Ward v. Hall

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED

U.S. COURT OF APPEALS

No. 07-11360 ELEVENTH CIRCUIT

JAN 4, 2010

________________________

JOHN LEY

ACTING CLERK

D. C. Docket No. 04-00106-CV-HLM

JAMES RAY WARD,

Petitioner-Appellant,

versus

WARDEN HILTON HALL,

Georgia Diagnostic Prison,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(January 4, 2010)

Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.

BIRCH, Circuit Judge:

Petitioner James Ray Ward, a Georgia death-row inmate, appeals the

judgment of the United States District Court for the Northern District of Georgia

denying his petition for the writ of habeas corpus, brought pursuant to 28 U.S.C.

§ 2254. He raises issues challenging the validity of his convictions as well as his

death sentence.1 After careful consideration of the entire record, including oral

argument, we AFFIRM Ward’s convictions for murder, kidnaping with bodily

injury, and feticide. As explained in Section IIE, however, we conclude that an

improper bailiff-jury communication during the penalty phase violated Ward’s

constitutional right to a fair trial and a reliable sentence. We therefore REVERSE

his death sentence and REMAND for a new sentencing phase hearing.

1

Ward’s claims, as formulated by the district court, include: (1) whether the district court

erred in denying Ward’s motion for an evidentiary hearing; (2) whether the district court erred in

denying Ward’s motion to expand the record; (3) whether the district court erred in denying

Ward’s claim in which he asserted that his counsel provided ineffective assistance by failing to

investigate and present evidence of Ward’s background and positive character traits in mitigation

at sentencing; (4) whether the district court erred in denying Ward’s claim in which he

contended that his counsel provided ineffective assistance by failing to obtain competent,

independent mental health expert assistance to prepare for trial and to present evidence; (5)

whether the district court erred in determining that Ward’s claim of juror/bailiff misconduct was

procedurally defaulted and was not meritorious; (6) whether the district court erred in denying

Ward’s claim in which he asserted that his counsel provided ineffective assistance by failing to

preserve the juror/bailiff misconduct claim by raising it on appeal; (7) whether the district court

erred in denying Ward’s claim that the state violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194 (1963); and (8) whether the district court erred in denying Ward’s claim that the unanimity

instruction given by the trial court was unconstitutional.

2

I. BACKGROUND

In its order denying Ward’s petition for a writ of habeas corpus, the district

court reiterated the following findings of fact made by the Georgia Supreme Court

in connection with Ward’s direct appeal:

The victim’s husband left for work at 6:00 a.m. on August 17,

1989. When he returned from work that evening, the 23-year-old

victim, who was five months pregnant, was missing, along with her

car. Their 22-month-old daughter was at home by herself.

When the police arrived later that evening, many friends and

relatives were present. At first, nothing appeared to be missing except

for the victim and her car, but eventually it was learned that a

telephone cord had been forcibly removed from the wall jack (leaving

the plug), that most of the victim’s underwear had been removed from

her dresser drawer, and that a quilt and a baby blanket had been taken.

The victim’s car was discovered the next day on an unpaved

logging road. Her body was discovered the day after that in a trash

dump several miles away. Ligature marks around her wrists and

ankles indicated she had been bound. Three of her ribs were broken

and there were various bruises about her body. Her fetus was in a

partially delivered condition. The mother died of asphyxiation

resulting from her pharynx being stuffed with wadded-up paper

towels. The death of the mother resulted in the destruction of the

fetus.

No clear suspects were developed for several months. Then,

early in the morning of December 18, 1989, the defendant, wearing

gloves and a stocking mask, broke into a Gordon County home and

kidnapped a woman [Donna Rich] from her bed as she lay sleeping

with her nine-year-old daughter. He drove the woman to an

abandoned farmhouse, forced her to model negligees he had brought

with him, and raped her. Then he took her to another abandoned

house and raped her again. He told her that he had killed two people

3

and pointed out a “good place” to “dump bodies” if she ever wanted

to. He also told her he had been watching her and told her some

things about her personal situation that a stranger should not have

known. He returned her to her home. Later, she discovered that some

of her underwear was missing.

The Gordon County police arrested the defendant at his

residence. The defendant’s home was unfinished inside. Most of the

walls were not sheetrocked and there was no running water and,

except for the bedroom, no electricity. The unfinished rooms were

full of boxes containing several thousands of dollars worth of lingerie

and adult magazines. The defendant maintained notebooks carefully

labelling (sic) and indexing magazines and lingerie catalogs

(including descriptions and numerical ratings of women in the

magazines). The officers found scraps of paper with physical

descriptions of and tag numbers for women; dates, times and locations

of observations; directions to their homes; newspaper clippings about

rapes, murders and missing women; newspaper photographs of

women; and driver’s licenses and insurance cards belonging to

various women.

In addition, officers found handwritten directions to the home

of the victim in this case, her swimming suit bottom, her quilt and

baby blanket, and – hidden under a pile of wood – six newspaper

articles about her disappearance.

On January 18, 1990, the defendant admitted to police that he

had visited the victim’s home to check on a well he had helped drill

earlier and had spoken to her. He said:

I don’t know if I done anything to the girl or not. I could have

done it. . . .

I been a liar all my life. I need some help. If I done it, I didn’t

mean for it to happen and I am sorry.

R4-77 at 48-52.

4

Ward was convicted by a jury in Walker County, Georgia, of feticide and the

kidnaping and murder of Nikia Gilbreath and sentenced to death. Ward appealed

his convictions and sentence to the Georgia Supreme Court. The Georgia Supreme

Court affirmed Ward’s convictions and sentence on 11 June 1992 and denied his

motion for reconsideration on 2 July 1992. See Ward v. State, 417 S.E.2d 130 (Ga.

1992).

Ward then filed a petition for a writ of certiorari with the United States

Supreme Court which was denied on 19 January 1993. See Ward v. Georgia, 506

U.S. 1085, 113 S. Ct. 1061 (1993). Ward’s petition for a re-hearing was likewise

denied by the Supreme Court on 8 March 1993. See Ward v. Georgia, 507 U.S.

980, 113 S. Ct. 1438 (1993).

On 19 April 1993, Ward filed a petition for a writ of habeas corpus (“state

habeas petition”) in the Superior Court of Butts County, Georgia.2 The state

habeas court conducted evidentiary hearings with respect to Ward’s state habeas

petition on 31 July 1997, 21 October 1997, 22 October 1997, and 22 December

1997. The court found that four of Ward’s claims were procedurally defaulted

because Ward failed to raise those claims on direct appeal and ultimately denied

Ward’s state habeas petition on 27 August 1998.

2

Ward filed an amended petition in June 1995.

5

In response to Ward’s application for a certificate of probable cause to

appeal, the Georgia Supreme Court remanded Ward’s state habeas petition to the

Butts County Superior Court.3 After complying with the instructions of the

Georgia Supreme Court, the state habeas court issued a second order making

additional findings but again denying Ward’s state habeas petition.

Ward filed a second application for a certificate of probable cause to appeal

with the Georgia Supreme Court which was denied on 30 April 2003. Ward then

filed another petition for a writ of certiorari with the United States Supreme Court,

which was again denied, as was his petition for re-hearing.

On 29 April 2004, Ward filed his 28 U.S.C. § 2254 petition (“federal habeas

petition”) in the district court. He advanced thirty-six claims (as numbered in

district court’s order, see R4-77 at 23-39). The district court then directed both

Ward and the state to file briefs addressing procedurally defaulted claims and

unexhausted claims. After considering the briefs, the district court concluded that

twenty-seven of Ward’s claims were procedurally barred – four claims were

procedurally defaulted because Ward failed to raise them on direct appeal and

3

The Georgia Supreme Court directed further review of the reasonableness of counsels’

conduct regarding scientific testing of apparent blood stains found on Ms. Gilbreath’s quilt, and

permitted additional questioning of trial counsel, testing of blood, and further evidentiary

development concerning the bloodstain issue. The state habeas court was also required to clarify

the portion of its order that rejected Ward’s claim that the bailiffs in his case had not been sworn.

6

twenty-three were determined to be unexhausted and so procedurally barred. Ward

filed a motion for reconsideration, which was denied on 6 October 2005.

On 14 October 2005, Ward filed a motion for leave to conduct discovery.

The district court denied the motion on 19 December 2005. On 3 May 2006, Ward

filed a motion for an evidentiary hearing. The district court denied that motion on

2 June 2006.

After considering Ward’s memorandum in support of his petition for a writ

of habeas corpus, the state’s brief in opposition, and Ward’s reply brief, the district

court denied Ward’s petition on 6 February 2007. Ward filed a motion to alter or

amend, which the district court also denied. The district court then granted Ward’s

motion for a certificate of appealability on eleven claims, eight of which are before

us in this case.4

II. DISCUSSION

“We review de novo a district court’s grant or denial of a habeas corpus

petition. The district court’s factual findings are reviewed for clear error, while

mixed questions of law and fact are reviewed de novo. An ineffective assistance of

4

The three issues included in the district court’s certificate of appealability but not raised

by Ward include: (1) Ward’s claim that his counsel provided ineffective assistance by failing to

challenge biased jurors; (2) his contention that the state made several improper and prejudicial

arguments; and (3) the district court’s denial of his motion for discovery.

7

counsel claim is a mixed question of law and fact subject to de novo review.”

McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005) (citations omitted).

Because Ward filed his federal habeas petition after 24 April 1996, this case

is governed by the Anti-terrorism and Effective Death Penalty Act of 1996

(“AEDPA”). AEDPA precludes federal courts from granting habeas relief on

claims that were previously adjudicated in state court unless the adjudication

(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).

As explained by the Supreme Court, the phrase “‘clearly established Federal

law’ . . . refers to the holdings . . . of [the Supreme Court’s] decisions as of the

time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412,

120 S. Ct. 1495, 1523 (2000). We have held that to be “contrary to” clearly

established federal law, the state court must either (1) apply a rule “that contradicts

the governing law set forth by Supreme Court case law,” or (2) reach a different

result from the Supreme Court “when faced with materially indistinguishable

facts.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2003).

8

As regards the “unreasonable application” prong of § 2254(d)(1), we have

held as follows:

A state court decision is an unreasonable application of clearly

established law if the state court unreasonably extends or fails to

extend a clearly established legal principle to a new context. An

application of federal law cannot be considered unreasonable merely

because it is, in our judgment, incorrect or erroneous; a state court

decision must also be unreasonable. Questions of law and mixed

questions of law and fact are reviewed de novo, as is the district

court’s conclusion regarding the reasonableness of the state court’s

application of federal law.

Jennings v. McDonough, 490 F.3d 1230, 1236 (11th Cir. 2007) (quotation marks

and citations omitted). In sum, “a federal habeas court making the ‘unreasonable

application’ inquiry should ask whether the state court’s application of clearly

established federal law was objectively unreasonable.” Williams, 529 U.S. at 409,

120 S. Ct. at 1521. Finally, 28 U.S.C. § 2254(e)(1) commands that for a writ to

issue because the state court made an “unreasonable determination of the facts,”

the petitioner must rebut “the presumption of correctness [of a state court’s factual

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

A critical prerequisite for any state petitioner seeking federal habeas relief is

the requirement that he first properly raise the federal constitutional claim in the

state courts. See id. § 2254(b). The exhaustion requirement springs from

principles of comity, which protect the state court’s role in the enforcement of

9

federal law and prevent disruption of state court proceedings. See Rose v. Lundy,

455 U.S. 509, 518, 102 S. Ct. 1198, 1203 (1982). The statute provides that:

(b)(1) 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 unless it appears that –

(A) the applicant has exhausted the remedies

available in the courts of the State; or

(B)(i) there is an absence of available State corrective

process; or

(ii) circumstances exist that render such process

ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the

merits, notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State.

(3) A State shall not be deemed to have waived the exhaustion

requirement or be estopped from reliance upon the requirement unless

the State, through counsel, expressly waives the requirement.

28 U.S.C. § 2254(b). Thus, in order to exhaust state remedies, a petitioner must

fairly present every issue raised in his federal petition to the state’s highest court,

either on direct appeal or on collateral review. See Castille v. Peoples, 489 U.S.

346, 351, 109 S. Ct. 1056, 1060 (1989) (quotation marks and citation omitted). In

addition, the state court petition must make the state courts aware that the claims

asserted do, in fact, raise federal constitutional issues. See Snowden v. Singletary,

135 F.3d 732, 735 (11th Cir. 1998). If a petitioner fails to exhaust state remedies,

10

the district court should dismiss the petition without prejudice to allow exhaustion.

See Rose, 455 U.S. at 519-20, 102 S. Ct. at 1203-04.

“The teeth of the exhaustion requirement comes from its handmaiden, the

procedural default doctrine.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir.

2001). The doctrine of procedural default dictates that “[a] state court’s rejection

of a petitioner’s constitutional claim on state procedural grounds will generally

preclude any subsequent federal habeas review of that claim.” Judd v. Haley, 250

F.3d 1308, 1313 (11th Cir. 2001). However, a state court’s rejection of a federal

constitutional claim on procedural grounds may only preclude federal review if the

state procedural ruling rests upon “adequate and independent” state grounds.

Marek v. Singletary, 62 F.3d 1295, 1301 (11th Cir. 1995) (citation omitted).

We have “established a three-part test to enable us to determine when a state

court’s procedural ruling constitutes an independent and adequate state rule of

decision.” Judd, 250 F.3d at 1313. “First, the last state court rendering a judgment

in the case must clearly and expressly state that it is relying on state procedural

rules to resolve the federal claim without reaching the merits of that claim.”5 Id.

