§ 16-3-2 and 16-3-3, Manning requested an

examination to determine if petitioner, at the time he assaulted Beatty, “did not have the mental

capacity to distinguish between right and wrong” or suffered from “a delusional compulsion as to

the act which over-mastered his will to resist committing the crime.”

23

At the evidentiary hearing on petitioner’s post-conviction application for a writ of

habeas corpus, Manning testified that he requested the neurological exam because petitioner had

complained to the Detention Center physician of headaches; Manning believed that the

headaches might constitute a symptom of an underlying neurological disorder.

26

at each interrogation, that he waived his rights before questioning commenced,

that he had not been threatened or promised anything in exchange for his

statements , and that he gave no sign of mental impairment. In examining

Williams about the two interrogations he conducted on May 31, Crowe focused on

the degree of petitioner’s intoxication. Williams stated that while petitioner did

appear to have been drinking, his answers were responsive and he was steady on

his feet. Krauss told Crowe that petitioner did not confess until after he asked

about Beggs and had been informed of his rights.

Manning cross-examined both witnesses. In questioning Williams, he

concentrated on what Williams said to petitioner while interrogating him – twice

on May 31 and once on June 1. Referring first to the May 31 interrogations,

Manning asked Williams about the extent of petitioner’s intoxication, and

Williams repeated what he told Crowe on direct-examination. Manning asked him

whether petitioner expressed “concern” about Beggs’s status in the investigation,

and he said that petitioner seemed concerned.24 Turning to June 1, when,

following Beggs’s arrest for murder, Williams took petitioner’s statement,

24

In questioning Williams about his interrogation of petitioner at 3:50 a.m. on May 31,

Manning did not ask him about two comments he made about Beggs: specifically, “her ass is

going to jail . . . for accessory . . . to murder,” and “my boss wants to charge her as an accessory.”

Manning’s failure to bring these two comments to the trial judge’s attention forms the basis for

petitioner’s claim that Manning’s challenge to the validity of petitioner’s confession was

constitutionally inadequate.

27

Manning asked him if he told petitioner that Beggs would get the death penalty if

petitioner did not confess. Williams said no.

Manning questioned Krauss regarding his interrogation of petitioner on

June 1 and petitioner’s emotional status at that time. He also put to Krauss the

same question he had asked Williams: whether he told petitioner that Beggs would

get the death penalty if he refused to confess. Krauss said he did not.

After hearing from these witnesses and considering argument of counsel,

the court overruled Manning’s motion to suppress, finding that petitioner’s

statements had been freely and voluntarily made after a waiver of rights. The

court then announced that petitioner’s trial would commence on April 27, 1987.

B.

On January 23, 1988, Dominic D’Alesandro, Ph.D., a forensic psychologist

in the employ of GFS, interviewed petitioner at the Detention Center pursuant to

the court’s order granting Manning’s motion for a psychiatric examination.

D’Alesandro submitted a report to the court and counsel on January 27, in which

he concluded that petitioner was competent to assist counsel in his defense, but

deferred any opinion as to petitioner’s criminal responsibility for the charged

offenses until petitioner was evaluated by a neurologist.

On February 16, petitioner was examined by Dr. Clary, who subsequently

28

issued a report.25 In it, he stated that he had “been asked to see [petitioner] for

evaluation of headaches.” He discussed petitioner’s background and the head

injuries petitioner had suffered in the past. Regarding the latter, he indicated that

petitioner had been struck in the head with a sledge–hammer and had injured his

head in a car accident that resulted in a loss of consciousness for several hours.

Dr. Clary also stated that petitioner said he had not “had beer for several years,

although he used to drink apparently fairly heavily, [and] that prior to six years

ago he was using drugs fairly consistently, but eventually stopped.” Dr. Clary

concluded that petitioner was suffering from “chronic muscle tension headaches . .

. [but] doubt[ed] that there is any more significant underlying neurological

problems.” Nonetheless, he ordered an electroencephalogram (“EEG”) and

computed tomography (“CT”) scan if petitioner’s headaches did not diminish. On

March 24, the EEG and CT scan were conducted. Neither revealed any sign of

neurological injury.26

On April 2, petitioner was examined by Richard Doss, M.D., a forensic

psychiatrist in the employ of GFS, at Georgia Regional Hospital. On April 10,

Drs. Doss and D’Alesandro issued a joint report, which was sent to the court with

25

The report was sent to the court, with copies to GFS and counsel for the parties.

26

The results of the EEG and CT scan were provided to the court, GFS, and counsel for

the parties.

29

copies to counsel. The report concluded that “there were no indications to suggest

the existence of a psychiatric, psychological, or neurological disorder which could

conceivably have been a factor in his behavior during the night of the alleged

murder with which he is charged.” The report also noted that petitioner

“maintain[ed] that he was unable to remember the specific episode which resulted

in the charges,” but, nonetheless, “demonstrated a significant remorse for the

situation.”

C.

On July 31, the prosecutor provided Manning with notice that he would be

seeking the death penalty under O.C.G.A. 17-10-30 (2) as well as subsection (7).27

On August 7, three days before petitioner’s trial was to commence, the prosecutor

filed notice that he intended to present a prior indictment of petitioner as a non-

statutory aggravating factor at the sentencing hearing, should petitioner be

convicted.28 Petitioner had been indicted in December 1978 in Tennessee for

27

Section 17-10-30(2) authorizes the death penalty if the jury concludes that “the offense

of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in

the commission of another capital felony or aggravated battery, or the offense of murder was

committed while the offender was engaged in the commission of burglary or arson in the first

degree.”

28

Pursuant to O.C.G.A § 17-10-30(b), the jury is authorized to consider “any mitigating

circumstances or [non-statutory] aggravating circumstances otherwise authorized by law.” The

prosecutor probably intended to introduce the indictment as a non-statutory aggravating

circumstance, going to the defendant’s general moral character. See Ford v. State, 360 S.E.2d

258, 260 (Ga. 1987) (“The factors normally considered in sentencing are (1) the character of the

30

aggravated assault, burglary, and criminal sexual conduct in the first degree. The

victim of these alleged offenses was a woman. Manning objected to the

prosecutor’s use of the indictment, and the court sustained his objection.29

Manning, however, successfully persuaded the court not to allow this indictment

to be used at the sentencing hearing.30

D.

1.

Petitioner’s trial, which had been set for April 27, 1987, began on Monday,

August 10, 1987.31 It lasted five days. The State called twenty-two witnesses in

its case in chief during the guilt phase of the trial. The testimony of these

defendant, including his previous criminal activity, if any, and (2) the circumstances of the crime

on trial.”).

29

While petitioner was on the stand during the penalty phase of his trial, the prosecutor,

believing that the court’s pretrial ruling precluding the use of the indictment as a non-statutory

aggravating factor did not bar him from using it to impeach petitioner, asked him whether he had

ever been to Munesforo, Tennessee, and he said no. Manning objected. During the court-

counsel colloquy that ensued (out of the hearing of the jury), the prosecutor explained to the

court that, following the indictment, petitioner had been admitted to bail by posting a bond. He

had skipped bail, become a fugitive, and forfeited his bond. The court sustained Manning’s

objection, and the jury never learned about the sexual assault that allegedly had occurred in

Tennessee eight years before.

30

There is nothing in the record indicating why the trial judge decided not to allow

admission of this indictment.

31

The trial was postponed for reasons not pertinent to this habeas proceeding.

31

witnesses established the facts set out in subpart I.A, supra.32 In addition to these

facts, their testimony established that the victim’s blood was present on

petitioner’s jeans and shirt.33 Anticipating Manning’s defense – that petitioner’s

level of intoxication diminished the mens rea necessary for a malice murder

conviction – the State introduced evidence of what it contended was a minimal

level of intoxication through the testimony of Sally Watford, a Georgia Bureau of

Investigation forensic scientist. She testified that petitioner’s BAC was .04

percent when his blood was drawn at Glynn-Brunswick Hospital at 6:55 a.m. on

May 31. Extrapolating back seven hours, using an average alcohol dissipation

rate, she testified that petitioner may have had a BAC of .14 percent around

midnight on May 30.

Manning’s defense strategy was to portray petitioner as a normal guy, a hard

worker who had an excellent reputation as a dependable drywall contractor, a

good and friendly neighbor, and a person who used alcohol in moderation. On the

evening of the crime, petitioner drank, for him, an excess amount of alcohol, and

32

The evidence the State presented did not include what Beggs told the detectives on

being questioned at the police headquarters on May 31 prior to being charged, at noon on that

day, with aggravated assault.

33

John Wegel, a forensic serologist employed by the Georgia Bureau of Investigation,

stated that petitioner had Type A blood, that Beatty had Type O blood, and that the blood found

on petitioner’s jeans and shirt was Type O blood.

32

the alcohol caused him to act completely out of character. He had no reason to

attack Beatty; he was not a violent person. Alcohol was the sole explanation for

his conduct. The alcohol had such an effect on him that he could not form the

mens rea required for malice murder.

Manning executed this defense strategy principally through his cross-

examination of prosecution witnesses. Beggs related how much petitioner had to

drink that evening. Petitioner had three to four beers at Ping’s, the Chinese

take-out restaurant, two Bloody Marys at their house before and during dinner, and

three more over at Beatty’s. By the time he left Beatty’s, there was very little

vodka left in the bottle. Beggs testified that she had not seen petitioner drink to

the point of intoxication since February 1984, and that he was not normally a

vodka drinker. When he left Beatty’s, she said, “it was time” for him to go home.

Manning asked Detective Williams about petitioner’s state of intoxication

prior to the 1:30 a.m. interrogation on May 31. Williams said that petitioner had

an odor of alcohol and that his eyes were bloodshot. Manning asked Watford to

extrapolate back nine hours from the time petitioner’s blood was drawn at the

hospital, at 6:55 a.m. on May 31, and she said that petitioner’s BAC was possibly

.17 percent at approximately 10:00 p.m. the night before.

Manning questioned Bonnie Smith and Beggs about petitioner’s lifestyle.

33

Beggs said that she and petitioner had a normal relationship and that he had been

regularly employed since they moved to St. Simon’s Island in 1984. Petitioner

owned his own drywall contracting business, and left Beatty’s around 10:00 p.m.

because he had to get up early the following morning to bid on a construction job.

Smith testified that she saw no signs of animosity or of a sexual relationship

between petitioner and Beatty. She went on to say that she, Beggs, petitioner, and

Beatty had worked together on a garden in the backyard of Beatty’s and her

duplex. In a leading question, Manning characterized petitioner and Beggs thusly:

“Just normal people concerned with a garden, that's basically how you knew them

is that, that it?” She replied, “Right.”

In addition to portraying petitioner as a friendly, caring person who had no

reason to attack Beatty, Manning had to deal with the highly incriminating post-

arrest statements petitioner had given to the police. His tack was to plant the idea

with the jury that petitioner gave a false confession to protect Beggs and that his

description of the crime was provided by the police as they interrogated him. He

had Detective Williams admit that when he questioned petitioner at 1:30 a.m. and

3:10 a.m. on May 31, petitioner consistently claimed not to be able to recall any

involvement in the murder, that he told petitioner that "[Beggs’s] ass is going to

jail, too . . . for accessory,” that he was deeply concerned about Beggs’s welfare,

34

and that during the 3:10 a.m. interrogation, he provided petitioner with several

details about the crime.

In cross-examining Detective Krauss, Manning focused on the events

surrounding petitioner’s statements to him on June 1. Krauss testified that

petitioner first claimed that he could not remember what happened and that he

only confessed after being informed that Beggs had been charged with aggravated

assault. Asked whether petitioner “was trying to do his best to protect Peggy

Beggs,” Krauss said that he was.

