Robert Wayne Holsey v. Warden, Georgia Diagonstic Prison

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

_________________________ ELEVENTH CIRCUIT

September 13, 2012

JOHN LEY

No. 09-14257 CLERK

__________________________

D.C. Docket No. 07-00129-CV-CDL

ROBERT WAYNE HOLSEY,

Petitioner - Appellant,

versus

WARDEN, Georgia Diagnostic Prison,

Respondent - Appellee.

__________________________

Appeal from the United States District Court

for the Middle District of Georgia

___________________________

(September 13, 2012)

Before CARNES, BARKETT, and EDMONDSON, Circuit Judges.

CARNES, Circuit Judge:

In the early morning hours of December 17, 1995, Robert Wayne Holsey

robbed a convenience store in Milledgeville, Georgia, and fled. Minutes later his

car was stopped by Baldwin County Deputy Sheriff Will Robinson. The deputy,

who was twenty-six years old, approached the vehicle. Holsey shot him dead.

Fourteen months later, in February of 1997, a jury convicted Holsey of malice

murder and armed robbery. The jury fixed his sentence at death on the malice

murder conviction, and the court imposed that sentence. He has been on Georgia’s

death row for the past fifteen years.

During those fifteen years, Holsey has exhausted his state court direct

appeal and state postconviction challenges. See Holsey v. State, 524 S.E.2d 473

(Ga. 1999) (direct appeal) [Holsey I]; Holsey v. Schofield, No. 2000-V-604, Sup.

Ct. of Butts Cnty. (May 9, 2006) (Final Order on Amended Petition for Writ of

Habeas Corpus) [Holsey II]; Schofield v. Holsey, 642 S.E.2d 56 (Ga. 2007)

(collateral appeal) [Holsey III]. Holsey’s convictions and death sentence were

affirmed on direct appeal. Holsey I, 524 S.E.2d at 480. In the state postconviction

proceedings, the trial court vacated Holsey’s death sentence, concluding that his

trial lawyers had rendered ineffective assistance at the sentencing phase of

Holsey’s trial in regard to presentation of mitigating circumstances evidence about

his limited intelligence and his troubled, abusive childhood. Holsey II, No. 2000-

V-604, at 82–84. The Supreme Court of Georgia reversed, however, holding that

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Holsey had not shown that he was prejudiced by his trial lawyers’ alleged failures.

Holsey III, 642 S.E.2d at 60–62.

In November 2007, Holsey filed a 28 U.S.C. § 2254 petition for a writ of

habeas corpus. The district court denied that petition on July 2, 2009. Holsey v.

Hall, No. 3:07-cv-129(CDL) (M.D. Ga. July 2, 2009) [hereinafter Holsey IV].

Holsey moved for a certificate of appealability, which the district court granted on

two issues:

(1) Whether reasonable jurists could disagree that the Georgia

Supreme Court’s decision, which reversed the grant of

sentencing relief as to [Holsey’s] ineffective assistance of

counsel claim, was based on unreasonable determinations of

fact, and/or on an unreasonable application of clearly

established federal law, and/or was in contravention of clearly

established federal law; [and]

(2) [Whether] the Georgia Supreme Court’s affirmance of

Georgia’s unique reasonable doubt standard for mental

retardation claims contravenes and/or unreasonably applies

established U.S. Supreme Court precedent prohibiting the

execution of mentally retarded offenders and mandating federal

Due Process constraints on state burdens of proof meant to

protect fundamental federal constitutional rights. (Quotation

marks omitted.)

After the district court granted the COA on those issues, we resolved the

second issue in another case. In Hill v. Humphrey, 662 F.3d 1335, 1360–61 (11th

Cir. 2011) (en banc), we held that the Georgia Supreme Court’s decision affirming

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the state’s reasonable doubt standard for mental retardation claims did not

contravene clearly established Supreme Court precedent. Our Hill decision

disposes of the second COA question. This opinion addresses the first one.

I. THE TRIAL

On January 8, 1996, a Georgia grand jury indicted Holsey for malice

murder, felony murder, and armed robbery. Four days later the State filed a notice

of its intent to seek the death penalty. The trial court appointed Andrew Prince as

lead counsel to represent Holsey at trial, and Brenda Trammel served as Prince’s

co-counsel.

A. The Guilt Phase

The guilt phase of Holsey’s trial began on February 1, 1997. As the

Supreme Court of Georgia has recounted, the State at the guilt phase proved the

following:

Robert Wayne Holsey robbed a Jet Food Store in Milledgeville with a

handgun shortly before 1:30 a.m. on December 17, 1995. Holsey

received money from both the cash register and the lottery machine

after telling the store clerk, “Bitch, I want you to give me all your

money.” Holsey’s voice was recorded on the store’s surveillance

videotape and was identified at trial by Holsey’s girlfriend. Holsey

fled the convenience store in a red Ford Probe automobile he had

borrowed from his sister’s girlfriend earlier that night. The red Probe

was stopped at the Royal Inn Motel approximately four minutes later

by Deputy William Edward Robinson, IV. Deputy Robinson made a

radio call identifying the red Probe’s license plate number and then

4

approached the automobile holding a flashlight. Deputy Robinson

received two bullet wounds, one to his right arm and one to the back

of the right side of his head. Deputy Robinson managed to fire several

shots before sustaining the fatal head wound.

After the shooting, another deputy spotted the Probe and turned

his patrol vehicle around to give chase, but the Probe sped away and

escaped. Witnesses observed the Probe traveling at a high rate of

speed through a red light and into lanes of oncoming traffic. One

witness who knew Holsey testified that she saw him alone in the

Probe as it passed by at the red light.

Having thus far evaded capture, Holsey called his girlfriend,

Mary Jackson, and asked her to pick him up at his sister’s house. He

specifically directed Jackson to come in her blue Jeep Cherokee

vehicle rather than in her burgundy-colored automobile. When

Jackson arrived at Holsey’s sister’s house, Holsey called to Jackson

from behind a fence on a hill. Holsey had changed clothes since he

left Jackson’s house several hours earlier. Jackson refused Holsey’s

request to take him to his mother’s house so he could monitor a police

scanner, but Jackson did agree to his request to drive him past the

motel where the murder had occurred and then back to his sister’s

house by way of back roads. When back at his sister’s house, Holsey

directed Jackson to park her Jeep Cherokee behind the Probe to

conceal its license plate. As Holsey and Jackson sat in the parked

Jeep Cherokee, a police officer spotted the Probe and verified that its

license plate number matched the license plate number in the victim’s

radio call. Holsey exited the Jeep Cherokee, refused the officer’s

command to put his hands up, looked around as though searching for

an escape route, and then ultimately surrendered.

Law enforcement officers discovered, hidden near Holsey’s

sister’s house, clothing that matched the clothing worn by the armed

robbery perpetrator and a hat belonging to Jackson’s son. The murder

weapon was concealed nearby and was later found by a civilian.

Holsey’s tennis shoes were taken from him after his arrest, and expert

testimony showed that one of the shoes had blood on it with DNA

consistent with the victim’s blood. Holsey gave strong physical

resistance and screamed loudly when officers initially attempted to

conduct a gunshot residue test on his hand. A trace metal detection

5

test of Holsey’s hand was administered later and rendered a result

consistent with Holsey’s having held the murder weapon, which was

metal with wooden grips. A bullet recovered from the Probe was

matched with Deputy Robinson’s service weapon. The bullet

retrieved from Deputy Robinson’s head during his autopsy was

matched with a handgun belonging to Holsey’s girlfriend, Mary

Jackson. Jackson testified that Holsey admitted to her after the

murder that he had taken the handgun.

Holsey III, 642 S.E.2d at 59.

On February 11, 1997, the jury returned a verdict finding Holsey guilty of

malice murder, felony murder, and armed robbery, although “[t]he felony murder

conviction was vacated by operation of law.” Id. at 475 n.1. The sentencing

phase of Holsey’s trial began the next day.

B. The Sentencing Phase

At the start of the sentencing phase, the jury learned about Holsey’s

criminal record for the first time. The State introduced his 1983 guilty plea

conviction for armed robbery with serious bodily injury. For that crime, the state

trial court had sentenced Holsey to be “confined at labor for twenty years,” with

fifteen years to be served in prison. The State called Scott Maher to testify about

facts underlying the conviction. Maher testified that he was working as a night

clerk at a Milledgeville convenience store on July 8, 1983. Holsey, who was

eighteen years old at the time, entered the store, hit Maher in the face with a brick,

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and emptied the store’s cash register.1 After Maher’s testimony, the State

introduced evidence that Holsey was paroled in July 1990 after serving seven

years of that sentence and placed on probation for the remainder of his sentence.

The State next introduced Holsey’s 1992 guilty plea convictions for two

counts of aggravated assault and one count of possession of a firearm by a

convicted felon. Based on those convictions, the state trial court had revoked his

probation for the 1983 armed robbery conviction and ordered him to serve the

remaining term of that sentence in prison. The court had also sentenced Holsey to

five years probation for the three 1992 convictions, to run consecutively with the

remainder of the sentence for the 1983 conviction. The jury heard all about that at

the sentencing phase of Holsey’s capital murder trial.

The jury also heard more details concerning the crime leading to Holsey’s

three convictions in 1992 for aggravated assault and felon in possession. Kenneth

Simmons testified that, while he was at the Soul Master’s Lounge in Milledgeville

on February 22, 1992, Holsey attacked him from behind and stabbed him four

times with a knife. As a result of Holsey’s attack, Simmons was knocked out and

suffered a punctured lung. Scotty Simmons, who is Kenneth Simmons’ first

1

The State also called two Milledgeville law enforcement officers, whose testimony

corroborated Maher’s.

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cousin, testified that he was at the Soul Master’s Lounge when Holsey attacked

Kenneth Simmons. After the attack, Scotty Simmons decided to “go get” Holsey

and do him some harm, but Holsey fired a rifle at him seven or eight times.2 The

State rested.

Holsey’s attorneys, Prince and Trammel, then presented evidence of

mitigating circumstances. Trammel began by playing for the jury the videotaped

deposition of the owner of the Soul Master’s Lounge. His name is Clifford

Holsey, although he is not related to petitioner Robert Wayne Holsey. (We will

refer to this witness as “Clifford” to avoid confusion.) The first thing that Clifford

testified about was the night Holsey stabbed Kenneth Simmons. He said that

Kenneth and Scotty Simmons had gone to the Soul Master’s Lounge that night to

attack Holsey. He also told the jury that, although he did not see the stabbing,

Holsey had acted in self-defense.

Trammel also questioned Clifford about Holsey’s childhood. Clifford

testified that Holsey grew up in Clifford’s neighbor hood, so he had known Holsey

since Holsey was a small child. Trammel asked Clifford “to tell the jury what [he

2

The State also called Bertha Simmons and Cathey Bell to corroborate the testimony of

Kenneth and Scotty Simmons. Bertha Simmons testified that she saw Holsey stab Kenneth

Simmons at the Soul Master’s Lounge, and Bell testified that she also saw Holsey stab Kenneth

Simmons and that she saw Holsey fire a rifle at Scotty Simmons.

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knew] about [Holsey] and the circumstances of his home life” growing up.

Clifford responded:

Well, I think [Holsey] came up the best that he could. I think

he was neglected from his mother. She, you know, kinda of

like—came up kind of like child abuse. And she just didn’t see about

them, you know, kind of walked all over them a little bit, and done

everything.

[Holsey] and [his siblings] were really not cared for and—I

don’t know. But I believe [Holsey] might have left home that one

time because their mother was really tough on them. I think she was

out kind of like courting around a little bit . . . .

Clifford also told the jury that Holsey grew up without his dad, who had

moved to Detroit after being shot and paralyzed, and that he had heard Holsey had

a bed-wetting problem until he was about twelve years old.

Clifford explained to the jury that Holsey and his siblings dressed as “[b]est

they could by living in the projects” and that their house was “rough” and infested

with cockroaches. Trammel asked Clifford, “Did you ever see [Holsey’s mother]

put her arms around her children and tell them that she loved them?” He

answered, “Never done that.” Clifford testified that he had heard Holsey’s mother

admit that she would curse at, “scold[,] . . . and beat” her children. He told the

jury that Holsey’s mother threatened her children and often left them home alone

because she cooked at night for the Soul Master’s Lounge. Clifford explained that

despite his bad life while a child, Holsey was not a “bad person” but instead was

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“quiet and kept a smile on his face.”

Trammel asked Clifford about Angela Holsey, who was Holsey’s second-

oldest sister. Clifford said that Angela had spent time in “special ed when she was

small.” According to Clifford, “[s]he did have problems.”

After the jury watched Clifford’s videotaped deposition, Prince and

Trammel called eight more witnesses to testify live: Delores Cook, Belinda

Hawkins, Freda Webb, Ferrlando Jones, Otis Paschal, Sandra Kendrick, Regina

Reeves, and Demetra Holsey. The jury heard first from Delores Cook, who was a

cook at the Baldwin County Jail where Holsey was incarcerated after his 1992

convictions. She testified that Holsey had worked in the kitchen as a “trustee”

giving “out trays to the other inmates.” According to her, Holsey was “courteous”

and “respectful” and did not cause any trouble.

The jury then heard from Belinda Hawkins, a friend of Holsey’s. Hawkins

testified that she and Holsey went together to the Soul Master’s Lounge on

February 22, 1992. According to Hawkins, Holsey told her later that Kenneth

Simmons had hit him in the head with a brick and then three men attacked him.

She insisted to the jury that Holsey “didn’t start no fight” that night.

Freda Webb, a jailer for the Jasper County Jail, was the next witness. She

testified that she knew Holsey as an inmate at the Jasper County Jail where he had

10

been awaiting trial on the malice murder, felony murder, and armed robbery

charges. She described Holsey as “a real courteous[,] . . . model inmate[].” Webb

also testified that she did not believe that he “should get the electric chair” or that

he would be a danger to others in prison.

After Webb testified, Prince called three of Holsey’s former coworkers from

the Milledgeville Pizza Hut. The first was Ferrlando Jones, the restaurant’s

assistant manager. He testified that Holsey was not a violent person, that he got

along with the restaurant’s other employees, and that he did what he was told to

do. Otis Paschal, the restaurant’s manager, testified that Holsey “was a very good

employee,” was “dependable,” did what he was told, and got along well with

others. He also told the jury that Holsey was “the quiet type” and that he never

saw any violent tendencies in Holsey. The last former Pizza Hut coworker to

testify was Sandra Kendrick, one of Holsey’s supervisors at the restaurant. She

testified that Holsey was a good employee. She also told the jury that she was at

the Soul Master’s Lounge when Holsey stabbed Kenneth Simmons in 1992 and

that Simmons had started the fight by hitting Holsey “beside the head.”

Prince next called Holsey’s oldest sister, Regina Reeves, to testify.3

3

When Reeves testified at Holsey’s trial in 1997 her last name was still Holsey. She

married after the trial, taking her husband’s name, and she thereafter testified again in 2003

during the postconviction proceedings. For consistency, we will refer to her as “Reeves”

11

Reeves is a former marine, a former Baldwin County deputy sheriff, and a Deputy

United States Marshal. Prince began the examination by asking Reeves about the

fight when her brother stabbed Kenneth Simmons. Reeves said that she did not

witness the fight but that during it her brother had suffered head injuries requiring

stitches. Prince asked her about Holsey’s incarceration at the Baldwin County

Jail, which began in 1992. According to Reeves, through good behavior Holsey

had earned “trustee status,” which gave him more freedom within the jail than

nontrustee inmates. Jail officials entrusted Holsey with miscellaneous tasks at the

jail and allowed him to drive a truck.

Reeves also testified about Holsey’s childhood. She told the jury that

Holsey is a middle child. He has two older sisters, Reeves and Angela, and two

younger ones, Demetra and Lisa. Reeves, Angela, and Holsey have the same

father, but he is not the father of Demetra and Lisa. Holsey’s father was shot and

paralyzed two months before Holsey was born. The family moved to Detroit after

Holsey was born so that his father “could get better medical attention.” While

they lived in Detroit, Holsey’s sister Demetra was born, and after five years in

Detroit, Holsey’s mother and her children moved back to Milledgeville, leaving

Holsey’s father behind. According to Reeves, Holsey never “really knew [his

throughout this opinion.

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father] at all.”