5

We qualify Judd’s first prong with the following observation from the Supreme Court:

The problem we face arises, of course, because many formulary orders are

not meant to convey anything as to the reason for the decision. Attributing a reason

is therefore both difficult and artificial. We think that the attribution necessary for

federal habeas purposes can be facilitated, and sound results more often assured, by

applying the following presumption: Where there has been one reasoned state

11

Second, the state court’s decision must rest entirely on state law grounds and not

be intertwined with an interpretation of federal law. See id. Third, the state

procedural rule must be adequate, i.e., firmly established and regularly followed

and not applied “in an arbitrary or unprecedented fashion.” Id.

A federal court may still address the merits of a procedurally defaulted claim

if the petitioner can show cause for the default and actual prejudice resulting from

the alleged constitutional violation. See Wainwright v. Sykes, 433 U.S. 72, 84-85,

97 S. Ct. 2497, 2505 (1977). To show cause, the petitioner must demonstrate

“some objective factor external to the defense” that impeded his effort to raise the

claim properly in state court. Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct.

2639, 2645 (1986). A showing that the legal basis for a claim was not “reasonably

available to counsel” could constitute cause. Reed v. Ross, 468 U.S. 1, 16, 104 S.

Ct. 2901, 2910 (1984). We have also determined that an ineffective-assistance-of-

counsel claim, if both exhausted and not procedurally defaulted, may constitute

judgment rejecting a federal claim, later unexplained orders upholding that judgment

or rejecting the same claim rest upon the same ground. If an earlier opinion “fairly

appears to rest primarily upon federal law, we will presume that no procedural

default has been invoked by a subsequent unexplained order that leaves the judgment

or its consequences in place. Similarly where, as here, the last reasoned opinion on

the claim explicitly imposes a procedural default, we will presume that a later

decision rejecting the claim did not silently disregard that bar and consider the

merits.

Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 2594 (1991) (quotation marks,

citations and alterations omitted).

12

cause. See Hill v. Jones, 81 F.3d 1015, 1031 (11th Cir. 1996). As stated by the

Supreme Court, “ineffective assistance adequate to establish cause for the

procedural default of some other constitutional claim is itself an independent

constitutional claim.” Edwards v. Carpenter, 529 U.S. 446, 451, 120 S. Ct. 1587,

1591 (2000).

It is well established that if the petitioner fails to show cause, we need not

proceed to the issue of prejudice. See McCleskey v. Zant, 499 U.S. 467, 502, 111

S. Ct. 1454, 1474 (1991). Once cause is established, however, the petitioner also

must show actual prejudice from the alleged constitutional violation. See Sykes,

433 U.S. at 84, 97 S. Ct. at 2505. We have held that in order to show prejudice, a

petitioner must demonstrate that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied fundamental fairness.” McCoy v.

Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992) (per curiam).

Finally, if a petitioner cannot show cause and prejudice, there remains yet

another avenue for him to receive consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a constitutional violation has

probably resulted in the conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence of a showing of cause for the

procedural default.” Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This exception

13

is exceedingly narrow in scope,” however, and requires proof of actual innocence,

not just legal innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001).

Having established the legal framework governing Ward’s habeas petition,

we address each of his arguments in turn.

A. Ward’s Motion for an Evidentiary Hearing

Ward contends that the district court erred in denying his motion for an

evidentiary hearing.6 Ward argues that an evidentiary hearing was necessary for

him to present evidence in support of his claim of ineffective assistance of counsel

during the sentencing phase of his trial. He asserts that he was unable to develop

those claims fully in the state habeas court proceedings through no fault of his own

but rather due to the budget and staffing problems of the Georgia Appellate

Practice and Educational Resource Center (“Georgia Resource Center”).7 Ward

maintains that 28 U.S.C. § 2254(e)(2) does not apply to him because he was

reasonably diligent in his attempt to develop the record in state court.

He submits that the Georgia courts’ refusal to fund investigative efforts “cannot

translate into a failure to develop” on his part. R2-48 at 12.

6

We note that Ward’s argument on appeal mirrors his argument before the district court

on this issue.

7

The Georgia Resource Center was established by the Georgia Supreme Court in 1988 in

order to recruit volunteer counsel for Georgia capital post-conviction cases.

14

Specifically, Ward seeks an evidentiary hearing in order to present evidence

that his trial counsel provided ineffective assistance by failing to present sufficient

mitigating evidence during the sentencing phase of his trial, and by failing to

obtain competent, independent mental health expert assistance to prepare for trial

and to present evidence. Ward contends that numerous witnesses were available to

testify about his troubled childhood, the allegedly harsh conditions imposed by his

adoptive parents, his poor school performance, and his good character as an adult.

In addition, Ward argues that his trial counsel failed to secure and submit affidavits

from members of the community who would have asked the jury to spare his life.

Under 28 U.S.C. § 2254(e)(2), as amended by the AEDPA, a federal court

shall not hold an evidentiary hearing on a claim if the petitioner has failed to

develop the factual basis for the claim in state court unless the petitioner shows that

(A) the claim relies on –

(i) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for

constitutional error, no reasonable fact-finder would have found

the applicant guilty of the underlying offense.

15

28 U.S.C. § 2254(e)(2). If the petitioner was not diligent in his efforts to develop

his claim in state court, he may not receive an evidentiary hearing unless he can

satisfy the provisions of § 2254(e)(2)(A) and (B). See Williams v. Taylor, 529

U.S. 420, 437, 120 S. Ct. 1479, 1491 (2000).

As regards the diligence requirement, the Supreme Court instructs us that

[f]or state courts to have their rightful opportunity to adjudicate

federal rights, the prisoner must be diligent in developing the record

and presenting, if possible, all claims of constitutional error. If the

prisoner fails to do so, himself or herself contributing to the absence

of a full and fair adjudication in state court, § 2254(e)(2) prohibits an

evidentiary hearing to develop the relevant claims in federal court,

unless the statute’s other stringent requirements are met. Federal

courts sitting in habeas are not an alternative forum for trying facts

and issues which a prisoner made insufficient effort to pursue in state

proceedings. Yet comity is not served by saying a prisoner has failed

to develop the factual basis of a claim where he was unable to develop

his claim in state court despite diligent effort. In that circumstance, an

evidentiary hearing is not barred by § 2254(e)(2).

Id. (quotation marks omitted). In light of this guidance, the question of whether a

petitioner must satisfy § 2254(e)(2)’s requirements turns on whether the petitioner

or his counsel were diligent in developing the record in the state habeas

proceedings. If so, a federal court may grant an evidentiary hearing without further

regard for the provisions of § 2254(e)(2). If not, § 2254(e)(2)’s requirements must

be met. We review a district court’s decision to grant or deny an evidentiary

hearing for abuse of discretion, see McNair, 416 F.3d at 1297, and note that a

16

determination of diligence is a finding of fact which we will not disturb unless it is

clearly erroneous. See Hall v. Head, 310 F.3d 683, 697 (11th Cir. 2002).

On 2 June 2006, the district court denied Ward’s motion for an evidentiary

hearing. The district court concluded that Ward was not diligent in developing the

facts underlying his claims of ineffective assistance of counsel (for failure to

investigate adequately and present mitigating evidence during sentencing and for

failure to obtain competent, independent mental health expert assistance to prepare

for trial and to present evidence) in the state habeas proceedings. The district court

presented four reasons for its decision.

First, the district court looked to our decisions in McNair and Isaacs v. Head,

300 F.3d 1232 (11th Cir. 2002). The district court relied upon our finding in

McNair that the district court in that case abused its discretion in granting an

evidentiary hearing because, inter alia, the petitioner had failed to present any

evidence before the state habeas court in support of his ineffective assistance of

counsel claim, even though he had ample opportunity to do so. See McNair, 416

F.3d at 1299. The district court also cited our determination in Isaacs that the

petitioner was not entitled to an evidentiary hearing before the federal habeas court

because he failed to develop the factual predicate underlying his claim when

17

presented with an opportunity to do so before the state habeas court. See Isaacs,

300 F.3d at 1249-50.

Second, the district court reiterated the rule that a petitioner must raise

claims of which he or his counsel are aware in the state habeas proceedings. Third,

the district court cited two Fifth Circuit opinions in support of its determination

that Ward should have obtained and presented the affidavits and testimony at issue

in the state habeas proceedings and that any argument about lack of funding is

without merit because “‘[o]btaining affidavits from family members is not cost

prohibitive.’” R2-53 at 22 (quoting Dowthitt v. Johnson, 230 F.3d 733, 758 (5th

Cir. 2000)); see also Roberts v. Dretke, 356 F.3d 632, 641 (5th Cir. 2004)

(“Seeking and presenting medical records and affidavits from family members

available at the time of the state habeas hearing is within the exercise of due

diligence.”). Finally, the district court referenced another district court case for the

proposition that a

[p]etitioner’s complaint about limited funding for investigative

expenses incurred during his state habeas corpus proceeding does not

excuse the failure of petitioner’s state habeas counsel to contact

petitioner’s family members and others possessing personal

knowledge of the matters central to petitioner’s unexhausted claims

herein. The failure to present the state habeas court with either

specific factual allegations or affidavits from petitioner and

petitioner’s family supporting petitioner’s unexhausted claims herein

was not of due diligence.

18

Gutierrez v. Dretke, 392 F. Supp. 2d 802, 891 (W.D. Tex. 2005).

In short, the district court concluded that because Ward failed to present the

evidence (testimony and affidavits from family and friends) at his state habeas

proceeding that he now seeks to introduce via an evidentiary hearing at his federal

habeas proceeding, his protestation of diligence fell short of the mark. The district

court noted that Ward did manage to present some evidence underlying his claims

to the state habeas court – a fact that signaled to the district court that Ward’s state

habeas counsel “indeed had sufficient funding and time to do at least some

investigation and evidence gathering, but that counsel simply chose not to pursue

the affidavits that [Ward] now seeks to present.” R2-53 at 24. After finding that

Ward was not sufficiently diligent at the state habeas proceedings, the district court

also determined that he did not meet the more stringent requirements of §

2254(e)(2)(A) and (B).

Based on our review of the record, we conclude that the district court’s

finding that Ward was not diligent was not clearly erroneous and its denial of

Ward’s motion for an evidentiary hearing was not an abuse of discretion. First, we

consider the time line involved. Ward filed his state habeas petition on 19 April

1993. On 21 November 1994, the Georgia Resource Center assumed responsibility

for Ward’s case. The superior court set a tentative date for an evidentiary hearing

19

for June or July 1995, providing Ward with at least seven months to secure

affidavits and other witness testimony. The evidentiary hearing was then

rescheduled for 21-22 November 1995.8 It was then delayed again until 29-30

May 1997, and then again until 31 July 1997. At that point, Ward had had over

two years to prepare for the evidentiary hearing before the state habeas court. In

addition, two more evidentiary hearings were held, one from 21-22 October 1997

and another on 22 December 1997. Over the course of the four days of evidentiary

hearings, Ward ultimately tendered thirty-seven exhibits, including twelve

affidavits and one deposition.

Given the fact that Ward was afforded approximately three years to secure

affidavits and witness testimony prior to his state habeas evidentiary hearings and

managed to submit numerous exhibits and affidavits during the course of his

hearings, including affidavit testimony from family members, friends,

acquaintances, and former jurors, we cannot credit his claim that he exercised due

diligence. Indeed, the record compels the contrary conclusion that Ward, as the

district court correctly found, “simply chose not to pursue the affidavits [then] that

[he] now seeks to present.” R2-53 at 24. Moreover, Ward presents no evidence

suggesting that the material that he now seeks to present was not available during

8

During this time period (November - December 1995), Mr. Stephen Bayliss (“Bayliss”)

became counsel of record for Ward.

20

the period between the submission of his state habeas petition and his state habeas

evidentiary hearings, nor has he offered any legal authority in support of his claim

that limited funding somehow excuses his or his state habeas counsel’s failure to

contact additional potential witnesses or to gather additional evidence.

Accordingly, we conclude that Ward was not diligent. As such, he is subject to

§ 2254(e)(2)(A) and (B)’s more exacting standard. See Waters v. Thomas, 46 F.3d

1506, 1514 (11th Cir. 1995) (en banc) (“That other witnesses could have been

called or other testimony elicited usually proves at most the wholly unremarkable

fact that with the luxury of time and the opportunity to focus resources on specific

parts of a made record, post-conviction counsel will inevitably identify

shortcomings in the performance of prior counsel.”).

As we already have indicated, we also agree with the district court’s findings

regarding Ward’s failure to satisfy the requirements of § 2254(e)(2)(A) and (B).

Ward’s argument hinges on the threshold question of his diligence in developing

the record underlying his claims in the state habeas proceedings. He presents no

alternative argument should we find, as we have, that he is subject to

§ 2254(e)(2)(A) and (B). We note that Ward seeks to submit material via a federal

habeas evidentiary hearing in support of both a claim relating to his sentence (i.e.,

Ward’s contention that his trial counsel provided ineffective assistance in failing to

21

investigate adequately and present mitigating evidence at the sentencing phase of

his trial) and a claim arguably relating to both the guilt and innocence phase and

the sentencing phase of his trial (i.e., Ward’s claim that his trial counsel provided

ineffective assistance by failing to obtain competent, independent mental health

expert assistance to prepare for trial). First, we previously have determined that

the § 2254(e)(2)(A) and (B) exceptions do not apply to issues relating to the

sentencing phase of a trial. See In re Jones, 137 F.3d 1271, 1274 (11th Cir. 1998)

(per curiam) (“As [we have] noted, and the statute itself specifies, this exception

applies only to claims going to the question of whether or not the applicant is

‘guilty of the underlying offense’ – not to claims related to sentence.”). Second,

Ward has not established that his ineffective-assistance-of-counsel claim regarding

the failure to obtain independent mental health expert assistance meets any of the

exceptions enumerated in § 2254(e)(2)(A) and (B). Accordingly, we conclude that

the district court did not abuse its discretion in denying Ward an evidentiary

hearing.

