Stacey Humphreys v. Warden GDP

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10387

____________________

STACEY IAN HUMPHREYS,

Petitioner-Appellant,

versus

WARDEN, GEORGIA DIAGNOSTIC PRISON,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:18-cv-02534-LMM

____________________

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2 Opinion of the Court 21-10387

Before WILLIAM PRYOR, Chief Judge, and ROSENBAUM and

NEWSOM, Circuit Judges.

PER CURIAM:

Petitioner Stacey Humphreys, a death-row inmate in Geor-

gia, filed a petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. Between the district court and this Court, Humphreys re-

ceived a certificate of appealability (“COA”) on four issues. First,

Humphreys asserts that juror misconduct and bias plagued the pro-

ceedings and deprived him of his due-process rights. Second,

Humphreys contends the trial court gave an improper Allen charge,

which compounded the juror misconduct. And third and fourth,

Humphreys asks us to find that his trial counsel was ineffective dur-

ing the investigation and presentation of mitigating evidence and

that his appellate counsel was ineffective for failing to raise the ju-

ror-misconduct claim sooner.

After careful consideration of the claims and with the bene-

fit of oral argument, we affirm the district court’s denial of the ha-

beas petition.

I. BACKGROUND

A. Facts

Humphreys was arrested for the murders of Cynthia Wil-

liams and Lori Brown in November 2003. Jimmy Berry was ap-

pointed as trial counsel. After the state issued its notice of intent

to seek the death penalty in February 2004, the Georgia Capital De-

fender’s Office (“GCD”) signed onto the case with its director,

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Chris Adams, joining Berry. The responsibility for Humphreys’s

case shifted over the course of four years, but Berry remained on

the case the entire time. Teri Thompson from GCD replaced Ad-

ams and worked on the case from January 2006 until June 2007. At

that time, Deborah Czuba (who had also been working on the case

during the same period as Thompson) became the second-chair at-

torney. Berry was first chair, presenting both the guilt and sentenc-

ing phases.

At trial, the evidence showed the following tragic facts relat-

ing to the murders of Williams and Brown:

At approximately 12:40 p.m. on November 3,

2003, Humphreys, a convicted felon who was still on

parole, entered a home construction company’s sales

office located in a model home for a new subdivision

in Cobb County [Georgia]. Cindy Williams and Lori

Brown were employed there as real estate agents.

Finding Ms. Williams alone in the office, Humphreys

used a stolen handgun to force her to undress and to

reveal the personal identification number (PIN) for

her automated teller machine (ATM) card. After call-

ing Ms. Williams’s bank to learn the amount of her

current balance, Humphreys tied her underwear so

tightly around her neck that, when her body was dis-

covered, her neck bore a prominent ligature mark and

her tongue was protruding from her mouth, which

had turned purple. While choking Ms. Williams,

Humphreys forced her to get down on her hands and

knees and to move into Ms. Brown’s office and behind

Ms. Brown’s desk. Humphreys placed his handgun at

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Ms. Williams[’s] back and positioned a bag of bal-

loons between the gun and her body to muffle the

sound of gunshots. He then fired a shot into her back

that went through her lung and heart, fired a second

shot through her head, and left her face-down on her

hands and knees under the desk.

Ms. Brown entered the office during or shortly

after Humphreys’s attack on Ms. Williams, and he at-

tacked her too. Ms. Brown suffered a hemorrhage in

her throat that was consistent with her having been

choked in a headlock-type grip or having been struck

in the throat. Humphreys also forced Ms. Brown to

undress and to reveal her PIN, called her bank to ob-

tain her balance, and made her kneel with her head

facing the floor. Then, while standing over Ms.

Brown, Humphreys fired one gunshot through her

head, this time using both a bag of balloons and Ms.

Brown’s folded blouse to muffle the sound. He

dragged her body to her desk, took both victims’

driver’s licenses and ATM and credit cards, and left the

scene at approximately 1:30 p.m. Neither victim sus-

tained any defensive wounds.

When the builder, whose office was located in

the model home’s basement, heard the door chime of

the security system indicating that someone had ex-

ited the sales office, he went to the sales office to meet

with the [real-estate] agents. There he discovered Ms.

Brown’s body and called 911. The responding police

officer discovered Ms. Williams’s body.

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After interviewing the builder and canvassing

the neighborhood, the police released to the media

descriptions of the suspect and a Dodge Durango

truck seen at the sales office near the time of the

crimes. In response, someone at the job site where

Humphreys worked called to advise that Humphreys

and his vehicle matched those descriptions and that

Humphreys did not report to work on the day of the

crimes. The police began to investigate Humphreys

and made arrangements through his parole officer to

meet with him on the morning of November 7, 2003.

Humphreys skipped the meeting, however, and

eluded police officers who had him under surveil-

lance.