Back in Milledgeville, Holsey and his now-four sisters (Lisa was born after

they moved back to Milledgeville) lived with their mother, usually in public

housing. Their mother received public assistance to help provide for her family,

but Reeves testified that “things were horrible” in their household. She recounted

how their mother would often beat the oldest three children: Reeves, Angela, and

Holsey. Because she “hated it there” and “was tired of taking beatings,” Reeves

left home when she was seventeen years old and joined the Marine Corps. She

later became a Deputy Sheriff and then a Deputy United States Marshal.

Reeves told the jury about Holsey’s mother’s involvement in his life. She

testified that their mother had once been hospitalized for psychiatric problems and

pointed out that she had not even bothered to show up for the sentencing phase of

her son’s trial. According to Reeves, Holsey’s mother had not been there for most

of his life. And although their mother had men in and out of the home while they

were growing up, none of those men had spent any time with Holsey. Instead,

Reeves testified that raising Holsey and her other siblings was “left up to [her],”

and without a mother or father around, Holsey “more or less” grew up on the

street.

Prince asked Reeves about Holsey’s school performance. She testified that

13

he “didn’t do well” and told the jury that he “might have made it to the tenth

grade,” but didn’t complete that grade. Teachers had usually just assigned Holsey

to the next grade instead of actually passing him into that grade. During Reeves’

testimony, Prince introduced Holsey’s school records into evidence, and he asked

Reeves to read from a section entitled “teacher’s remarks.” Reeves then testified:

A: . . . For the first grade says, a weak student in readiness

materials. Second grade says, very slow, needs help from

home. Third says, poor worker. Fourth says, poor worker.

Fifth says, can be controlled with firm discipline and a few

kind words. Very, very low I think it says.

Q: The part I’m interested—can be controlled with discipline and

a few kind words.

A: Yes.

Q: And needs help from home.

A: Yes.

Q: Now, did [Holsey] get any help from home from his Mama?

A: No.

Q: Did he get a few kind words from his Mama?

A: Back in those times, no.

Reeves also testified that, after spending some time in foster care, as a

teenager Holsey had lived for a time at the Georgia Department of Human

14

Resources’ Youth Development Center. Prince introduced into evidence Holsey’s

records from that center, which showed that his mother voluntarily admitted him

to the center in January 1980, when he was fourteen years old.

Those records also include a pyscho-social evaluation of Holsey that was

prepared by a behavioral specialist and a psychologist on July 31, 1980.

According to that evaluation, when Holsey was fourteen years old, he was

expelled from school because he “pulled a butcher knife (which he had brought

from home)” and held it to another student’s throat and “hit him in the face but did

not cut him.” A juvenile complaint report, which also was in the Youth

Development Center records, stated that the school had ordered Holsey not to

return unless his mother accompanied him.

Other evidence showed that Holsey’s mother did not accompany him back

to school. At Prince’s request, Reeves read from a juvenile complaint report

contained in the records:

The first part says . . . that [Holsey] was basically a runaway case. He

has no supervision at home and refuses to return home. Says Mrs.

Holsey would not go to the school, and sent a note with [him].

[Holsey] was not allowed to return. When he tried to come back the

principal called the police to remove [him].

Prince also asked Reeves to read a section of the psycho-social evaluation to the

jury, which described Holsey as borderline mentally retarded:

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“[Holsey] evidenced an inappropriate effect during the evaluation.

He smiled inappropriately and had difficulty maintaining thought

patterns. At times he appeared unaware of his immediate

environment, and in a world of his own.” Another paragraph says,

“present testing indicates [Holsey] functions in the borderline mental

retardation range of intelligence. . . . [H]e appears as an anti-social

individual who thrives on taking risks or thrill seeking. He exhibits

an inability to plan ahead and make short or reckless disregard for the

consequences of his actions. His socialization relationships are

shallow, and he can be expected not to show strong loyalties to others

because his intelligence is so low his dislike for social convention is

likely to result in his being caught often.”

Reeves also recounted to the jury that the evaluation stated that academic testing

had showed that Holsey, who was fifteen years old at the time of testing,

functioned at a third-grade level.

Another part of the evaluation, which was introduced into evidence, states

that “[p]ersonality testing indicates [Holsey] is not showing any distress or guilt”

about putting the knife to his schoolmate’s throat and that “[h]is social adjustment

is so marginal if something is not done soon he will continue to cause problems.”

The evaluation reflected that Holsey had taken an IQ test on July 28, 1980, and

scored a 70. The evaluation concluded that Holsey “is probably seriously

disturbed.” A summary of a home evaluation conducted by the Youth

Development Center, also contained in the records submitted into evidence, stated

that Holsey’s mother “has no idea how to control [him] without resorting to

16

excessive punishment.”

The Youth Development Center records admitted into evidence at the

sentencing phase also contained a psychiatric evaluation of Holsey prepared by

Dr. Fred Trest, one of the center’s psychiatrists. Dr. Trest had concluded that

Holsey suffered a “behavioral/personality disorder, which includes . . . [an]

antisocial component” and that “his intelligence seems to be borderline.” Holsey

had told Dr. Trest that neither he nor his siblings had been treated “neglectfully”

or had “received physical or verbal abuse from his mother,” but “he readily

admit[ted] . . . that he has felt relatively rejected by his mother for his younger

siblings.” He also told Dr. Trest that his mother “‘yell[ed] at him,’” “infrequently

‘slap[ped] him on the head,’” and “intermittently spanked him with a belt” as

punishment when he misbehaved. And Holsey “reveal[ed] that his mother’s

present boyfriend is a friend to him . . . [who] takes him fishing and boat riding,

and plays football with him.”

Dr. Trest’s evaluation reported that Holsey was twice suspected of

attempting suicide while at the Youth Development Center but that Holsey denied

it. The evaluation concluded that, at the time, Holsey “has just barely as many

antisocial behaviors as must be present in the childhood histories of adults who

are diagnosed as having antisocial personality disorders.” Dr. Trest also wrote

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that Holsey admitted “to having had the antisocial urge to steal in the past.”

The Youth Development Center records also contained a “social history” of

Holsey written by Rosa Marks, a center social worker. Marks wrote the history

sometime after Holsey was admitted to the center, and she noted that he “was

doing fair in school until a year ago.” She summarized Holsey’s situation: “[His]

strength is in his physical environment and his average intelligen[ce]. His

limitations lie[] in his inability to express himself adequately. His mother has

given up all hopes and has little interest in [Holsey].”

In addition to eliciting testimony from Reeves about Holsey’s troubled,

abusive childhood, Prince asked her about Holsey’s other older sister, Angela.

Reeves testified that Angela was a violent person, had problems at school, was

sometimes bad to her children, and had been hospitalized several times at Central

State Hospital for mental problems. The first time that Angela was admitted to

Central State Hospital was when “she was kicked out of public school in the

fourth grade” because “[t]eachers were horrified of her.” According to Reeves,

Angela attended special education classes while she was at Central State Hospital.

Reeves said that as a child Holsey had rarely gotten into any trouble on his

own but instead “it was usually . . . with or because of . . . Angela.” She told the

jury that to get reward money Angela had turned Holsey in to the police for his

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1983 armed robbery. To Reeves, at least, Angela’s betrayal was not surprising;

still, Holsey never confronted Angela about it.

Prince introduced into evidence Angela’s medical records from Central

State Hospital. Those records show, among other things, that when Angela was

eleven years old the Juvenile Court of Baldwin County ordered her admitted to

Central State Hospital for a “neurological work-up, electro-encephalogram, and a

complete review and evaluation of her personality.” During that court-ordered

stay, hospital officials found her to be in “the Borderline range of intellectual

functioning” and concluded that “the consideration of Mild Mental Retardation

cannot be entirely ruled out.” The officials found that Angela’s personality

“reflected a great deal of hostility, insecurity, and depression and indicated that

Angela was easily angered, could not control her anger, and did not understand it,

partially due to her intellectual level.” And a Central State Hospital evaluation

when Angela was sixteen years old “considered [her] to be functioning in a mild

mental retardation range.” All of that evidence was put before the jury.

Finally, Reeves told the jury about her brother’s character. She stated that

he has “always been mostly quiet” and she “used to tease him . . . about things

because he was always small and skinny.” But, she testified, “he’s always . . .

been the type that if you’re his friend or if you’re . . . family . . . he sticks up for

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you. He stands . . . by you . . . no matter what.” According to Reeves, Holsey

would do just about anything to protect his sisters and his mother. She believed

that he did not have the ability to take advantage of the same opportunities that she

did because he does not have “what you would call good social skills. [He’s]

never really been, you know, that good in school.”

As Holsey’s ninth and last witness during the sentencing phase, Trammel

called Demetra Holsey, one of Holsey’s younger sisters. Pleading with the jury to

spare her brother’s life, she testified:

[W]henever I need[ed] him he was there. . . . No matter what the

problem was, if he could help us he would. When times got hard with

me, when people put me down I always had somebody I could go to

that would lift my head up and let me know I am somebody. No

matter what you said, you couldn’t take that away from me. You

know, I was always picked at because of my size. He always told me

I was beautiful, no matter what. People look at me from the inside,

not the outside. Just keep my head up and one day God will bless me.

....

I’d just like to say please, I beg of you, spare his life . . . . I

never had a father. My real father died when I was a baby. He was

my only father figure. . . . There’s some good in everybody. . . . I

don’t have no other male figure in my life. I have a child of my own,

and his father’s gone . . . , and I got to live a single mother’s life . . . .

But I need something. If it ain’t but a little bit, just please leave me

something.

The parties then presented their closing arguments. The prosecutor began

by telling the jury that the State had proven four statutory aggravating

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circumstances: (1) “Holsey committed murder against a peace officer . . . while

[that peace officer] was engaged in the performance of his official duties,” see Ga.

Code Ann. § 17-10-30(b)(8); (2) “Holsey shot and killed Will Robinson for the

purpose of avoiding, interfering with, or preventing a lawful arrest of himself,” see

id. § 17-10-30(b)(10); (3) “Holsey murdered Will Robinson while he was engaged

in the commission of another capital felony, . . . armed robbery,” see id. §

17-10-30(b)(2); and (4) “Holsey . . . murdered Will Robinson while he had a prior

record of conviction for a capital felony, . . . . [the 1983] armed robbery,” see id. §

17-10-30(b)(1).

The prosecutor then discussed Holsey’s evidence of mitigating

circumstances. He said:

Ladies and gentlemen, yes, the defendant did not have a perfect

childhood. The fact that his sister turned him in for an armed robbery

to get a reward, does that justify his robberies and killing a police

officer?

Yes, he’s got another sister that has got some mental problems.

Does that justify what he’s done? No doctors have told us that Robert

Wayne Holsey has any mental problems.

....

Regina Holsey, she grew up in that same family. Same mother,

same father, same household. When Regina turned 18 years old, she

wanted to make something of her life. She joined the United States

Marine Corps. . . .

When [Holsey] turned 18, he robbed a Corral Convenience

Store. And you heard him take that brick, and he smashed it in the

face of Scottie Maher. Same age as Regina, same parents, same

21

environment, same conditions.

....

. . . Robert Wayne Holsey is the ox that gores and gores again.

Trammel presented closing arguments on behalf of Holsey. She began by

acknowledging that the State had proven four statutory aggravating circumstances.

She then defined a mitigating circumstance for the jury as “anything that you want

to consider or may consider that might just indicate to you that the ultimate

punishment in this case is not what should be given.”

Trammel highlighted for the jury Holsey’s troubled, abusive “home life,”

noting that he “grew up by himself.” Arguing that “[w]e don’t all start equally,”

Trammel told the jury that Holsey “had nothing that every child deserves to have.

He was deprived of everything.” He “had a mother who wouldn’t even go to the

school so he would get back in.”

She also highlighted Holsey’s limited intelligence, telling the jury that

Holsey is “borderline mentally retarded.” She reiterated that point by reminding

the jury that he “was just assigned [to grades] for school” and that by the time he

was eighteen years old he still could not sign his name. Finally, she asked the jury

to consider any lingering doubt it might have about Holsey’s guilt to weigh in

favor of not imposing the death penalty.

The court instructed the jurors that it was their “duty to determine within the

22

limits prescribed by law what punishment [would] be imposed in this offense” and

told the jurors that they were “authorized to consider all of the evidence received

here in court in both stages of this proceeding presented by the State and the

defendant.” After deliberating for less than two hours, the jury returned a verdict

finding that the State had proven four statutory aggravating circumstances and

fixing Holsey’s sentence at death for the malice murder conviction. The state trial

court imposed that sentence for that conviction and also sentenced Holsey to life

imprisonment for the armed robbery conviction.

On direct appeal the Georgia Supreme Court affirmed Holsey’s convictions

and the death sentence. Holsey I, 524 S.E.2d at 480. The court found,

“considering both the crime and the defendant, that the sentence of death was

neither excessive nor disproportionate to the penalties imposed in similar cases.”

Id. The United States Supreme Court denied Holsey’s petition for a writ of

certiorari, Holsey v. Georgia, 530 U.S. 1246, 120 S.Ct. 2695 (2000), and his

petition for rehearing, Holsey v. Georgia, 530 U.S. 1297, 121 S.Ct. 17 (2000).

II. STATE POSTCONVICTION PROCEEDINGS

After the Supreme Court denied certiorari, Holsey filed a petition for a writ

of habeas corpus in Georgia state court raising thirteen grounds for relief. One of

those grounds for relief, which is the only remaining ground at issue in this appeal,

23

was that his trial lawyers rendered ineffective assistance at the sentencing phase by

failing to present enough mitigating circumstance evidence of his limited

intelligence and of his troubled, abusive childhood.

The state collateral court held an evidentiary hearing on June 16–18, 2003,

and December 8–9, 2003. Holsey called eight witnesses to testify: Dr. Mark

Cunningham, Dr. Jethro Toomer, Brenda Trammel, Ronald Singer, Judge L.A.

McConnel, Jr., Cathy Crawford, Regina Reeves, and Andrew Prince. He also

submitted 224 exhibits, including the deposition testimony of nineteen people, the

affidavits of fifty-two people, and his Department of Corrections records. The

State called nine witnesses to testify: Dr. Thomas Sachy, Evelyn Luton, Dr. Kris

Sperry, Mark Robinson, Sheriff William Masse, Jr., Fred Bright, Ricky Horn,

Jimmie Baggett, and Howard Sills. The State submitted 220 exhibits.

The state collateral court vacated Holsey’s death sentence, concluding that

his trial lawyers had rendered ineffective assistance at the sentencing phase of

Holsey’s trial in regard to the presentation of mitigating circumstances evidence

about his limited intelligence and his troubled, abusive childhood. Holsey II, No.

2000-V-604, at 82–83. The Georgia Supreme Court assumed that Holsey’s trial

lawyers had rendered deficient performance, but it reversed the state collateral

court. The Georgia Supreme Court held that even if Holsey’s trial lawyers were

24

deficient, Holsey had not shown that he was prejudiced by that deficiency. Holsey

III, 642 S.E.2d at 60–62.

The State contends that Holsey’s trial lawyers did present enough mitigating

circumstances evidence at the sentencing phase. Because the Georgia Supreme

Court’s conclusion that Holsey was not prejudiced by his trial lawyer’s assumed

deficiencies was neither an unreasonable application of clearly established federal

law nor based on an unreasonable determination of the facts, we will assume that

Holsey’s trial lawyers were deficient, as the Georgia Supreme Court did.

A. Mitigating Evidence Presented at the State Collateral Evidentiary Hearing

During the evidentiary hearing Holsey’s collateral counsel called two

witnesses to testify about his limited intelligence—Dr. Mark Cunningham and Dr.

Jethro Toomer. They called his oldest sister, Regina Reeves, to testify about his

troubled, abusive childhood. As additional evidence of his limited intelligence

and troubled, abusive childhood, they submitted the deposition testimony of eight

people and the affidavits of twenty-nine more. Holsey’s collateral counsel also

submitted some documentary evidence, including his Department of Corrections

records.

25

1. Holsey’s Witnesses

a. Dr. Cunningham

The first witness to testify for Holsey at the evidentiary hearing was Dr.

Mark Cunningham, a clinical and forensic psychologist whom the court

recognized as an expert in those fields. He was hired to evaluate Holsey’s

intellectual status and determine whether he is mentally retarded.4

Dr. Cunningham gave his opinion that Holsey is mildly mentally retarded.

