The opinion
MARTIN, Circuit Judge, concurring in the judgment:
After Bobby Waldrop was convicted of capital murder, ten Alabama jurors voted to spare his life. But under Alabama'law at the time, this vote was merely advisory, and the trial judge was free to override it.
1 Mr. Waldrop’s judge did just that. He overrode the jury’s recommendation for life and sentenced Mr. Waldrop to death. In announcing his decision, the judge commented, “If I had not imposed the death sentence, I would have sentenced three black people to death and no white people.” So was Mr. Waldrop — who is white— sentenced based on his race? He believes he was. But this Court cannot reach his claim on federal habeas review because it is procedurally defaulted. Under U.S. Supreme Court precedent, a federal court may not hear the merits of a defaulted claim unless the petitioner demonstrates “cause and prejudice” or that review of the claim is necessary to correct a “fundamental miscarriage of justice.” See Coleman v. Thompson, 501 U.S. 722, 748 , 111 S.Ct. 2546, 2564 , 115 L.Ed.2d 640 (1991). Mr. Waldrop puts forward the seemingly uncontroversial argument that “imposing the death penalty based on the defendant’s race constitutes a ‘fundamental miscarriage of justice.’ ”
However, U.S. Supreme Court precedent confines the miscarriage of justice exception to cases in which a capital defendant claims he is “actually innocent” of the crime of conviction or the penalty imposed. See Schlup v. Delo, 513 U.S. 298, 321-23 , 115 S.Ct. 851, 864-65 , 130 L.Ed.2d 808 (1995); Sawyer v. Whitley, 505 U.S. 333, 336 , 112 S.Ct. 2514, 2517 , 120 L.Ed.2d 269 (1992) (holding that “to show ‘actual innocence’ [of the death penalty] one must show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law”). The facts of Mr. Waldrop’s case do not allow an argument that he is actually innocent, and he does not make one.
I must therefore agree with my colleagues that Mr. Waldrop has not met the legal standard for showing there has been a fundamental miscarriage of justice. But I am at a loss to otherwise explain how a person being sentenced to death based on his race could be anything other than a fundamental miscarriage of justice. We know, for example, that the Supreme Court recently characterized race discrimination in criminal sentencing as “a disturbing departure from a basic premise of our criminal justice system” — that people are punished “for what they do, not who they are.” Buck v. Davis, 580 U.S. -, 137 S.Ct. 759, 778 , 197 L.Ed.2d 1 (2017). And the Court has' also recently ruled (not in the context of a death sentence) that the no-impeachment rule precluding a court’s review of the merits of a juror bias claim must give way when there is clear evidence that a juror relied on racial stereotypes or animus to convict a criminal defendant. See Pena-Rodriguez v. Colorado, 580 U.S. -, 137 S.Ct. 855, 869-70 , 197 L.Ed.2d. 107 (2017). But even in light of these clear pronouncements from our highest court, Mr. Waldrop is not the first capital defendant to face procedural obstacles in making a claim that racial bias played a part in his being sentenced to death. 2 I fear he will not be the last.
I agree with the majority’s conclusion that Mr. Waldrop is not entitled to federal habeas- relief on his ineffective assistance of counsel claim. However, even separate from my concern about Mr. Waldrop’s racial bias claim, I cannot agree with all of the reasoning employed by the majority in reaching this conclusion. To begin, I reject the notion put forward in the majority opinion, that evidence that Mr. Waldrop’s childhood “was marred by some degree of physical violence, neglect, and substance abuse ... could have proven . double-edged” at sentencing, Maj. Op. at 915. He was only a child. The Supreme Court has made clear that “evidence of a turbulent family history” and an abusive' childhood is “particularly relevant” mitigating evidence when, as here, the defendant is young. Eddings v. Oklahoma, 455 U.S. 104, 115 , 102 S.Ct. 869, 877 , 71 L.Ed.2d 1 (1982); see also Porter v. McCollum, 558 U.S. 30, 43 , 130 S.Ct. 447, 455 , 175 L.Ed.2d 398 (2009) (noting that “evidence of [an], abusive childhood” may have “particulár salience” for the jury). And although I am aware this Court has said that substance abuse can sometimes be a “two-edged sword,” this idea has no application in cases like this one, where a child abuses substances to escape a bleak home life. See Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328 , 1355 & n.20 (11th Cir. 2011) (quotation omitted).