After the State rested its case, Manning presented the petitioner’s case; he

called two witnesses, Frederick Dodd, the psychiatric social worker who saw

petitioner at the Detention Center the morning of May 31, and Officer Richard

Strickland, who performed a BAC test around 2:00 a.m. that day. Dodd supported

Manning’s attack on the reliability of petitioner’s incriminating statements. He

testified that he visited petitioner after he had twice been interrogated by Williams,

and that petitioner told him that he “could not believe that he had done what they

said he had done.” Dodd felt that petitioner’s lack of memory could have been

due to an alcoholic blackout. Strickland added to the blackout theory, albeit

indirectly, by testifying that petitioner’s BAC was .12 percent at 2:09 a.m. and was

likely at a higher level earlier.

35

The defense rested; it was Friday, August 14. The State had no rebuttal, so

the jury was excused while the court held a charge conference. Manning proposed

a jury instruction that would allow the jury to consider petitioner’s intoxication in

its determination of criminal intent. Manning reminded the judge that he had

given the same instruction in a case he had tried before the judge in December

1986. The judge acknowledged that he had given the instruction in that case, but

stated that his view of the law regarding the relevance of voluntary intoxication in

determining criminal intent had changed since that time.34 Accordingly, he would

not give the requested instruction; instead, he would submit an instruction to the

jury that read, in part, “voluntary intoxication shall not be an excuse for any

criminal act.”35 After the charge conference ended, the guilt phase of the trial

resumed for counsel’s closing arguments to the jury, beginning with the

defendant’s.

34

The record does not indicate when the judge changed his view concerning the relevance

of voluntary intoxication in resolving the issue of criminal intent. What is clear is that prior to

petitioner’s trial, the judge did not inform the parties that he had changed his view and thus

would not give an instruction along the lines of the instruction he had given previously and, in

particular, in the case Manning had tried before him in December 1986.

35

The jury instruction on voluntary intoxication reads in full: “Our law provides that

voluntary intoxication shall not be an excuse for any criminal act. It provides, further, that if a

person’s mind, when unexcited by intoxicants, is capable of distinguishing between right and

wrong and reason and acting rationally and that person voluntarily deprives himself of reason by

consuming intoxicants, and while under the influence of such intoxicants he commits a criminal

act, he is criminally responsible for such acts to the same extent as if he were sober.”

36

Manning first reminded the jurors that they would be required to find that

petitioner murdered Beatty “with malice aforethought.” He defined malice for

them as the “deliberate intention unlawfully . . . to take away the life of another

human being.” He argued that Smith and Beggs had described petitioner as a hard

worker, “a good neighbor,” and “a good husband,” and recalled Beggs’s testimony

that he had not drunk to the point of intoxication in several years. Petitioner got

so intoxicated on the night of May 30, though, that, in Manning’s words, “[he] did

not even know what he was doing.” For this reason, the jury was urged to find

“ample doubt, more than a reasonable doubt, about malice aforethought, about

intent to kill.” Manning referred briefly to the aggravated assault with attempt to

rape charge, saying that petitioner's attempt to kiss Beatty did not rise to the level

of attempted rape.36

The prosecutor’s closing argument, delivered by Crowe, summarized the

extensive evidence of petitioner’s guilt. Crowe downplayed the impact of

petitioner’s intoxication by arguing that petitioner was not too intoxicated to run

from Beatty’s backyard, clean himself off, lie to Beggs when she spoke to him

36

Manning’s comments on the aggravated assault with a deadly weapon charge were

likewise brief. The extent of his argument on that charge was: “Robert Newland is accused of

five crimes, five, but I contend that you can conclude from the evidence that you’ve heard there

is only one act, so you have to decide which, if any, of these alleged crimes was committed.”

37

after he returned from attacking Beatty, and lie to Detective Williams in the initial

interrogations. He relied heavily on petitioner’s confession (to Detectives Krauss,

Putnam, and Williams) to show that petitioner intended to assault Beatty with

intent to rape, pointing to his statement that he tried to kiss her twice as evidence

of intent to rape.

The case went to the jury on August 14 at 11:44 a.m. At 2:39 p.m., the jury

returned its verdict. It found petitioner guilty of murder, aggravated assault with

intent to rape, and aggravated assault with a deadly weapon. Following a short

recess, the trial entered the penalty phase.

2.

The State sought the death penalty based on the existence of the two

statutory aggravating factors indicated in the notices the prosecution had provided

the petitioner. The State’s case in chief was brief. Crowe waived his opening

statement, and called no witnesses. To establish a non-statutory aggravating

factor, he introduced and relied on documentary proof of petitioner’s September

14, 1967 conviction in Florida for breaking and entering. He then rested the

State’s case.

Manning’s strategy in presenting the petitioner’s case was to focus on

petitioner’s lack of intent to kill Beatty. Part of this strategy was to show that

38

petitioner had a new-found religious faith and that he would dedicate his life in

prison to ministering to fellow inmates.

Manning called five witnesses to the stand, then petitioner. Four of the five

witnesses were either lay or ordained ministers who had visited petitioner during

his incarceration. All testified that petitioner had experienced a genuine

conversion to Christianity and could be an effective lay minister to inmates. Patty

Parkinson, Beggs’s sister, testified to petitioner's good character and that she had

known him to be “very supportive, a generous kind man.” He was “a passive type

person. I never saw him angry.”

Petitioner testified that he was committed to his faith and asked the jury to

spare his life so he could minister to other prisoners. He pled for forgiveness,

expressing sorrow for what he had done. He said that he had no intent to kill

Beatty – in fact, he still had no memory of the attack. After he concluded his

testimony, the defense rested, and counsel began their closing arguments.

The prosecutor’s closing argument was largely an explanation of why the

jury should find the requisite statutory aggravating factors. Crowe argued that

Beatty’s injuries were so extensive and severe that they constituted torture, such

that the jury could find the existence of both of the statutory aggravating factors.

Reminding the jurors that Beatty had screamed and begged for her life while

39

petitioner was assaulting her, Crowe asked them to show petitioner the same

mercy he had shown Beatty.

Manning, in closing, argued that petitioner deserved life imprisonment.

Petitioner did not intend to kill Beatty: “he doesn’t even remember how he did it,

certainly not why.” He suggested that the attack on Beatty “appears from all the

evidence . . . to be an isolated incident,” for which petitioner had expressed great

remorse. He urged the jury to spare petitioner’s life so he could minister to other

prisoners through sharing his religious faith.

The jury began deliberating over the penalty to be imposed at 5:26 p.m. on

August 14. At 8:51 p.m., after the jury informed the court that it had not reached a

verdict, the court recessed for the day. The jury resumed its deliberations on

Saturday, the 15th, at 9:00 a.m. At 10:22 a.m., it returned its verdict. It found the

existence of both statutory aggravating factors and recommended that petitioner be

sentenced to death. The court, as required by Georgia law, adopted the

recommendation and imposed a death sentence.

40

E.

1.

Petitioner appealed his convictions and death sentence to the Supreme Court

of Georgia, challenging the sufficiency of the evidence for the murder and

aggravated assault with intent to rape convictions and the admission of Detective

McMichael’s testimony as to Beatty’s identification of petitioner as her attacker.

He did not appeal the trial court’s denial of his motion to suppress the statements

petitioner had made to the police. The Supreme Court of Georgia affirmed his

conviction. Newland v. State, 366 S.E.2d 689 (Ga. 1988). The United States

Supreme Court denied certiorari review. Newland v. Georgia, 488 U.S. 975, 109

S.Ct. 514, 102 L. Ed. 2d 549 (1988).

2.

On January 2, 1991, petitioner applied to the Superior Court of Butts

County, Georgia, for a writ of habeas corpus. The case lay dormant until

September 4, 1996. Petitioner amended his petition on November 12, 1997; as

amended, it contained twenty-five claims based on the Fourth, Fifth, Sixth, Eighth,

and Fourteenth Amendments of the United States Constitution and Article I,

Section 1 of the Georgia Constitution. The petition included the ineffective

assistance of counsel claims presented to us in this appeal. On March 3–4, 1998

41

and January 13, 1999, the superior court held evidentiary hearings, at which the

petitioner submitted affidavits from various individuals in support of his claims

but did not testify. The State called Manning to testify at the March 3–4 hearing.

He was the sole State’s witness. Petitioner’s case consisted of several affidavits,

none coming from petitioner himself.

The superior court denied petitioner habeas corpus relief in a one-sentence

order on February 22, 1999. On June 5, 2001, the Georgia Supreme Court

remanded the case to the superior court for findings of fact and conclusions of law.

On December 17, 2001, the court issued an order that adopted the State’s proposed

findings and conclusions and again denied relief. The Georgia Supreme Court

denied petitioner’s application for probable cause to appeal on October 1, 2002.

The Supreme Court denied certiorari review on May 5, 2003. Newland v. Turpin,

538 U.S. 1015, 123 S. Ct. 1933, 155 L. Ed. 2d 853 (2003).

3.

On September 22, 2003, pursuant to 28 U.S.C. § 2254, petitioner sought a

writ of habeas corpus in the United States District Court for the Southern District

of Georgia. His petition raised twelve claims, including the ineffective assistance

42

of counsel claims now before this court.37 The petition was referred to a

magistrate judge, who issued a report and recommendation on January 27, 2005,

based on the records compiled in connection with the criminal prosecution and the

state court habeas proceeding. The magistrate judge concluded that petitioner had

failed to establish that the state courts had handed down a decision regarding any

of his claims that entitled him to relief under 28 U.S.C. §. 2254(d). The district

court adopted the magistrate judge’s report and recommendation as its decision on

June 16, 2005, and denied relief. Petitioner moved the court to alter or amend its

judgment, pursuant to Federal Rule of Civil Procedure 59(e), on June 30, 2005.

The court denied the motion on August 31, 2005.

On December 1, 2005, we granted a certificate of appealability to determine

whether, as petitioner contends, (1) the performance of his trial and appellate

attorneys, Donald Manning and John Davis, was constitutionally ineffective

concerning the admissibility of his confession, and (2) Manning was ineffective in

failing adequately to search for and present to the jury certain mitigating evidence

during the penalty phase of the trial.

37

Petitioner was granted leave to amend his petition to add one claim not pertinent to this

appeal.

43

III.

A.

We review petitioner’s ineffective assistance of counsel claims under the

standards established by 28 U.S.C. § 2254(d). Section 2254 was amended by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.

104-132, 110 Stat. 214, to ensure “greater federal court deference to state court

decisions and to promote more federal-state judicial comity.” Wright v. Sec’y for

the Dep’t of Corr., 278 F.3d 1245, 1244 (11th Cir. 2002). As amended, § 2254

reads:

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

The Supreme Court instructs that a state court decision is “contrary to”

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

forth in our cases,” or if the state court “confronts a set of facts that are materially

44

indistinguishable from a decision of [the Supreme Court] and nevertheless arrives

at a result different from our precedent.” Williams v. Taylor, 529 U.S. 362,

405–06, 120 S. Ct. 1519–20, 146 L. Ed. 2d 389 (2000) (O’Connor, J., for the

majority).

A state court’s decision is an “unreasonable application of” established

federal law if the state court “identifies the correct governing legal principle from

[the Supreme] Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.” Id. at 412–13, 120 S. Ct. at 1523. “Clearly

established Federal law” consists of the “holdings, as opposed to the dicta, of the

Court’s decisions as of the time of the relevant state-court decision.” Id.