He explained that:

There’s a broad misconception that the public has that somebody

who’s mentally retarded is slobbering and stuporous and can’t fasten

their clothes correctly and is unable to hold a job, could never learn to

read or write at all. In other words, the popular notion of what it

means to be mentally retarded in fact is more descriptive of somebody

who is severely to moderately retarded. . . . And so there are broad

misconceptions in the community about what it means to be mentally

retarded and what somebody who’s mildly mentally retarded can do

or not do.

Dr. Cunningham’s diagnosis of Holsey as mildly mentally retarded was

based on the definition of mental retardation in the Fourth Edition of the

Diagnostic and Statistical Manual of Mental Disorders. See Diagnostic and

Statistical Manual of Mental Disorders (4th ed. 2000) [hereinafter DSM-IV).

According to him, DSM-IV “is the diagnostic classification system that’s utilized

4

Holsey also submitted Dr. Cunningham’s written report on those topics.

26

by psychologists and psychiatrists so that [they] are all talking about the same

disorder.” Dr. Cunningham also explained that DSM-IV is accepted within his

professional community, and its definition of mental retardation is consistent with

the definition provided by the American Association of Mental Retardation, which

is “an association that began in 1876 and represents the primary professional

organization” concerned with mental retardation.

Dr. Cunningham testified that a diagnosis of “[m]ental retardation has three

prongs to it.”5 The first is that the person must have intellectual abilities that are

“significantly subaverage, which is defined as . . . an IQ score of approximately 70

or below.” However, the DSM-IV and the AAMR recognize that “an IQ score of

75 and below [c]ould also qualify because, in fact, that may well represent a true

IQ that’s less than 70 with [an] error component taken into consideration.”

5

As stated in the DSM-IV: “The essential feature of Mental Retardation is significantly

subaverage general intellectual functioning . . . that is accompanied by significant limitations in

adaptive functioning in at least two of [ten] skill areas . . . . The onset must occur before age 18

years . . . .” DSM-IV, at 41.

Georgia similarly defines mental retardation as “having significantly subaverage general

intellectual functioning resulting in or associated with impairments in adaptive behavior which

manifested during the developmental period.” Ga. Code Ann. § 17-7-131(a)(3); accord DSM-IV,

at 41. In Stripling v. State, 401 S.E.2d 500, 504 (Ga. 1991), the Georgia Supreme Court

explained that the “significantly subaverage intellectual functioning” factor of the mental

retardation definition “is generally defined as an IQ of 70 or below.” According to the court,

however, “an IQ test score of 70 or below is not conclusive” because “an IQ score is only

accurate within a range of several points, and for a variety of reasons, a particular score may be

less accurate.” Id.; accord Hill, 662 F.3d at 1341 n.6; see also infra pp. 30–31, 37.

27

The second prong of a mental retardation diagnosis is a significant

impairment in adaptive behavior, which means significant impairment in at least

two of ten adaptive behavior categories listed in the DSM-IV. Those ten

categories are communication, self-care, home living, social interpersonal skills,

use of community resources, functional academic skills, self-direction, work,

leisure, and health and safety. According to Dr. Cunningham, there are two

standardized tests an evaluator can administer to determine whether someone has a

significant impairment in adaptive behavior: the Vineland Social Maturity (or

Adaptive Behavior) Scales or the AAMR’s Adaptive Behavior Scales.6 Dr.

Cunningham described those tests:

Typically, the adaptive behavior scales use a respondent who has had

close observation of the individual . . . , you’re talking to [someone]

who has had experience observing this person in various roles and in

intimate daily life activities over an extended period of time. And

you then query this person in a very detailed sort of way, following

the questions that are laid out in the scale about what this person can

do or is not able to do.

Dr. Cunningham also explained that an evaluator can “get information on an

anecdotal basis by interviewing or getting depositions from a broad variety of

6

Dr. Cunningham explained that the Vineland Scales “provide[] information about how

[the patient] compares to community members as opposed to individuals that are mentally

retarded.” He also said that the AARM Scales “provide information about how [the patient]

compares to other individuals who are developmentally disabled, to other people that are

mentally retarded.”

28

third parties, and that provides additional information about somebody’s adaptive

behavior capabilities.”

The third prong of a mental retardation diagnosis is that there must be “the

onset of mental retardation before the age of eighteen.” Dr. Cunningham

explained that there are degrees of mental retardation. “The highest functioning

level of mental retardation is called mild mental retardation[, which is] a misnomer

because there’s nothing mild about this condition. It’s a catastrophic disability.”7

According to Dr. Cunningham, mild mental retardation represents an IQ score

from 50 to about 70 or 75. Below it is moderate (IQ of 40 to 55), severe (IQ of 20

to 40), and profound (IQ of 20 or below) mental retardation.

7

Unlike Dr. Cunningham, the DSM-IV does not describe mild mental retardation as “a

catastrophic disability.” According to the part of the DSM-IV that Holsey’s collateral counsel

submitted into evidence at the evidentiary hearing:

Mild Mental Retardation is roughly equivalent to what used to be referred to as

the educational category of “educable.” This group constitutes the largest

segment (about 85%) of those with the disorder. As a group, people with this

level of Mental Retardation typically develop social and communication skills

during the preschool years (ages 0–5 years), have minimal impairment in

sensorimotor areas, and often are not distinguishable from children without

Mental Retardation until a later age. By their late teens, they can acquire

academic skills up to approximately the sixth-grade level. During their adult

years, they usually achieve social and vocational skills adequate for minimum

self-support, but may need supervision, guidance, and assistance, especially when

under unusual social or economic stress. With appropriate supports, individuals

with Mild Mental Retardation can usually live successfully in the community,

either independently or in supervised settings.

DSM-IV, at 43.

29

To perform his evaluation of Holsey, Dr. Cunningham reviewed “a very

large set of records,” which included the results of IQ tests that Holsey had taken

in the past; deposition testimony; sworn affidavits;8 arrest records; and school,

Department of Corrections, and other institutional records. Dr. Cunningham also

administered to Regina Reeves, Holsey’s sister, the Vineland Adaptive Behavior

Scale and the AAMR Adaptive Behavior Scale. He used Reeves because he

believed that she is “the most reliable and functional member of [Holsey’s]

family.”

Dr. Cunningham testified that Holsey satisfied the first prong of the mental

retardation test. He reviewed three IQ tests that Holsey had taken, one in 1980,

when he was fifteen years old; one in 2001, when he was thirty-six years old; and

one in 2003, when he was thirty-seven years old. Holsey scored a 70, 69, and 71

on those tests. According to Dr. Cunningham, because Holsey took those tests

across a twenty-three-year period, the clustering of his IQ score within three points

showed “an extraordinarily reliable demonstration of his actual intellectual

8

Dr. Cunningham reviewed affidavits, which Holsey also submitted into evidence during

the evidentiary hearing, from the following people: Essie Anderson, Donald Foster, Sandra

Frances, Mary Havior, Belinda Hawkins, Angela Holsey, Demetra Holsey, Henry Holsey, Jr.,

Annie Howard, Rosa Ingram, Ferrlando Jones, Thomas Lee, Billy McGriff, Louvenia Melchor,

Lelia Powell, Sonya Rooks, Sara Simcox, Hugh Tucker, Robert Warner, Freda Webb, Dr.

Herbert Ebert, and Holsey’s mother.

30

capability.”

Dr. Cunningham also testified that Holsey was “significantly impaired” in

eight of the ten adaptive behavior categories: communication, home living, social

interpersonal skills, use of community resources, functional academic skills, self-

direction, leisure, and health and safety. He also noted that Holsey’s global

adaptive behavior functioning is “in the eight year old range.” And based on

Holsey’s score on the 1980 IQ test and other anecdotal evidence, Dr. Cunningham

testified that there was an onset of mental retardation before Holsey turned

eighteen. For those reasons, Dr. Cunningham testified that Holsey is mildly

mentally retarded, “which . . . does not reflect a mild disorder, but rather the mild

end of a continuum of severe disability.”

b. Dr. Toomer

The next witness Holsey’s collateral counsel presented was Dr. Jethro

Toomer, a forensic psychologist whom the court recognized as an expert in that

field.9 He testified that, in December 2001 when Holsey was thirty-six years old,

he performed a psychosocial evaluation on Holsey to determine whether Holsey is

mentally retarded.10 As part of that evaluation, Dr. Toomer administered the 2001

9

Holsey also submitted Dr. Toomer’s written report.

10

According to Dr. Toomer:

31

IQ test on which Holsey scored a 69 and administered a WRAT “to assess overall

achievement functioning as it relates to a particular grade level.” On the WRAT

that Dr. Toomer gave him, Holsey scored equal to the fifth-grade level in reading

and spelling, and equal to the fourth-grade level in math.

Dr. Toomer testified that he reviewed “several things,” including Holsey’s

school records and “affidavits filed by a variety of family members and people

who knew him during his developmental years.” He also interviewed Reeves and

administered to her the Scales of Independent Behavior, Revised. Based on all of

that information, Dr. Toomer testified that Holsey shows “deficits in a variety of”

adaptive behavior categories and that there is some evidence that he suffered an

onset of mental retardation before turning eighteen. In Dr. Toomer’s opinion

Holsey is mentally retarded.

c. Regina Reeves

Holsey’s collateral counsel called his oldest sister, Regina Reeves, to testify

[A] [p]sychosocial evaluation is . . . a kind of history taking. It’s a semistructured

interview where the individual is asked a series of questions regarding his

developmental history from birth up to the present time. And as part of that

information getting, the individual is observed regarding his overall presentation,

clinical presentation, intellectual and cognitive presentation, how the person

responds to questions asked, [and] how the individual processes information. All

that is part of the observational piece that occurs in conjunction with the taking of

the psychosocial history.

32

about his childhood. The first part of her testimony was about Holsey’s

upbringing in Detroit. She testified that Holsey often saw their mother and father

fight, “[s]ome physical; a lot of verbal.” One time their father hit their mother

with the handle of a broom or a mop, and another time their mother set a milk

carton and a newspaper on fire and threw them on top of their father, who was

confined to a wheelchair.

Reeves also testified about Holsey’s life after their mother moved him and

his siblings back to Milledgeville. According to Reeves, their mother suffered

from psychological problems, including “depression and some other stuff,” and

the family lived in a “horrible” economic situation as their mother struggled to

earn enough money to provide for the family. Before she went on welfare, their

mother earned money by working long hours in cafeterias, babysitting, and

cleaning other people’s homes. Because their mother worked so much, Reeves

“more or less played the role as the mother.”

Reeves testified that the family did not always have enough food to eat.

Their mother gave eating priority to Holsey’s two younger sisters. Reeves

testified about a time when Holsey “got up the nerve to ask for something else to

eat and [his mother] made him eat, you know, everything that was left in the pot,

the [chicken] bones, the rice, the chicken, everything.”

33

Reeves said that their mother was hard on her children, especially the oldest

three: Reeves, Angela, and Holsey. For example, she was often in a bad mood

and regularly spoke negatively about their father. When Reeves, Angela, and

Holsey realized that she was in a bad mood, they would try to hide but often with

little success. As a result, they suffered a lot of verbal and physical abuse.

Reeves described Holsey as “always quiet, nervous, and small” and said that

he stuttered “really bad” until he was “[w]ell into his twenties.” Instead of trying

to build up Holsey’s self-confidence or getting him help for his stuttering, their

mother would berate and make fun of him. She told him that “he was just like his

no-good-ass daddy” and that “he was going to be a punk and a sissy.” And she

told him that he had a “can’t talk ass” and that he couldn’t “talk worth a shit.”

She would also “curse[] out [and] humiliate[]” her son. Reeves said that although

Holsey wet the bed until he was thirteen years old, his mother never took him to

the doctor or tried to help him with that problem.

Reeves testified that “[i]t wouldn’t take much of anything” to set their

mother into a violent rage, and she provided examples of the physical abuse

Holsey and Angela suffered. According to Reeves, their mother would beat her

children “[s]ometimes daily, every other day,” and that sometimes she beat them

outside of the home, “[i]n the yard, on the porch[,] [Holsey] got beaten on the

34

corner . . . right there near our house.” Reeves said that their mother would beat

Holsey with extension cords, shoes, and a broom, and would hold his head under

the bathtub faucet as he struggled and cried. She said that those beatings left

permanent scars on his body.

Testifying about a specific beating, Reeves recounted:

[O]ne night in particular[, when Holsey was twelve or thirteen,] my

mother waited because she knew [he was going to wet the bed] that

night. And the mattresses were cheap, and everything, so when he

peed the bed you could, the water went right through. And when she

heard it she woke him up out of his sleep with an extension cord. . . .

Just beat him with the extension cord and made him go wash up and,

you know, clean up the mess.

Reeves also testified that Holsey witnessed his mother abuse his sister

Angela in a particularly brutal way on two occasions. On one occasion, she

intentionally burned Angela using a wall heater, and on the other, she beat Angela

to the point that Angela was unconscious and Reeves and Holsey “thought she was

dead.”

Reeves stated that Holsey had never lived on his own and that he could not

do household chores, like “taking care of things or cleaning up.” She also thought

that Angela had influenced Holsey’s behavior. According to Reeves, Angela had

been in prison a number of times, has psychological problems, and was

institutionalized as a juvenile. Angela began getting in trouble when she was

35

“really small,” and she and Holsey would often get into trouble together. But

Reeves believed that Angela was always the leader and Holsey sometimes got into

trouble because of things that Angela had done. Holsey rarely told on Angela and

would sometimes cover for her. Reeves stated that after Holsey got out of prison

for his robbery conviction and then for his probation violation, he moved in with

Angela, which Reeves thought was not a good idea “[b]ecause of how [Angela]

lived her life, the people that she had there,” and “the influence that she would

have over him.”

2. The Depositions and Affidavits

a. Dr. Marc Einhorn

Holsey’s collateral counsel submitted into evidence the deposition

testimony and the written report of Dr. Einhorn, a clinical psychologist who had

actually been hired by the State in connection with the collateral proceeding to

evaluate whether Holsey is mentally retarded. Dr. Einhorn testified that, in

conducting his evaluation of Holsey, he did two things. First, he interviewed

Holsey in person and administered psychological testing on April 24 and 25, 2003.

Second, he reviewed the records that Holsey and the State provided him, which his

written report states are the same records that Dr. Cunningham and Dr. Toomer

reviewed in conducting their evaluations.

36

During the interview, Holsey told Dr. Einhorn that he had begun reading in

prison and that he read books, including the Bible, although he did not read every

day. In his report, Dr. Einhorn summarized the interview: “[C]ommunication

adequate. Thought processes were coherent, logical, and goal directed. He did

not ask any questions during the examination . . . .”

Dr. Einhorn administered to Holsey an IQ test and a WRAT. On the IQ test,

Holsey scored a 71. On the WRAT, he scored in the first percentile (fourth-grade

level) in reading and in the fourth percentile (fifth-grade level) in spelling and

math. Based on that psychological testing, Dr. Einhorn testified that Holsey met

the first prong of the DSM-IV definition of mental retardation.

Dr. Einhorn also testified that Holsey shows significant deficits in some

adaptive behaviors, which is the second prong of the DSM-IV diagnosis for

mental retardation. He explained, however, that those deficits and Holsey’s low

test scores were not due to mental retardation. Instead, he reported that “cultural

deprivation, alcohol abuse, [and] low average to borderline intellect” likely caused

“Holsey’s below average test scores and poor overall adjustment to life.”11

11

On the subject of causation, Dr. Cunningham testified that cultural deprivation is not

inconsistent with mental retardation. He explained:

Mental retardation is independent of cause. And so whether or not your hardware

was permanently stunted because you didn’t get proper nurturance as a baby,

37

Testifying at deposition, he explained his opinion:

He’s neglected, he’s abused, he drinks, he does poorly in

school, he gets into trouble, he starts hanging out with the wrong

people, and it’s all pretty predictable. He doesn’t get into lockstep

with the mainstream.

....

He never had the advantages of what most of us would have . . .

. He was culturally deprived. He was psychologically deprived. He

didn’t have anything. He was a victim of his circumstances. He

didn’t have proper parenting. He didn’t have proper food. He didn’t

have a proper education. He didn’t have a father figure at all. He

didn’t have really anything.

....

[H]e’s essentially borderline to low average [in intellectual

functioning]. If you throw into the equation alcohol abuse [beginning

at an early age], his terrible conditions he grew up in, practically

anyone would make a poor adjustment to life . . . .