B. Ward’s Motion to Expand the Record

Ward argues that the district court erred in denying his 23 October 2006

motion to expand the record pursuant to Rule 7(a) of the Rules Governing Section

22

2254 Cases (“Rule 7”).9 In his motion to the district court, Ward sought the

introduction of the same affidavits that he submitted with his previous motion for

an evidentiary hearing. The district court denied the motion, stating that its

“[c]onsider[ation] [of] the affidavits in connection with the merits of [Ward’s]

§ 2254 Petition would, in effect, allow [Ward] to do an end-run around the Court’s

decision denying [Ward] an evidentiary hearing.” R3-68 at 4-5. On appeal, Ward

challenges the district court’s reference to § 2254(e)(2), arguing that because

§ 2254(e)(2) concerns requests for evidentiary hearings, it was error for the district

court to look to that provision in ruling on Ward’s motion to expand the record.

We review a district court’s denial of a Rule 7 motion to expand the record

for abuse of discretion. See Haliburton v. Sec’y for the Dep’t of Corr., 342 F.3d

1233, 1242 (11th Cir. 2003); see also Ford v. Seabold, 841 F.2d 677, 691 (6th Cir.

9

Rule 7 of the Rules Governing Section 2254 Cases (“Rule 7”) provides:

(a) In general. If the petition is not dismissed, the judge may direct the parties to

expand the record by submitting additional materials relating to the petition. The

judge may require that these materials be authenticated.

(b) Types of materials. The materials that may be required include letters predating

the filing of the petition, documents, exhibits, and answers under oath to written

interrogatories propounded by the judge. Affidavits may also be submitted and

considered as part of the record.

(c) Review by the opposing party. The judge must give the party against whom the

additional materials are offered an opportunity to admit or deny their correctness.

28 U.S.C. § 2254 Rule 7.

23

1988). Although we have not yet addressed the interplay between § 2254(e)(2)

and Rule 7, the Supreme Court and two of our sister circuits have. In Holland v.

Jackson, 542 U.S. 649, 652-53, 124 S. Ct. 2736, 2738 (2004), the Court

determined that

[u]nder the habeas statute, [the witness’s] statement could have been

the subject of an evidentiary hearing by the District Court, but only if

respondent was not at fault in failing to develop that evidence in state

court, or (if he was at fault) if the conditions prescribed by §

2254(e)(2) were met. Those same restrictions apply a fortiori when a

prisoner seeks relief based on new evidence without an evidentiary

hearing.

Id. (citations omitted). The Seventh Circuit formulated its rationale as follows:

The ability of a habeas petitioner to introduce new evidence

into the record depends on the interplay between two provisions: 28

U.S.C. § 2254(e)(2) and Habeas Corpus Rule 7. Section 2254(e)(2)

addresses the requirements to obtain an evidentiary hearing. It

provides: “If the applicant has failed to develop the factual basis of a

claim in State court proceedings, the court shall not hold an

evidentiary hearing on the claim unless the applicant shows . . . a

factual predicate that could not have been previously discovered

through the exercise of due diligence.” Habeas Rule 7 preceded the

enactment of this provision and speaks to when a district court may

expand the record. It provides that the district ‘judge may direct that

the record be expanded by the parties by the inclusion of additional

materials relevant to the determination of the merits of the petition.’

....

. . . When expansion of the record is used to achieve the same

end as an evidentiary hearing, the petitioner ought to be subject to the

same constraints that would be imposed if he had sought an

evidentiary hearing. . . . Thus, to introduce . . . new affidavits, [the

petitioner] must satisfy the standards of § 2254(e)(2).

24

Owens v. Frank, 394 F.3d 490, 498-99 (7th Cir. 2005) (quotation marks and

citations omitted). Likewise, the Ninth Circuit concisely summed up its holding on

this matter by stating that

[t]he Supreme Court recently made clear in Holland v. Jackson,

that the conditions of § 2254(e)(2) generally apply to Petitioners

seeking relief based on new evidence, even when they do not seek an

evidentiary hearing. An exception to this general rule exists if a

Petitioner exercised diligence in his efforts to develop the factual basis

of his claims in state court proceedings. We hold that this exception

does not apply because . . . Petitioner did not exercise the required

diligence. Thus, under Holland, he must comply with § 2254(e)(2) in

order to expand the record under Rule 7.

Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005) (citations

omitted).

In light of the Supreme Court’s guidance in Holland and our sister circuits’

considered positions on the issue, and given our previous conclusion concerning

Ward’s lack of diligence, we conclude that Ward must comply with § 2254(e)(2) in

order to expand the record under Rule 7. Because we find that he cannot meet that

burden, we conclude that the district court did not err in denying Ward’s motion to

expand the record.

C. Ineffective Assistance of Counsel for Failure to Investigate Mitigating Factors

for the Sentencing Phase

25

Ward argues that his trial counsel, Christopher Townley (“Townley”)10,

failed to conduct an adequate background investigation before deciding on a

strategy for the sentencing phase of his trial. He claims that although a private

investigator was hired for the case, his duties extended solely to the merits phase of

the trial and that the task of developing background information for sentencing was

delegated to Townley’s legal assistant, Deana Jones (“Jones”). Ward challenges

Townley’s testimony at the state habeas proceeding that he gained sufficient

information about Ward’s background by speaking with some of Ward’s family

members and by having others interviewed by staff members. Ward contends that

Townley’s efforts to interview Ward’s family, friends, former teachers, and

employers were not sufficient to enable him to make a reasoned tactical decision

about the sentencing phase defense. Moreover, Ward argues that because Townley

knew that Ward’s childhood was particularly traumatic, he should have sought out

additional information about Ward’s early life.

We have held that the petitioner bears the heavy burden of proving his

ineffective-assistance-of-counsel claim by a preponderance of the evidence.

Putman, 268 F.3d at 1243. That said, we also note that a petitioner need not

10

Although David Dunn also represented Ward at his trial, Ward contends that Townley

“alone called the shots regarding the penalty phase” of the trial. Appellant’s Initial Brief at 21

n.10.

26

present testimonial evidence but a federal court may make a fair determination of

the claim simply by reviewing the trial transcripts. See Eagle v. Linahan, 279 F.3d

926, 938 (11th Cir. 2001).

Strickland v. Washington instructs us that the benchmark for judging a claim

of ineffective assistance of counsel is whether counsel’s performance “so

undermined the proper functioning of the adversarial process that the trial cannot

be relied on as having produced a just result.” 466 U.S. 668, 686, 104 S. Ct. 2052,

2064 (1984). In order to prevail on an ineffective-assistance-of-counsel claim, a

petitioner must establish two things. First, he must prove that counsel’s

performance was deficient. “Second, the [petitioner] must show that the deficient

performance prejudiced the defense.” Id. at 687, 104 S. Ct. at 2064. We echo the

caution sounded by the Court in Strickland: “Representation is an art, and an act or

omission that is unprofessional in one case may be sound or even brilliant in

another.” Id. at 693, 104 S. Ct. at 2067. We also note the absence of any iron-clad

rule requiring a court to tackle one prong of the Strickland test before the other.

Indeed, we previously have concluded that because both parts of the test must be

satisfied to show a Sixth Amendment violation, a court need not address the

performance prong if the petitioner cannot meet the prejudice prong, and vice-

versa. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).

27

In order to prove the deficient performance prong of the Strickland test, the

petitioner must show that counsel’s representation fell below an objective standard

of reasonableness under prevailing professional norms. Strickland, 466 U.S. at

688, 104 S. Ct. at 2065. “Judicial scrutiny of counsel’s performance must be

highly deferential” and there is a “strong presumption that counsel’s conduct [fell]

within the wide range of reasonable professional assistance.” Id. at 689, 104 S. Ct.

at 2065. Indeed, as we have said, “[t]he test for ineffectiveness is not whether

counsel could have done more; perfection is not required. Nor is the test whether

the best criminal defense attorneys might have done more. Instead, the test is . . .

whether what [counsel] did was within the wide range of reasonable professional

assistance.” Waters, 46 F.3d at 1518 (quotation marks and citation omitted). In

order to establish that counsel’s conduct was unreasonable, therefore, the petitioner

must prove “that no competent counsel would have taken the action that his

counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir.

2000) (en banc). Restated, “[t]he test has nothing to do with what the best lawyers

would have done. Nor is the test even what most good lawyers would have done.

We ask only whether some reasonable lawyer at the trial could have acted, in the

circumstances, as defense counsel acted at trial.” Waters, 46 F.3d at 1512

(quotation marks and citation omitted).

28

Another important facet of most ineffective-assistance-of-counsel claims is

trial strategy. We have long held that the fact that a particular defense was

unsuccessful does not prove ineffective assistance of counsel. See Chandler, 218

F.3d at 1314. Moreover, “counsel cannot be adjudged incompetent for performing

in a particular way in a case, as long as the approach taken might be considered

sound trial strategy.” Id. (quotation marks and citation omitted). We stated the

following regarding trial strategy and its relationship to ineffective-assistance-of-

counsel claims:

By “strategy,” we mean no more than this concept: trial counsel’s

course of conduct, that was neither directly prohibited by law nor

directly required by law, for obtaining a favorable result for his client.

For example, calling some witnesses and not others is “the epitome of

a strategic decision.” [Waters, 46 F.3d] at 1512 (en banc); see also id.

at 1518-19 (en banc); Felker v. Thomas, 52 F.3d 907, 912 (11th Cir.

1995) (whether to pursue residual doubt or another defense is strategy

left to counsel, which court must not second-guess); Stanley v. Zant,

697 F.2d 955, 964 (11th Cir. 1983) (stating that reliance on line of

defense to exclusion of others is matter of strategy).

Chandler, 218 F.3d at 1314 n.14. The Strickland Court also has discussed trial

strategy in the context of ineffective-assistance-of-counsel claims and underscores

the importance of counsel’s decision whether to conduct investigations as part of

that strategy. As stated by the Court:

strategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are

29

reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation. In other words,

counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.

In any ineffectiveness case, a particular decision not to investigate

must be directly assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel’s judgments.

Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066. The Court also addressed the

duty to adequately investigate mitigating evidence in Wiggins v. Smith, 539 U.S.

510, 123 S. Ct. 2527 (2003).

Strickland does not require counsel to investigate every conceivable

line of mitigating evidence no matter how unlikely the effort would be

to assist the defendant at sentencing. Nor does Strickland require

defense counsel to present mitigating evidence at sentencing in every

case. . . . [S]trategic choices made after less than complete

investigation are reasonable only to the extent that reasonable

professional judgments support the limitations on investigation.

Id. at 533, 123 S. Ct. at 2541 (quotation marks and citation omitted).

If the petitioner is successful in proving deficient performance by counsel,

he must then establish prejudice before he is entitled to relief. To prove prejudice,

the petitioner “must show that there is a reasonable probability that, but for

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

different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable

probability is one “sufficient to undermine confidence in the outcome.” Id., 104 S.

Ct. at 2068. Moreover,

30

[t]he governing legal standard plays a critical role in defining

the question to be asked in assessing the prejudice from counsel’s

errors. When a defendant challenges a conviction, the question is

whether there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt. When

a defendant challenges a death sentence . . . the question is 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. Finally, in making the prejudice determination,

the court must consider the totality of the evidence before the judge or jury in

question. See id. at 695, 104 S. Ct. at 2069. “[A] verdict or conclusion only

weakly supported by the record is more likely to have been affected by errors than

one with overwhelming record support.” Id. at 696, 104 S. Ct. at 2069.

Ward first raised the ineffective-assistance-of-counsel claim at issue in his

state habeas petition. In his first state habeas petition, Ward claimed that

“[c]ounsel failed to conduct an adequate pretrial investigation into Petitioner’s life

and background to uncover and present to the jury evidence in mitigation . . . [and]

[a]s a result, the jury failed to hear compelling evidence in mitigation of sentence.”

R1-6, Exh. 51 at 5. Ward reiterated his claim in his first amended state habeas

petition. After evidentiary hearings held by the state habeas court, Ward filed a

post-hearing brief in support of his state habeas petition.

31

In his post-hearing brief, Ward contended that Townley’s initial strategy for

the sentencing phase of the trial was to present evidence of Ward’s deprived

childhood through the testimony of his biological mother, Cora Jones. Ward

claimed that during his sentencing phase opening argument, Townley primed the

jury to expect to be presented with evidence of Ward’s childhood but then failed to

present any such evidence, even though it was readily available. Ward further

claimed that Townley made only minimal efforts to contact Cora Jones and secure

her presence at trial and that even those minimal efforts were subcontracted to his

legal assistant.11 In addition, Ward noted that Townley failed to produce several

other family members and acquaintances, all of whom would have had positive

things to say about Ward during the sentencing phase of his trial. These

individuals included Elyse Stockton (Ward’s adoptive niece), Sammy Wyatt

(Ward’s co-worker), and Fred Dukes (Ward’s supervisor).

The state habeas court denied Ward’s state habeas petition on 27 August

1998. Before discussing the merits of Ward’s various ineffective-assistance-of-

counsel claims, the state habeas court commented on the relative experience and

depth of knowledge in death penalty litigation possessed by each of Ward’s trial

11

Although Cora Jones had been subpoenaed, Ward also cites Townley’s failure to

request a continuance in order to search for Jones and his failure to utilize the Walker County

Sheriff’s Department to bring Jones to trial.

32

attorneys (Townley and Dunn). “At the time of [Ward’s] trial, attorney Townley

had previously been involved in the prosecution of at least three death penalty

cases, and had conducted the defense in a death penalty case that ultimately

resulted in a guilty plea. Attorney Dunn had been the lead prosecutor on two death

penalty cases and assisted on two others.” R1-6, Exh. 70 at 7 (citation omitted).