Our review of a state court’s findings of fact – to ascertain whether the

court’s decision was based on an unreasonable determination of facts – is

circumscribed by both section 2254(d)(2) and 28 U.S.C. § 2254(e)(1), which states

that: “a determination of a factual issue made by a State court shall be presumed to

be correct,” and that the habeas petitioner has “the burden of rebutting the

presumption of correctness by clear and convincing evidence.”

B.

The Supreme Court established the test for establishing an ineffective

assistance of counsel claim in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

45

2052, 80 L. Ed. 2d 674 (1984). The test is two-pronged. First, the petitioner must

prove that his attorney’s performance was deficient. Second, the petitioner must

show this deficiency prejudiced his defense, in that it “deprive[d] [him] of a fair

trial, a trial whose result is reliable.” Id. at 687, 104 S. Ct. at 2064.

The petitioner satisfies the test’s performance prong by proving that

counsel’s performance failed to meet the standard of “reasonableness under

prevailing professional norms.” Id. at 688, 104 S. Ct. at 2065; Chandler v. United

States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc). Our evaluation of

counsel’s performance is highly deferential; we must “indulge a strong

presumption” that counsel’s performance was reasonable and that counsel “made

all significant decisions in the exercise of reasonable professional judgment.”

Strickland, 466 U.S. at 689–90, 104 S. Ct. at 2065–66. We review counsel’s

performance “from counsel’s perspective at the time,” to avoid “the distorting

effects of hindsight.” Id. at 689, 104 S. Ct. at 2065. Our review is objective, in

that we consider whether there was any reasonable justification for the attorney’s

conduct. Chandler, 218 F.3d at 1315. Thus, the “petitioner must establish that no

competent counsel would have taken the action that his counsel did take.” Id.

The petitioner satisfies the Strickland test’s prejudice prong by showing that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the

46

result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466

U.S. at 694, 104 S. Ct. at 2068. Where, as here, the petitioner contends that, but

for counsel’s errors, he would not have received a sentence of death, we consider

“whether there is a reasonable probability that, absent the errors, the sentencer –

including an appellate court, to the extent it independently reweighs the evidence

– would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” Id. at 695, 104 S. Ct. at 2068–69. With the

foregoing principles in mind, we consider petitioner’s ineffective assistance of

counsel claims.

IV.

In his state habeas petition, petitioner claimed that the performance of his

trial and appellate attorneys, Donald Manning and John Davis, failed to pass

Strickland muster in connection with the handling of his confession. Manning

failed to present the trial judge with the evidence necessary to convince the court

that petitioner’s confession was involuntary and thus inadmissible;38 Davis failed

38

Petitioner has never contended that his confession was inadmissible on the grounds (1)

that the police failed to inform him of his Miranda rights, or (2) that, having been informed, he

did not voluntarily waive his right to silence or his right to the presence of counsel. Accordingly,

the sole ground available to Manning in challenging the admissibility of petitioner’s confession

was that the confession was involuntary.

47

to appeal the court’s ruling admitting the confession into evidence. We consider

first the adequacy of Manning’s performance, then turn to Davis’s performance.

A.

On November 10, 1986, Manning moved to suppress the confession

petitioner gave the police on June 1 and 2, 1986, following his arrest. The court

considered the motion at an evidentiary hearing held on January 21, 1987.39

Petitioner’s ineffective assistance claim is rooted in Manning’s performance at that

hearing, specifically, in Manning’s failure to introduce into evidence two

statements Detective Williams made while interrogating petitioner at 3:50 a.m. on

May 31. Petitioner claims that these statements constituted threats, impermissible

police coercion. Had Manning introduced the two statements and explained their

significance to the court, petitioner submits, the court would have found his

confession involuntary and therefore inadmissible. To assess the validity of

petitioner’s position, it is necessary to review the events that led to petitioner’s

confession.

As indicated in subpart I.B, supra, petitioner was interrogated by the police

on five occasions between 1:30 a.m. on May 31 and 11:10 a.m. on June 2, 1986.

When questioned the first time, by Detective Williams at 1:30 a.m. on the 31st,

39

What transpired at the hearing is set out in subpart II. A, supra.

48

petitioner said nothing to implicate himself.40 Williams questioned him again at

3:50 that morning. It was during that interrogation that Williams uttered the two

statements at issue. Petitioner was worried about Beggs, whether she might be

held criminally liable. Acting on this concern for Beggs and hoping that petitioner

would confess for her sake, Williams told him that if Beatty died, he would be

charged with murder and that Beggs’s “ass [would be] going to jail, too . . . [f]or

accessory . . . [t]o murder.” Williams emphasized what lay in store for Beggs by

adding: “[M]y boss wants to charge her as an accessory.”41 The prospect of Beggs

being charged as an accessory did not prompt petitioner to confess, however. He

stuck to the story he had given Williams at 1:30 that morning: he had no memory

of attacking Beatty.

Petitioner’s next encounter with the police occurred the following day, June

1. Beatty had died the previous evening, and at 10:00 a.m., Detectives Krauss and

Putnam went to the Detention Center, with the intention of informing petitioner

that he was being charged with murder. Before either Krauss or Putnam had a

40

The interrogation was recorded. Manning received a transcript of the recording prior to

the January 21, 1987 suppression hearing.

41

The interrogation was recorded. Manning received a transcript of the recording prior to

the January 21, 1987 suppression hearing. The record does not indicate whether the recording or

transcript thereof was before the court when it ruled on the motion to suppress. We assume that

neither piece of evidence was part of the record the court considered at that time.

49

chance to speak to petitioner, he blurted out: “I just want to plead guilty and get

out of town.” Krauss told him to say nothing more and advised him of his

Miranda rights. After petitioner waived his rights, Krauss asked him what

happened on the night of May 30. He told Krauss that he did not recall assaulting

Beatty, then refused to talk further. As petitioner was being escorted out of the

holding cell, however, he broke his silence and asked them about Beggs’s status.

Krauss told him that Beggs was being charged with murder, too. On hearing that,

petitioner confessed to having assaulted Beatty.42 Krauss immediately informed

Detective Williams of the confession. Because the confession had not been

recorded, Williams decided to get it on tape. At 1:05 p.m. the same day, he and

Detective McMichael saw petitioner, and he reiterated what he had told Krauss

and Putnam. When Williams subsequently discovered that the tape recorder had

failed, he obtained another recorder and saw petitioner once again, at 11:10 a.m.

the next day, June 2. Petitioner repeated the confession he had given earlier.

Petitioner insists that his confession – given first to Krauss and Putnam and

then twice to Williams – was coerced by Williams’s threat to have Beggs charged

as an accessory to murder unless he confessed. He does so despite the fact that the

42

The confession was not recorded. See supra note 13.

50

threat did not induce him to confess on the spot43 and that more than twenty-four

hours passed before he actually confessed to Krauss and Putnam.

The state habeas court found no merit in petitioner’s ineffective assistance

claim. Although the court did not, in its dispositive order, explicitly address

petitioner’s argument as we have phrased it, the court necessarily rejected it. The

court found that Manning had conducted a reasonable investigation into the

circumstances surrounding petitioner’s confession and had performed competently

in presenting his motion to suppress. Among other things, Manning obtained

transcripts of the recorded statements petitioner had given the police; requested

and obtained a commitment hearing at which he examined Williams about his

interrogation of petitioner; effectively cross-examined Krauss and Williams at the

January 21, 1987 hearing about their interrogation of petitioner and the state of his

intoxication on the morning of May 31, 1986; elicited Williams’s admission that,

when questioned on May 31, petitioner could not remember attacking Beatty;

elicited Krauss’s admission that petitioner was distraught and crying when he was

told on June 1 that Beatty had died and that he and Beggs were being charged with

murder; and attempted (without success) to have Krauss and Williams admit that,

43

He continued to tell Williams that he had no recollection of assaulting Beatty, thereby

inferring that he could not have been involved.

51

during the conversations with petitioner they did not record, they told him that

Beggs would get the death penalty if he did not confess.

At the end of the day, the state habeas court concluded that petitioner had

failed to satisfy the first prong of Strickland’s test and therefore denied his claim.

Having reached that conclusion, the court opted not to take the next step and

consider whether petitioner also had failed to satisfy Strickland’s second prong,

prejudice. After examining the transcripts of the pretrial suppression hearing and

the evidentiary hearing in the state habeas court, the district court agreed four

square with that court’s holding as to Strickland’s first prong.

Petitioner argues that the state habeas court’s decision is contrary to or

involved an unreasonable application of Strickland. The essence of his argument

is that the habeas court should have found that, given the professional norms

prevailing in Georgia at the time, a reasonably competent attorney, standing in

Manning’s shoes, would have called Williams’s threats about Beggs to the trial

court’s attention and probably obtained a ruling that petitioner’s confession was

involuntary.

The reasonably competent attorney standard is an objective, not a

subjective, standard. See Chandler, 218 F.3d at 1315. Therefore, in assessing

whether the state habeas court’s decision is contrary to or involved an

52

unreasonable application of Strickland’s first prong, we consider what a

reasonably competent attorney would likely have done under the circumstances

facing Manning.

As an initial matter, a reasonably competent attorney, armed with the gist of

what had transpired during petitioner’s five encounters with the police at the

Detention Center, would have considered moving the court, which Manning in

fact did, to suppress petitioner’s confessions to Krauss and Putnam and then to

Williams. A reasonably competent attorney would have recognized two possible

bases for attacking these statements as involuntary. The first, that petitioner was

intoxicated when he confessed, was problematical, at best: Manning explored that

theory in full. He established that when Williams questioned petitioner in the

early morning hours of May 31, he appeared to have been drinking. The evidence

is, though, as petitioner tacitly concedes, that by the time he confessed to the

murder, at 10:00 a.m. on June 1, he had been cold sober for more than a day. He

was also cold sober when he repeated his confession at 1:05 that afternoon and

again at 11:10 the next morning. In short, there was nothing to support the notion

that petitioner’s confession was involuntary due to intoxication.

The second basis for challenging the confession – the basis petitioner

presented to the state habeas court – was that the confession was the product of

53

police coercion, the threat that Beggs would be charged as an accessory to murder.

The threat, delivered by Detective Williams, set the stage for, and tainted,

petitioner’s confession to Krauss and Putnam at 10:00 a.m. the following day.44

To pursue this theory, a reasonably competent attorney would look to Georgia law

and the federal cases for the principle that an accused’s confession is inadmissible

if it is obtained by threatening the accused that his spouse, or loved one, would be

prosecuted if he did not confess to the crime.45 If the law so held, the reasonably

competent attorney would then have considered whether to have petitioner take

the witness stand (at the hearing on his motion to suppress) to explain why he

confessed.46

In researching the admissibility of confessions under Georgia law, counsel

would find that O.C.G.A. § 24-3-50 spoke directly to the issue.47 That section

44

Petitioner has not contended that Krauss’s statement to him that Beggs was being

charged with murder somehow constituted unlawful police misconduct that rendered his

confession involuntary. Krauss told petitioner this after petitioner asked him what was going to

happen to Beggs.

45

For purposes of this discussion, we consider petitioner and Beggs to have been husband

and wife.

46

We note that, in prosecuting his ineffective assistance claim, petitioner has never

represented that he would have testified at the pretrial suppression hearing that Williams’s threat

that Beggs would be charged as an accessory to murder caused him to confess.

47

We assume that the Georgia court’s interpretation of this code provision would be as

limiting as the federal constitutional rule, if not more so.