In his written report, Dr. Einhorn noted other evidence that was inconsistent

with a mental retardation diagnosis:

Mr. Holsey’s mother denied any delays of developmental milestones

and these would be expected in true mental retardation. . . . [T]here is

no history of special education placement. Despite his difficult

childhood, he managed to learn basic skills that surpassed the

expectancy of mentally retarded individuals. For example, in 1996,

on the Wide Range Achievement Test[,] he obtained a high school

level score in arithmetic . . . . This included the ability to calculate

percentiles. This performance is well within normal limits. . . .

because you were neglected or abused or were impoverished or ate lead paint or

were dropped on your head, whatever it is that compromised this hardware in a

permanent way, all of that is called mental retardation.

38

Additional contraindications of subnormal intelligence are seen in the

transcripts of telephone calls to his sister, report of his playing poker,

and his [sophisticated responses to disciplinary actions] while

incarcerated.

Dr. Einhorn also highlighted that, as a Pizza Hut employee, Holsey was an

“excellent” dishwasher although he was a poor pizza maker because he could not

read ingredients, and that while in prison “he earned the level of trustee and was

allowed to drive a truck.” Dr. Einhorn pointed out that, in telephone conversations

with Reeves, Holsey “used vocabulary that was well above a mentally retarded

vocabulary.” He also testified, “Mentally retarded people don’t play poker or at

least don’t understand enough to play poker.”12

b. Dr. Shapiro

Holsey’s collateral counsel submitted the deposition testimony of Dr.

12

Dr. Cunningham criticized Dr. Einhorn’s reliance on the purportedly contradictory

evidence. For example, he testified that Dr. Einhorn should not have relied on Holsey’s mother’s

statements that Holsey did not have delays in developmental milestones. First, according to Dr.

Cunningham, the DSM-IV recognizes that mildly mentally retarded children may not have any

developmental delays, and second, Holsey’s mother is a poor source of information because she

“is mildly mentally retarded or borderline intelligent herself.” He also criticized reliance on the

1996 WRAT test, saying that test “was administered outside of the observation of the examiner”

and that he was “surprised that Dr. Einhorn didn’t bring a more critical analysis to bear as he

would look at what is so obviously a grossly outlying score.” Dr. Cunningham also thought that,

although Holsey did use words in telephone conversations with his sister that were “a little

surprising,” Dr. Einhorn had placed too much emphasis on that fact. Finally, Dr. Cunningham

disagreed with Dr. Einhorn’s view that doing an excellent job washing dishes and being able to

play poker were inconsistent with mental retardation, and said that view “suggests that Dr.

Einhorn doesn’t have a clear perception of what someone who’s mildly mentally retarded is

capable of and how they function.”

39

Shapiro. He is a psychologist whom Holsey’s trial lawyers had hired about two or

three months before the trial to perform a general assessment, a general

psychological assessment, and an assessment of Holsey’s intellectual, academic,

and emotional functioning, but had not called as a witness. Holsey’s trial

attorneys had given Dr. Shapiro only one document before he made those

assessments—a two-page summary of Holsey’s family history that they had

prepared. In conducting his evaluation, Dr. Shapiro did not review “historical data

concerning . . . Holsey from school records, [Youth Development Center] records,

prison records, [or] prior mental health evaluations.” (In his deposition, Dr.

Shapiro testified that he had not needed those records because “[t]o some extent,

[they’re] irrelevant . . . [because] if someone’s mentally retarded at the time you

evaluate them, it’s likely that they were mentally retarded as a child also.”)

Dr. Shapiro met with Holsey for several hours at the Jasper County Jail on

December 12, 1996, a little less than two months before the trial. During that

interview, Holsey told him that (1) he had been raised by his mother and had

grown up without a father figure; (2) he had “stayed in trouble” growing up; (3) he

often ran away from home because he was bored and wanted to get out of his

house; (4) he would “get a whoopin” whenever he got caught; (5) he regularly

skipped school; and (6) when he was fourteen years old, he took a knife to school

40

one day because of “race riots” and found a white student and threatened him.

Holsey also told Dr. Shapiro that he had been in foster care because his mother

“couldn’t contain him,” that police were called after he “got into a fight” with

another foster child, and thereafter he was sent to the Youth Development Center.

After the interview, Dr. Shapiro administered some of the subtests of the

Stanford-Binet Intelligence Scale to calculate Holsey’s IQ. Dr. Shapiro explained

that he had administered only some of the Stanford-Binet subtests because others

were inappropriate given Holsey’s age, and he had administered all of the subtests

that were age-appropriate for Holsey. Using the results of those subtests, Dr.

Shapiro determined that Holsey’s IQ was 79.13 He had also administered the Wide

Range Achievement Test, which is scored on the same scale as an IQ test, and

Holsey had scored a 93 on the math section. Dr. Shapiro testified at deposition

that “it would not be possible or likely for a mentally retarded person to be able to

achieve that score.” He did state, though, that he “[p]ossibly” had not watched

Holsey take the WRAT math section but instead had left the test with Holsey at

13

In his live testimony at the evidentiary hearing, Dr. Cunningham, one of Holsey’s

expert witnesses, criticized Dr. Shapiro’s use of the Stanford-Binet Intelligence Scale test in 1996

to calculate Holsey’s IQ. According to Dr. Cunningham, Dr. Shapiro should have given to

Holsey thirteen subtests of the test instead of the six subtests that he actually gave. And even if

giving the six subtests was appropriate, in Dr. Cunningham’s view Dr. Shapiro had used the

wrong standardization table in calculating Holsey’s IQ as 79. If he had used the correct table, Dr.

Cunningham believed, he would have come up with an IQ of 75.

41

the jail to be mailed back to him.14 Other testing done by Dr. Shapiro showed that

Holsey was reading at a fourth-grade level.

Based on his evaluation, Dr. Shapiro was of the opinion that Holsey’s

intellectual functioning was in the borderline mentally retarded range. Dr. Shapiro

testified that he probably had told Prince about his impressions in “a very brief

conversation,” but he did not prepare a written report for Prince or Trammel, likely

because neither attorney requested one.

Dr. Shapiro further testified that Holsey’s state collateral counsel had

provided him with two 3-inch, three-ring binders full of documents, which

included Holsey’s school and Youth Development Center records, scores from

tests that others had administered, and affidavits from relatives and others who

knew Holsey. After reviewing those documents, Dr. Shaprio testified that he still

believed that Holsey is not mentally retarded but instead is in “the borderline

range.” Dr. Shapiro acknowledged that borderline intellectual functioning means

a person is in approximately the bottom fifth percentile of intellectual functioning.

14

Dr. Shaprio testified that he did not recall how he got the WRAT math portion back

from Holsey, but his usual practice was to “put the materials in the charge of the correction

officer and ask that they make sure the defendant completes the materials and sends it back.”

Holsey’s collateral counsel submitted the affidavit of Tanekia Kelly, a former detention officer at

the Jasper County Jail. She attested that she remembered Dr. Shapiro meeting with Holsey but

that she did not remember Dr. Shapiro delivering any tests or paperwork to her that concerned

Holsey. No witness testified, however, that anyone had taken the test for Holsey, supplied him

with any answers, or changed any answers that he gave.

42

Noting that the DSM-IV states that “the essential feature of antisocial

personality disorder is a pervasive pattern of disregard for and violation of the

rights of others that begins in childhood or early adolescence and continues into

adulthood,” the State asked Dr. Shapiro if Holsey suffers from antisocial

personality disorder. Dr. Shapiro responded that he did not have enough

information to answer that question. He did testify, however, that Holsey “had

some conduct problems early on,” including skipping school and running away

from home, bringing a knife to school and putting it to another student’s throat,

getting in fights, and robbing a convenience store. In his opinion, Holsey’s history

of conduct problems would be “contributory to conduct disorder,” which “[i]f it

continues until adulthood and becomes a persistent pattern of behavior . . . [it

becomes] part of his ingrained personality, and . . . is now his nature to be

antisocial.”

c. Former Teachers

Holsey’s collateral counsel submitted the affidavits of three of his former

teachers: Sara Simcox, Annie Howard, and Thomas Lee. They attested that

Holsey “wasn’t a very good student”; displayed an “obvious slowness”; suffered

serious intellectual limitations; could “barely read”; “just wasn’t playing with a

full deck”; and “didn’t have any smarts going for him.” Howard and Lee also

43

provided their impressions of Holsey’s family. Howard attested in her affidavit

that she “got the feeling that [Holsey’s mother] didn’t understand how serious

[his] limitations were” and added that Holsey’s sister Angela “was constantly

having to be removed from the classroom.” Lee provided similar information

about Angela, telling the court that he had often seen her “in fistfights with grown

men.”

d. Holsey’s Family Members

Holsey’s collateral counsel submitted deposition testimony and affidavits

from Bertha Ingram, who is Holsey’s mother’s niece; and from Holsey’s mother.

Ingram told the court that Holsey’s home “was always filthy and stunk with the

smell of urine and rotting food”; that Holsey’s mother favored her two youngest

children and viciously beat Holsey and Angela. According to Ingram, their

mother “would plug in a curling iron and whack their little hands with it once it

got hot.” She would also lash “them with extension cords, belts, a washer/dryer

hose, cooking spoons or anything else she found handy.” And while beating them,

their mother would call Holsey and Angela “‘buck teeth mother fucking

monkeys’” and “‘ugly ass bitches.’” She also told the court that Holsey’s mother

mocked his inability to read by sometimes putting a book in his hands and saying

things like: “‘Can you read any of the words in this book, boy?’”; “‘What’s wrong

44

with your head anyway?’”; and “‘You’re good for nothing just like your daddy

was.’”

Holsey’s mother admitted whipping her children as a form of punishment

when they misbehaved, but she denied burning them with a curling iron or beating

them with an extension cord or shoes. She also denied that the house was filthy.

Holsey’s collateral counsel also submitted the affidavits of the following

people: Rosa Ingram, Holsey’s aunt; Sonya Parks, one of Holsey’s cousins; Henry

Holsey, Jr., another of Holsey’s cousins; Linda Ingram, Holsey’s mother’s second

cousin; Demetra Holsey, one of Holey’s younger sisters; and Angela Holsey, one

of his older sisters. They provided additional information about Holsey’s limited

intelligence and his troubled, abusive childhood.

Rosa Ingram attested in her affidavit that Holsey “definitely couldn’t care

for himself” and that he “needed a lot of guidance and supervision.” Parks

attested that she began living with her aunt, Holsey’s mother, in the summer of

1980 and, during that time, Holsey’s mother seemed uninterested in her son.

Henry Holsey, Jr. attested that Holsey “always used simple words, and kept

to simple topics” and “learned things really slowly or not at all.” He also noted

that Angela, the sister, “was a fighter[;] [s]he would fight in a minute and she

would fight anyone.”

45

Linda Ingram attested that Holsey’s mother “had very limited skills and

simply couldn’t cope with all the responsibilities of being a mother and providing

for a family.” She stated that she had once told a psychologist who was evaluating

Holsey’s mother that “she probably was mildly retarded seeing as how she has

always depended on Regina, [Ingram], and . . . her younger daughter Lisa to

manage a lot of basic things because she simply couldn’t do them herself.”

Without explanation, Holsey’s collateral counsel attached to Ingram’s affidavit the

psychologist’s September 28, 2000 evaluation of Holsey’s mother, which had

concluded that she was mildly retarded.

Holsey’s sister Demetra attested in her affidavit that she and her sister Lisa

(who did not share the same father with Holsey, Reeves, and Angela) “were THE

priority to” Holsey’s mother: they “always had better clothes and toys” and they

“got more food than the others did at meal times, too.” Holsey’s sister Angela’s

affidavit described growing up in their household. She said that their mother often

“used all of her breath to embarrass and degrade [Holsey] . . . , especially in front

of other people.” She would call him a “‘sissy boy’ and tell him he was going to

grow up to be one of the ‘gals.’” According to Angela, she also “called [him]

‘monkey’ and ‘crybaby’ and yelled an endless stream of obscenities . . . .” Angela

stated that their mother “would hit [them] for any reason or no reason.” She said,

46

“[Holsey] and I were smacked with anything our mother could find, and it was

brutal. We were hit all the time, usually with an electrical cord or watering hose . .

. . If she had the curling iron close by, she’d plug it in and burn us with it.”

e. Former Girlfriends

Holsey’s collateral counsel submitted the deposition testimony and

affidavits of three of Holsey’s former girlfriends: Mary Jackson, the girlfriend

Holsey told to pick him up in a blue Jeep after he murdered Deputy Robinson

while in a red car; Belinda Hawkins; and Louvenia Melchor. They provided

information about Holsey’s intelligence level. Jackson testified in her deposition

that Holsey communicated better with her four-year-old son than he did with

adults. Hawkins testified at deposition that Holsey was “responsible” but “had a

mind like a child” and “felt like child’s play was more important to him than, you

know, being serious.” And Melchor attested in her affidavit that she had broken

up with Holsey because, in her view, he could not “handle the adult

responsibilities of being in a serious relationship” and did not have “the smarts of

a grown man.”

f. Friends and Neighbors

Collateral counsel submitted the affidavits of Donald Foster, Mary Havior,

Catherine Harris, Essie Anderson, Sandra Francis, Joseph Trawick, and Bertha

47

Simmons. All of them were Holsey’s friends or neighbors. Foster and Havior

provided information about Holsey’s intelligence level. Foster, a friend who had

known Holsey since they were teenagers, attested in his affidavit that Holsey “was

just slow in the head” and did not “have the smarts necessary to make his way on

his own.” Havior attested that Holsey had attended her church during the year

before he murdered Deputy Robinson, and she recounted how “he could not read

along in the hymn book and sing with the rest of the congregation.”

Harris, Anderson, Francis, Trawick, and Simmons told the court about

physical abuse that Holsey suffered at the hands of his mother. For example,

Harris, a long-time friend of Holsey’s mother, attested in her affidavit that “it

didn’t take anything more than a whim to come over [Holsey’s mother] before . . .

. she’d have a belt or a curling iron in her hand and go to whacking [Holsey].”

And Anderson, who lived in Holsey’s neighborhood during the 1970s and early

1980s, attested that Holsey’s mother was “mean and cruel to her . . . kids” and

“[a]rmed with old shoes, belts, [or] extension cords . . . would wail on [Holsey]

until he had welts and abrasions all over his body.” She also described in her

affidavit how Holsey’s home was “filthy and dirty with roaches, old garbage and

the stench of urine.”

In her affidavit, Francis, who went to school with Holsey, provided more

48

details and referred to Holsey’s home as “the Torture Chamber.” Her affidavit

stated that Holsey “regularly took beatings . . . in plain view and earshot of

everyone else living” in the neighborhood. She attested that Holsey’s mother

often “dragged [him] by the arm out into their corner yard and went to lashing at

him with an extension cord all the while cursing and yelling at the top of her

lungs,” calling him “vile” names like “butthole,” “motherfucker,” “sissy ass,”

“stupidhead,” “dumbo,” and “retardate.” She remembered seeing Holsey “running

for his life and not caring that he was covered in red welts and wounds.”

g. Coworkers

Holsey’s collateral counsel submitted the affidavits of two former

coworkers: Ferrlando Jones, who had testified at the sentencing phase of the trial,

and Marion Wingate, who had not. Jones was the assistant manager of the

Milledgeville Pizza Hut where Holsey had worked for a time, and in his affidavit,

he stated that Holsey “came to work and tried his best every shift” but “was way

behind most folks when it came to smarts.” Wingate is a former supervisor at

Seaboard Farms, a chicken processing company where Holsey worked in the early

1990s. He attested in his affidavit that none of the tasks the company assigned

Holsey were hard or required much thinking.

49

h. Others

Holsey’s collateral counsel also submitted the affidavits of Kenneth

Simmons, the man Holsey stabbed at the Soul Master’s Lounge in 1992; and

Scotty Simmons, Kenneth Simmons’ brother. Each of the Simmons brothers

attested that Holsey had a rough childhood, with Scotty Simmons noting that

Holsey’s mother “used to tear into [Holsey] and beat him to a pulp when he was

just a little kid.”