The state habeas court then addressed Ward’s claim that his trial counsel

“failed to effectively investigate and present evidence regarding his childhood and

his positive character traits.” Id. at 9. The court made the following findings:

Although defense counsel decided not to present evidence

regarding [Ward’s] childhood, their investigation into the issue was

certainly reasonable. Information was obtained from [Ward’s]

biological mother, but she ultimately refused to testify on her son’s

behalf. Defense counsel talked to [Ward’s] siblings, but decided not

to use their testimony because they had come from the same

environment and, unlike [Ward], had ‘apparently done pretty well for

themselves.’ In addition to talking to family members, defense

counsel obtained [Ward’s] school, medical, and psychological

records. [Ward] has failed to show that defense counsels’

investigation or strategic decision not to present evidence on this issue

was deficient.

Id. at 9-10 (citations omitted). The next court to address the issue was the district

court in its denial of Ward’s federal habeas petition.

The district court ultimately concluded that the state habeas court’s decision

with respect to the ineffective-assistance-of-counsel claim at issue was not contrary

to, or an unreasonable application of, clearly established federal law, and that this

33

determination was not based on an unreasonable application of the facts. The

district court noted that Ward’s trial attorneys obtained information about Ward’s

background from Ward himself (via Ward’s autobiography), from conversations

with Ward’s family members, his elementary school teacher and with a minister

familiar with Ward. In addition, Ward’s attorneys investigated Ward’s past

psychological history, prison history, and school background, successfully

obtained Ward’s school and chiropractic records, and attempted to obtain Ward’s

birth certificate and psychological records.

The district court found that Ward’s trial counsel made a reasonable,

strategic decision not to introduce mitigating evidence concerning Ward’s

background and early years. The court pointed to Townley’s testimony regarding

the penalty phase of Ward’s trial in support of its finding:

A [Townley]: We wanted to try to put together the best

presentation that we could to try to convince a very conservative jury

not to give him the chair. The Walker County juries historically are

sort of notorious about not wanting to hear, Gee, poor me, unless you

couple it with remorse. We didn’t have remorse. And as a result, we

felt like it was stronger to go in other directions for the death penalty,

to try to prevent it.

Q: Can you elaborate what you mean by the, Gee, poor me,

what all that type of defense entails?

A: When I use that term what I’m referring to is you put in a lot

of evidence concerning the defendant’s background showing what got

him to that point, that there were things beyond his control and his

34

early years, usually, that put him in the position to be doing the events

that he is convicted of. And I think sometimes that can be a very

effective, very effective argument because there is a lot of truth in it.

R4-77 at 79-80. The district court also highlighted the fact that Ward’s trial

counsel took into account the individual jurors selected when devising a trial

strategy and further noted that Townley’s decision to not present evidence

concerning Ward’s troubled childhood was reasonable in light of Ward’s age

(thirty-three) at the time that the crime was committed.

The district court then entertained Ward’s specific complaints regarding

Townley’s failure to present the testimony of Ward’s biological mother, his failure

to investigate adequately Ward’s adoptive parents and the manner in which they

raised Ward, and his failure to investigate and pursue evidence concerning Ward’s

positive character traits. With regard to Townley’s alleged failure to present any

testimony from Ward’s biological mother, Cora Jones, the district court noted Ms.

Jones indicated that she did not wish to testify at Ward’s trial, refused to answer

telephone calls to her residence by members of the defense team, and otherwise

actively evaded efforts by the defense team to contact her during the sentencing

phase of Ward’s trial. In light of this recalcitrant behavior, Townley made a

reasoned decision to forego Ms. Jones’s testimony for fear that she might prove

hostile on the stand and do more harm than good for the case.

35

With regard to Ward’s contention that Townley failed to conduct a

reasonable investigation concerning his adoptive parents and the environment in

which he was raised, the district court noted that Townley did query Ward about

his adoptive parents and also learned much about Ward’s upbringing through

Ward’s autobiography. After considering the information available, Townley

concluded that although Ward’s adoptive parents were perhaps too strict, Ward

“basically had good feelings” towards them. Id. at 85. Consequently, Townley

decided against introducing evidence concerning Ward’s strict upbringing. The

district court recited Townley’s rationale as follows:

One of the things that I was concerned about if I went too far down

that road was that [Ward] had had a bad environment, but he had a

brother who had had a bad environment, he had a sister who had had a

bad environment. They had apparently done pretty well for

themselves. The brother’s feelings were that he didn’t believe

[Ward] did it, but if [Ward] did it, that he came from the same

background, and somebody who would do that should get the chair.

The State was aware of that. He had apparently spent a long time

talking with Johnny Bass, who was the State’s investigator, and I was

concerned about some of how that evidence would come across.

Id.

Finally, the district court addressed Ward’s claim that Townley should have

pursued other evidence in mitigation, including evidence concerning his positive

character traits or his childhood surgeries and illnesses. First, the district court

noted that Townley actually did secure and review Ward’s school records, but

36

ultimately decided not to use them in the sentencing phase of the trial. Then the

court emphasized the fact that Townley’s professed strategy during the penalty

phase of the trial was to focus on the non-intentional nature of Ms. Gilbreath’s

death and residual doubt. Given that decision, the district court found that

Townley’s alleged failure to pursue additional mitigation evidence was not

objectively unreasonable.

The district court also concluded that Ward could not satisfy the prejudice

prong of the Strickland test. First, the evidence incriminating Ward, although

circumstantial, was strong. Second, the court reflected on the additional damning

evidence presented to the jury: the fact that the victim was four months pregnant at

the time of her murder; the fact that Ward had been convicted of abducting and

raping another woman; the fact that Ward had allegedly stalked or attempted to

accost other women; and the fact Ward maintained a considerable stockpile of

pornographic material and women’s lingerie in his home. Given the wealth of

evidence against Ward, the district court concluded that there existed no reasonable

probability that the results of the sentencing phase of Ward’s trial would have been

different had his trial counsel pursued and presented additional mitigation

evidence.

37

After careful review of the record, we are of the same mind as the district

court and conclude that Townley’s investigation and presentation of mitigation

evidence during the sentencing phase of Ward’s trial were well “within the wide

range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.

Ct. at 2065. While mindful of the Supreme Court’s guidance in Wiggins regarding

the assessment of strategic choices and the reasonableness of investigations into

mitigating evidence, we also recognize that “[i]t is reasonable – and not ineffective

– for trial counsel to eliminate certain lines of presentation if he has misgivings

about hurtful cross-examination and rebuttal witnesses.” Hallford v. Culliver, 459

F.3d 1193, 1205 (11th Cir. 2006) (per curiam) (quotation marks and citation

omitted). We have also observed that “[e]ven when trial counsel’s investigation is

less complete than collateral counsel’s, trial counsel has not performed deficiently

when a reasonable lawyer could have decided, in the circumstances, not to

investigate.” Id. (quotation marks and citation omitted).

Here, the record indicates that Townley was aware of the bulk of the

mitigating evidence alluded to by appellate counsel during the state and federal

habeas proceedings. This signals that he did conduct a reasonable investigation but

chose not to present much of the evidence during the sentencing phase of Ward’s

trial. First, Ward’s biological mother, Cora Jones, essentially refused to testify on

38

her son’s behalf.12 This reluctance informed Townley’s decision not to attempt to

present her testimony to the jury during the sentencing phase of the trial. As stated

by Townley:

If I have a witness in sentencing phase who does not want to be there

and doesn’t want to participate and is going to have to have [sic] an

attachment and have a Sheriff’s deputy bring them to court, that is

usually not a witness that I want to introduce to bring sympathy in a

sentencing phase, no.

R1-6, Exh. 62 at 399-400.

Turning to Townley’s decision to forgo presentation of evidence relating to

Ward’s adoptive parents and the environment in which they raised him, we find

Townley’s rationale, as cited by the district court, quite persuasive. After

12

At the state habeas proceedings, Townley’s legal assistant, Deana Jones, provided the

following testimony regarding her efforts to contact Cora Jones:

A [Deana Jones]: While we were in court even, I called her [Jones] because I had

asked her, “If you won’t come to court, if you will not let me come and get you, then

will you please stay by the phone in case we need anything, I can give you a call?”

She said “Okay, I can do that.” And then I called her several times, three or four

times during court, and there was no answer. So that night I called, and I left a

message, and I said something to the effect of, “We don’t need you. I just want to

talk to you. Could you call me?” And she did call then. But that was it, she didn’t

answer. So I asked her why she wasn’t by the phone and she said she would be, and

she said, that is the time that she said something about her laundry.

....

Q: Let me ask you. So was it apparent to you that she was trying to do everything

she good [sic] to avoid coming to court for Mr. Ward?

A: Yes.

R1-6, Exh. 61 at 160-61.

39

discussing Ward’s upbringing at length with Ward himself, Townley concluded

that the introduction of evidence concerning his life with his adoptive parents

likely would have little effect on the jury. According to Townley, Ward

maintained good feelings towards his adoptive parents and was reluctant to

characterize their treatment of him as abusive.

Q: And what did [Ward] tell you, and what was your, I guess, feeling

about the environment that he was raised in by the Wards?

A [Townley]: Poor; country; good people; strict; an adoptive father

who was, in my feeling, too strict. But he basically had good feelings

towards them.

....

Q: Did [Ward] feel like he had been abused by them?

A: I think he would agree with me that his father was too strict. But

[Ward], in some ways, felt like that he deserved it, and his father was

doing it as a father as opposed to just some drunken fellow lashing out

at his child at night.

Id. at 338. Moreover, Townley’s concern that the jury might compare and contrast

Ward’s behavior with that of his adoptive nephew (John Pettit, Jr.) appears

justified in light of Mr. Pettit’s testimony at the state habeas proceeding.

Q: Let me ask you this, Mr. Pettit, did you notice any type of different

treatment that your grandparents gave you and your sister as opposed

to the treatment that they gave Mr. Ward?

A [Pettit]: I think that they treated [Ward] as a child, and they treated

us as grandchildren, and there is a difference in that relationship. I

40

would not say that we were treated any worse or any better, but we

were grandchildren, and he was their child.

Q: Let me ask you this. Did they look after you and provide a safe

environment for you and your sister?

A: Yes.

Q: Did they also do that for [Ward]?

A: Yes.

R1-6, Exh. 61 at 136.

Finally, considering the circumstances presented to Townley at the

sentencing phase of the trial, we agree with the district court that his decision to

focus on residual doubt was objectively reasonable. At the state habeas

proceeding, Townley articulated his decision-making process as follows:

Q: And what strategy did you eventually decide upon in the mitigation

portion of this trial?

A [Townley]: Well, again, with the jury that we had and knowing the

history of the juries in that area, the residual doubt, the non intentional

nature of the actual death. . . .

Q: Your first witness was Lewis Evans with the G.B.I., top

polygraphist?

A: Correct.

Q: How did that fit into your strategy in the penalty portion?

A: The residual doubt question.

41

Q: How did you feel that would impact upon the death part, his

testimony?

A: That the jury had actually stayed out for a fairly substantial amount

of time on guilt innocence, enough such that you knew there was

some disagreement in the jury room. It would take a lot of time just to

review all the physical evidence and documents that came in, but it

went beyond that, which let me know that there were some jurors who

had questions about his, a finding of guilt. And my feeling was that

the polygraph, and hitting that first out of the shoot, might

immediately with those jurors cause concern about whether they had

done the right thing or the wrong thing in coming back with a guilty

verdict.

R1-6, Exh. 62 at 335-36. We previously have catalogued those cases in our

circuit in which we have noted the effectiveness of the residual doubt defense. See

Parker v. Sec’y for the Dep’t of Corr., 331 F.3d 764, 787-88 (11th Cir. 2003)

(noting that “[c]reating lingering or residual doubt over a defendant’s guilt is not

only a reasonable strategy, but ‘is perhaps the most effective strategy to employ at

sentencing’”); Stewart v. Dugger, 877 F.2d 851, 856 (11th Cir. 1989) (“Trial

counsel made a strategic decision that in light of the atrocious nature of the

offense, [the defendant’s] only chance of avoiding the death penalty was if some

seed of doubt, even if insufficient to constitute reasonable doubt, could be placed

in the minds of the jury. . . . Trial counsel cannot be faulted for attempting to make

the best of a bad situation.”). In sum, we agree with the district court that the state

courts’ conclusion that trial counsel was not deficient is not contrary to nor an

42

unreasonable application of Supreme Court precedent. Because we conclude that

trial counsel’s performance at the sentencing phase of Ward’s trial was not

deficient, we need not consider Strickland’s prejudice prong. See Holladay, 209

F.3d at 1248.

D. Ineffective Assistance of Counsel for Failure to Obtain an Independent Mental

Health Expert

Ward argues that his trial counsel provided ineffective assistance by failing

to obtain an independent mental health expert for the defense team. He contends

that his trial counsel declined to obtain such an expert even though Ward’s mental

health was at issue and the trial judge had made funds available to the defense for

the express purpose of obtaining a mental health expert. Ward challenges his trial

counsel’s reliance on the mental health evaluations ordered by the trial court and

conducted by state experts who allegedly had a “bias and prejudice toward the

State’s position.”13 R1-6, Exh. 62 at 358. Moreover, Ward maintains that the

mental health evaluation performed by the state experts was flawed in other

respects, namely (1) that the purpose of the state’s evaluation was to determine

Ward’s competence to stand trial and not to develop mitigating evidence; and (2)

13

After conducting their evaluation, the state mental health experts ultimately concluded

that Ward suffered from anti-social personality disorder. At the state habeas proceeding, Ward’s

mental health expert, Dr. Mark Mills (“Mills”) attempted to rebut that diagnosis and suggested

that Ward suffered from fetishism instead.

43

the state’s experts were not provided with information concerning Ward’s

pornography collection or concerning his multiple crimes against other women.