54

stated: “To make a confession admissible, it must have been made voluntarily,

without being induced by another by the slightest hope of benefit or remotest fear

of injury.”48 Petitioner points to no Georgia case holding inadmissible a

confession obtained under circumstances similar to those confronting Manning. In

fact, the Georgia Supreme Court has yet to decide the question of whether a threat

to arrest or prosecute the accused’s spouse, or loved one, renders the accused’s

confession inadmissible under section 24-3-50. The court, however, has defined

“injury” as “physical or mental torture” and “benefit” as “the hope of a lighter

sentence” for the individual being interrogated. Cooper v. State, 347 S.E.2d 553,

557 (Ga. 1986) (defining “benefit”)49; State v. Roberts, 543 S.E.2d 725, 729 (Ga.

2001) (citing Coker v. State, 33 S.E.2d 171, 174 (Ga. 1945) for the proposition

that “[i]nsofar as the ‘remotest fear of injury’ is concerned, any confession

obtained through physical or mental torture is inadmissible.”). Drawing on these

definitions, the Georgia Court of Appeals has uniformly held that a police officer’s

threat to an accused to charge or arrest a family member if the accused does not

confess does not constitute a “fear of injury” or “hope of benefit” under section

24-3-50. See Jackson v. State, 634 S.E.2d 846, 850 (Ga. Ct. App. 2006) (officer’s

48

Section 24-3-50, as it appeared in 1987, is still in effect.

49

Cooper v. State was decided on September 3, 1986, over four months prior to the

hearing on the motion to suppress petitioner’s confession.

55

promise not to charge the accused’s family members if the accused confesses did

not constitute “promise of a benefit” under § 24-3-50 because the benefit must

relate to charge or sentence facing the accused); Griffin v. State, 570 S.E.2d 611,

613 (Ga. Ct. App. 2002) (officer’s statement that the accused’s girlfriend might get

in trouble if he did not confess did not constitute “fear of injury” under § 24-3-50

because injury refers to physical or mental torture of the accused); Riviera v. State,

380 S.E.2d 353, 355 (Ga. Ct. App. 1989) (“Any benefit to be derived by the hope

that defendant’s wife would not be taken to jail was purely collateral . . . It did not

contemplate the hope of lighter punishment.”); Copeland v. State, 291 S.E.2d 560,

562 (Ga. Ct. App. 1982) (officer’s statement to the accused that his wife could be

charged with theft was “a truism, a recounting of the facts, and did not constitute a

fear of injury. . .”) (internal quotation marks omitted).

Putting the post-1986 decisions aside, the precedent available to a lawyer

standing in Manning’s shoes in litigating the motion to suppress consisted of

Cooper v. State and its predecessor, Coker v. State. Neither would have provided

counsel much comfort. Nonetheless, in that neither the Georgia Supreme Court

nor the Georgia Court of Appeals had decided a case precisely on all fours with

the case at hand, Manning would not have been foreclosed from advancing as a

matter of Georgia law the argument petitioner contends he should have presented.

56

What would a reasonably competent attorney have found in the federal

cases? He would have discovered the well-established principle that the Due

Process Clause of the Fourteenth Amendment requires that, to be admissible, an

accused’s confession must be voluntary, in that the accused “made an independent

and informed choice of his own free will, possessing the capability to do so, his

will not being overborne by the pressures and circumstances swirling around him.”

Jurek v. Estelle, 623 F.2d 929, 937 (5th Cir. 1980) (en banc), cert. denied, 450

U.S. 1014, 101 S. Ct. 1724, 68 L. Ed. 2d 214 (1981) (synthesizing Supreme Court

“expressions . . . of the fundamental requirements for voluntariness.”).50 Petitioner

claims, in essence, that his will was overborne by Williams’s threat that, unless he

confessed, Beggs would be charged.

When Williams told petitioner what was going to happen to Beggs if he

refused to confess, the police had probable cause to charge Beggs with aggravated

assault.51 A reasonably competent attorney looking for federal cases in point

50

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this

Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to

close of business on September 30, 1981.

51

Petitioner has never contended that the police lacked probable cause to arrest Beggs, at

noon on May 31, for aggravated assault, or to charge her with murder the next day, after Beatty

expired. The fact that the police had probable cause in both instances clearly distinguishes this

case from Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct. 917, 9 L.Ed.2d 922 (1963), and United

States v. Tingle, 658 F.2d 1332 (9th Cir. 1981), the cases on which petitioner relies. In Lynumn,

the police told Lynumn that if she did not confess to selling narcotics, the state financial aid for

her infant children would be cut off and they would be placed in state custody. The Court held

57

would have found precedent holding that the threat to charge a person for whom

the police have probable cause to arrest does not, in and of itself, render the

accused’s guilty plea invalid. See United States v. Nuckols, 606 F.2d 566, 568–70

(5th Cir. 1979); see also Martin v. Kemp, 760 F.2d 1244, 1247–48 (11th Cir.

1985) (affirming the “governing legal principle” that where a defendant claims

that his guilty plea is involuntary because prompted by police threats to prosecute

a third party, the defendant bears the “heavy burden” of showing that at the time

the threats were made, the police did not have probable cause to believe that the

third party had committed a crime.”). Indeed, the Fifth Circuit had applied that

principle in passing on the voluntariness of a confession several months before the

hearing on petitioner’s motion to suppress in Allen v. McCotter, 804 F.2d 1362

(5th Cir. 1986). In that case, a police officer told the accused that his wife would

not be charged if he confessed. Id. at 1364. The accused confessed, but

subsequently challenged the confession as involuntary due to police coercion. Id.

The court rejected his challenge because the officer had probable cause to arrest

the accused’s wife at the time he made the alleged threat. Id. Decisions handed

her confession involuntary. 372 U.S. at 533–34, 83 S. Ct. at 920. In Tingle, an FBI agent told

Tingle that she would not see her young child for “a while” if she went to prison. 658 F.2d at

1336. Tingle confessed. Id. The Ninth Circuit held the confession involuntary because it had

been coerced by the agent’s implicit threat to separate Tingle from her child. Id. Both cases are

inapposite. In Lynumn and Tingle, the officers’ threats involved third-parties, the defendant’s

children no less, who obviously had not been involved in any criminal wrongdoing.

58

down subsequent to petitioner’s prosecution reiterate the principle Allen v.

McCotter announced. See, e.g., Thompson v. Haley, 255 F.3d 1292, 1297 (11th

Cir. 2001) (holding there was no police coercion when police officer told the

accused that his girlfriend would be charged for murder unless he confessed,

because the officer had probable cause to arrest the girlfriend for murder); see also

United States v. Johnson, 351 F.3d 254, 257, 260–61, 263 (6th Cir. 2003) (holding

there was no police coercion when police threatened to arrest the accused’s sister

if the accused did not confess, because police had valid probable cause to arrest

the sister). In sum, at the time Manning was litigating the motion to suppress,

federal case law did not counsel the suppression of petitioner’s confession as

involuntary.

We will assume, though, for the sake of argument, that Manning should

have introduced the two Williams statements at issue and urged the court to find

that they coerced petitioner’s confession. Would the court have seized upon the

statements and suppressed the confession? Not a chance – and a reasonable

attorney, in Manning’s position, would have realized this. For the remainder of

the interrogation during which Williams made the statements, petitioner continued

to adhere to his no-memory claim. Well over twenty-four hours passed

uninterrupted before petitioner was interrogated by Krauss and Putnam. It was as

petitioner was being escorted back to his cell that he asked Krauss about Beggs’s

59

status and elicited the fact that Beggs had been charged with murder.52 Only then

did petitioner confess. It was obvious that the confession was caused, i.e.

motivated, not by police overreaching in the form of Williams’s day-old

statements, but by Krauss’s response to petitioner’s own inquiry. Cf. Jacobs v.

Singletary, 952 F.2d 1282, 1295–96 (11th Cir. 1992) (discussing, in the context of

determining the voluntariness of waiver of the right to remain silent, the passage

of “a significant, uninterrupted period of time” and the defendant’s own initiation

of the dialogue with police). That was the trigger; petitioner would no longer

stand on what he had been telling Williams – that he had no recollection of

assaulting Beatty and was, in effect, innocent. Since petitioner has never

explained why he confessed, a reasonable explanation is that he did so to save

Beggs from prosecution. Regardless of his motive, absent some showing of police

coercion, petitioner’s confession was not constitutionally impermissible. Colo. v.

Connelly, 479 U.S. 157, 164; 107 S. Ct. 515, 520; 93 L. Ed. 2d 473 (1986)

(“Absent police conduct causally related to the confession, there is simply no basis

for concluding that any state actor has deprived a criminal defendant of due

process of law.”)

52

What Williams had suggested would happen, if petitioner did not confess and take full

responsibility for the crime, had in fact happened.

60

A reasonably competent attorney, standing in Manning’s shoes, would have

likely gone through the above analysis and concluded, as we do, that Williams’s

statements to petitioner in the May 31, 3:50 a.m. interrogation would not have

provided the basis for a successful challenge to petitioner’s confession. Thus, we

hold that the state court did not unreasonably apply Strickland in concluding that

Manning performed effectively in challenging petitioner’s confession.

B.

John Davis handled petitioner’s appeal to the Georgia Supreme Court. In

his brief, he did not assign as error the trial court’s denial of the motion to

suppress petitioner’s confession. Petitioner claims that Davis’s failure to do so

deprived him of the effective assistance of appellate counsel.

The state habeas court denied petitioner’s claim as having failed both the

performance and prejudice prongs of the Strickland standard. The court did so in

conclusory terms, without explaining why, under the prevailing professional

norms, a reasonably competent attorney would not have appealed the trial court’s

decision to admit the confession into evidence, or why the failure to appeal the

decision caused petitioner no prejudice. The district court, in upholding the

habeas court’s rejection of petitioner’s claim, indicated that it was troubled by

Davis’s failure to contest the admissibility of petitioner’s confession on appeal,

61

but, like the habeas court, concluded that petitioner had not shown Strickland

prejudice.

We affirm the district court’s decision for a different reason: Davis lacked a

plausible reason for challenging in the Georgia Supreme Court the trial court’s

denial of petitioner’s motion to suppress. He was not ineffective under Strickland

in not appealing the trial court’s ruling. A reasonably competent attorney standing

in his shoes would not have appealed. Why? Because the record of the January

21, 1987 suppression hearing, the record on which an appeal would have to be

based, contained nothing to support an argument that the trial court should have

found petitioner’s confession involuntary.

In examining whether Manning’s performance at the January 21 hearing

was deficient, we posited the strategy a reasonably competent attorney would have

pursued in challenging petitioner’s confession. Counsel would have explored the

possibility, however remote, that the confession was involuntary because

petitioner was intoxicated when he confessed to Detectives Krauss and Putnam.

This, in turn, tainted, and thus made inadmissible, his subsequent confession to

Williams. The possibility that petitioner’s confession was tainted by intoxication,

however, fell by the wayside for lack of evidence. The other possibility, that the

confession was the product of police coercion, collapsed as well; for the coercion

62

– if that is how we are to view Krauss’s statement that Beggs had been charged

with murder – was invited by petitioner’s question as to Beggs’s status. In sum, an

appellate argument that petitioner’s confession was involuntary because it was

given while petitioner was intoxicated or coerced by Krauss’s statement that

Beggs had been charged with murder would have appeared frivolous.