They also submitted the affidavits of Hugh Tucker, Lelia Powell, and Susan

Martin, all of whom attested to Holsey’s intelligence level. Tucker is a former

supervisor at the Youth Development Center, and his affidavit stated that Holsey

“was very limited intellectually”; “not capable of . . . abstract reflection”; “lacked

the maturity, insight and sophistication typical of his peers”; and “used language

like that of a child in grade school rather than what was expected of a fifteen year

old.” Powell ran the Powell Attention Home, a home for children in need of

special placement outside of their family homes, where Holsey stayed for several

weeks in 1980. In her affidavit, she described Holsey as “a slow, simple-minded

boy who was way behind the other boys his age.” Martin is an investigator who

worked for Holsey’s trial lawyers during his trial, and she attested that, to her,

Holsey “was a fairly slow and simple-minded young man.”

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3. Department of Corrections Records

Holsey’s collateral counsel also introduced into evidence his official

Georgia Department of Corrections records. A February 1984 diagnostic summary

in those records reports that Holsey completed the ninth grade and scored within

the “dull normal range of general intelligence” on the department’s Culture Fair

test.15 The summary notes that Holsey “does not appear to be in need of

specialized MH/MR treatment services . . . [although he] could benefit from

routine counseling services relating to development of internal controls over his

behavior, control of anger, and aggressive behaviors, and history of significant

substance abuse.” It also notes that Holsey’s basic academic levels were too low

for him to be placed in vocational training. A 1989 parole review summary, which

is in the same set of records, states that: “Since his arrival [in prison] Holsey has

made a satisfactory adjustment. He has an average performance rating and is

15

Holsey also submitted the deposition testimony and affidavit of Dr. Herbert Eber, a

psychologist who from 1974 until 1990 or 1991 “ran the processing part” of the Department of

Corrections’ diagnostic center. In his affidavit, Dr. Eber stated that Holsey took a modified

Culture Fair intelligence test in 1984 but that the results of that test “cannot be used as a measure

of intelligence” to diagnose mental retardation. He explained that the Department of Corrections

does not employ a psychologist to administer the Culture Fair test, the test is not timed, the

modified test does not take into account reading skills, and that “the norms used to evaluate the

maximum potential IQ at the Georgia Diagnostic and Classification Center were not the norms

produced by the [Culture Fair] test’s publisher.” Instead, Dr. Eber had developed the norms

using a research study of Georgia prisoners, and the test that Holsey was given had been revised

“to better suit [the] purposes related to vocational and prison rehabilitation.”

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presently enrolled in school at 8.3 grade level.”

Holsey’s Department of Corrections records contain a 1985 disciplinary

report from the Georgia Industrial Institute, where he was an inmate during the

1980s. According to that report, Holsey “jumped on” another inmate “because he

said something about [Holsey’s] gambling game.” Holsey broke the inmate’s

front teeth, bloodied his nose, and gave him “several knots on his head.” Another

report in the records shows that in 1988 Holsey and another inmate “jumped on”

Billy McGriff and Henry Lewis, injuring McGriff. That 1988 report states that

“Holsey . . . like[s] to intimidate new inmates.”16

The Department of Corrections records also contain a December 1992

offender profile report. That report states that Holsey potentially has an

“Antisocial Personality” and that his “psychological profile suggests a very high

risk for being assaultive and/or otherwise violent.” It adds that Holsey “currently

16

In an attempt to explain away those disciplinary reports, Holsey’s collateral counsel

submitted the affidavits of three people with whom Holsey had served time at the Georgia

Industrial Institute: Billy McGriff, Rothman Lewis, and Henry Williams. McGriff attested in his

affidavit that Holsey did not like to fight, which made him a target for prison thugs. Lewis

attested in his affidavit that Holsey did not start fights in prison and did all he could to avoid

fighting. He also said that Holsey had a “rough time of it in prison . . . because he was slow in

the head.” In his affidavit Williams attested that the Georgia Industrial Institute was a violent

prison where an inmate was required to fight to protect himself. He did note that he himself had

an altercation with Holsey at the prison, but said that it was “out of character” for Holsey.

52

is functioning in the average range of intelligence.”17

B. The State’s Evidence

The State called two witnesses at the evidentiary hearing to testify about

Holsey’s level of intelligence—Dr. Thomas Sachy and Chief Deputy Sheriff

Howard Sills—and it submitted the affidavits of eight others who had some

knowledge about Holsey’s intelligence. The State also introduced arrest records

and an FBI identification record showing that Holsey had been arrested in 1982

for simple battery, in 1983 for theft by shoplifting, and in 1990 for carrying a

concealed weapon.18

17

The report does contain this apparently standard disclaimer:

THIS COMPUTER GENERATED REPORT SHOULD BE VIEWED WITH

CAUTION. IT MAY NOT ACCURATELY DESCRIBE THIS OFFENDER.

THESE STATEMENTS ARE BASED ON THE BEHAVIORS AND

HISTORIES OF PERSONS WITH SIMILAR TEST SCORES, INTERVIEW

RESPONSES, AND PERSONAL CHARACTERISTICS. THE DIAGNOSTIC

AND TREATMENT SUGGESTIONS BELOW SHOULD BE CONSIDERED

AS HYPOTHESES WHICH SHOULD BE CONFIRMED OR RULED OUT

FOLLOWING EXAMINATION BY THE DIAGNOSTIC STAFF OR OTHER

PERSONNEL.

18

The State also submitted two affidavits from Julius Roberson. Roberson lived across

the street from Holsey during the 1970s and early 1980s. In his first affidavit, which is dated

March 28, 2002, Roberson attested that “[Holsey’s mother] was outright violent toward

[Holsey]” and that “[i]t was gut wrenching for me to see and hear how [she] treated [Holsey] . . .

and know what incredible abuse they had to endure on an almost daily basis.” He said that he

often saw Holsey’s mother whip “him with extension cords, old hoses, or thin branches.” He

also attested that Holsey was a “slow learner[],” “empty-headed,” and “naive.”

But in his second affidavit, dated August 20, 2003, Roberson contradicted much of what

53

1. The Witnesses

The State’s first witness on the subject of Holsey’s intelligence was Dr.

Sachy, whom the court recognized as an expert in forensic psychiatry. He testified

that the State had hired him to evaluate whether Holsey is mentally retarded. He

told the court that in conducting his evaluation he had reviewed “the other

psychologists’ reports” and a variety of documents, including “many depositions

and affidavits of family members and people who worked [with Holsey]” and

Holsey’s “school records, etc.” He also personally interviewed Holsey.

Based on his evaluation, Dr. Sachy concluded that Holsey does not meet

he had attested to in his first affidavit. He explained that an investigator on Holsey’s collateral

legal team had interviewed him and months later returned to his house with a typed affidavit and

read parts of it to him. In his second affidavit, Roberson attested that he felt like the investigator

was rushing him, and he had signed that first affidavit without reading it himself. And Roberson

explained that if the investigator had read all of that first affidavit to him, he would not have

signed it. He stated that the first affidavit “contains many things that [he] did not say and several

things that [he] told [the investigator] were not true.” For example, he had never said that Holsey

was a “slow learner[]”; “empty-headed”; or “naive.” He also attested that Holsey’s mother “was

fair when she disciplined her kids,” but in the first affidavit the investigator had tried to paint a

“totally different” and inaccurate picture. And he stated that he had specifically told the

investigator that he had never seen Holsey “whipped with branches, cords, and hoses.”

As the Georgia Supreme court noted, “[t]he record is not developed on the issue of

possible intentional misconduct” of the investigator or anyone on Holsey’s legal team but we,

like the Georgia Supreme Court, find the allegations contained in Roberson’s second affidavit

troubling. Holsey III, 642 S.E.2d at 61 n.2. Those allegations also illustrate the sometimes

limited value of affidavits submitted by potential mitigation witnesses who did not testify in the

trial or in the evidentiary hearing during the state collateral proceeding. We have observed

before that affidavits submitted by habeas petitioners attacking their death sentences are

sometimes “artfully drafted.” Putman v. Head, 268 F.3d 1223, 1245 n.19 (11th Cir. 2001).

54

“the criteria for mental retardation.” Instead, he has borderline intellectual

functioning. Dr. Sachy performed a neurological evaluation on Holsey and found

that he did not show any signs of neurological deficit. For example, Holsey did

not have “the soft, physical signs of craniofacial abnormalities or other physical

abnormalities consistent with mental retardation.”

Dr. Sachy also based his conclusion that Holsey is not mentally retarded, in

part, on testimony at the trial. For example, the evidence showed that on the night

of the murder, Holsey had asked his girlfriend to pick him up in a blue Jeep

instead of in her maroon car. The significance of that is that Holsey knew the

police would be looking for a car that was red, the color of the getaway vehicle.

He also told his girlfriend that he wanted to monitor a police scanner at his

mother’s house. Dr. Sachy testified that “[t]hose two points . . . are actually fairly

sophisticated, cognitive patterns of someone who has forethought and intact levels

of forethought that . . . would be beyond the range of someone with significant [or

even mild] mental retardation.” Dr. Sachy also found it important that in

telephone conversations conducted while he was in prison, Holsey used “a lot of

very high level, abstract words.”19

19

Dr. Cunningham, one of Holsey’s expert witnesses who testified at the evidentiary

hearing, criticized Dr. Sachy’s conclusions. His stated that the absence of physical abnormalities

is not inconsistent with a mild mental retardation diagnosis. He took the position that relying on

55

Dr. Sachy also testified that mental retardation indicators can overlap with

symptoms of antisocial personality disorder. He explained:

And they can be [easy to mix up], in the fact that someone may think

someone with mental retardation is doing poor in school or they’re

not there at school or are they just slow, when in reality they have

antisocial [personality disorder], they just don’t fit in well. They

don’t enjoy school. They have a tendency to break the rules. And,

really, they’re on the road to . . . potential for later criminal activity.

It can look the same initially . . . .

He testified that a history of fighting and committing aggravated assaults is more

indicative of antisocial personality disorder than mental retardation. He explained

that a history of “successful armed robberies or doing fairly well at them” is

indicative of antisocial personality disorder and not mental retardation; successful

armed robberies are “much more difficult for someone with real mental

retardation.”

The State also called as a witness at the evidentiary hearing Howard Sills,

the former Chief Deputy Sheriff of Baldwin County and the officer who had

arrested Holsey for Deputy Robinson’s murder. Sills testified that he knew Holsey

someone’s use of vocabulary is not an accepted way of diagnosing mental retardation. He also

testified that, “Holsey is deficient when you systematically evaluate [him]. Now, the armchair

kind of things that I may pull out, about an interaction with a girlfriend or about the criminal

justice system, those are not a substitute nor do they negate the systematic measures that are

undertaken.” Although Dr. Cunningham did not otherwise address Dr. Sachy’s reliance on

Holsey’s interaction with his girlfriend after he murdered Deputy Robinson, he did testify that

there was nothing in Dr. Sachy’s report that would cause him to change his opinion that Holsey is

mentally retarded.

56

before the arrest because Holsey had been an inmate in the Baldwin County Jail.

Based on his interaction with him, Holsey “was certainly not well educated, but

[he] never detected anything that [he] would have personally noticed as being

mental illness.” Instead, Holsey “was conversant and articulate, for his education”

and completed his jail chores satisfactorily.

2. The Affidavits

The State submitted the affidavits of seven current or former employees of

the Baldwin County Sheriff’s Office who knew Holsey from his time as an inmate

at the county’s jail: Jewel Hardage, Jerome Saulsbury, Carolyn Moss, Cathy

Alexander, Sonia Harris, Betty Johnson, and Elbert Webb. In their affidavits, they

attested that Holsey was “intelligent” and “ordinary,” and he was an inmate who

understood and followed instructions.

The State also submitted the affidavit of Evelyn Luton, the attorney who

represented Holsey after he stabbed Kenneth Simmons and shot at Scotty

Simmons in 1992. She attested that, although Holsey’s “language was unpolished,

there was no doubt in [her] mind after talking with him that he understood his

situation and had no problems comprehending the choices available to him.”

C. The State Collateral Court’s Decision

After the evidentiary hearing, the state collateral court concluded that

57

Holsey’s trial lawyers had failed to properly prepare and present mitigating

evidence of Holsey’s limited intelligence and troubled, abusive childhood. Holsey

II, No. 2000-V-604, at 82. The court also concluded that Holsey was prejudiced

by that failure. Id. at 80. “In light of this lack of any significant preparation or

presentation” of mitigating evidence, the court reasoned, “no one can seriously

believe that [Holsey] received the constitutional guarantees of the Sixth

Amendment right to effective assistance of counsel.” Id. at 83–84. For that

reason, the court granted a writ of habeas corpus with respect to Holsey’s death

sentence, vacating that sentence and ordering that Holsey receive a new trial of the

sentencing phase only. Id. at 84.

D. The Appeal

The State appealed the state collateral court’s grant of habeas relief. The

Geogia Supreme Court unanimously reversed that grant and reinstated Holsey’s

death sentence. Holsey III, 642 S.E.2d at 59. The court did “accept, for the

purposes of this analysis,” that Holsey had shown that his trial lawyers had

performed deficiently by not properly preparing and presenting mitigating

evidence of his limited intelligence and troubled, abusive childhood. Id. at 62.

The court nonetheless concluded that Holsey had failed to show prejudice, “that

‘there is a reasonable probability . . . that, but for counsel’s unprofessional errors,

58

the result of the proceeding would have been different.’” Id. at 60 (quoting Smith

v. Francis, 325 S.E.2d 362, 363 (Ga. 1985)).

The Georgia Supreme Court explained its conclusion that Holsey’s had

failed to show a reasonable probability of a different result despite the witnesses,

affidavits, and documents his collateral counsel presented in the evidentiary

hearing:

The additional evidence Holsey has presented in his habeas

proceedings, some of it contradicted by the [State’s] evidence, is

largely cumulative of evidence presented at trial, which highlighted

Holsey’s limited intelligence, his troubled and abusive home life, his

positive contributions at home and elsewhere, and his mother’s and

sister’s mental health issues. Having reviewed both the habeas record

and the trial record, including the trial testimony of two of Holsey’s

sisters and of other witnesses, the trial deposition testimony of

Clifford Holsey, Jr., and the non-testimonial material entered into

evidence at trial, this Court concludes that introduction of Holsey’s

new evidence at his trial would not have had an impact on the jury’s

sentencing deliberations sufficient to help sustain a successful

ineffective assistance of counsel claim regarding the sentencing

phase.

Id. at 61–62 (citation omitted).

III. THE DISTRICT COURT’S DECISION

After the Georgia Supreme Court reversed the state collateral court’s grant

of habeas relief, Holsey filed a 28 U.S.C. § 2254 petition for a writ of habeas

corpus. He raised ten claims, including the only one at issue in this appeal: that

59

his trial lawyers rendered ineffective assistance at the sentencing phase by not

presenting enough mitigating circumstances evidence about his limited

intelligence and troubled, abusive childhood.

The district court denied the petition. Holsey IV, No: 3:07-cv-129(CDL), at

27. In doing so, it concluded that the Georgia Supreme Court had not

unreasonably determined that the additional mitigating circumstances evidence

Holsey’s collateral counsel presented in the state court’s evidentiary hearing was

largely cumulative of the evidence Holsey’s trial lawyers presented at the

sentencing phase. Id. at 23. The court reasoned that Holsey’s trial lawyers “did,

during the sentencing portion of the trial, present evidence of [his] limited

intelligence, his abusive home life, his positive contributions to his sisters, and his

sister and mother’s mental health problems.” Id. Also, relying on the largely

cumulative nature of the additional mitigating circumstances evidence, much of

which it found had been contradicted by the State’s evidence, the district court

concluded that the Georgia Supreme Court’s decision that Holsey had not shown

prejudice was not an unreasonable application of clearly established federal law.

Id. at 25–27.

IV. DISCUSSION

Holsey contends that the district court erred in denying his 28 U.S.C. § 2254

60

habeas corpus petition and should have ruled that his trial lawyers’ performance at

the sentencing phase was ineffective under Strickland v. Washington, 466 U.S.

688, 104 S.Ct. 2052 (1984). He argues that those lawyers did not properly prepare

and present enough available mitigating evidence about his limited intelligence

and his troubled, abusive childhood and that, if they had done so, his sentence

would have been different. In reviewing a district court’s denial of a § 2254

habeas petition, we review only for clear error the court’s factfindings but review

de novo the court’s application of the law to those facts. Johnson v. Sec’y, Dep’t

of Corr., 643 F.3d 907, 929 (11th Cir. 2011).