The state habeas court made the following factual findings and legal

conclusions regarding this claim:

[Ward] claims that defense counsel were ineffective in failing

to obtain the assistance of an independent mental health expert. The

Affidavit of Dr. Mark J. Mills is offered as evidence that the diagnosis

of antisocial personality disorder was incorrect. However, it is clear

that Dr. Mills’ diagnosis of fetishism was based upon incomplete

information, thus this testimony is not persuasive.

Although the trial court granted defense counsels’ Motion for

Funds for Employment of Privileged, Competent Psychiatrist, “not

every offer extended by the court must be accepted by defense

counsel.” Curry v. Zant, 258 Ga. 527, 528 (1998). The decision not

to retain an independent mental health expert was based on several

factors, including [Ward’s] strong opposition to the presentation of

any type of mental illness defense, the trial court’s caveat that

“counsel act[] reasonably in their selection and use of the expert,” and

the lack of indicators that a mental illness defense or mitigation

evidence existed.

Defense counsels’ investigation into a potential mental illness

defense and mitigation evidence was reasonable, as was the decision

to pursue a trial strategy that did not require the retention of an

independent mental health expert.

R1-6, Exh. 70 at 10-11 (citations omitted).

The district court concluded that the state habeas court’s determination with

regard to Ward’s mental health expert ineffective-assistance-of-counsel claim was

sound. According to the district court, Townley’s decision not to obtain an

44

independent mental health expert to evaluate Ward was sound trial strategy and his

decision not to pursue further expert evaluation of Ward’s mental condition was

reasonable. The district court based its determination on Ward’s stated opposition

to any kind of mental illness defense and Townley’s assessment that no viable

mental illness defense was possible.

In its decision, the district court cited Townley’s testimony at the state

habeas proceeding regarding Ward’s opposition to a mental illness defense.

[H]is position was I didn’t do it. And he didn’t feel like there was

anything basically that was, that he had any kind of mental illness that

would be important to the issues that we were trying, and basically

had real strong feelings that, if anything, it would make it look like he

did it, and we were trying to say that he did it but he was mentally ill

or he had these mental problems. He just had real strong reactions

about it.

R4-77 at 92 (citing R1-6, Exh. 62 at 290). The district court also noted that doctors

from two separate facilities – Northwest Georgia Regional Hospital and Central

State Hospital – evaluated Ward over the years and both independently diagnosed

him with anti-social personality disorder. Again looking to Townley’s testimony

at the state habeas proceeding, the district court recounted how Townley believed

the anti-social personality disorder diagnosis was harmful to Ward and, if

presented in mitigation, would be seized upon by the state to good effect.

45

As regards other physical ailments that contributed to Ward’s alleged mental

illness, the district court noted that Townley testified that he was aware of Ward’s

prior automobile accident as well as his blackouts and headaches. The district

court credited Townley’s testimony that he duly investigated whether a possible

head injury incurred in the automobile accident had any impact on Ward’s mental

capacity and noted that the tests performed on Ward indicated that no neurological

abnormalities existed.

The district court also discussed Dr. Samuel Perri’s (“Dr. Perri”) conclusions

after examining Ward prior to trial.14 The district court noted that Dr. Perri’s

evaluation concluded that Ward did not present with any type of mental illness and

highlighted Dr. Perri’s later conclusion that Ward did not suffer from a multiple

personality disorder. The district court summed up its analysis of the issue by

relating Townley’s testimony at the state habeas proceeding concerning his

rationale for not pursuing a mental illness defense:

A [Townley]: We had instructions from our client, plus I didn’t find

where we had anything that was of such significance that it was going

to help us with the jury. And, if anything, I thought it might

undermine our credibility somewhat with the jury.

14

The trial court ordered that Ward “be evaluated for the purpose of rendering an opinion

with respect to the questions of his competency to stand trial, his degree of criminal

responsibility, his intellectual level of functioning, [and] neurological disorders. . . .” R1-6, Exh.

59 at 319. Dr. Perri was the Senior Psychologist and Director of Forensic Services at the

Northwest Georgia Regional Hospital who conducted that evaluation.

46

Q: And why would it undermine your credibility with the jury?

A: I didn’t feel that this jury would be receptive to seeing photographs

of a terribly decomposed body, hearing lots of testimony concerning

similar transaction evidence, seeing boxes of men’s magazines and

lingerie that was cataloged, and then coming in with something that

wasn’t pretty darn substantial on mental illness, that, if anything, I

thought that it might hurt us, and that the jury first would feel like we

were just trying to make excuses. . . .

R4-77 at 97-98.

The district court ultimately concluded that the state habeas court’s decision

to reject Ward’s mental health expert ineffective-assistance-of-counsel claim was

not contrary to clearly established law nor an unreasonable application of clearly

established law. The district court also found that, given the nature and extent of

the evidence before the jury, there existed no reasonable probability that Ward’s

sentence would have been different even if Townley had obtained an independent

medical health expert.

Our review of the record reveals no grounds for disturbing the district

court’s decision regarding Ward’s mental health expert ineffective-assistance-of-

counsel claim. We find Townley’s conclusion that no viable mental illness defense

existed eminently reasonable given the circumstances at the time of the trial. First,

the record affirms Townley’s assertion that he discussed the issue of a possible

mental illness defense with Ward on multiple occasions and was repeatedly

47

rebuffed. Second, we are impressed with the fact that Townley continued to

investigate the possibility of a mental illness defense after the proposal was

scotched by Ward. We reference Townley’s testimony during the state habeas

proceedings where he describes a memorandum in which he memorialized his

communications with Dr. Perri.

A [Townley]: Apparently, this was a memo to the file from some

discussions or communications with Dr. Perri. “Ward does not know

that [Townley] considers it a possibility. Doesn’t want Ward to know

[Townley] thinks he may have mental problems. Will give you details

if you need them. . . . In this case the evidence is overwhelming that

he did it. He is facing the death penalty. We can probably work out a

plea where he will not get the chair but Ward will not let him,” which

is myself, “do so. Is adamant that he is not guilty.”

Q: Let me ask you this, Mr. Townley, in relation to that. Despite the

fact that he was adamant and he didn’t want you to pursue any type of

mental health defense, did you nevertheless still question doctors and

investigate that?

A: Yes.

R1-6, Exh. 62 at 294-95.

The record also supports Townley’s assertion that he was not able to develop

a viable mental illness defense and consequently elected not to pursue such a

defense at trial. Hence, in Townley’s estimation, the necessity of an independent

mental health expert was much reduced. We consider the circumstances presented

to Townley before the trial commenced. His client adamantly opposed any mental

48

illness defense. A court-ordered mental evaluation of Ward yielded no indication

that Ward suffered from mental illness15 and follow-up conversations with the state

psychologists confirmed that assessment. Although Townley continued to

investigate the possibility of a mental illness defense even after the idea was

rejected by his client, Townley ultimately concluded that the defense was not

viable. Indeed, in his reasoned opinion, the presentation of any evidence of mental

illness during the sentencing phase of the trial would have been seized upon by the

state, who, in turn, “would have used [it] to drive Mr. Ward directly to the chair.”

R1-6, Exh. 62 at 313. Moreover, we are not persuaded by the affidavit testimony

of Ward’s habeas mental health expert, Dr. Mills. As we have held many times

before, “the mere fact a defendant can find, years after the fact, a mental health

expert who will testify favorably for him does not demonstrate that trial counsel

was ineffective for failing to produce that expert at trial.” Davis v. Singletary, 119

15

Dr. Perri made the following findings regarding Ward’s alleged neurological

abnormalities stemming from a previous automobile accident:

On March 12, 1991 Mr. Ward was referred to Central State Hospitals’

Department of Neurology. During this evaluation Mr. Ward stated that he was in an

automobile accident in July of 1989 in which he hit the windshield. Subsequently

he complained of headaches, nausea, vomiting and some visual problems. He also

reported having four blackout spells since September of 1990. However, the

neurological examination which included an EEG, brain scan, and skull series were

within the normal limits and no neurological abnormalities were found.

R1-6, Exh. 59 at 320.

49

F.3d 1471, 1475 (11th Cir. 1997). We conclude that the district court correctly

determined that the state courts’ conclusion that trial counsel was not deficient is

not contrary to nor an unreasonable application of Supreme Court precedent.

Again, because we conclude that trial counsel’s performance was not deficient, we

do not reach the prejudice prong of the Strickland analysis.

E. Improper Bailiff-Jury Communication

Ward next argues that his constitutional right to a fair trial and a reliable

sentence were violated when a bailiff improperly responded to a juror’s question

about parole during the penalty phase of trial. We agree.

Three jurors submitted affidavits on this issue and one of those jurors

testified live at a state habeas hearing. Juror Kenneth Craig’s affidavit indicates

that he personally questioned a bailiff as to whether life without parole was a

sentencing option:

One of the things that I know I was worried about was whether

he would ever be able to get out and do something like this again. I

really did not think that he deserved the death penalty, partly because I

had some strong doubts about his guilt. But I believed at the time –

and other jurors shared this belief – that a life sentence meant that he

would be able to get out on parole after a while.

Before we sentenced Ward to death, I asked one of the bailiffs –

a woman I think – if life and death were our only options. I wanted to

know whether life really meant life and, if it didn’t mean life, whether

there was a life without parole choice. But the bailiff told me that

50

jurors couldn’t ask questions like that, that the judge’s instructions

were what we had to go on. I never got an answer to my question.

....

Today I wish that we had had the choice of sentencing Ward to

life without the possibility of parole. I know that if we had had that

choice, I would definitely have voted for a life sentence, because I just

wanted to be sure that a person like him would be off the streets,

whether or not he was actually guilty of the crime.

R1-6, Exh. 65 at 882-83.

Similarly, juror Keith Dunsmore signed an affidavit stating that the jury

asked a bailiff about the possibility of sentencing Ward to life without parole:

Other jurors also had some uneasiness with the death penalty in

this case. We certainly did not want Mr. Ward to be out on the street.

I remember that we asked a bailiff whether we could sentence Mr.

Ward to life without the possibility of parole. The bailiff returned

with the answer that such a sentence was not an option. If the life

without parole option had been available at the time, I and other jurors

may well have decided that this was the appropriate sentence.

Id. at 888. Dunsmore later testified at a state habeas hearing that, although he

could not recall if he asked the bailiff or another juror the question about life

without the possibility of parole, the issue was “talked about, and we found out that

we couldn’t do it, as a jury we couldn’t do that.” R1-6, Exh. 64 at 722-23.

Finally, juror James Hix submitted an affidavit reflecting some jurors’

concern that Ward might commit future crimes if released from prison someday:

51

One of the things I and the other jurors were especially

concerned about was the possibility that Mr. Ward might get out of

prison someday and commit another violent crime. We just didn’t

think that a life sentence truly meant life, and that he would eventually

get out of prison. If we had had the option of life without the

possibility of parole as a sentence, I would have seriously considered

a life sentence.

R1-6, Exh. 65 at 885-86. Hix’s affidavit does not mention any questions posed by

the jury to a bailiff on the issue of parole eligibility.

The state habeas court ruled that the jurors’ affidavits were inadmissible

under O.C.G.A. § 17-9-41 because the affidavits sought to impeach the jury’s

verdict and did not fall within any exception to the rule. The court also found the

affidavits were irrelevant because life without parole was not a sentencing option at

the time of Ward’s trial, and thus it did not matter whether the jurors wished in

hindsight that it had been an option. Finally, the court noted that “the discussion

with the Bailiff, as stated by the jurors, is not the sort that – perhaps it should have

been reported to the judge, and then from the judge to the lawyers, but the deputy’s

response was a proper response, and no harm done.” R1-6, Exh. 61 at 24.

With respect to Dunsmore’s live testimony, the state habeas court likewise

stated that it would not consider his testimony, presumably for the same reasons

that it excluded the affidavits. Specifically, the court told the parties that, “none of

these affidavits, I want to make it clear, either yours or [the state’s] or the

52

testimony [of juror Dunsmore] that we are about to take under oath, are going to be

considered by me at this point.” R1-6, Exh. 64 at 707. Instead, the court explained

that “they will be part of the record, not that I’m going to consider,” but so that

“[t]he appellate court can look at that issue.” Id. at 707-09.

In its orders denying habeas relief, the state habeas court found this issue to

be procedurally defaulted because it was not raised on direct appeal. The court

found no “cause” to overcome the procedural bar because (1) there was no external

factor to preclude Ward from previously raising the claim, and (2) Ward did not

receive ineffective assistance of counsel. R1-6, Exh. 82 at 3. Additionally, the

court found no actual prejudice to overcome the default. These conclusions were

based on the court’s findings that there was “no evidence that there was any

question posed by the jury that was not answered by the trial court in open court,

and no evidence to support [Ward’s] allegation that a fifth question was asked

about parole eligibility and not relayed to the trial judge.” Id. Neither of the state

court’s orders mention the three jurors’ affidavits or Dunsmore’s live testimony.

The district court agreed with the state habeas court that this issue was

procedurally defaulted, and that Ward had not established cause or prejudice to

excuse the default, nor a fundamental miscarriage of justice. In an abundance of

caution, the district court later addressed the merits of Ward’s claim. After reciting

53

the state habeas court’s findings and conclusions in full, the district court

summarily concluded that the state habeas court’s decision was not contrary to, or

an unreasonable application of, clearly established federal law and that the decision

was not based on an unreasonable determination of the facts.

The Sixth Amendment, made applicable to the states through the Fourteenth

Amendment’s Due Process Clause, protects a criminal defendant’s right to a fair

trial by a panel of impartial jurors. Parker v. Gladden, 385 U.S. 363, 364, 87 S. Ct.

468, 470 (1966). Integral to this right is the requirement that a jury base its verdict

on the evidence presented at trial. See Turner v . State of Louisiana, 379 U.S. 466,

472, 85 S. Ct. 546, 549 (1965). “This is true, regardless of the heinousness of the

crime charged, the apparent guilt of the offender or the station in life which he

occupies.” Id.