I also reject this Court’s precedent, relied on by the majority, that the mitigating impact of Mr. Waldrop’s terrible upbringing is lessened because his siblings did not engage in similarly “abhorrent” criminal behavior. See Maj. Op. at 915. First, it’s not obvious to me why the mitigating effect of a defendant’s traumatic experience would in any way be lessened because his brother or sister has not committed a similarly serious offense. Childhood abuse is considered mitigating because it may influence the sentencer’s appraisal of the defendant’s moral culpability, see Williams v. Taylor, 529 U.S. 362, 398 , 120 S.Ct. 1495, 1515 , 146 L.Ed.2d 389 (2000), not because the abuse may predispose a person to violent behavior later in life. Beyond that, it seems unwise to make comparisons between siblings in .this context because we don’t typically know much about the defendant’s family members. We are examining Mr. Waldrop’s sentence, so there has been no adversarial testing of any fact we might point to regarding Mr. Waldrop’s siblings or how their upbringing may have affected their lives. We have no record, for example, of whether his siblings also struggle with substance abuse. See Maj. Op. at 915. We do know that Mr. Waldrop’s sister engaged in some criminal activity, and the majority points to this fact as reason to doubt her testimony. Maj. Op. at 913. And of course we have no way of knowing what has happened in the lives of Mr. Waldrop’s siblings in the years since the evidentiary record closed in this case.
Finally, the majority opinion brings to light an apparent inconsistency in our circuit’s precedent about how we analyze prejudice under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), when a judge overrides a jury’s recommendation that a defendant’s life be spared. See Maj. Op. at 914 n.2. In Williams v. Allen, 542 F.3d 1326 (11th Cir. 2008), this Court said that prejudice “is more easily shown in jury override cases because of the deference shown to the jury recommendation.” Id. at 1343 (quotation omitted). More recently, in Lee v. Commissioner, Alabama Department of Corrections, 726 F.3d 1172 (11th Cir. 2013), we suggested the opposite — that it is harder to show prejudice in a jury override case. See id. at 1196 (stating that the jury’s recommendation for a life sentence “counsels against a determination that Lee was prejudiced under Strickland”). The majority points out that this inconsistency in our precedent doesn’t matter here because Mr. Waldrop has not shown that the Alabama court’s decision was contrary to U.S. Supreme Court precedent, which is necessary to overcome the deference we owe that decision under the Antiterrorism and Effective Death Penalty Act. See 28 U.S.C. § 2254 (d)(1). The majority’s legal analysis is correct when it says this inconsistency does not affect the outcome of Mr. Wal-drop’s case. Still, it is worth noting that our circuit’s prior panel precedent rule requires us to follow Williams because it was issued before Lee. 3 See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“[A] prior panel’s holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc.”). And that aside, I see no basis for accepting that it would be more difficult to show prejudice in a jury override case. Strickland’s prejudice inquiry asks whether there is a reasonable probability of a different outcome had the unpresented mitigation evidence been introduced at trial. See 466 U.S. at 694-95 , 104 S.Ct. at 2068-69 . To answer that question, we simply look to the probable effect of the new mitigation evidence on the sentencer — here, the judge.
. As the majority explains, Alabama has since amended its capital sentencing scheme, and a judge can no longer override the jury’s sentence. See Ala. Code § 13A-5-47(a).
. In 2014, this Court concluded that Kenneth Fults’s claim of juror racial bias was procedurally defaulted and thus barred from federal habeas review. Fults v. GDCP Warden, 764 F.3d 1311, 1315 (11th Cir. 2014). Tonight, the State of Georgia plans to execute Keith Tharpe, who also has a procedurally defaulted claim that one of his jurors was racially biased. See Tharpe v. Warden, No. 5:10-cv-00433-CAR, slip op. at 5-6 (M.D. Ga. Sept. 5, 2017).
. The precedent that Williams relied on dates back to 1987. See Harich v. Wainwright, 813 F.2d 1082 , 1093 n.8 (11th Cir.1987), adopted by en banc court, 844 F.2d 1464, 1468-69 (11th Cir.1988) (en banc), overruling on other grounds recognized in Davis v. Singletary, 119 F.3d 1471 , 1482 (11th Cir.1997). Lee relied on two cases: Parker v. Allen, 565 F.3d 1258 (11th Cir. 2009), also issued after Williams, and Routly v. Singletary, 33 F.3d 1279 (11th Cir.1994) (per curiam). Routly never said it is harder to show prejudice in a jury override case. Instead, it simply said a defendant cannot show that a failure to present mitigating evidence to the jury "prejudiced him to any degree whatsoever in the jury's consideration of penalty” when the jury has recommended a life sentence. See id. at 1297 (emphasis added). Routly then went on to separately consider the issue of prejudice as it related to the judge's selection of sentence, concluding that there was no prejudice because the allegedly unpresented mitigation evidence was already before the judge in the form of a presentence investigation report and an expert report. Id.