To succeed on his ineffective assistance of counsel claim, Holsey has the

burden of showing two things under Strickland. Id. at 928. First, he must show

that his counsel’s performance was deficient, which means that it “fell below an

objective standard of reasonableness” and was “outside the wide range of

professionally competent assistance.” Strickland, 466 U.S. at 688, 690, 104 S.Ct.

at 2064, 2066; accord Johnson, 643 F.3d at 928; Allen v. Sec’y, Fla. Dep’t of

Corr., 611 F.3d 740, 751 (11th Cir. 2010); Smith v. Sec’y, Dep’t of Corr., 572

F.3d 1327, 1349 (11th Cir. 2009). Courts must review counsel’s actions in a

“highly deferential” manner and “must indulge a strong presumption that

counsel’s conduct” was reasonable. Strickland, 466 U.S. at 689, 104 S.Ct. at

61

2065. To overcome that strong presumption of reasonableness, Holsey must show

that “‘no competent counsel would have taken the action that his counsel did

take.’” Johnson, 643 F.3d at 928 (quoting Chandler v. United States, 218 F.3d

1305, 1315 (11th Cir. 2000) (en banc)).

The second thing that Holsey must show is that he was prejudiced by his

counsel’s deficient performance, which means “that, but for his counsel’s deficient

performance, there is a reasonable probability that the result of the proceeding

would have been different.” Id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. at

2068). To find that there is a reasonable probability of a different result “our

confidence in the outcome must be undermined by counsel’s deficient

performance.” Id. at 929 (citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).

In addition to the Strickland two-step showing, Holsey’s ineffective

assistance of counsel claim is governed by 28 U.S.C. § 2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. § 2254(d).

Under AEDPA, a federal court may not grant a petitioner habeas relief on any

claim that was “adjudicated on the merits” in state court unless the state court’s

decision was: “(1) . . . contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States; or (2) . . . was based on an unreasonable determination of the facts in light

62

of the evidence presented in the State court proceeding.” Id.; accord Johnson, 643

F.3d at 929; Allen, 611 F.3d at 744–45; Hammond v. Hall, 586 F.3d 1289, 1306

(11th Cir. 2009). A state court’s application of clearly established federal law or

its determination of the facts is unreasonable only if no “fairminded jurist” could

agree with the state court’s determination or conclusion. Harrington v. Richter, —

U.S. —, 131 S.Ct. 770, 786 (2011); accord Yarborough v. Alvarado, 541 U.S. 652,

664, 124 S.Ct. 2140, 2149 (2004). In our en banc decision in Hill we phrased this

standard “more simply and maybe a little more clearly: if some fairminded jurists

could agree with the state court’s decision, although others might disagree, federal

habeas relief must be denied.” 662 F.3d at 1346; accord Sochor v. Sec’y Dep’t of

Corr., 685 F.3d 1016, 1028 (11th Cir. 2012) (“In other words, we may issue a writ

of habeas corpus only where there is no possibility fairminded jurists could

disagree that the state court’s decision conflicts with precedents of the Supreme

Court of the United States.” (quotation marks and alterations omitted)).

AEDPA does not impose a complete bar on the relitigation in federal court

of claims already rejected in state proceedings. Harrington, 131 S.Ct. at 786;

accord Hill, 662 F.3d at 1345. Instead, “[i]t preserves authority to issue the writ in

cases where there is no possibility fairminded jurists could disagree that the state

court’s decision conflicts with th[e] Court’s precedents. It goes no farther.”

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Harrington, 131 S.Ct. at 786. As the Supreme Court has emphasized:

Section 2254(d) reflects the view that habeas corpus is a “guard

against extreme malfunctions in the state criminal justice systems,”

not a substitute for ordinary error correction through appeal. Jackson

v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 2796 n.5 (1979)

(Stevens, J., concurring in judgment). As a condition for obtaining

habeas corpus from a federal court, a state prisoner must show that

the state court’s ruling on the claim being presented in federal court

was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for

fairminded disagreement.

Id. at 786–87.

“If this standard is difficult to meet, that is because it was meant to be.” Id.

at 786. It was designed to be difficult in order “to ensure that state-court

judgments are accorded the finality and respect necessary to preserve the integrity

of legal proceedings within our system of federalism.” Martinez v. Ryan, — U.S.

—, 132 S.Ct. 1309, 1316 (2012). The Supreme Court gave this explanation:

Federal habeas review of state convictions frustrates both the States’

sovereign power to punish offenders and their good-faith attempts to

honor constitutional rights. It disturbs the State’s significant interest

in repose for concluded litigation, denies society the right to punish

some admitted offenders, and intrudes on state sovereignty to a

degree matched by few exercises of federal judicial authority.

Harrington, 131 S.Ct. at 787 (citation and quotation marks omitted); accord

Calderon v. Thompson, 523 U.S. 538, 555–56, 118 S.Ct. 1489, 1500–01 (1998).

For those reasons, “it will be a rare case in which an ineffective assistance of

64

counsel claim that was denied on the merits in state court is found to merit relief in

a federal habeas proceeding.” Johnson, 643 F.3d at 910–11.

A.

Because the Georgia Supreme Court denied Holsey’s ineffective assistance

of counsel claim based on Strickland’s prejudice step, we review with ADEPA

deference its holding that Holsey was not prejudiced by his trial lawyers’ alleged

deficiencies at the sentencing phase. See Kokal v. Sec’y, Dep’t of Corr., 623 F.3d

1331, 1345–46 (11th Cir. 2010). Like the Georgia Supreme Court, we will assume

for present purposes that Holsey’s trial lawyers rendered deficient performance

within the meaning of Strickland in regard to the sentencing phase. We will also

assume that an attorney rendering constitutionally effective performance would

have presented at the sentencing phase the evidence that Holsey’s trial lawyers

actually did present at that phase plus all of the additional evidence that his

collateral counsel submitted in the state collateral court.

Those two assumptions do not affect the outcome of this case because

Holsey has not shown that the Georgia Supreme Court’s holding that he was not

prejudiced by his counsel’s assumed deficient performance was based on an

unreasonable determination of the facts or is an unreasonable application of

clearly established federal law. Holsey has not shown that no fairminded jurist

65

could have concluded, as all seven Justices of the Georgia Supreme Court did, that

he has failed to carry his burden of showing that if the additional evidence had

been presented there is a reasonable probability of a different sentencing result.

Holsey has not shown that the evidence on the prejudice question is so one-sided

in his favor that the answer is, as the Supreme Court has phrased it, “beyond any

possibility for fairminded disagreement.” Harrington, 131 S.Ct. at 787. He has

not shown that the Georgia Supreme Court’s determination of the prejudice issue

was so unjustified that it “was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” Id. at 786–87;

accord Bobby v. Dixon, — U.S. —, 132 S.Ct. 26, 27 (2011) (per curiam).

B.

Holsey’s first contention is that the Georgia Supreme Court’s holding that

he did not show prejudice was based on an unreasonable determination of the

facts. See Appellant Br. 18–28. He argues that it was objectively unreasonable

for the court to characterize the evidence of his limited intelligence and troubled,

abusive childhood that he presented in the state collateral court as “cumulative” of

the evidence he presented at the sentencing phase. Appellant Br. 18. About his

limited intelligence, he argues that the jury at the sentencing phase “merely hear[d]

an undefined label like ‘borderline mentally retarded,’” but the evidence presented

66

at the evidentiary hearing actually explained the deficits that he faced and

provided “qualitatively superior information about [his] . . . mental capacities.”

Appellant Br. 24. About his troubled, abusive childhood, he argues that the jury at

the sentencing phase did not hear sufficient “detail about his upbringing.”

Appellant Br. 22.

Holsey mischaracterizes the conclusion of the Georgia Supreme Court. The

court did not describe the evidentiary hearing evidence as “cumulative” of the

evidence presented at the sentencing phase but instead characterized it as “largely

cumulative.” See Holsey III, 642 S.E.2d at 61–62. There is a difference.

“Cumulative” may mean “completely cumulative” or it may not, but “largely

cumulative” does not mean “cumulative.” Instead “largely cumulative” means

“chiefly cumulative,” “mostly cumulative,” or “more cumulative than not.” See

Random House Webster’s Unabridged Dictionary 1084 (2d ed. 2001); cf. Lanfear

v. Home Depot, Inc., 679 F.3d 1267, 1277 (11th Cir. 2012) (“Primarily does not

mean exclusively; primarily exclusively means primarily.”).

We have some serious doubt about treating as a factfinding to be reviewed

under 28 U.S.C. § 2254(d)(2) the Georgia Supreme Court’s conclusion that the

additional evidence at the evidentiary hearing was “largely cumulative” of the

evidence presented at the sentencing phase. The “largely cumulative” conclusion

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does not seem to be a factfinding or a “determination of the facts” that is subject to

review under that statutory provision; it seems to be a conclusion in the nature of

an application of law to fact. At the very least, it is not a finding or determination

of the historical facts of the case. See Am. Civil Liberties Union of Fla., Inc. v.

Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1206 (11th Cir. 2009) (explaining

that historical facts are the “who, what, where, when, and how of the

controversy”). Instead, the term “largely cumulative” seems more of a way of

conveying that there was not enough of a difference between the evidence

presented during the sentencing phase and the evidence presented in the collateral

evidentiary hearing to establish a reasonable probability of a different result.

In Cooper v. Secretary, Department of Corrections, 646 F.3d 1328, 1349

(11th Cir. 2011), however, we did state that the Florida Supreme Court’s

conclusion that the petitioner’s collateral hearing evidence in that case was

“cumulative to that presented at sentencing” was an unreasonable determination of

the facts under § 2254(d)(2). Cooper, though, appears to be an outlier. We could

not find any other decision where we have analyzed a state court’s conclusion

about the cumulative nature of evidence as a determination of the facts under §

2254(d)(2). Our “unreasonable determination of the facts” analysis in cases other

than Cooper has involved determinations of historical facts. See, e.g., Rhode v.

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Hall, 582 F.3d 1273, 1282–83 (11th Cir. 2009) (reviewing under § 2254(d)(2)

whether counsel was personally involved in the investigation of mitigation

evidence); Carroll v. Sec’y, Dep’t of Corr., 574 F.3d 1354, 1368–69 (11th Cir.

2009) (reviewing under § 2254(d)(2) whether the defendant was mentally

retarded); Whisenhant v. Allen, 556 F.3d 1198, 1208 (11th Cir. 2009) (reviewing

under § 2254(d)(2) whether a judge knew that a motion was not properly served).

Our Cooper decision also appears to conflict with the Supreme Court’s

decision in Cullen v. Pinholster, — U.S. —, 131 S.Ct. 1388 (2011). In Cullen the

Supreme Court held that the petitioner had not shown that the state supreme court

unreasonably applied clearly established federal law, in part, because the Supreme

Court decided that the additional mitigation evidence in the state habeas

proceedings “largely duplicated the mitigation evidence at trial.” Id. at 1409. The

Supreme Court decided for itself that the additional evidence presented in the state

collateral proceeding “largely duplicated” the evidence that had been presented at

trial. Because federal appellate courts, including the Supreme Court, are not

factfinders, see Pullman-Standard v. Swint, 456 U.S. 273, 291–93, 102 S.Ct. 1781,

1791–92 (1982); United States v. Noriega, 676 F.3d 1252, 1263 (11th Cir. 2012);

United States v. Fulford, 662 F.3d 1174, 1181 (11th Cir. 2011), the Supreme

Court’s “largely duplicated” determination in Cullen is not a factfinding; if it

69

were, the Supreme Court would not have made it because appellate courts do not

make factfindings. So, Cullen indicates that this Court in Cooper should not have

treated the “cumulative” determination as a factfinding and that the Georgia

Supreme Court’s “largely cumulative” determination in this case probably is not a

factfinding.20

Nonetheless, the State in this case does not contend that we should not treat

that determination as a factfinding for purposes of § 2254(d)(2), and doing so does

not affect the result. So we will assume, as Holsey argues, that the determination

was one of fact subject to review under § 2254(d)(2).21 We will not, however, be

deciding whether it would have been reasonable to find that the additional

collateral hearing evidence was “cumulative” of the trial and sentencing phase

evidence because that is not what the Georgia Supreme Court said. It said “largely

20

The dissenting opinion misconstrues our statements about the Cullen decision. See

Dissenting Op. 120 n.5. We are not saying that § 2254(d)(2) applies only to a subset of

factfindings. Instead, we are pointing out that the Supreme Court and this Court have held that

federal appellate courts, of which the Supreme Court is one, do not find facts. It follows that

when the Supreme Court determined in Cullen that the evidence presented in the state collateral

proceeding “largely duplicated” the evidence at the sentence proceeding, the Court was not

finding facts but applying law to fact. And because the Supreme Court’s “largely duplicated”

determination in Cullen was an application of law to fact, it follows that the Georgia Supreme

Court’s “largely cumulative” determination in this case was also an application of law to fact. It

is as simple as that.

21

The dissenting opinion falsely accuses us of disregarding the Cooper decision. See

Dissenting Op. 118. While we believe that decision is wrong on the question of whether

“cumulative” is a factfinding or an application of law to fact, we treat it as correct and binding

and explain why this case is distinguishable. See infra pp. 88–89.

70

cumulative,” and we will review for reasonableness that determination, not

Holsey’s pruned down revision of it.

C.

As the Supreme Court has observed, “[t]he term ‘unreasonable’ is no doubt

difficult to define.” Wood v. Allen, — U.S. —, 130 S.Ct. 841, 849 (2010).

Despite that difficulty, the Court has explained “that a state-court factual

determination is not unreasonable merely because the federal habeas court would

have reached a different conclusion in the first instance.” Id. Instead, “if some

fairminded jurists could agree with the state court’s decision, although others

might disagree,” the state court’s decision is not unreasonable. Hill, 662 F.3d at

1346. To be unreasonable, the error in the state court’s finding must be so clear

that there is no possibility for “fairminded disagreement.” Harrington, 131 S.Ct. at

786–87. AEDPA “demands that state-court decisions be given the benefit of the

doubt.” Renico v. Lett, — U.S. —, 130 S.Ct. 1855, 1862 (2010) (quotation marks

omitted); accord Morton v. Sec’y, Fla. Dep’t of Corr, — F.3d —, No. 11–11199,

2012 WL 2332758, slip op. at 14–15 (11th Cir. June 20, 2012).

To determine whether the Georgia Supreme Court’s “largely cumulative”

determination was an unreasonable one, we compare the trial evidence with the

evidence presented during the state postconviction proceedings. In doing so, we

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keep in mind that the United States Supreme Court, this Court, and other circuit

courts of appeals generally hold that evidence presented in postconviction

proceedings is “cumulative” or “largely cumulative” to or “duplicative” of that

presented at trial when it tells a more detailed version of the same story told at trial

or provides more or better examples or amplifies the themes presented to the jury.

See, e.g., Cullen, 131 S.Ct. at 1409–10 (“The ‘new’ evidence largely duplicated

the mitigation evidence at trial. School and medical records basically substantiate

the testimony of [the petitioner]’s mother and brother. Declarations from [the

petitioner]’s siblings support his mother’s testimony that his stepfather was

abusive and explain that [the petitioner] was beaten with fists, belts, and even

wooden boards.” (emphases added)); Wong v. Belmontes, 558 U.S. 15, 130 S.Ct.

383, 387–88, (2009) (per curiam) (holding that “[s]ome of the [additional

mitigating] evidence was merely cumulative of the humanizing evidence [the

petitioner] actually presented” because “[t]he sentencing jury was . . . well

acquainted with [the petitioner’s] background and potential humanizing features”

(quotation marks omitted)); Boyd v. Allen, 592 F.3d 1274, 1297–98 (11th Cir.