A jury is presumed to have acted impartially. See United States v.

Siegelman, 561 F.3d 1215, 1237 (11th Cir. 2009) (per curiam). A defendant may

rebut this presumption by making a colorable showing that juror exposure to

extraneous information has violated his right to an impartial jury. See id. If such a

showing is made, then prejudice is presumed. See id. This presumption of

prejudice applies to “any private communication, contact, or tampering directly or

indirectly, with a juror during a trial about the matter pending before the jury . . . if

54

not made in pursuance of known rules of the court and the instructions and

directions of the court made during the trial, with full knowledge of the parties.”

Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451 (1954). A

presumption of prejudice is not conclusive, however. Id. The government may

rebut the presumption by showing that the improper communication was harmless.

See id.; Siegelman, 561 F.3d at 1237.

We must initially determine whether Ward has procedurally defaulted this

claim by failing to raise it prior to his state habeas proceedings. “Whether a

particular claim is subject to the doctrine of procedural default . . . is a mixed

question of fact and law, which we review de novo.” Judd, 250 F.3d at 1313. The

state habeas court relied on Georgia’s procedural default rule as stated in Turpin v.

Todd, 493 S.E.2d 900 (Ga. 1997):

A procedural bar to asserting a claim on habeas corpus arises if

the defendant failed to timely object to any alleged error or deficiency

at trial or on appeal. The procedural bar, however, may be overcome

if the petitioner shows, first, an adequate cause for failing to raise the

issue earlier and second, actual prejudice resulting from the alleged

error or errors.

Todd, 493 S.E.2d at 905 (footnotes omitted); see also O.C.G.A. § 9-14-48(d).

Ward argues that because Todd was decided five years after the Georgia Supreme

Court affirmed Ward’s conviction and sentence, Georgia’s procedural default rule

was not firmly established and consistently followed at the time of Ward’s trial and

55

direct appeal. Consequently, Ward contends that Todd was not an adequate basis

for the state habeas court’s procedural default ruling.

We disagree. A state procedural bar is based on an adequate state procedural

rule if that rule is “firmly established and regularly followed – that is, not applied

in an arbitrary or unprecedented fashion.” Lynd v. Terry, 470 F.3d 1308, 1313 n.4

(11th Cir. 2006) (per curiam). Todd was based on the well-established precedent

of Black v. Hardin, 336 S.E.2d 754, 755 (Ga. 1985), which was decided six years

before Ward’s trial. See Todd, 493 S.E.2d at 905 n.12. In Black v. Hardin, the

Georgia Supreme Court held that a defendant will be procedurally barred in habeas

from raising “any alleged error or deficiency” not timely objected to at trial or

raised on appeal, unless the defendant can show cause and actual prejudice to

overcome the default, or that a miscarriage of justice would result if the error is not

considered. Hardin, 336 S.E.2d at 755. Todd merely applied Black v. Hardin in

holding that Todd’s failure to raise a juror-bailiff claim on direct appeal resulted in

the claim’s procedural default. See Todd, 493 S.E.2d at 905. Georgia’s procedural

default rule was thus firmly established and consistently followed prior to Ward’s

trial and appellate proceedings. Accordingly, we conclude that the state habeas

court’s procedural default ruling rested on an adequate state law ground. See

Lynd, 470 F.3d at 1313-14 (concluding that Georgia’s procedural default rule, as

56

stated in Black v. Hardin, provided an adequate and independent state law ground

for denial of a claim).

Because the claim is procedurally defaulted, Ward must establish cause and

actual prejudice to excuse his default. See Jefferson v. Hall, 570 F.3d 1283, 1309

(11th Cir. 2009). Ward argued in state court that the cause requirement was

satisfied by the bailiff’s failure to report the jury’s question to the court and to the

parties. Alternatively, Ward claimed that cause was established by the ineffective

assistance of his counsel in failing to raise the issue in the motion for new trial or

on direct appeal. As noted, the state habeas court rejected both arguments.

We disagree with the state habeas court’s conclusion that Ward has not

shown sufficient cause to overcome the procedural bar. “Cause exists if there was

‘some objective factor external to the defense [that] impeded counsel’s efforts to

comply with the State’s procedural rule.’” Mize v. Hall, 532 F.3d 1184, 1190

(11th Cir. 2008) (quoting Murray, 477 U.S. at 488, 106 S. Ct. at 2645). An

external impediment includes “interference by state officials” that prevented a

petitioner from raising a claim. Id.; see also Murray, 477 U.S. at 488, 106 S. Ct. at

2645. The external impediment in this case stems from the failure of the bailiff

and/or the trial judge to inform Ward or his counsel about the jury’s question

concerning parole.

57

We recognize that the state habeas court found no evidence that the jury

asked any question that was not answered by the trial judge in open court, but this

finding is “an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). As discussed

earlier, we must presume the state court’s factual findings to be correct unless the

petitioner rebuts that presumption by clear and convincing evidence. See id.

§ 2254(e)(1); Parker v. Head, 244 F.3d 831, 835-36 (11th Cir. 2001). Clear and

convincing evidence entails proof that a claim is “highly probable,” a standard

requiring more than a preponderance of the evidence but less than proof beyond a

reasonable doubt. United States v. Owens, 854 F.2d 432, 436 n.8 (11th Cir. 1998)

(quotation marks and citation omitted). The Supreme Court described this

standard as “demanding but not insatiable” and cautioned that “[d]eference does

not by definition preclude relief.” Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.

Ct. 2317, 2325 (2005) (quotation marks and citation omitted).

Here, the jurors’ affidavits and Dunsmore’s testimony contain clear and

convincing evidence that the jury questioned a bailiff about the possibility of

sentencing Ward to life without parole, and that the answer was not given in open

court. Both Craig and Dunsmore stated in their affidavits that a juror asked the

bailiff whether the jury could sentence Ward to life without parole. Craig stated

58

that he himself asked that question. In his live testimony, Dunsmore could not

recall who asked the question but he knew that “it was talked about and we found

out we couldn’t do it, as a jury we couldn’t do that.” R1-6, Exh. 64 at 722-23.

According to both Craig and Dunsmore's affidavits, the bailiff responded to the

jury’s question. It is unclear from the record whether the bailiff’s answer was

dictated by the trial court or was merely a response from the bailiff.16 Either way,

it is undisputed that the trial court did not instruct the jury not to consider parole, as

was required under Georgia law at that time once a question about parole was

asked. See Quick v. State, 353 S.E.2d 497, 503 (Ga. 1987) (“If, and only if, the

jury asks to be instructed about the possibility of parole, the court should mention

the issue only to the extent of telling the jury in no uncertain terms that such

matters are not proper for the jury’s consideration.”)

The state habeas court erroneously determined that the jurors’ affidavits,

insofar as they pertained to this issue, were inadmissible under O.C.G.A. § 17-9-

41. The latter rule prohibits the use of jurors’ affidavits to impeach their verdict.

16

The state asserts that juror Dunsmore testified that he “saw the bailiff go into the

judge’s chamber, give the judge the question [about life without parole] and return with the

answer from the judge.” Brief of Respondent/Appellee at 56. This is an inaccurate rendition of

Dunsmore’s testimony, however. Dunsmore testified that it was his impression that questions

asked of the bailiff by the jury were given to the trial judge for an answer. R1-6, Exh. 64 at 723.

When asked how he got that impression, Dunsmore testified, “If I remember, one occasion we

saw them actually go to the Judge’s room and give him the question and came back from it.

They had told us that they had gotten the answer from the Judge.” Id. at 724. Dunsmore was not

asked, nor did he specify, which jury question this recollection addressed.

59

See O.C.G.A. § 17-9-41. However, the Georgia Supreme Court has held that a

bailiff’s comments to a juror concerning a defendant’s parole eligibility constitutes

an exception to this rule. See Todd, 493 S.E.2d at 903. This is because “the

general prohibition against allowing a jury to impeach its verdict cannot be applied

to emasculate a defendant’s constitutional right to a fair trial, particularly when his

life hangs in the balance.” Id.17 In Todd, which was decided shortly before

Dunsmore testified at the final state habeas hearing, the Georgia Supreme Court

specifically rejected the idea that the rule against impeaching verdicts precluded

the habeas court from considering the affidavits of three jurors about a bailiff-jury

communication concerning parole. See id. at 902-03. Like the juror affidavits in

Todd, the juror affidavits here alleged a bailiff-jury communication about the

possibility of parole which pertained to Ward’s right to a fair trial. The state

habeas court therefore erred in excluding the affidavits under O.C.G.A. § 17-9-41.

Furthermore, there is no contrary evidence in the record to refute the jurors’

affidavits that a jury-bailiff exchange occurred on the issue of parole. When these

affidavits are considered, in addition to Dunsmore’s live testimony, it is clear that

the state court’s findings are incorrect and “an unreasonable determination of the

17

Similarly, the United States Supreme Court has noted that an exception to the

common-law rule barring juror testimony to impeach a verdict includes situations where an

extraneous influence affected the jury’s deliberations, such as a bailiff’s improper comments

about the defendant’s guilt in Parker, 385 U.S. at 363-66, 87 S. Ct. at 470-71. See Tanner v.

United States, 483 U.S. 107, 117, 107 S. Ct. 2739, 2745-46 (1987).

60

facts in light of the evidence presented[.]”18 28 U.S.C. § 2254(d)(2); compare

Crowe v. Hall, 490 F.3d 840, 847 (11th Cir. 2007) (concluding that the petitioner

failed to rebut the presumed correctness of the state habeas court’s factual finding

because in opposition to the one juror affidavit alleging an improper bailiff

comment, the record contained denials that the incident occurred from three other

jurors and two bailiffs). Accordingly, we conclude that Ward established sufficient

cause to excuse his procedural default based on the state’s concealment of the

jury’s question regarding parole.19

Ward must still demonstrate actual prejudice. See Jefferson, 570 F.3d at

1309. Actual prejudice means more than just the possibility of prejudice; it

requires that the error “worked to his actual and substantial disadvantage, infecting

his entire trial with error of constitutional dimensions.” United States v. Frady,

456 U.S. 152, 170, 102 S. Ct. 1584, 1596 (1982). In Frady, the Court found no

actual prejudice because there was “no substantial likelihood" that the jury would

have found the defendant guilty of manslaughter instead of first degree murder "if

only the malice instructions had been better framed[.]" Id. at 172, 102 S. Ct. at

18

Specifically, we find incorrect the state habeas court’s findings of “no evidence that

there was any question posed by the jury that was not answered by the trial court in open court,

and no evidence to support [Ward’s] allegation that a fifth question was asked about parole

eligibility and not relayed to the trial judge.” R1-6, Exh. 82 at 3.

19

Given our conclusion, we need not address Ward’s alternative argument that cause was

established by his counsel's ineffective assistance in failing to raise this claim on appeal.

61

1596. Moreover, “even if the law presumes prejudice for certain errors when they

are timely raised, a convicted defendant who is seeking to overcome a procedural

bar does not have the benefit of that presumption of prejudice, and must instead

meet the actual prejudice test set forth in Frady.” Jefferson, 570 F.3d at 1309. Yet

whether we apply a presumption of prejudice or undertake a specific analysis, “the

ultimate inquiry” remains the same: “Did the intrusion affect the jury’s

deliberations and thereby its verdict?” United States v. Olano, 507 U.S. 725, 739,

113 S. Ct. 1770, 1780 (1993).

In light of the uncontroverted evidence presented, we conclude that Ward

was actually prejudiced by the improper bailiff-jury communication. All three

juror affidavits express a concern that Ward would be released on parole if he were

sentenced to life imprisonment. This concern was great enough to prompt the jury

to ask a bailiff whether Ward could be sentenced to life without the possibility of

parole. Instead of the trial court dispelling any consideration of parole through a

curative instruction,20 the bailiff responded to at least one juror that life without

20

The Georgia Supreme Court suggested that a trial court give the following instruction

if a juror asked about the possibility of parole:

“You shall not consider the question of parole. Your deliberations must be

limited to whether this defendant shall be sentenced to death or whether he shall

be sentenced to life in prison. You should assume that your sentence, whichever

it may be, will be carried out.”

Quick, 353 S.E.2d at 503 n.3. In Ward’s case, although the trial court instructed the jury to

62

parole was not an option. This was information that the bailiff should not have

given and that the jury should not have considered under Georgia law at that time.

See Quick, 353 S.E.2d at 503 (reaffirming that “a defendant’s parole eligibility is

not, and ought not to be, an issue considered by the jury in the sentencing phase of

a death penalty case”). More importantly, this improper exchange violated Ward’s

Fourteenth Amendment due process right to have the jury decide his punishment

based on the evidence presented in court, in accordance with the rules and

instructions of the court and with the full knowledge of the parties. See Parker,

385 U.S. at 364, 87 S. Ct. at 470; Remmer, 347 U.S. at 229, 74 S. Ct. at 451.

By advising that life without parole was not an option, the bailiff left the

impression that Ward could or would be released on parole if the jury sentenced

him to life imprisonment.21 The bailiff therefore reinforced the pre-existing belief

of Craig and other jurors that “a life sentence meant that [Ward] would be able to

get out on parole after a while.” R1-6, Exh. 65 at 882. Furthermore, the bailiff’s

response affected the deliberations of, at a minimum, three jurors.22 According to

presume that Ward would spend the rest of his life in prison if sentenced to life imprisonment,

the jury was never instructed that it should not consider parole.

21

Although a jury could not sentence a capital defendant to life without parole at the time

of Ward’s conviction, it is undisputed that the Georgia Board of Pardons and Parole had the

discretion to deny him parole. Thus, it was possible that Ward would have spent the rest of his

life in prison if he had been sentenced to life imprisonment.