In prosecuting this claim in the state habeas court, petitioner pointed to

nothing in the record of the January 21 hearing on the motion to suppress that

might support the argument that his confession was involuntary.53 Instead, he

pointed to the two Williams statements cited supra, and argued that the trial court

erred in failing to consider them as persuasive evidence that his confession was

coerced. The problem petitioner encounters in relying on Williams’s statements is

that they were not before the trial court. Manning failed to make them part of the

record. Had Davis appealed the trial court’s denial of the motion to suppress, the

Georgia Supreme Court would not have considered the Williams statements

because they were not part of the record before the trial judge. It requires no

citation of authority to say that it is a time-honored rule of appellate jurisprudence

that appellate courts do not reverse trial court findings of fact based on evidence

53

By the same token, in prosecuting his habeas petition in the district court, petitioner

cited nothing in the record of the suppression hearing to support his argument that the trial court

erred in denying his motion to suppress.

63

not presented to the trial court in the first instance. Thus, petitioner’s claim that

Davis was ineffective for not challenging the trial court’s suppression ruling based

on the Williams statements is meritless.

V.

In his state habeas petition, petitioner claimed that Donald Manning

disregarded his duty to search for and present mitigating evidence that would

likely have persuaded the jury to forego the death penalty. According to

petitioner, significant mitigating evidence was available, but Manning simply

neglected to pursue it. As a result, Manning deprived him of a fair trial, a trial

whose result is reliable.

Petitioner proffered the evidence Manning could have found to the state

habeas court in the form of affidavits. These affidavits came from two sources.

The first consisted of family members and people who had lived near petitioner in

Limecrest, Ohio, during his early years – before he left home for California at age

seventeen.54 As a whole, their affidavits described the Newland family’s poor

living conditions, the repeated abuse petitioner and his siblings suffered at the

54

Petitioner presented the court with eleven affidavits from family members and residents

of the Limecrest, Ohio neighborhood in which he was raised. Petitioner refers to these affidavits

as portraying part of his “life history.”

64

hands of an alcoholic mother,55 and petitioner’s consumption of drugs and alcohol

at an early age.56 These affiants stated that they would have testified on

petitioner’s behalf had they been called, but no one contacted them.

The second source of affidavits consisted of a psychologist, Dr. Barry

Crown, and a neurologist, Dr. Thomas Hyde. Dr. Crown’s affidavit, discussed in

more detail, subpart C, infra, concludes that petitioner suffered from permanent

organic brain damage which “[predisposed] him to markedly increased impulsivity

and impaired judgment.” Dr. Crown further diagnoses petitioner as having a

mood disorder, termed Alcohol Induced Rage Disorder, that developed as a result

of his childhood abuse and brain injury. As a result of this disorder, acute alcohol

intoxication triggered feelings of intense, uncontrollable rage in petitioner and

55

Petitioner was said to have been exposed to sexual abuse from an uncle as well as

physical abuse from his mother. In early adolescence, petitioner, to get away from his mother,

sometimes would stay at his maternal grandparents’ house, where the uncle sodomized him.

56

Statements by Clarence Newland, one of petitioner’s brothers, typify the information

provided by the proffered affidavits: “The house was very small . . . during the winter months,

the house was freezing. Our family had no plumbing, no running water . . . . Our mother was a

terror . . . . Beatings were so frequent that it was a routine part of our lives. She would hit Bobby,

me, and the other kids with anything she could get her hands on. She would lash Bobby all over

his body . . . . She would slam his head into the walls.”

The affidavits also commented on petitioner’s frequent use of alcohol as a teenager and

young adult. For example, the affidavit of Frederick Newland, another of petitioner’s brothers,

states: “There was a lot of drinking and drug use in our neighborhood, and Bobby got caught up

in that. He has been drinking and using drugs since he was just of kid of around ten or twelve. It

has always been a part of his life . . . . All of us Newland brothers drank a lot and partied pretty

hard, but Bobby really had problems. He was an addict.”

65

“[tended] to render him physiologically unable to exercise behavioral control.”

Dr. Crown explained that, given the combination of petitioner’s mood disorder

and brain injury, petitioner’s acute intoxication on the night of the murder

“exacerbated and amplified the disinhibiting effects of the brain damage,

triggering an episode of uncontrollable rage and aggressivity, during which the

murder occurred.”

Dr. Hyde’s affidavit, also discussed in greater detail infra, provides a

specific neurological diagnosis, stating that petitioner suffers from “bilateral

frontal lobe dysfunction,” which results in “impaired executive functions,

decreased disinhibition, and tendency toward impulsivity,” and that this condition

was amplified by excessive alcohol intake. Dr. Hyde concurred with Dr. Crown’s

diagnosis of Alcohol Induced Rage Disorder and with Dr. Crown’s conclusion that

petitioner suffered from an episode of uncontrollable rage at the time of the

murder.

Petitioner contends that Manning could have obtained the expert opinion

testimony of Drs. Crown and Hyde – or experts who would have rendered the

same opinions they did – had he applied to the trial judge for funds for

independent psychological and neurological examinations. But Manning failed to

apply.

66

Manning testified at the evidentiary hearing the state habeas court held on

March 3, 1998. The State called Manning to the stand to rebut petitioner’s claims

that his performance was constitutionally inadequate. Petitioner did not testify,

either in person or by affidavit; consequently, the court had to resolve petitioner’s

ineffective assistance claims on the basis of Manning’s testimony and the record

of the proceedings in the trial court, both pretrial and trial. We relate first, in

subpart A below, what Manning had to say in response to the allegation that he

made little effort to search for evidence about petitioner’s early years – his

upbringing in Limecrest, Ohio, his life before he left for California at age

seventeen. Next, we present the argument habeas counsel made to the state habeas

court in an effort to convince the court that Manning’s performance was deficient.

Finally, we consider whether the court’s decision that Manning’s performance

satisfied the first prong of Strickland’s standard is unassailable under 28 U.S.C. §

2254(d)(1), as the district court held.

We relate in subpart B what the record reveals about Manning’s

performance in not pursuing funds for independent psychological and neurological

evaluations, such as those Drs. Crown and Hyde rendered. Then, as in subpart A,

we turn to the habeas court’s decision that his performance satisfied Strickland’s

first prong and conclude, as the district court did, that petitioner failed to make out

67

a case for relief under section 2254(d)(1).

Finally, in subpart C, we assume for the sake of argument that Manning’s

failure to investigate petitioner’s childhood and develop a life history and his

failure to seek funds for an independent psychiatric and neurological evaluation

amounted to ineffective assistance of counsel and proceed to the question the

habeas court summarily disposed of: whether the ineffectiveness prejudiced

petitioner’s case in the penalty phase of the trial.57

A.

1.

In his testimony before the habeas court, Manning acknowledged that his

investigation into petitioner’s life history in Limecrest, Ohio, was limited and then

explained why it was so. First, petitioner specifically instructed him not to contact

his family or to send an investigator to Limecrest, Ohio, where he was born. More

generally, petitioner emphatically discouraged him from researching his past.58

57

To reach the prejudice issue, the state habeas court, having found that Manning’s

performance satisfied Strickland, necessarily assumed that petitioner prevailed on Strickland’s

performance prong.

58

At the evidentiary hearing, Manning testified as follows in an exchange with Assistant

Attorney General Susan Boleyn, who represented the State:

MANNING: [The information Mr. Newland initially provided me was] very brief, and I

felt at the time uninformative responses. And I expressed that to Mr. Newland at the

time, and I said, you know, I need to know where you’re from. And . . . I asked this

68

Second, after repeatedly asking petitioner about his past and receiving very little

information in return, he was unsure of the significance of petitioner’s background

and doubted whether petitioner was being honest about the information he did

provide. Third, petitioner did not give him the information he needed to contact

family members or anyone else who might be able to testify about petitioner’s

upbringing, his childhood and adolescence.

2.

In urging the court to find Manning’s performance inadequate, habeas

counsel took issue with Manning’s second and third explanations. Relying on

other statements Manning made at the evidentiary hearing, he argued that

question many times, and he would consistently say, look, this is my problem, I’m in this.

I said well, what about your family, do you have brothers, sisters, what your – anybody

that I can contact just to provide you with some money for the commissary at least. No,

sir, I don’t want anybody involved in this, this is my problem, don’t you do that, don’t

contact anybody. And I didn’t have anybody to contact. On several occasions I would ask

Mr. Newland for more information and the closer we got to trial, the more insistent I

became because I knew that we were facing a jury and it could be a capital jury that

would have to decide his fate and I wanted to be able to humanize him to that jury and we

had – the fact situation in this case was not – not pretty, let’s say, and I needed something

from him, some people to put up there to testify about the good things in his life, what he

had done. But he just kept saying, look, I was a hippy [sic] , I moved from place to place,

I don’t have any friends, and leave that out of it, this is my problem. That was his attitude

and it was very frustrating for me.

BOLEYN: What, if any, consideration did you give to sending [the public defender’s

investigator] to Ohio based on Mr. Newland’s response to your questions?

MANNING: Well, I didn’t give any consideration to it because he didn’t want that to

happen and we didn’t – you know, I try to do what my client wants to the extent that I can

and he was adamant about this, he didn’t want any of his relatives involved – quote,

involved in this.

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Manning knew he needed to research petitioner’s background to prepare for the

penalty phase of the trial, but failed to investigate solely because he believed he

had insufficient information to begin an investigation.59 Counsel then claimed that

Manning actually had sufficient information to undertake a background

investigation, since petitioner had informed him that he was born in Limecrest,

Ohio, and had attended Shawnee High School. Counsel offered several examples

of how Manning could have followed up on the limited information petitioner

provided. He argued that Manning could have requested high school records and

interviewed one or more of his teachers, contacted the public defender’s officer in

Clark County, Ohio, for assistance, or sent his office’s investigator to Limecrest.

Had Manning taken any of these steps, counsel argued, he could have learned the

whereabouts of the Newland family members and uncovered the evidence of

petitioner’s unfortunate childhood as proffered to the state habeas court.60

59

For example, Manning had stated at the evidentiary hearing: “if I had been able to do

that, to contact people that would have had this [background information], I would have done

that and then say [sic], Mr. Newland, this is what I found out, now I believe its helpful, or its not

helpful and go from there.”

60

To show that Manning could have taken these steps, counsel referred the court to the

affidavits of William Merrell, the director of the Public Defender’s Office of Clarke County,

Ohio (the county in which Limecrest is located) and Frances Kimble, one of petitioner’s

elementary school teachers. They testified that if they had been contacted by petitioner’s

attorney, they would have provided assistance in locating petitioner’s family members or others

with knowledge of his upbringing.

70

3.

After considering Manning’s testimony, the affidavit testimony proffered

with petitioner’s habeas petition, and argument of counsel, the court issued its

findings of fact. It found that: (1) petitioner instructed Manning not to investigate

his background; (2) Manning explained the role and importance of petitioner’s

personal history as mitigation evidence and unsuccessfully attempted to get such

evidence from him on several occasions; (3) Manning attempted to learn of

petitioner’s background from Beggs and unspecified “other people that knew

[petitioner],” but was unsuccessful; (4) Manning did not send an investigator to

Limecrest, Ohio, because “[petitioner] did not want that to happen . . . he was

adamant about this, he didn’t want any of his relatives involved”; and (5) Manning

was ethically bound to follow his client’s instructions.61 In addition, the court

61

Petitioner argues that the “central rationale for the state habeas court’s . . . denial of Mr.

Newland’s ineffectiveness claim . . . is the notion that trial counsel was ethically bound to follow

Mr. Newland’s alleged instruction not to involve his family in this case.” We disagree, reading

the state court’s decision to be more broadly based, as state court says in the paragraph with

which it begins its analysis: “Reviewing the totality of the circumstances from the perspective of

counsel at the time of trial and in light of Petitioner’s inability and unwillingness to provide

background information for use as mitigating evidence, this Court finds that Petitioner has not

established attorney error and prejudice based on an alleged failure to investigate Petitioner’s

background.”