2010) (finding that much of the evidence presented by the petitioner during

postconviction proceedings “was in some measure cumulative” of the trial

evidence because “much (although not all) of the ‘new’ testimony introduced at

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the post-conviction hearing would simply have amplified the themes already

raised at trial” (emphasis added)); Rhode, 582 F.3d at 1287 (“At best, the evidence

would have been cumulative, providing more information about [the petitioner]’s

bad childhood and early exposure to drugs and alcohol.” (emphasis added));

Robinson v. Moore, 300 F.3d 1320, 1347 (11th Cir. 2002) (“[M]ost of the new

mitigation evidence is cumulative of the nonstatutory mitigating circumstances

presented during resentencing. . . . While the additional mitigation witnesses

procured by [the petitioner’s habeas] counsel could have presented the

resentencing jury and trial judge with more details, or different examples, of these

aspects of [the petitioner’s] life, these aspects of his life were nonetheless known

to the resentencing jury and trial judge.” (emphases added)); Riley v. Wainwright,

778 F.2d 1544, 1549–51, 1551 n.14 (11th Cir. 1985) (describing as “largely

cumulative” the forensic evidence that the petitioner claimed should have been

presented at sentencing because that forensic evidence would have only

“buttress[ed]” the points made by other witnesses); Jackson v. Bradshaw, 681 F.3d

753, 769–70 (6th Cir. 2012) (holding that evidence presented during collateral

proceedings was “largely cumulative” of evidence presented during sentencing

because the collateral evidence provided only a “larger pool of information of the

same type already offered” at sentencing); Beuke v. Houk, 537 F.3d 618, 645–46

73

(6th Cir. 2008) (holding that the petitioner’s collateral evidence was “largely

cumulative” of the evidence presented at trial because it concerned the same

“subject matter [as] the evidence actually presented at sentencing”); Paul v. United

States, 534 F.3d 832, 842–43 (8th Cir. 2008) (holding that “[m]uch of the new

[collateral] evidence cited by [the petitioner] [was] largely cumulative of evidence

that was presented . . . at the penalty phase of the trial” although the collateral

evidence might have provided “more detail about [the petitioner]’s difficult and

abusive childhood or his compassionate character”); Buckner v. Polk, 453 F.3d

195, 207 (4th Cir. 2006) (“To the extent that the Maxwell and Coleman affidavits

provide new detail of the stories of [the petitioner]’s brother’s death and his

father’s alcoholism, we conclude that this new detail is largely cumulative.”);

Hedrick v. True, 443 F.3d 342, 353 (4th Cir. 2006) (“The evidence that [the

defendant] had received low scores on intelligence tests administered at an early

age is largely cumulative of testimony from Dr. Hawk and [the defendant]’s

mother during the sentencing phase that he had learning troubles in his

youth . . . .”); Baldwin v. Maggio, 704 F.2d 1325, 1334 (5th Cir. 1983) (holding

that a petitioner was not prejudiced by his counsel’s failure to present “largely

cumulative” evidence from several witnesses because “[t]heir testimony would

have served only to corroborate the portrait of the man sketched by” other

74

witnesses who had testified at sentencing).

The evidence presented at the sentencing phase of Holsey’s trial and during

the collateral evidentiary hearing all goes to one of two chapters of his mitigating

circumstances story. One chapter is about his limited intelligence and the other is

about his troubled, abusive childhood growing up poor in a home with an absentee

father, a mentally challenged, abusive mother, and a violent, mentally challenged

sister. Holsey contends, however, that in the state collateral court he told a more

detailed version of both those chapters of his story than his trial lawyers told at the

sentencing phase of his trial. He argues that those additional details render the

Georgia Supreme Court’s “largely cumulative” conclusion unreasonable. We will

compare the chapters separately, turning first to a comparison between the

sentencing phase and state collateral court evidence about Holsey’s limited

intelligence, and then to a comparison of the evidence about his troubled

upbringing.

1.

At the sentencing phase, Holsey’s trial lawyers informed the jury that he is a

man of limited intelligence. They told that story primarily through the testimony

of Holsey’s sister Regina Reeves who was a Deputy United States Marshal. She

testified that Holsey performed poorly in school, and was usually assigned to the

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next grade level instead of actually passing into that grade level, and he dropped

out of school before finishing the tenth grade. The jury learned from his school

records, which Reeves read to them, that Holsey was “a weak student” and “very

slow” and a “poor worker” who “need[ed] help from home” but never got that

help. Reeves also read to the jury part of Holsey’s Youth Development Center

records, which said that Holsey “functions in the borderline mental retardation

range of intelligence,” and she told the jury that another part of those records

described how a then fifteen-year-old Holsey was functioning academically at only

a third-grade level. Also, one of Holsey’s trial lawyers told the jury in her closing

statement that Holsey is “borderline mentally retarded,” a point she reiterated by

telling the jury that he “was just assigned [to grades] for school.”

In the state postconviction proceedings, Holsey presented additional

evidence that told a more detailed version of the limited-intelligence story that his

trial lawyers had put before the jury in the sentencing phase. Holsey called two

psychologists to testify at the evidentiary hearing: Dr. Cunningham and Dr.

Toomer. Each psychologist testified that in his opinion Holsey is mildly mentally

retarded, which means he suffers from what Dr. Cunningham described as a

“catastrophic disability,” although the DSM-IV does not describe it that way, see

supra p. 29 n.7. Holsey also submitted the deposition testimony of two other

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psychologists—Dr. Einhorn, whom the State had hired to evaluate Holsey, and Dr.

Shapiro who had been hired by Holsey’s trial lawyers before the trial. Those two

experts testified that Holsey is not mentally retarded but instead functions in the

borderline mental retardation range, which is what the jury had heard during the

sentencing phase. Dr. Shaprio added in his deposition testimony that someone in

the borderline mental retardation range is in approximately the bottom fifth

percentile of intelligence. (During its presentation at the same hearing the State

called as an expert witness Dr. Sachy, a psychiatrist, who agreed with Dr. Einhorn

and Dr. Shaprio that Holsey is not mentally retarded but instead functions in the

borderline mental retardation range.)

In the state collateral proceedings, Holsey also submitted the deposition

testimony and affidavits of several witnesses who testified or attested that Holsey

has limited intelligence. Three of Holsey’s former teachers explained that he

“wasn’t a very good student”; displayed an “obvious slowness”; suffered serious

intellectual limitations; could “barely read”; “just wasn’t playing with a full deck”;

and “didn’t have any smarts going for him.” Family members explained that he

“definitely couldn’t care for himself”; “needed a lot of guidance and supervision”;

“learned things really slowly or not at all”; and was not very smart. Holsey’s

friends and former neighbors told the state collateral court that he “was just slow

77

in the head”; did not “have the smarts necessary to make his way on his own”; and

did not have “the smarts of a grown man.” One of Holsey’s former coworkers told

the court that “he was way behind most folks when it came to smarts.” Others said

that he “was very limited intellectually”; “not capable of abstract reflection”; and

was “a slow, simple-minded boy.”22

(We will save for later a discussion of the contrary evidence in the form of

lay testimony that the State presented at the evidentiary hearing on the question of

Holsey’s intelligence. See infra p. 99 n.24.)

As our comparison shows, the limited-intelligence evidence that Holsey

presented during the state postconviction proceedings concerned the same “subject

matter [as] the evidence actually presented at sentencing,” Beuke, 537 F.3d at

645–46, and primarily was a more detailed retelling of the limited-intelligence

story his trial lawyers told the jury at the sentencing phase. Most of that additional

evidence “basically substantiate[ed]” or “support[ed]” the testimony of Reeves and

the facts in the records put before the jury while she was testifying about Holsey

not being intelligent, performing poorly in school, and functioning in the

22

To contradict those depositions and affidavits, at the state postconviction evidentiary

hearing, the State called Howard Sills, the former Chief Deputy Sheriff Baldwin County, and

submitted the affidavits of eight others. Sills’ testimony and the affidavits described Holsey as

an ordinary, intelligent person.

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borderline mentally retarded range. See Cullen, 131 S.Ct. at 1435. In other

words, the evidence presented in the state collateral court provided a “larger pool

of information of the same type already offered,” Bradshaw, 681 F.3d at 770, and

merely “amplified the themes [of]” his sentencing phase evidence, Boyd, 592 F.3d

at 1298, by expanding on and providing more details and different examples about

his limited intelligence, see Robinson, 300 F.3d at 1347. For that reason, a

reasonable jurist could determine, as the Georgia Supreme Court did, that the

additional evidence about Holsey’s limited intelligence was “largely cumulative”

of the evidence presented at trial.

The state collateral court did hear some evidence about Holsey’s limited

intelligence that may not have been cumulative, specifically the testimony of two

psychologists who diagnosed him as mildly mentally retarded and Dr. Shapiro’s

explanation of borderline mental retardation. That some of the limited-

intelligence evidence presented in the state collateral court was not cumulative

does not mean that the Georgia Supreme Court’s conclusion that the state

collateral limited-intelligence evidence was “largely cumulative” was an

unreasonable determination of the facts. It wasn’t unreasonable. As we have just

described, most of the evidence presented about limited intelligence in the state

collateral court was cumulative of the evidence presented at trial. And “mostly” is

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“largely.” See Roget’s Super Thesaurus 339 (4th ed. 2010) (stating that “mostly”

is a synonym for “largely”).

Our decision in Herring v. Secretary, Department of Corrections, 397 F.3d

1338 (11th Cir. 2005), is instructive. In Herring, the petitioner argued, among

other things, that his trial counsel was deficient and he was prejudiced because his

counsel did not “introduce two psychological reports that diagnosed him as

suffering from retardation and other organic neurological disorders.” Id. at 1351.

We held that the petitioner had not shown prejudice because, among other things,

the reports were “cumulative” of the petitioner’s mother’s trial testimony that he

had a low IQ and a learning disability. Id. Similar to the jury in Herring, the jury

at the sentencing phase in this case heard that Holsey has limited intelligence,

functions in the borderline mental retardation range, and performed poorly in

school. Some expert testimony diagnosing Holsey with mild mental retardation

(contradicted by other expert testimony that he is not mentally retarded) or

explaining the term “borderline mental retardation” does not alter the cumulative

nature of the rest of the additional evidence about Holsey’s limited intelligence.

2.

We now turn to a comparison of the evidence at the sentencing phase and

state collateral hearing concerning Holsey’s troubled, abusive childhood. At the

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sentencing phase, the jury heard about Holsey’s troubled, abusive childhood from

both Clifford Holsey and Regina Reeves and from Holsey’s Youth Development

Center records. Clifford told the jury that (1) Holsey grew up in a “rough” home

that was infested with cockroaches; (2) Holsey’s mother neglected, abused, and

“walked all over” him; (3) Holsey’s mother would curse at, “scold[,] and . . . beat”

her son; and (4) she often left her children alone at night because she worked

nights at Clifford’s club.

Holsey’s sister, Reeves, testified about his troubled, abusive childhood. She

told the jury that “things were horrible” for Holsey growing up. She recounted

that their mother often beat her three oldest children—Reeves, Angela, and

Holsey—which motivated Reeves to escape from their mother’s cruelty by leaving

home at age seventeen. Reeves also read to the jury part of Holsey’s Youth

Development Center records stating that Holsey “has no supervision at home.”

She further explained that their mother was often absent and had once been

hospitalized for psychiatric issues and that Holsey never really knew their father.

Holsey, she said, “more or less” grew up on the streets. She also told the jury

about how Angela, who was a major influence on Holsey, was a violent person

who had been hospitalized several times for mental issues.

A summary of a Youth Development Center home evaluation, which was

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contained in the records that were put into evidence at the sentencing phase,

informed the jury that Holsey’s mother “ha[d] no idea how to control [him]

without resorting to excessive punishment.” In her closing statement, one of

Holsey’s trial lawyers highlighted Holsey’s troubled, abusive “home life,” noting

that he “grew up by himself.” She told that jury that he “had nothing that every

child deserves to have. He was deprived of everything.”

In the state evidentiary hearing, Holsey’s collateral counsel presented

evidence that provided the court with more details about Holsey’s troubled,

abusive childhood than the jury had heard at the sentencing phase. Reeves

testified in more detail about the verbal, emotional, and physical abuse Holsey had

suffered while growing up. She told the court that Holsey had grown up in a

“horrible” economic situation and that he did not always have enough to eat. She

said that their mother was rarely home because she worked day and night, and

when she was home she favored his two younger sisters over Holsey, Reeves, and

Angela.

Reeves provided details about how their mother verbally and physically

abused Holsey. She testified that their mother would curse at and humiliate him,

telling him that “he was just like his no-good-ass daddy” and that “he was going to

be a punk and a sissy.” Their mother also told Holsey that he had a “can’t talk

82

ass” and that he could not “talk worth a shit.” Reeves provided the state collateral

court with examples of the physical abuse Holsey suffered, telling the court that

their mother would beat him with an extension cord, shoes, and a broom and

would sometimes hold his head under the bathtub faucet. Reeves also said that

their mother would beat Holsey because he wet the bed until he was thirteen years

old and that Holsey had once seen his mother beat Angela until she was

unconscious.

Holsey’s collateral counsel also submitted depositions and affidavits that

provided more details about his troubled, abusive childhood. Family members,

friends, and neighbors told how his mother verbally abused him, calling him

things like a “buck teeth mother fucking monkey[]”; a “‘sissy boy’”; and a “‘cry

baby.’” They also told the court that his mother made fun of his limited

intelligence, saying things like: “Can you read any of the words in this book

boy?” and “‘What’s wrong with your head anyway.” She also would call him a

“motherfucker,” “sissy ass,” “stupidhead,” “dumbo,” and “retardate.” Holsey’s

sister Demetra told the court that his mother made distinctions between her

children, treating her two youngest daughters the best.

Family, friends, and neighbors described the severity of the abuse Holsey

suffered at the hands of his mother. A former neighbor told the court that his

83

mother was “mean and cruel to her . . . kids,” and others told the court that his

mother would beat him for any reason or no reason at all. According to the

depositions and affidavits, “while cursing and yelling at the top of her lungs,” she

repeatedly unleashed “brutal” beatings on him, using extension cords, belts, a

washer/dryer hose, shoes, a hot curling iron, or “anything else she found handy.”

During these violent outbursts, Holsey’s mother would “tear into [him] and beat

him to a pulp.” A friend even recounted that she had seen Holsey “running for his

life and not caring that he was covered in red welts and wounds.”

Others told the court that Holsey’s childhood home was disgusting. His

mother’s niece said that it “was always filthy and stunk with the smell of urine and

rotting food,” and a former neighbor said his home was “filthy and dirty with

roaches, old garbage and the stench of urine.”

As this comparison of the evidence presented at the sentencing phase and at

state collateral court’s evidentiary hearing shows, the state collateral court was not

the first court to hear about Holsey’s troubled, abusive childhood. Although the

court heard more details about that childhood during the evidentiary hearing, the

jury at the sentencing had heard about his troubled, abusive upbringing too. Like

the evidence Holsey presented in the evidentiary hearing about his limited

intelligence, the evidence he presented during the hearing about his troubled,

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abusive childhood “basically substantiate[ed]” and “support[ed]” the story that

Holsey’s trial lawyers had put before the jury about how he grew up poor in a

filthy home, with a mentally challenged, absentee mother who, when she was

around, beat him and verbally abused him. See Cullen, 131 S.Ct. at 1435.

The evidence presented during the collateral evidentiary hearing concerned

the same “subject matter [as] the evidence actually presented at sentencing.”

Beuke, 537 F.3d at 645–46. The collateral evidence provided a “larger pool of

information of the same type already offered,” Bradshaw, 681 F.3d at 770, which

“amplified the themes [of]” the story that was told to the jury, Boyd, 592 F.3d at

1298, by providing “more information,” Rhode, 582 F.3d at 1287, “more details,”

and “different examples” of Holsey’s troubled, abusive childhood, Robinson, 300

F.3d at 1347. But the basic story of his troubled, abusive childhood was

“nonetheless known to the . . . jury” when it sentenced him to death for the malice

murder of Deputy William Robinson. Robinson, 300 F.3d at 1347. Because the

evidence Holsey presented in the state collateral court about his troubled, abusive

childhood was largely cumulative of the evidence he presented at trial, it was not

unreasonable for the Georgia Supreme Court to describe it as largely cumulative.

At least, fairminded jurists could disagree about whether it was. See Harrington,

131 S.Ct. at 786.

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Two decisions, one from the Supreme Court and one from this Court,

support our conclusion about this. The first is the Supreme Court’s decision in

Cullen. In that case, “[t]he mitigating evidence [at trial] consisted primarily of the

penalty-phase testimony of [the petitioner’s mother]” who testified, among other

things, that the petitioner’s stepfather was “abusive, or nearly so.” Cullen, 131

S.Ct. at 1408–09. Declarations of the petitioner’s siblings submitted during

postconviction proceedings provided new and graphic details about that abuse,

including that the petitioner’s “stepfather beat him several times a week” with his

fists, belts, and “at least once with a two-by-four board.” Id. at 1424 (Sotomayor,

J., dissenting); accord id. at 1410 (majority op.). Even so, the Supreme Court held

that the “‘new’ evidence” of the abuse suffered by the petitioner “largely

duplicated the mitigation evidence [of abuse] at trial” because it “support[ed] his

mother’s testimony that his stepfather was abusive and explain[ed] that [the

petitioner] was beaten with fists, belts, and even wooden boards.” Id. at 1409–10.