22

Even if only three jurors were influenced by the bailiff’s comments, the Supreme Court

has emphasized that a defendant is “entitled to be tried by 12, not 9 or even 10, impartial and

63

Dunsmore, if life without parole had been available at the time, “I and other jurors

may well have decided that this was the appropriate sentence.” R1-6, Exh. 65 at

888. Likewise, Hix states that he “would have seriously considered a life

sentence” if life without parole was an option. Id. at 886. Craig expresses the

strongest sentiment, asserting that “I would definitely have voted for a life

sentence” had the option of life without parole existed. Id. at 883. These

statements reflect that the jury not only considered parole in determining Ward’s

sentence, but that a key factor in the sentencing decision of several jurors was the

bailiff’s instruction that the jury could not sentence Ward to life without the

possibility of parole.

The state argues that no actual prejudice can be shown because life without

parole was not an option for Ward under Georgia law at that time, and thus any

instruction to this effect was a correct statement of the law. This argument ignores

the fact that the jury was not supposed to be considering parole in the first place.

See Quick, 353 S.E.2d at 503. It also ignores the fact that Georgia law required the

court to instruct the jury “in no uncertain terms” not to consider parole once it

asked a question about parole. Id. Finally, this argument ignores the violation of

Ward’s Sixth Amendment right to be sentenced by jurors who are free from

unprejudiced jurors.” Parker, 385 U.S. at 366, 87 S. Ct. at 471.

64

external influence and who render their verdict solely on the basis of the evidence

presented during trial. See Parker, 385 U.S. at 363-66, 87 S. Ct. at 470-71

(concluding that a bailiff’s comments that a defendant was guilty and that the

Supreme Court would correct “anything wrong” violated the defendant’s Sixth

Amendment right to an impartial and unprejudiced jury).

Bearing in mind that only one vote in favor of life imprisonment was needed

to avoid a death sentence, we conclude that there is a substantial likelihood that the

jury would not have returned a death verdict had the trial court, in lieu of the

bailiff’s response, properly instructed the jury in open court not to consider parole.

See Turpin v. Todd, 519 S.E.2d 678, 683 (Ga. 1999) (affirming the habeas court’s

finding that a defendant was actually prejudiced by a bailiff’s response to a juror’s

question about parole because, inter alia, the issue of parole played a major role in

the sentencing phase deliberations and the jury was never instructed that parole

must not be considered). Put simply, we find a substantial likelihood that the

improper bailiff-jury communication prejudiced Ward’s chances of being

sentenced to life imprisonment. Compare Frady, 456 U.S. at 174, 102 S. Ct. at

1597-98 (finding “no substantial likelihood the erroneous malice instructions

prejudiced Frady’s chances with the jury”).

65

Given that Ward has established cause and actual prejudice to overcome his

procedural default, we may now determine whether a constitutional violation

merits habeas relief. Ward has made a colorable showing that the jury was

exposed to extraneous information when the bailiff informed a juror that life

without parole was not a sentencing option. Such exposure is presumptively

prejudicial. See Remmer, 347 U.S. at 229, 74 S. Ct. at 451; Siegelman, 561 F.3d at

1237. As noted earlier, the government may rebut this presumption by carrying its

heavy burden of showing that the improper communication was harmless. See

Siegelman, 561 F.3d at 1237. “An error is harmless unless there is a reasonable

likelihood that [it] affected the defendant’s substantial rights.” United States v.

Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007) (quotation marks and citation

omitted). Reversal requires that the error had “a substantial influence on the

outcome of the case.” Id. In assessing harmless error, we must consider all the

circumstances, including any jurors’ testimony, the nature of the extrinsic

evidence, the manner in which the extrinsic evidence reached the jury, and the

strength of the government’s case. See id. at 1291; Siegelman, 561 F.3d at 1237.

An assessment of these factors yields the conclusion that the improper

communication was not harmless in this case. The nature of the extrinsic evidence

concerned the possibility of parole. As we have explained, the jury’s consideration

66

of this issue was strictly forbidden by Georgia law, see Quick, 353 S.E.2d at 503,

and an infringement of Ward’s constitutional due process right to have the jury

base its verdict on the evidence presented at trial. See Parker, 385 U.S. at 364, 87

S. Ct. at 470; Remmer, 347 U.S. at 229, 74 S. Ct. at 451. The manner in which this

evidence reached the jury – through the bailiff – also weighs against a finding of

harmless error. The Supreme Court has recognized that “the official character of

the bailiff – as an officer of the court as well as of the State – beyond question

carries great weight with a jury[.]” Parker, 385 U.S. at 365, 87 S. Ct. at 470; see

also Johnson v. Wainwright, 778 F.2d 623, 627 (11th Cir. 1985) (noting that “a

bailiff’s exercise of his official duties is likely to give him added legitimacy in the

eyes of a jury”). The fact that a bailiff provided the extrinsic evidence to the jury

here enhances the likelihood that the jury credited and relied on this information.

With respect to the strength of the government’s case, the Georgia Supreme

Court stated only one sentence: “The evidence, although circumstantial, supports

the conviction.” Ward, 417 S.E.2d at 134. Both Craig and Dunsmore stated in

their affidavits that the circumstantial nature of the evidence created doubts about

Ward’s guilt. Dunsmore went so far as to say that, “I really did not think that he

deserved the death penalty, partly because I had some strong doubts about his

guilt.” R1-6, Exh. 65 at 882. During the penalty phase, the state relied on the facts

67

of the crime to argue that the killing involved a depraved mind and torture to the

victim, thereby supporting the statutory aggravator of an outrageous or wantonly

vile murder. The jury did not find this statutory aggravator, however. Instead, it

based its death verdict on Ward’s prior conviction for a capital felony and its

finding that Ward committed the murder while committing another capital felony

(kidnaping with bodily injury). The circumstantial nature of the government’s case

and the lack of overwhelming evidence bolster our conclusion that there is a

reasonable likelihood the improper bailiff-jury communication affected Ward’s

constitutional due process right to a fair penalty phase hearing and a reliable

sentence. Consequently, the error was not harmless.

We do not take lightly our decision to reverse a death sentence rendered by a

jury eighteen years ago. Nevertheless, the record establishes that the improper

bailiff-jury communication violated Ward’s constitutional rights and prejudiced

him. Accordingly, he is entitled to a new penalty phase hearing.

F. Brady Claims

Ward next contends that the state withheld exculpatory evidence in violation

of Brady v. Maryland, 373 U.S. at 87, 83 S. Ct. at 1196-97. Specifically, Ward

relies on three alleged Brady violations. First, Ward alleges that the state failed to

turn over a report that might have been used to impeach the testimony of a key

68

state witness. Second, Ward contends that the state withheld investigative notes

which undermined the state’s assertion at trial that Ward had made an unexpected

visit to the victim’s house – ostensibly to check on a well. Third, Ward argues that

the state suppressed evidence that someone else committed the murder for which

he was convicted.

Ward initially raised his Brady claim in his direct appeal to the Georgia

Supreme Court.23 Ward again raised the claims in his first amended state habeas

petition, albeit in a different structure. In his post-evidentiary hearing brief in

support of his amended state habeas petition, Ward fashioned his Brady claims in a

form substantially similar to that now before us.

The state habeas court made the following findings and conclusions with

regard to Ward’s Brady claims:

[Ward] alleges that the State failed to provide defense counsel

with the following items of evidence, in violation of Brady v.

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

A. Calhoun City police officer’s report regarding GBI Agent’s

questioning of [Ward] in the Donna Rich case.

B. GBI Agent’s reports regarding criminal incidents where [Ward]

was a suspect, but the victims could not identify him as the

perpetrator.

23

At this stage, Ward’s claim was not fully developed and touched only on the first of

Ward’s three Brady violations.

69

C. Walker County deputy sheriff’s notes regarding reports that the

victim had been seen leaving the house in her car, crying, with an

unidentified person.

D. Walker County deputy sheriff’s note stating that the victim had

expected someone to come over and check the well.

E. Face sheet for GBI polygraph of Jerry Wayne Alexander, stating

the reason for his questioning regarding the fire at Richard Puryear’s

house.

F. Walker County deputy sheriff’s note stating that Puryear had said

the victim’s gown was in the house that burned.

G. Donna Rich’s guilty plea in Floyd County to a theft by taking

charge.

H. Walker County deputy sheriff’s notes regarding the daughter of

the victim responding to the sight of other men.

I. Walker County deputy sheriff’s notes regarding the victim’s

background.

“[T]he suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” Brady, supra at 87. “The evidence is

material only if there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would have

been different. A ‘reasonable probability’ is a probability sufficient to

undermine confidence in the outcome.” Rogers v. State, 257 Ga. 590,

592 (3) (1987), quoting United States v. Bagley, 473 U.S. 667 (105 S.

Ct. 3375, 87 L. E. 2d 481) (1985).

After consideration of each of these items of evidence in the

context of the case as presented to the jury, the Court finds no

reasonable probability that the result would have been different with

their disclosure. As [Ward] has not established a Brady violation, his

claims under Giglio v. United States, 405 U.S. 150 (92. S. Ct. 763, 31

L. Ed. 2d 104) (1972), also fail.

R1-6, Exh. 70 at 12-14.

70

The district court next entertained the claims. After reciting the state habeas

court’s findings, the district court concluded that the state habeas court’s “rejection

of [Ward’s] claims relating to the alleged suppression of evidence was not contrary

to, or an unreasonable application of, clearly established federal law, and was not

based on an unreasonable determination of the facts.” R4-77 at 66-67.

As correctly summarized by the state habeas court, Brady counsels that once

a defendant requests the discovery of any favorable evidence material to either

guilt or sentence, the prosecution’s suppression of such evidence, whether in good

or bad faith, violates due process. See Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97.

The prosecution’s duty extends beyond disclosing such favorable evidence to

“learn[ing] of any favorable evidence known to the others acting on the

government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S.

419, 437, 115 S. Ct. 1555, 1567 (1995). We note that this duty exists whether or

not the prosecution knew of the existence of the evidence if the evidence was in the

possession of the government or generally provided only to governmental entities.

See Martinez v. Wainwright, 621 F.2d 184, 186-87 (5th Cir. 1980). We also have

held that there is no suppression if the defendant knew of the information or had

equal access to obtaining it. See Maharaj v. Sec’y for the Dep’t of Corr., 432 F.3d

1292, 1315 n.4 (11th Cir. 2005).

71

We are well acquainted with the standard for establishing a Brady violation.

In order to be successful, a petitioner must show that: (1) the prosecution possessed

evidence favorable to the accused, because it was either exculpatory or

impeaching, and did not disclose it to the defense; “(2) that evidence must have

been suppressed by the state, either willfully or inadvertently; and (3) prejudice

must have ensued.” Kelley v. Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1354

(11th Cir. 2004). “Evidence is material so as to establish prejudice only if there is

a reasonable probability that, had the evidence been disclosed to the defense, the

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

probability sufficient to undermine confidence in the outcome.” Id. (quotation

marks and citation omitted).

We review the district court’s decision regarding Ward’s Brady claims de

novo, by determining whether the state habeas court, in denying the claims,

“misapplied Supreme Court precedent or unreasonably determined the material

facts.” Gary v. Hall, 558 F.3d 1229, 1256 (11th Cir. 2009). After careful

consideration of the record, we agree with the district court and conclude that the

state habeas court’s rejection of Ward’s Brady claims was not contrary to, or an

unreasonable application of, Supreme Court precedent, and was not based on an

72

unreasonable determination of the facts. We address each alleged Brady violation

in turn.

1. Impeachment Evidence

Ward contends that he has made the requisite showing of materiality with

regard to a report (“Jackson report”) by Randy Jackson, a police officer with the

Calhoun City Police Department. He maintains that had he had the allegedly

withheld report at trial, “the result of the proceeding would have been different.”

Kelley, 377 F.3d at 1354. According to Ward, the Jackson report could have been

used to impeach the trial testimony of Special Agent Del Thomasson

(“Thomasson”). Thomasson and Jackson conducted an interview with Ward about

Ward’s participation in a different crime (the Donna Rich kidnaping and rape)24.

During the interview, Ward made incriminating statements about the Gilbreath

murder. At pretrial hearings on the voluntariness of Ward’s statement, Thomasson

testified that Ward first broached the subject and it was only at that point that

Thomasson followed up with questions about the Gilbreath murder. Ward argues

that the allegedly suppressed Jackson report contradicts Thomasson’s testimony at

the pretrial hearing. Armed with the Jackson report, Ward maintains that his

24

Special Agent Keith Sitton also was present during the interview in question.

73

statement to Jackson and Thomasson likely would have been suppressed, thus

undermining confidence in the outcome of his trial.

The Jackson report consists of one type-written page and reads as follows:

On 01-18-90 at approx. 10:45 AM, I talked with James Ray Ward

after he requested to see me without his attorney.

I readvised James Ray Ward of his Constitutional Rights and verbally

advised he could only talk to me if he fully understood that since an

attorney was already appointed I couldn’t talk to him. He stated he

knew and he signed the bottom of the form again which stated a

request from him to talk to me about rape without his attorney. G.B.I.

Agents Sitton and Thomason [sic] were present.

Jamie stated he wanted to talk to me about an electrical instrument

taken in a search of his residence and that it was not the one used. He

stated the stun gun was supposed to be still there in the house as far as

he knew. I told him I only had pictures of what he described and the

sheriff office, to my knowledge, still had it.

Jamie was talking a lot about what had happened and I advised him

that our investigation was complete. Jamie then stated, do you want

to clear up a lot of crimes, felonies and misdemeanor’s [sic] you

haven’t arrested anyone on yet. At this time Agent Thomason [sic]

asked him, what kind, and asked him did he know anything about the

rape and murder of a lady in Walker Co.

Jamie gave a story of his childhood and gave statements

acknowledging he knew her but would not directly say he killed her.