Even if, arguendo, the state’s court decision rested largely on the grounds that counsel

was ethically bound to follow petitioner’s instruction, our review under 28 U.S.C. § 2245(d)(1) is

only of the state court’s decision, not of the reasoning it used to arrive at its conclusions. See

71

concluded that Manning’s decision to emphasize Newland’s religious conversion

in the penalty phase of the trial was a “legitimate, strategic decision . . . hampered

as trial counsel was by the lack of assistance he received from Petitioner.”

The magistrate judge, in his report and recommendation, adopted by the

district court, also emphasized that petitioner had instructed Manning not to

investigate his background. The judge reasoned that “the state habeas court’s

conclusions that trial counsel’s actions were reasonable, in light of the restrictions

Newland placed upon them, is not contrary to, or an unreasonable application of,

the Supreme Court’s holding in Strickland.”

As indicated in part II.E, supra, petitioner moved the district court to alter or

amend its judgment, contending that in light of the Supreme Court’s decisions in

Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005);

Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003); and

Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000), let

alone the Court’s decision in Strickland, the district court should have held that

the state habeas decision is contrary to, or an unreasonable application of, clearly

Wright v. Sec’y for the Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002) (holding that we are

required to give deference under section 2245(d)(1) to a state court’s decision, regardless of

whether the court provides any rationale for the decision: “[a]ccordingly, all that is required is a

rejection of the claim on the merits, not an explanation”).

72

established federal law under 28 U.S.C. § 2254(d)(1). The district court disagreed

and therefore denied petitioner’s motion.

4.

Petitioner argues that the district court erred: the state habeas court’s

decision is contrary to, or an unreasonable application of, Strickland, and, more

importantly for the purposes of the discussion below, Williams, Wiggins, and

Rompilla. These three decisions came down after the date petitioner’s convictions

became final (at the conclusion of the direct appeal process); Wiggins and

Rompilla were decided after the Georgia Supreme Court denied petitioner’s

application for a certificate of probable cause to appeal the denial of his petition

for habeas corpus relief. Given the dates of these decisions, the question arises as

to whether we may consider them in light of the restrictions imposed on our

review by Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334,

(1989), and AEDPA. See Horn v. Banks, 536 U.S. 266, 272, 122 S. Ct. 2147,

2151, 153 L. Ed. 2d 301 (2002) (“Thus, in addition to performing any analysis

required by AEDPA, a federal court considering a habeas petition must conduct a

threshold Teague analysis when the issue is properly raised by the state.”).

Although the State has not suggested that the threshold analysis is required here,

73

we raise Teague at our discretion. Caspari v. Bohlen, 510 U.S. 383, 389, 114 S. Ct

948, 953, 127 L. Ed. 2d 236 (1994).

Before proceeding further, we must acknowledge that this court has utilized

Williams, Wiggins, and Rompilla in its evaluation of a state court denial of habeas

relief, notwithstanding that the three decisions were handed down subsequent to

the state court ruling. See, e.g., Stewart v. Sec’y, 476 F.3d 1193, 1214 n.29 (11th

Cir. 2007) (distinguishing Rompilla, although state habeas proceeding concluded

before Rompilla was decided); Callahan v. Campbell, 427 F.3d 897, 926, 934–35

(11th Cir. 2005) (discussing Williams and Wiggins, although Callahan’s state

habeas proceeding concluded before these cases were decided); Crawford v. Head,

311 F.3d 1288, 1314–16 (11th Cir. 2002) (discussing Williams, although it was

decided following the conclusion of Crawford’s state habeas proceeding). We

have not, however, addressed in any great detail the Teague or AEDPA issues that

may be raised by our reliance on one or more of these decisions in reviewing a

state habeas court’s decision handed down earlier. In the analysis we embark on

now, we do not deviate from the results we have reached before; we merely

explicate the analytical steps which led to such results.

Our analysis proceeds as follows. First, we apply Teague. Second, we

determine if Williams, Wiggins, and Rompilla are “clearly established Federal

74

law” under 18 U.S.C. § 2254(d)(1). This, in turn, requires that we address two

subsidiary questions: how has the Court instructed us to define “clearly established

Federal law,” and, if a case constitutes “old law” under Teague, how does that

affect, if at all, our analysis of whether it is “clearly established Federal law” for

AEDPA purposes?

Under Teague v. Lane, a state prisoner seeking collateral relief may not rely

on a new constitutional rule of criminal procedure that was announced after the

date his conviction became final. 489 U.S. at 310, 109 S. Ct. at 1075. A state

conviction becomes final “when the availability of direct appeal to the state courts

has been exhausted and . . . a timely filed petition [for a writ of certiorari] has been

finally denied.” Caspari, 510 U.S. at 390, 114 S. Ct. at 953. A case announces a

new rule “when it breaks new ground or imposes a new obligation on the States or

Federal Government,” but not if the result in that case is “dictated by precedent

existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at

301, 109 S. Ct. at 1070. Petitioner’s conviction became final on November 28,

1998, when the Supreme Court denied certiorari review. Strickland, decided in

1984, established the law governing ineffective assistance of counsel claims and is

the relevant precedent for our Teague analysis.

Williams, Wiggins, and Rompilla are not new law under Teague. Justice

75

Kennedy wrote in his concurrence in Wright v. West that when “the beginning

point is a rule of this general application, a rule designed for the specific purpose

of evaluating a myriad of factual contexts, it will be the infrequent case that yields

a result so novel that it forges a new rule, one not dictated by precedent.” 505

U.S. 277, 308–309, 112 S. Ct. 2482, 2499, 120 L. Ed. 2d 225 (1992). We have

echoed Justice Kennedy’s reasoning. See Hart v. Attorney Gen., 323 F.3d 884,

893 n.16 (11th Cir. 2003) (“We believe that in areas of the law . . . in which

general principles announced by the Supreme Court will out of necessity be

applied to varying factual situations on a case by case basis, it is acceptable to

derive clearly established federal law from these general principles.”). Strickland

set forth the paradigmatic example of a rule of general application; it establishes a

broad and flexible standard for the review of an attorney’s performance in a

variety of factual circumstances. In Williams, Wiggins, and Rompilla, the Court

did nothing more than apply Strickland’s standard to a specific set of

circumstances: in Williams, counsel’s failure to uncover available state records

indicating Williams’s “nightmarish childhood,” 529 U.S. at 395, 120 S. Ct. at

1514; in Wiggins, counsel’s failure to investigate Wiggins’s background, despite

evidence of his abusive upbringing, 539 U.S. at 524, 123 S. Ct. at 2536–2537; and

in Rompilla, counsel’s failure to investigate a file containing evidence that the

76

state intended to use in aggravation. 545 U.S. at 383, 125 at 2463.

In concluding that these cases are not new law, we are following the Court’s

own characterization of its decisions and the characterization of these decisions by

our sister circuits. In Williams, the Court acknowledged that “the merits of

[Williams’s] claim are squarely governed by our holding in Strickland v.

Washington.” 529 U.S. at 390, 120 S.Ct at 1511; see also Allen v. Massie, 236

F.3d 1243, 1245 (10th Cir. 2001) (“There is simply nothing in the Supreme

Court’s decision in Williams that even remotely resembles a new rule of

constitutional law. Instead, the William’s Court merely reaffirmed that all claims

of ineffective assistance of counsel should be resolved by reference to the

well-established rubric set forth in Strickland.”). In Wiggins, the Court, in

discussing the Williams decision, stated: “In highlighting counsel’s duty to

investigate [in Williams] . . . we applied the same ‘clearly established’ precedent

of Strickland that we apply today.” 539 U.S. at 522, 123 S. Ct. at 2536 (emphasis

added); see also Smith v. Dretke, 422 F.3d 269, 279 n.2 (5th Cir. 2005) (“Wiggins

was announced after the district court’s ruling but it should not be considered a

‘new rule’ such that Teague v. Lane might bar habeas relief.”). We apply the

Court’s characterization of Williams and Wiggins to Rompilla, which, like

Williams and Wiggins, was only an application of the principles elucidated in

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Strickland to a novel set of facts. Rompilla, 545 U.S. at 385–388, 124 S. Ct. at

2464–68. Indeed, we have held that Rompilla was not a new rule of law under

Teague. See In re Hutcherson, 468 F.3d 747, 749 (11th Cir. 2005) (“The Court's

decision in Rompilla was another interpretation of the Court’s long-standing

principles set forth in Strickland . . . It did not set forth a ‘new rule of law.’”).

Because these cases are not new law under Teague, we move to the question

of whether, under 28 U.S.C. § 2254(d)(1), we may consider these decisions as

“clearly established Federal law.” Section 2254(d)(1), in relevant part, reads:

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted with

respect to any claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim –

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States

The Williams Court instructed that “clearly established Federal law” is the:

“holdings, as opposed to the dicta, of this Court’s decisions as of the time of

the relevant state court decision.” In this respect, the “clearly established

Federal law” phrase bears only a slight connection to our Teague

jurisprudence. With one caveat, whatever would qualify as an old rule under

our Teague jurisprudence will constitute “clearly established Federal law, as

determined by the Supreme Court of the United States” under § 2254(d)(1).

. . . The one caveat, as the statutory language makes clear, is that §

2254(d)(1) restricts the source of clearly established law to this Court’s

jurisprudence.

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529 U.S. at 412; 120 S. Ct. at 1523 (emphasis added) (citation omitted).62

The Court’s definition of “clearly established Federal law,” raises two

questions. First, when is the relevant state court decision handed down; and,

second, if, as in this case, the Supreme Court decisions are “old law” under

Teague, but were decided subsequent to the relevant state court decision, may we

62

Justice Stevens, though, writing for three other Justices, in a concurrence to Williams,

conflated the meaning of “clearly established Federal law” under AEDPA with the standards

used under the Teague analysis, stating: “It is perfectly clear that AEDPA codifies Teague to the

extent that Teague requires federal habeas courts to deny relief that is contingent upon a rule of

law not clearly established at the time the state court conviction became final.” 529 U.S. at 380,

120 S. Ct. at 1506. Justice Stevens used this formulation again in part III of Williams, where he

was writing for the majority, stating: “The threshold question under AEDPA is whether

Williams seeks to apply a rule of law that was clearly established at the time his state-court

conviction became final.” Id. at 389, 120 S. Ct. at 1511.

We have followed both definitions of “established Federal law.” In Schwab v. Crosby,

we did not use the phrase “relevant state court decision,” but rather stated that we identified the

law as being clearly established at the time when the petitioner’s state court conviction became

final on direct appeal. 451 F.3d 1308, 1324 (11th Cir. 2006) (“The result is that a state court

decision based on a conclusion of law is to be accepted by a federal habeas court unless a

Supreme Court decision in existence at the time the conviction became final truly dictated a

different conclusion of law.”). In other decisions, however, we have relied on the “relevant state

court” formulation. See, e.g., Crawford v. Head, 311 F.3d 1288, 1315 n.2 (11th Cir. 2001)

(referring to law at the time of the relevant state court decision); Putnam v. Head, 268 F.3d 1223,

1241 (11th Cir. 2001) (same). We are not the only court to have struggled to reconcile this

apparently contradictory language in Williams. See Brown v. Greiner, 409 F.3d 523, 534 n.3 (2d

Cir. 2005) (recognizing the conflict between Justice Stevens’s and Justice O'Connor’s

formulations and stating: “the Supreme Court has provided inconsistent guidance on the precise

time to which a federal court should look to assess what was ‘clearly established Federal law, as

determined by the Supreme Court’”).