If, as the Supreme Court held, the additional evidence in Cullen “largely

duplicated” the evidence at the trial in that case, id. at 1409, the additional

evidence in this case was “largely cumulative” of the evidence at the trial in this

case. Or at least fairminded jurists could so find, as the five Justices who joined

that part of the Supreme Court’s Cullen decision did. See Harrington, 131 S.Ct. at

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786.

The second decision that supports our conclusion is the Sochor case. There,

we held that the evidence of “childhood trauma” Sochor presented in the state

collateral evidentiary hearing was cumulative of the evidence that had been

presented on his behalf at trial. Sochor, 685 F.3d at 1031–32. We explained that

“[a]lthough Sochor presented evidence during the [state collateral] evidentiary

hearing that he suffered severe beatings and head injuries as a child and young

adult,” the sentencing judge and jury had heard essentially the same story. Id. at

1031. For example, his “sister testified during the penalty phase that Sochor’s

father . . . once ‘got ahold of Sochor’s hair, and he kept banging his head against

the wall.’” Id. (alteration omitted). And Sochor’s father testified at the penalty

phase that his mother (not the father) had once “lost her temper and beat Sochor,

then banged his head against the wall.” Id. (alteration and quotation marks

omitted). We held that evidence was “substantially similar,” id. at 1032, to

Sochor’s siblings’ testimony at the evidentiary hearing “that their father had

brutally beaten Sochor when he was a child,” id. at 1023, including his sister’s

testimony that “their father usually beat one of the children when he came home

from work and that Sochor was his favorite target,” id.

If, as we held, the additional evidence in Sochor was “substantially similar”

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to the evidence at the trial in that case, the additional evidence in this case was

“largely cumulative” to the evidence at the trial in this case. Or at least fairminded

jurists could so find. Reeves’ evidentiary hearing testimony and the depositions

and affidavits Holsey submitted do bolster Reeves’ and Clifford Holsey’s

sentencing phase testimony, and the facts from the records that were introduced at

trial, by adding details about the beatings and verbal abuse that Holsey suffered.

But those additional details tell the same story that Holsey’s trial lawyers told at

the sentencing phase.

The largely cumulative nature of Holsey’s collateral hearing evidence about

his childhood is different from the nature of the collateral hearing evidence that we

described in Cooper. There we held that a Florida Supreme Court “cumulative”

finding was an unreasonable determination of the facts because the evidence

presented in the state collateral court did not tell the same story as the evidence

presented at trial. See Cooper, 646 F.3d at 1353. In Cooper, the petitioner’s

mother had testified at sentencing that the extent of the childhood abuse inflicted

on the petitioner “was the emotional abuse of his father not being involved in his

life and getting whipped by a belt, sometimes leaving marks” and of seeing his

father physically abuse her. Id. Evidence at the state collateral evidentiary

hearing, however, showed that the defendant had suffered “horrible abuse” at the

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hands of his father, id., including being “beaten, punched, and kicked” from the

time “he was barely out of diapers,” id. at 1342.

The Florida Supreme Court found that the petitioner’s collateral challenge

evidence was “cumulative to that presented at sentencing,” holding that “a

substantial part of the information regarding [his] disadvantaged childhood was

presented at [his] trial” through his mother’s testimony. Id. at 1353 (quotation

marks omitted). We held that was an unreasonable determination of the facts

because his mother’s testimony “did not begin to describe the horrible abuse”

suffered by the defendant at the hands of his father. Id. Instead, his mother’s trial

testimony only told the jury about the petitioner’s absentee father occasionally

whipping him with a belt. Id. That was a different story—not just a less detailed

one—than the habeas story about the “horrible abuse” that the petitioner actually

did suffer. Id. In contrast to the additional evidence presented in the state

collateral hearing in Cooper, Holsey’s additional evidence told largely the same

story as his sentencing phase evidence, although it did add details and bolster that

evidence.

For these reasons, we conclude that the Georgia Supreme Court’s

determination that the evidence Holsey’s collateral counsel presented in the

evidentiary hearing was largely cumulative of the evidence that his trial lawyers

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had presented during the sentencing phase of his trial was not an unreasonable

determination of fact under § 2254(d)(2).

D.

Holsey’s last contention is that the Georgia Supreme Court was wrong to

decide that he did not carry his burden of establishing that he was prejudiced by

his trial lawyers’ deficient performance at the sentencing phase of his trial.

Prejudice, of course, means “ a reasonable probability that, absent the errors, the

sentencer . . . would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. at

2069. And a reasonable probability, in turn, means “a probability sufficient to

undermine confidence in that outcome.” Johnson, 643 F.3d at 935 (quoting Porter

v. McCollum, — U.S. —, 130 S.Ct. 447, 455–56 (2009)) (alterations and some

quotation marks omitted). In determining whether a petitioner has carried his

burden of showing prejudice from his trial counsel’s failure to present all the

mitigating circumstance evidence that his collateral counsel presented, courts must

“evaluate the totality of the available mitigation evidence—both that adduced at

trial, and the evidence adduced in the habeas proceeding—and reweigh it against

the evidence in aggravation.” Callahan v. Campbell, 427 F.3d 897, 936 (11th Cir.

2005) (alterations and quotation marks omitted); accord Johnson, 643 F.3d. at 935.

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It is not enough for a habeas petitioner to convince a federal court that he

was prejudiced by the failure to present the additional mitigating circumstance

evidence, that there is a reasonable probability of a different result if it had been

presented. Under the unreasonable application clause of 28 U.S.C. § 2254(d)(1),

he must establish more because the question for a federal habeas court is “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, and an “unreasonable

application of federal law is different from an incorrect application of federal

law,” id. at 410, 120 S.Ct. at 1522. Once again, a state court’s application of

federal law is unreasonable only if no “fairminded jurist” could agree with the

state court’s conclusion. Harrington, 131 S.Ct. at 786; see also Yarborough, 541

U.S. at 664, 124 S.Ct. at 2149; Hill, 662 F.3d at 1346. “[I]f some fairminded

jurists could agree with the state court’s decision, although others might disagree,

federal habeas relief must be denied.” Hill, 662 F.3d at 1346. So, to prevail,

Holsey must establish that no fairminded jurist could conclude that he was not

prejudiced by his trial lawyers’ failure at the sentencing phase to present the

additional evidence of his limited intelligence and his troubled, abusive childhood

that his collateral counsel presented in the state collateral court. See id. Holsey

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contends that he has done that, but we disagree.23

To begin with, “[t]his is not a case where the weight of the aggravating

circumstances or the evidence supporting them was weak.” Sochor, 685 F.3d at

1030 (alteration omitted); accord Kokal, 623 F.3d at 1347. Not at all. There was,

and is, substantial evidence of aggravating circumstances, which makes it more

difficult to establish prejudice under Strickland. See Sochor, 685 F.3d at 1030–33

(holding that a petitioner did not establish the prejudice prong of Strickland in part

because there was strong evidence of the aggravating circumstance that the murder

was “especially heinous, atrocious, and cruel”); Rose v. McNeil, 634 F.3d 1224,

1242 (11th Cir. 2011) (holding that a petitioner did not establish the prejudice

prong of Strickland in part because there was “substantial evidence in

aggravation”); Callahan, 427 F.3d at 938 (holding that strong aggravation

23

Holsey also argues that the Georgia Supreme Court’s evaluation of the mitigating

evidence he presented at the evidentiary hearing was specifically contrary to the Supreme Court’s

application of the Strickland standard in Williams v. Taylor. That contention lacks merit. In

Williams, the Court held that the Virginia Supreme Court’s conclusion that the petitioner had not

established prejudice was an unreasonable application of Strickland because the state court “did

not entertain [the] possibility” that “[m]itigating evidence unrelated to dangerousness may alter

the jury’s selection of penalty, even if it does not undermine or rebut the prosecution’s death-

eligibility case.” Id. at 398, 120 S.Ct. at 1516. The Georgia Supreme Court did not make the

same mistake in Holsey’s case. Nothing in its opinion suggests that it “rested its prejudice

determination on the fact that [Holsey’s] mitigating evidence did not undermine or rebut the

evidence supporting the aggravating circumstance[s].” Williams v. Allen, 542 F.3d 1326, 1344

(11th Cir. 2008). Instead, the court explicitly examined the totality of Holsey’s available

mitigation evidence and weighed it against the evidence of aggravation. After doing so, the court

concluded that the available mitigation evidence did not undermine its confidence in the jury’s

death sentence recommendation. See Holsey III, 642 S.E.2d at 61–62.

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“demonstrates the burden a defendant faces when trying to overcome . . . harsh

aggravating factors with mitigating evidence”); Kokal, 623 F.3d at 1347–48

(finding that the Florida Supreme Court’s holding that a petitioner had not shown

prejudice was not an unreasonable application of Strickland in part because “the

aggravating circumstances . . . are especially powerful”); Rutherford v. Crosby,

385 F.3d 1300, 1316 (11th Cir. 2004) (“A third reason why the Florida Supreme

Court’s decision that [the petitioner] had not established prejudice is not

objectively unreasonable is that this is not a case where the weight of the

aggravating circumstances or the evidence supporting them was weak.”);

Crawford v. Head, 311 F.3d 1288, 1321 (11th Cir. 2002) (finding no prejudice in

part because of the “strength of the evidence both of [the petitioner’s] guilt and of

the aggravating circumstances”); Hall v. Head, 310 F.3d 683, 706 (11th Cir. 2002)

(holding “that the state court’s calculus as to prejudice was [not] an unreasonable

one” in part “because the aggravating evidence is strong”); cf. Williams, 542 F.3d

at 1343 (“Further supporting a finding of prejudice is the fact that this case is not

highly aggravated.”).

The jury in this case found four statutory aggravating circumstances: (1)

Holsey murdered a deputy sheriff, see Ga. Code Ann. § 17-10-30(b)(8); (2) he

murdered the deputy sheriff while trying to avoid arrest, see id. § 17-10-30(b)(10);

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(3) he murdered the deputy sheriff while committing armed robbery, see id. §

17-10-30(b)(2); and (4) he murdered the deputy sheriff after he had already been

convicted of a capital felony—the 1983 armed robbery of a Milledgeville

convenience store, see id. § 17-10-30(b)(1).

In addition to those statutory aggravating circumstances, the jury heard

evidence about Holsey’s long history of violence against others. When he was

fourteen years old, Holsey brought a butcher knife to school, put it to a

schoolmate’s throat, and hit that schoolmate in the face. When he was eighteen

years old, Holsey robbed a Milledgeville convenience store by smashing the store

clerk’s face with a brick. For that violent behavior, Holsey pleaded guilty to and

was convicted of armed robbery with serious bodily injury. Then, when Holsey

was twenty-six years old, and while still on parole for his first armed robbery

conviction, he stabbed a man four times and tried to shoot another person. For

that violent behavior, he pleaded guilty to and was convicted of three more crimes:

two counts of aggravated assault and one count of possession of a firearm by a

convicted felon. The jury heard about all of those violent crimes during the

sentencing phase. And, of course, it heard extensive evidence during the trial

about how Holsey, when he was thirty years old, robbed yet another convenience

store and, while fleeing, murdered Deputy Will Robinson. Holsey’s extensive,

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escalating history of violence against others, which began at least as early as age

fourteen when he put a knife to a schoolmate’s throat and continued throughout

his life, culminating at age thirty in the murder of Deputy Robinson, is a “highly

prejudicial aggravating circumstance.” Frazier v. Bouchard, 661 F.3d 519, 533

(11th Cir. 2011); cf. Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331,

1368–69 (11th Cir. 2009) (holding that “details of [the petitioner’s] three prior

violent felony convictions” was “damaging testimony”).

In addition to all of the aggravating circumstances evidence that was before

the jury, the evidence that came in at the state collateral hearing included more

reasons for the jury to give Holsey a death sentence. First, his Department of

Corrections records, which Holsey himself put into evidence at the evidentiary

hearing, establish that he committed at least one violent act while in prison. While

incarcerated in 1985, he “jumped on” another inmate, breaking that inmate’s teeth,

bloodying his nose, and bruising his head. See Cummings, 588 F.3d at 1368–69

(holding that evidence of the petitioner’s “repeated involvement in violent

incidents while in prison” is “damaging”). Second, the State introduced evidence

at the hearing showing that Holsey had been arrested in 1982 for battery, in 1983

for theft by shoplifting, and in 1990 for carrying a concealed weapon.

Finally, it came out during the evidentiary hearing that Dr. Sachy, the

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State’s expert witness, and Dr. Shapiro, the psychologist Holsey’s trial lawyers

had hired to evaluate him, were of the opinion that Holsey’s history of getting in

fights, committing aggravated assaults and armed robberies, skipping school and

running away from home, and bringing a knife to school and putting it to another

student’s throat evidenced an antisocial personality disorder. Although Holsey

was never formally diagnosed as having antisocial personality disorder, the

testimony of those two experts, and other evidence corroborating what they said,

would have been additional aggravating evidence because it indicates that, formal

diagnosis or not, Holsey does have an antisocial personality disorder. And that is

“a trait most jurors tend to look disfavorably upon” and evidence of which “is not

mitigating but damaging.” Kokal, 623 F.3d at 1349 (quotation marks omitted);

Suggs v. McNeil, 609 F.3d 1218, 1231 (11th Cir. 2010) (describing as “potentially

aggravating” evidence suggesting that the defendant has an antisocial personality

disorder). The State could have put that damaging testimony before the jury

through either or both of those experts if Holsey’s trial lawyers had called Dr.

Cunningham to testify for him, as Holsey’s collateral counsel insist they should

have. See generally Cullen, 131 S.Ct. at 1410 (explaining that if a petitioner calls

an expert witness to testify at the sentencing phase it “open[s] the door to rebuttal

by a state expert”).

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Evidence corroborating Dr. Sachy’s and Dr. Shaprio’s opinions was

admitted during the sentencing phase. For example, there was a psychiatric

evaluation that concluded Holsey suffered a “behavioral/personality disorder,

which includes . . . [an] antisocial component.” That evaluation noted that Holsey

had, albeit barely, “as many antisocial behaviors as must be present in childhood

histories of adults who are diagnosed as having antisocial personality disorders.”

There was also an offender profile report in the Department of Corrections

records, which Holsey himself introduced at the evidentiary hearing, that states

that he potentially has an “Antisocial Personality” and his “psychological profile

suggests a very high risk for being assaultive and/or otherwise violent.”

In addition to the substantial evidence of aggravating circumstances present

in this case, as we have already discussed at some length, the evidence that Holsey

presented at the evidentiary hearing about his limited intelligence and his troubled,

abusive childhood was largely cumulative of the evidence his trial lawyers

presented at the sentencing phase. The additional evidence he presented in the

state collateral proceeding mostly substantiated, supported, and supplemented the

themes of Clifford Holsey’s and Reeves’ trial testimony by providing more details

and more examples of his limited intelligence and troubled, abusive childhood.

See supra pp. 75–90. The cumulative nature of that evidence weakens its

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usefulness to Holsey on the prejudice inquiry. See, e.g., Cullen, 131 S.Ct. at 1409

(holding that the petitioner did not establish prejudice in part because “[t]he ‘new’

evidence largely duplicated the mitigation evidence at trial”); Wong, 130 S.Ct. at

387–88 (holding that the petitioner did not establish prejudice in part because

“[s]ome of the [additional mitigating] evidence was merely cumulative of the

humanizing evidence [the petitioner] actually presented; adding it to what was

already there would have made little difference”); Sochor, 685 F.3d at 1031

(holding that a petitioner did not establish prejudice in part because “[m]ost of the

. . . mitigating evidence that [he] produced in the evidentiary hearing was

cumulative of evidence produced at the guilt and penalty phases of the trial”);

Boyd, 592 F.3d at 1298 (holding that a petitioner did not establish prejudice in

part because “much . . . of the ‘new’ testimony introduced at the post-conviction

hearing would simply have amplified the themes already raised at trial”);

Robinson, 300 F.3d at 1347 (holding that the Florida Supreme Court’s holding

that a petitioner had not shown prejudice was not unreasonable in part because

“most of the new mitigation evidence is cumulative of the nonstatutory mitigating

circumstances

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