Indirectly he would talk about black out spells because of liquor and

anphetamines [sic], comtemplating [sic] suicide, and would say he

couldn’t remember going there. Jamie couldn’t explain why he had

what item’s [sic] Walker Co. and G.B.I. had recovered from his

residence; denying he knew of them.

R1-6, Exh. 65 at 909.

74

At the hearing, Thomasson stated the following 25:

A [Thomasson]: [Ward] went in, as the statement says, went into sort

of a rambling conversation with Mr. Jackson, and continued on for

several minutes, and then, he subsequently turned to me, Detective

Jackson or o[n] side, and I was sitting over on the other side, in a

chair, and that is when he turned to me and addressed the Gilbreath

investigation.

Q: Did you do anything to bring that to his attention?

A: No, sir, I did not.

Q: Did you ask him any questions in relation to the Gilbreath matter?

A: No, sir, I did not.

Q: Did you interrogate him or drop a word at that point or say

anything to or anything he could have construed as a question?

A: No, sir, not until after he brought it up that is when I began to talk

to him about it.

R1-6, Exh.6 at 347. Thomasson’s testimony largely mirrors that of Agent Sitton,

who was also present during the interview. According to Sitton,

[a]fter [Ward] was mirandized, he wanted to talk to Investigator

Jackson about some type of pain device that was taken from the

house, and inquired as to that, and then gave a statement as to his

background, the problems that he has had, and wanted some detail

about the alcohol and drugs and then he focused his attention to Agent

Thomasson, talking about the Walker County case [the Gilbreath

murder].

25

We note that, prior to the commencement of the interview, Thomasson was introduced

to Ward as the agent investigating the Gilbreath murder.

75

R1-6, Exh. 6 at 260. Finally, we find it significant that Ward’s excerpt from the

Jackson report presented in his initial brief on appeal to us redacts language that, in

our view, is highly relevant: “Jamie then stated, do you want to clear up a lot of

crimes, felonies and misdemeanor’s [sic] you haven’t arrested anyone on yet.” R1-

6, Exh. 65 at 909. After careful consideration of the whole record, we are

confident in our assessment that the Jackson report was not material, especially in

light of the fact that Ward was on notice that the Gilbreath murder investigation

was on Thomasson’s plate before he offered to “clear up” additional crimes that

had not been solved. Consequently, we conclude that Ward has not made a

sufficient showing to establish a Brady violation with regard to the report.

2. Investigative Notes Concerning Unexpected Well Visit

Ward’s next argument concerns Thomasson’s testimony at trial that Ward

admitted going to the Gilbreath home a second time ostensibly to check on a

previously drilled well. At trial, the prosecution presented testimony from Billy

Joe Gilbreath, the victim’s husband, that he had had no problems with the well and

had not requested anyone to come check on it. This testimony was corroborated by

Fred Dukes, another employee of Jefford’s Well Drilling.26 Moreover, Roland

Jeffords, the owner of Jefford’s Well Drilling also testified that he had never sent

26

Ward was employed by Jefford’s Well Drilling at the time of Gilbreath’s murder.

76

Ward over to check on the Gilbreath’s well. Ward claims that a handwritten note

discovered in the Walker County Sheriff Department’s files during post-conviction

proceedings undermines the prosecution’s contention at trial that Ward only visited

the Gilbreath household in order to case the house for a future kidnaping.

The handwritten note in question reads as follows:

1-7-90 215.

Glenn & Angela Gilbreath

[Address]

had well drilled by Jeffords

had pump trouble – son came in

had to put 3 different pumps in.

No one even stopped by to check pump/ well w/o being called.

One day got off work early, Angela went to Nikia’s to p.u.

Elaina (baby)

Nikia babysitting at time for Elaina

Nikia mentioned expecting someone over to check well/pump

Angela works 1st shift

R1-6, Exh. 65 at 958. This note is substantially similar, however, to a typewritten

report the defense received before trial. The typewritten report stated: “Angela

stated that one day when she got off work early, she had gone to Nikia’s to pick up

their daughter, Elaina, who Nikia was babysitting for during that time period. She

stated that Nikia had mentioned to her something about someone had stopped over

at the Gilbreath residence to check the well and pump.” Appellee’s Brief at 63-64.

77

After comparing the handwritten note and the typewritten report and

considering them in the context of the trial testimony of Billy Joe Gilbreath, Fred

Dukes and Roland Jeffords, we confess to being unable to follow the chain of logic

urged upon us by Ward. Ward contends that the handwritten note’s use of the

word “expecting” somehow indicates that Ward’s second trip to the Gilbreath well

was authorized. That argument ignores the remainder of the handwritten note and

the other trial testimony directly relating to the matter. Indeed, the first portion of

the handwritten note strongly suggests that someone other than an employee of

Jefford’s Well Drilling handled the Gilbreath’s well issues: “had pump trouble –

son came in . . . No one even stopped by to check pump/well w/o being called.” In

our view, given the strength of the evidence indicating that Ward was neither

requested nor authorized to check on the Gilbreath well, the handwritten note is of

limited significance. We do not hesitate in concluding that even had the

handwritten note been disclosed to the defense, the result of the proceeding would

not have been different. Consequently, because we find that the handwritten note

in question is immaterial, Ward’s Brady claim must fail.

3. Evidence that Someone Else Committed the Murder

As stated in Ward’s initial brief to us, part of Ward’s counsel’s trial strategy

was to raise doubts about Ward’s guilt by presenting evidence implicating Jerry

78

Wayne Alexander.27 Ward contends that the state suppressed two pieces of

material evidence which later surfaced during post-conviction proceedings: (1) a

Polygraph Services Unit – Face Sheet (“Face Sheet”); and (2) handwritten

investigative notes from Walker County investigators Sam Haskett and Keith

Smith. Ward maintains that these pieces of evidence demonstrate Alexander’s

involvement in the Gilbreath murder and therefore undermine confidence in

Ward’s guilty verdict.

The Face Sheet includes the following information:

On August 24, 1989, during the early morning hours, an

unoccuped [sic] dwelling house owned by Richard Puryear totally

burned. Even though no definite cause of the fire could be pinpointed,

arson was suspected. Jerry Alexander, a friend of Richard Puryear,

had helped Puryear remodel the house and had spent the night in the

house on several occasions during the past three months. He

reportedly last stayed in it on August 21, 1989. Alexander is the

prime suspect in the murder/rape of Nikia Gilbreath, who lived near

the Puryear house. He was interviewed by GBI agents on August 23,

1989, and was asked about the contents of the house. During the

interview with Alexander it was mentioned that the house would

probably be searched. It burned only a few hours after the interview.

R1-6, Exh. 65 at 965. Next, we consider the investigative notes in question. The

notes apparently memorialize a conversation between Haskett and Smith and

Lannie Cox, the State Fire Marshal who investigated the Puryear house fire and

ruled it an “undetermined fire.” R1-6, Exh. 31 at 2758. The notes read as follows:

27

Jerry Wayne Alexander was initially the prime suspect in the Gilbreath murder.

79

Said Puryear told him victim’s gown was in the house that burned that

was the reason it burned.

Machine went haywire when ask if anything of victim’s was in the

house.

R1-6, Exh. 65 at 911.

Ward asserts that the Face Sheet and the investigative notes, when viewed in

tandem, demonstrate Alexander’s complicity in Gilbreath’s murder. We disagree.

Ward’s argument requires one inferential leap too many. First, we are to infer that

Alexander was in possession of the victim’s gown. Then we must conclude that

Alexander secreted the gown in Puryear’s house. Finally, we are urged to accept

Alexander as the arsonist responsible for burning down Puryear’s residence. We

are to do this in the face of no evidence that a nightgown was missing from the

Gilbreath household, no evidence that Alexander took the nightgown from the

residence, and no evidence that Alexander set fire to the Puryear house – the

official investigation into the fire concluding that the cause was “undetermined.”

Moreover, there is also the testimony of Jerry Michael Morris, Sr. to consider.

Morris performed extensive investigative work for the defense and specifically was

tasked with looking into Alexander’s alleged complicity in the Gilbreath murder.

His testimony is illuminating:

Q: What type of evidence were you able to develop as far as Mr.

Alexander being the person who committed this crime?

80

A [Morris]: Nothing really beyond what the State had already

developed. In other words, say the interview with Mr. Alexander, I

received basically the same information that had been furnished to law

enforcement regarding his version of the time period that the homicide

had occurred.

....

Q: So would it be fair to say that you tracked down every lead that

came to you?

A: That I had presented to me or that I developed, yes, sir.

R1-6, Exh. 61 at 51, 53. We conclude that neither the Face Sheet nor the

handwritten investigative notes are material for the purposes of Ward’s Brady

claim. Even had they been available to the defense at trial, in our view the results

of the proceeding would not have been different.

Finally, Ward urges us to find both the state habeas court and the district

court’s resolution of his Brady claims are contrary to the clearly established

Supreme Court precedent of Kyles v. Whitley. Ward contends that neither court

sufficiently examined the cumulative effect of the allegedly suppressed evidence,

but only considered each piece independently. Even assuming that the state habeas

court did not consider the evidence cumulatively for materiality purposes, we have

81

and conclude that the evidence, considered cumulatively, is not material.28

Consequently, we find no merit in Ward’s “cumulative effect” argument.

G . Unanimity Instruction

Ward next challenges the trial court’s unanimity instruction. He contends

that the trial court’s instruction conveyed to the jury the impression that they had to

agree unanimously before considering any particular mitigating factor, and that the

Georgia Supreme Court’s failure to recognize this error constituted an

28

We have explained our cumulative materiality analysis before.

Cumulative analysis of the force and effect of the undisclosed pieces of

favorable evidence matters because the sum of the parts almost invariably will be

greater than any individual part. Whether the sum of the withheld evidence

favorable to the defense will be enough to create a reasonable probability that the

jury would have acquitted will depend on two factors. One factor is the net

inculpatory weight of the evidence on both sides that actually was presented at trial.

The other factor is the aggregate effect that the withheld evidence would have had

if it had been disclosed. These two factors are brought to bear at the crucial second

step of the materiality process, which begins with putting on the scales the evidence

that was presented at trial – evidence favoring the prosecution on one side, that

favoring the defense on the other. Then the force and effect of all of the undisclosed

exculpatory evidence is added to the weight of the evidence on the defense side,

while the force and effect of all the undisclosed impeachment evidence is subtracted

from the weight of the evidence on the prosecution’s side.

Once the evidence on the scales is adjusted to take into account the combined

force and effect of the undisclosed evidence favorable to the defense, the standard

that is applied is not one of sufficiency of evidence to convict. It is instead whether

what is left on both sides of the scale after adjusting for the withheld evidence

creates a reasonable probability that a jury would acquit, and a reasonable probability

is one sufficient to undermine our confidence in the guilty verdict.

Smith v. Sec’y for the Dep’t of Corr., 572 F.3d 1327, 1347 (11th Cir. Jun. 30, 2009).

82

unreasonable application of the Supreme Court’s precedent in Mills v. Maryland,

486 U.S. 367, 108 S. Ct. 1860 (1988).

Ward first raised his unanimity claim on direct appeal to the Georgia

Supreme Court. See R1-6, Exh. 42 at 184. The Georgia Supreme Court addressed

the claim and concluded that “[t]he trial court properly charged the necessity for

unanimity in the jury’s verdict.” Ward, 417 S.E.2d at 138. The state habeas court

found Ward’s unanimity instruction claim barred, “as the Supreme Court of

Georgia found on direct appeal that the trial court’s charge . . . was proper.” R1-6,

Exh. 70 at 19. The district court agreed and concluded that the Georgia Supreme

Court’s finding was not contrary to, or an unreasonable application of, clearly

established federal law, an that its conclusion was based on a reasonable

determination of the facts.

In Mills v. Maryland, the Supreme Court held that it was error to instruct the

jury that they were required to agree unanimously on the existence of mitigating

factors before they could consider them. See Mills, 486 U.S. at 384, 108 S. Ct. at

1870. Our review of the trial court’s instructions with regard to both the unanimity

requirement and mitigating circumstances reveals no Mills violation. During the

sentencing phase, the trial court first instructed the jury regarding its consideration

of mitigating circumstances:

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Mitigating circumstances also differ from aggravating ones

because you are not required to be convinced, beyond a reasonable

doubt, that a mitigating circumstance exists, but you must take that

circumstance into account as you deliberate this case. You must

consider a mitigating circumstance if you believe that there is any

evidence to support it.

R1-6, Exh. 39 at 5062. Later, after discussion of the verdict form, the court gave

the following instruction on the unanimity requirement: “Whatever your verdict is

in this case, it must be unanimous, just as during the guilt/innocence phase, and it

must be agreed to by all twelve of you. . . .” Id. at 5065. We discern no error here.

The trial court’s unanimity instruction only pertained to the jury’s verdict. The

jury was never instructed that it had to agree unanimously on the existence of a

particular mitigating circumstance before it could be considered. Ward’s

construction of the trial court’s instructions strains credulity and we cannot credit

it. Accordingly, we conclude that the district court did not err in finding that the

Georgia Supreme Court’s determination was neither contrary to nor an

unreasonable application of Mills v. Maryland.

III. CONCLUSION

Based on the foregoing, we conclude that the district court correctly denied

habeas relief on those claims challenging the validity of Ward’s convictions. We

therefore AFFIRM Ward’s convictions. We further conclude that the district court

erred in denying habeas relief on Ward’s claim of an improper bailiff-jury

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communication during the penalty phase. Accordingly, we REVERSE his death

sentence and REMAND for a new sentencing phase hearing. The district court’s

decision denying Ward’s petition for a writ of habeas corpus is AFFIRMED in part

and REVERSED in part.

AFFIRMED in part and REVERSED in part.

EDMONDSON, Circuit Judge, concurs in the result.

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