We follow Justice O’Connor’s “relevant state court” definition largely because the Court

has clearly favored this definition in cases after Williams, using it in at least four other decisions:

Carey v. Musladin, _ U.S._, 127 S. Ct. 649, 653, 166 L. Ed. 2d 482 (2006); Yarborough v.

Alvarado, 541 U.S. 652, 661, 124 S. Ct. 2140, 2147, 158, L. Ed. 2d 938 (2004); Lockyer v.

Andrade, 538 U.S. 63, 71-72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003); Tyler v. Cain, 533 U.S.

656, 664, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001). Justice Stevens’s definition has not been

used again by the Court.

79

still consider these decisions?

To reach a definition of the relevant state court decision, we consider

Williams in conjunction with the language of § 2254(d)(1). The most reasonable

interpretation of § 2254(d) is that the state court’s “adjudication on the merits,”

which triggers our review under the statute, is the same “adjudication of the claim”

that we review for its application of federal law. This adjudication of the claim is

also the relevant state court decision referenced in Williams. Therefore, the

highest state court decision reaching the merits of a habeas petitioner’s claim is the

relevant state court decision.

We note that the relevant state court decision may come before or after

finality for Teague purposes. For example, with respect to an ineffective

assistance of counsel claim, the state supreme court, on collateral attack, will

likely be the highest state court to apply federal law to adjudicate the merits of the

claim. In another situation, an intermediate state appellate court may make the

relevant state court decision, assuming that the state supreme court exercises its

discretion to deny certiorari review, and such denial does not constitute a decision

on the merits. This definition of the relevant state court decision is consistent with

the Supreme Court’s precedent and our own decisions – which have identified the

relevant state court decision as occurring at different stages in the appellate

80

process, depending on when the claim at issue was decided. In Carey v. Musladin,

the Court defined the relevant state court decision as the mid-level California

appellate court decision which rejected petitioner’s claim on the merits on direct

appeal. ___ U.S. ____, 127 S. Ct. 649, 653, 166 L. Ed. 2d 482 (2006). By contrast,

in Wiggins, the majority and the dissent debated whether it was appropriate to

apply Williams to Wiggins’s claim, since Williams was decided after the “decision

at issue,” which both the majority and dissent identified as the Maryland Court of

Appeals’s rejection of Wiggins’s claim on collateral attack. 538 U.S. at 522, 542,

123 S. Ct. at 2535–36, 2546. Similarly, in Crawford v. Head and Putnam v. Head,

we identified the relevant state court decision as the final denial of habeas relief,

while in Gore v. Secretary for the Department of Corrections, we identified the

decision as the Florida Supreme Court’s disposition of petitioner’s claim on direct

appeal. Gore, 492 F.3d 1272, 1292, 1294 (11th Cir. 2007); Crawford, 311 F.3d

1288, 1315 n.2 (11th Cir. 2002); Putnam, 268 F.3d 1223, 1241 (11th Cir 2001);

see also Frazier v. South Carolina, 430 F.3d 696, 706 n.7 (4th Cir. 2005) (relevant

state court decision is the state habeas court’s rejection of petitioner’s claim on the

merits).

As we did in Putnam v. Head, we identify the relevant state court decision

in this case as the Georgia Supreme Court’s denial of petitioner’s certificate of

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probable cause to appeal the superior court’s denial of habeas relief. 268 F.3d at

1242. We characterize the denial as a decision on the merits because, under

Georgia Supreme Court Rule 36, a “certificate of probable cause to appeal a final

judgment in a habeas corpus case involving a criminal conviction will be issued

where there is arguable merit”; thus, the rejection of petitioner’s application for a

certificate of probable cause to appeal was, implicitly, a determination that none of

petitioner’s claims had arguable merit. Since Williams was decided before the

court denied petitioner leave to appeal, Williams constitutes “established Federal

law” under AEDPA. 28 U.S.C. § 2254(d)(1).63

Second, although the relevant state court decision came down on October 1,

2002, before Wiggins and Rompilla were decided, these two decisions still

constitute “clearly established Federal law,” for the Williams Court instructed that

“whatever would qualify as old rule under Teague jurisprudence will constitute

‘clearly established Federal law, as determined by the Supreme Court of the

63

The Fifth Circuit has expressed some concern that defining the relevant state court

decision as potentially including a state habeas proceeding could expand a federal court’s ability

under AEDPA to utilize new law, created by the Supreme Court after the conclusion of

petitioner’s direct appeal. See Williams v. Cain, 229 F.3d 468, 475 n.6 (5th Cir. 2000) (arguing

that defining the relevant state court decision as the decision denying collateral relief would

“almost completely eviscerate the previous law of non-retroactivity”). We think it would not.

The independent application of the Teague analysis will still prevent the application of any new

rule established after a petitioner’s conviction becomes final on direct appeal, regardless of our

definition of the relevant state court proceedings. See Horn, 536 U.S. at 272, 122 S. Ct. at 2151

(requiring courts to perform separate AEDPA and Teague analysis).

82

United States’ under § 2254(d)(1). ” 529 U.S. at 412, 120 S. Ct. at 1495; see also

Frazier, 430 F.3d at 706 (following Williams to grant a habeas petition based on a

Supreme Court case decided after the relevant state court decision, because the

case was an old rule under Teague). In Wiggins, although the Court did not cite

Williams for the proposition that an old rule will always constitute clearly

established Federal law, regardless of when the rule was announced, it nonetheless

applied that proposition. 539 U.S. at 522, 123 S. Ct. at 2536–37. The Wiggins

Court applied Williams, an old rule under Teague, in analyzing Wiggins’s claim,

thereby implicitly treating Williams as clearly established federal law, despite the

fact that Williams was decided after the relevant state court decision was reached.

Id.

In addition, it does not offend the comity and finality concerns that are at

the heart of AEDPA’s required deference to state court decisions if, under Teague,

we apply an old rule in disposing of a habeas claim, because our independent

application of Teague already protects these concerns. See Williams, 529 U.S. at

318, 120 S. Ct. at 1506 (Stevens, J., concurring) (“Teague . . . explain[s] that a

federal habeas court operates within the bounds of comity and finality if it applies

a rule ‘dictated by precedent existing at the time the defendant's conviction

became final.’”) (citation omitted). It does, however, allow us to consider the

83

most recent guidance from the Court on the application of its precedent to the

varied factual scenarios that come before us, which is of significant value, for

example, in addressing a claim that counsel was ineffective or a claim that the

accused’s confession was involuntary, where we are called upon to review the

application of a general rule to a specific factual scenario. See Crawford, 311 F.3d

at 1315 n.2 (“Nonetheless, we find the Williams decision helpful and relevant to

the extent that it reveals the proper application of previous Supreme Court

precedent concerning claims of ineffective assistance of counsel during the

penalty phase of a capital case.”); Williams v. Allen, 458 F.3d 1233, 1251 n.1

(11th Cir. 2006) (Barkett, J., concurring) (“Contrary to the state’s argument on

appeal, Rompilla and Wiggins, although they post-dated the relevant state-court

proceedings, are relevant to our consideration of Williams’s Strickland claim, for

they both clarify Strickland’s applicability.”) (citation omitted).64

64

We add one postscript to the above analysis. Overall, our application of Teague and the

“established Federal law” clause of § 2254(d)(1) is largely congruent, which is as it should be,

given that Teague and AEDPA implement many of the same underlying policies, such as

ensuring the finality of criminal convictions and furthering comity between federal and state

courts. See Gilmore v. Taylor, 508 U.S. 333, 340, 113 S. Ct. 2112, 2116, 124 L. Ed. 2d 306

(1993) (“The ‘new rule’ principle . . . validates reasonable, good-faith interpretations of existing

precedents made by state courts and thus effectuates the States’ interest in the finality of criminal

convictions and fosters comity between federal and state courts.”) (citation omitted); Wright,

278 F.3d at 1255 (“Those amendments, including the one that resulted in § 2254(d), plainly were

intended to require greater federal court deference to state court decisions and to promote more

federal-state judicial comity.”).

Teague and AEDPA are not entirely congruent, though, because our definition of the

84

To reiterate briefly, by applying the above principles to Williams, Wiggins,

and Rompilla, we conclude that all three cases constitute clearly established

federal law: Williams, because it was decided before the relevant state court

decision; Rompilla and Wiggins, because they are “old rules” under Teague.

Having reached this conclusion, we turn to the question of whether the state

habeas court’s decision is contrary to, or an unreasonable application of,

Strickland, Williams, Wiggins, and Rompilla. We conclude that it is not.

5.

Petitioner’s argument that the habeas court’s decision cannot be squared

with the controlling Supreme Court precedent is twofold. First, petitioner claims

that under Strickland, Manning’s investigation of his background was

unreasonable as a matter of law: Manning was given enough information to launch

a thorough background investigation, and he knew that a background investigation

relevant state court decision as the decision on the merits of the claim means that AEDPA may in

some cases restrict the scope of our review even further than Teague, when the relevant state

court decision occurs before the conclusion of direct appeal. For example, suppose a petitioner’s

claim is heard by an intermediate appellate court sometime before the conclusion of the direct

appeal process. The state supreme court denies certiorari and the denial does not constitute a

decision on the merits. The Supreme Court, however, issues a new rule under Teague after the

intermediate appellate court decides the claim but before the direct appeal process concludes. On

these facts, while we could apply this new rule retroactively on collateral attack under Teague,

we would not be able to do so under our interpretation of AEDPA, because our review is limited

to Supreme Court decisions at the time of the relevant state court decision, i.e., the intermediate

appellate court’s decision.

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was essential to an adequate preparation for the penalty phase of the trial.

Petitioner then analogizes Manning’s failure to investigate his background to

conduct of trial counsel the Supreme Court has held to be ineffective and

concludes that the state court’s decision was contrary to, or an unreasonable

application of, Strickland, Williams, Wiggins, and Rompilla.

Second, petitioner reminds us that Strickland looks to prevailing

professional norms at the time of trial as a yardstick by which to assess the

reasonableness of counsel’s performance. See Strickland, 466 U.S. at 688, 104 S.

Ct. at 2065 (“The proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.”). Applying this yardstick,

petitioner measures Manning’s conduct and concludes that it fell outside the

norms that address the need for background investigations in capital cases. He

supports his conclusion with citations to cases we decided prior to the time of his

trial, ABA guidelines, affidavits from experienced capital defense attorneys, and

admissions Manning made while testifying before the state habeas court.

Before addressing petitioner’s arguments, we reiterate some long-standing

principles that guide our review of a counsel’s decision to limit his investigation.

We then discuss how a reasonable attorney, in Manning’s position, would have

investigated petitioner’s background. Finally, we directly respond to petitioner’s

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arguments, concluding, as did the state habeas and federal district courts, that

Manning’s performance was reasonable.

In evaluating the reasonableness of a defense attorney’s investigation, we

weigh heavily the information provided by the defendant. Strickland, 466 U.S. at

691, 104 S. Ct. at 2066 (1984) (“The reasonableness of counsel's actions may be

determined or substantially influenced by the defendant’s own statements or

actions. Counsel’s actions are usually based, quite properly, on informed strategic

choices made by the defendant and on information supplied by the defendant. In

particular, what investigation decisions are reasonable depends critically on such

information.”). Indeed, “[b]ecause information about childhood abuse supplied by

a defendant is ‘extremely important’ in determining reasonable performance,

‘[w]hen a petitioner . . . does not mention a history of physical abuse, a lawyer is

not ineffective for failing to discover or to offer evidence of abuse as mitigation.’”

Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1211 (11th Cir. 2007) (quoting

Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318, 1325 (11th Cir. 2002)). As we

stated in Williams v. Head, “[a]n attorney does not render ineffective assistance by

failing to discover and develop evidence of childhood abuse that his client does

not mention to him.” 185 F.3d 1223, 1237 (11th Cir. 1999). Petitioner never

contended, and nothing in the record as much as suggests, that he informed

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Manning about the abuse he suffered as a child. Petitioner never even provided

Manning with the names of his family members.65 In fact, in testifying in his own

defense during the penalty phase of his trial, he referred to his family only with

this brief statement: “[M]y father had built a church, I was [sic] a very religious

family when I was raising [sic] up.”

We have also emphasized the importance of a mentally competent client’s

instructions in our analysis of defense counsel’s investigative performance under

the Sixth Amendment. Rutherford v. Crosby, 385 F.3d 1300, 1313 (11th Cir.

2004) (recognizing that the “duty [to investigate] does not include a requirement

to disregard a mentally competent client’s sincere and specific instructions about

an area of defense.”); Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir. 1986)

65

We note that petitioner did provide the names of his brothers to Dr. Doss, who recorded

this information in his notes. Petitioner contends that as part of a reasonable investigation,

Manning should have spoken with Dr. Doss or asked to examine his notes and thus could have

obtained this information. Manning testified at the habeas hearing that he never spoke with

members of the GFS team about petitioner's background because he thought that “since I couldn't

get [information about petitioner’s background], I didn't think [they] could get it either.”

Manning's statement seems reasonable. A defendant, we think, would provide information like

this to his counsel, charged with defending his life, before he would provide it to a psychiatrist he

would likely never speak to again. Petitioner's argument here cuts against him. There is only one

reason we can surmise for petitioner’s decision not to provide the names of his brothers to

Manning, despite Manning’s repeated requests for information on petitioner’s background and

explanation of its importance, but to disclose his brothers’ names to a psychiatrist. That reason is

that petitioner was afraid Manning would use this information to contact his family, but did not

perceive the same risk in providing this information to a psychiatrist. Thus, petitioner’s

disclosure of this information to Dr. Doss, but not to Manning, further confirms petitioner’s

desire not to have his family members involved in his trial.

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(“[A] defendant’s decision communicated to his counsel as to who he wants to

leave out of the investigation, while not negating the duty to investigate, does limit

the scope of the investigation.”). In Mulligan v. Kemp, we explained why a

client’s instructions are given such weight: “Because we recognize that a

defendant [has the choice whether or not to be represented by counsel], it follows

that, in evaluating strategic choices of trial counsel, we must give great deference

to choices which are made under the explicit direction of the client.” 771 F.2d

1436, 1441 (11th Cir. 1985). The state habeas court found that petitioner

specifically instructed Manning not to contact his family and generally

discouraged him from researching his past. Petitioner has not challenged these

findings.

Petitioner attempts to minimize the significance of his instructions by

pointing to the fact that Manning, in testifying before the habeas court, said that he

would have disregarded petitioner’s instructions altogether had he had more

information – information that might have led him to Limecrest, Ohio, and

evidence of petitioner’s early years there. The question, however, is not what

Manning said he would have done, but what a reasonably competent attorney,

standing in his shoes, would have done. As noted earlier, the reasonably

competent attorney standard is an objective, not a subjective, standard.

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A reasonably competent attorney taking stock of the situation facing

Manning would recognize the availability of the strategy Manning employed

during the penalty phase of the trial: persuade the jury that petitioner is a good

person, who acted inexplicably and totally out of character in assaulting Beatty,

and that his life should be spared. This strategy could be carried out through the

testimony of several persuasive witnesses, including Patty Parkinson, Beggs,

Bonnie Smith,66 and the ministers, both ordained and lay, who had come to know

petitioner following his arrest, who could testify first-hand to his goodness and

that his is a life worth saving.67

A reasonably competent attorney would also consider whether there is

anything in petitioner’s life history – from his upbringing in Limecrest, Ohio,

through the twenty-five years that had elapsed from his departure from Limecrest

in 1960 to his arrival on St. Simon’s Island in 1984 – that might serve as more

favorable mitigating evidence or at least buttress the strength of the testimony that

the witnesses Manning presented could provide. To find such mitigating

66

Beggs and Smith testified for the State at the guilt phase of the trial. The court

instructed the jury at the end of the penalty phase that it could consider the evidence adduced

during the guilt phase in arriving at its sentence.

67

Under Georgia law, the jury’s verdict calling for a death sentence had to be unanimous.

Fugate v. State, 431 S.E.2d 104, 108 (Ga. 1993). Absent unanimity, the jury had to recommend

a life sentence, and the court would have to impose it.

90

evidence, the reasonably competent attorney would first ask his client about his

background, as Manning did; in this case, the attorney would receive very little

information. He would have the one-page, hand written summary petitioner

prepared for Manning at Manning’s request.68 The list indicated the following:

petitioner was born and raised in Limecrest, Ohio; he attended Shawnee High

School there; he left home for California in 1960; from 1961 to 1969, he traveled

to Florida, Missouri, Oregon, and back to Florida, during which time he had two

failed marriages; and in 1980, he went to Texas, where he met Beggs. The

summary indicated that he and Beggs traveled from Texas to Oregon, and from

there, in 1983, to St. Simon’s Island. In addition to this information, the

reasonably competent attorney would know, as Manning knew, that petitioner had

served three years, from 1967 to 1970, in a Florida prison for a breaking and

entering conviction.69

68

According to his testimony before the state habeas court, Manning asked petitioner to

prepare a biography of significant events in his life, and petitioner responded with the summary

and information described in the above text.

69

Manning learned about the Florida conviction from the prosecutor, Crowe. After

Crowe told him about it, Manning questioned petitioner about the conviction; he responded that

it was nothing significant. A reasonably competent attorney would ask petitioner about his

criminal record aside from the Florida conviction, but would learn nothing. Crowe told Manning

on the eve of trial that petitioner had been arrested in Tennessee for sexually assaulting a woman

while he was intoxicated. Crowe intended to introduce the arrest into evidence during the

penalty phase of the trial, but Manning persuaded the court to bar the evidence. Petitioner told

Drs. Crown and Hyde about the Tennessee arrest; he recalled that he was arrested, and what he

was charged with, but said he had no memory of the assault.

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Equipped with the foregoing information, the reasonably competent

attorney would ask his client more about his background, but would be told, as

Manning was, not to contact his family and to stay away from his past. He would

not stop there. He would inquire of Beggs and others, as Manning did, but find

nothing to augment what he already knew. The report Dr. Clary issued, after

examining petitioner, revealed more about his life – that petitioner led a hippie

lifestyle after leaving home and had been a heavy drug and alcohol user until the

past few years. Petitioner argues that, notwithstanding the above, a reasonably

competent attorney would have investigated his childhood, discovered the

physical abuse and miserable living conditions described in the affidavits

proffered to the state habeas court, and concluded that the same constituted

significantly persuasive mitigating evidence. Absent such investigation, his

argument continues, a reasonably competent attorney could not have made the

tactical decision to pursue the strategy Manning pursued in the penalty phase of

petitioner’s case. Put another way, Manning could not reasonably have opted for

the strategy he followed without conducting an investigation for potential

childhood abuse.

To the contrary, our hypothetical attorney could reasonably have concluded

that the type of personal history petitioner contends should have been uncovered

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and presented during the penalty phase would not be probative as mitigation in the

eyes of the jury, as we discuss in greater detail in subpart C, infra, and thus would

have opted for the strategy Manning pursued. Moreover, when limited by his

client’s instructions not to contact his family or otherwise delve into his

background, a reasonably competent attorney standing in Manning’s shoes would

have gone no further than Manning did to seek mitigating evidence from the

client’s past. See Porter v. Singletary, 14 F.3d 554, 559 (11th Cir. 1994)

(Counsel’s investigation consisting of speaking with defendant was held

reasonable, when defendant did not provide counsel with any information about

troubled childhood); Mitchell v. Kemp, 762 F.2d 886, 889–90 (11th Cir. 1985)

(Counsel’s investigation consisting of speaking with defendant and defendant’s

father held reasonable, when defendant did not provide any information about

troubled childhood and told counsel to “leave [his family] out of it.”).

We are not persuaded by petitioner’s attempt to analogize the present case

to Williams, Wiggins, or Rompilla. Petitioner argues that in Rompilla and

Wiggins, the defendants did not offer their attorneys leads for investigation; yet,

the Court still found counsel ineffective. Drawing analogies to these two cases,

petitioner implies that his failure to inform Manning about his abusive childhood

should have no bearing on our analysis of his claim.

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This argument misstates the holdings in Rompilla and Wiggins. In

Rompilla, the defendant’s “own contributions to any mitigation case were

minimal,” but this was irrelevant to the Court’s decision on effectiveness. 545

U.S. at 381, 125 S. Ct. at 2462. The Court held counsel ineffective because they

failed to examine a readily available file containing information about Rompilla’s

prior conviction for rape and assault, despite knowing that the prosecutor was

planning on using Rompilla’s prior conviction as an aggravating factor in seeking

a death sentence. Id. at 383, 125 S. Ct. at 2463. The Court never fully addressed

the significance of Rompilla’s lack of cooperation. Id. (“There is no need to say

more [regarding whether counsel should have further investigated Rompilla’s

background], however, for a further point is clear and dispositive: the lawyers

were deficient in failing to examine the court file on Rompilla’s prior

conviction.”).

In Wiggins, the defendant never informed counsel about the sexual abuse

he suffered as a child, but did describe his own background as “disgusting” in a

pre-sentence investigation report, to which counsel had access. 539 U.S. at 523,

123 S. Ct. at 2536. In addition, the Court never directly addressed the significance

of Wiggins’s failure to inform counsel about his sexual abuse, because counsel

had sufficient information from available records to encourage further

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investigation into Wiggins’s upbringing, independent of any information provided

by Wiggins. Id. at 524, 123 S. Ct. at 2537. For purposes of our review under

section 2254(d)(1), federal law consists of the holdings of Supreme Court cases,

not the dicta, and petitioner is not even relying on dicta; these cases simply say

nothing about the significance of Rompilla’s or Wiggins’s failure to provide

information to counsel. See Gore, 492 F.3d at 1294. (“Section 2254(d)(1)

explicitly establishes Supreme Court precedent as the vel non of ‘clearly

established federal law.’ Our basis for comparison, therefore, is the holdings – not

the dicta – of Supreme Court decisions at the time the Florida Supreme Court

issued its opinion.”) (citation omitted).

To the extent that the defendants in Wiggins and Rompilla were less than

forthcoming with trial counsel, this has a different, and less significant, effect on

our analysis than when, as in this case, the petitioner instructs counsel not to

contact his family. We find a recent Supreme Court decision, Schriro v.

Landrigan, instructive in this regard. __U.S.__, 127 S. Ct. 1933, 1942, 167 L. Ed.

2d 836 (2007). The defendant in Schriro “informed his counsel not to present any

mitigating evidence,” in a colloquy before the trial judge. __ U.S.__, 127 S. Ct. at

1941. The Court compared this to the defendant’s behavior in Wiggins,

Strickland, and Rompilla, stating: “Indeed, we have never addressed a situation

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like this. In Rompilla v. Beard . . . the defendant refused to assist in the

development of a mitigation case, but did not inform the court that he did not want

mitigating evidence presented.” Id. at 1942. While petitioner’s conduct in this

case is not as extreme as the defendant’s conduct in Schriro, we follow the Court

in drawing a distinction between a defendant’s pas

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