Humphreys was apprehended in Wisconsin

the following day. Police there recovered from the

console of his rental vehicle a Ruger 9-millimeter pis-

tol, which was determined to be the murder weapon.

Swabbings from that gun revealed blood containing

Ms. Williams’s DNA. A stain on the driver-side floor-

mat of Humphreys’s Durango was determined to be

blood containing Ms. Brown’s DNA.

After the murders, the victims’ ATM cards

were used to withdraw over $3,000 from their ac-

counts. Two days after the murders, Humphreys de-

posited $1,000 into his account, and he had approxi-

mately $800 in cash in his possession when he was ar-

rested. Humphreys claimed in a statement to the po-

lice that he did not remember his actions at the time

of the crimes. However, when asked why he fled, he

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said: “I know I did it. I know it just as well as I know

my own name.” He also told the police that he had

recently taken out some high-interest “payday” loans

and that he “got [in] over [his] head with that stinking

truck.”

Humphreys v. State, 694 S.E.2d 316, 322–23 (Ga. 2010).

Humphreys was convicted on September 25, 2007, in the Su-

perior Court of Cobb County, Georgia, of two counts each of mal-

ice murder, felony murder, aggravated assault, kidnapping, and

armed robbery in connection with the murders of the two women

at their workplace. Defense counsel then presented evidence of

mitigation during the sentencing phase. Trial counsel’s mitigation

strategy was to show that Humphreys suffered severe and frequent

physical abuse as a child and suffered from Asperger’s Syndrome.

On September 30, 2007, after a sentencing hearing, the same jury

found the existence of several statutory aggravating circumstances

and recommended a sentence of death. The trial court imposed

death sentences for each murder.

B. Jury Selection and Deliberations

Much of Humphreys’s petition centers on the selection of a

particular individual as a juror, Linda Chancey, and her interaction

with other jurors during the sentencing phase. To explain Hum-

phreys’s claim, we must first discuss the jury-selection process and

the jury’s deliberations. We note from the outset, though, that

most of this information comes from post-sentencing interviews

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of jurors that the trial court later found to be inadmissible and the

Supreme Court of Georgia agreed.

During jury selection, prospective juror Linda Chancey

stated on a questionnaire that she had been the victim of an armed

robbery and attempted rape. Both the questionnaire and her voir

dire testimony revealed that her assailant was a convicted murderer

who had escaped from a mental hospital. When the prosecution

asked her about the incident during voir dire, Chancey said that her

assailant “actually didn’t do [her] any physical bodily harm. [She]

was able to escape before he ever actually physically entered the

dwelling, so it was preempted.” Chancey further attested that her

prior experience would not prevent her from sitting as a fair juror

and that she felt she could listen to the evidence and follow the law.

Defense counsel did not ask any follow-up questions. Nor did he

challenge Chancey for cause or bias, even though the defense had

a preemptory strike remaining. Chancey was seated on the jury.

In contrast to her answers during the voir dire process,

Chancey apparently told the other jurors during deliberations that

her assailant actually breached her home and attacked her. In an

unsworn statement, another juror stated that Chancey told the ju-

rors she “had been attacked in her bed in her apartment. [She] was

naked in her bed and a man broke in and attacked her. [She] ran

into the halls of her apartment and finally someone opened the

door.” When jurors asked Chancey if she told the attorneys this,

she said she hadn’t thought about it. After trial, investigators for

Humphreys went to Chancey’s home to conduct an interview.

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Chancey told them that “a strange man came in through the win-

dow of her apartment, robbed her, and tried to rape her.” Based

on these circumstances, Humphreys contends Chancey lied during

voir dire.

Humphreys also asserts that Chancey bullied other jurors

into voting for a death sentence. Deliberations were contentious

and lengthy. According to Susan Barber, the jury foreperson, from

“day one, [Chancey] had her mind made up: early in the trial – be-

fore the end of the first phase – she said something along the lines

of he’s guilty and he deserves to die.” Chancey later stated that she

“would only vote for death.” Following the presentation of evi-

dence during sentencing, initially, three jurors—Susan Barber,

Alma Pogue, and Tara Newsome—believed that Humphreys

should receive life without parole and indicated they wouldn’t vote

for death (resulting in a vote of 9-3 in favor of death). It became

apparent that two of the jurors (Barber and Pogue) were set on a

life sentence (resulting in a vote of 10-2), so two male jurors began

trying to convince the other eight jurors to change their votes from

death to life without parole. Later, the jurors agreed that they

would unanimously vote for life without parole, but when the ju-

rors tallied their votes, Chancey voted for death. At that point, the

vote was 11-1 in favor of life without parole. The deliberations

continued and became quite heated, eventually resulting in a ver-

dict for death.

A post-trial investigation revealed some jurors claimed that

Chancey yelled and cursed at others during deliberations. Chancey

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herself agreed that the deliberations in the penalty phase were “vol-

atile” with screaming and raised voices, and at one point, another

juror “took a swing” at Chancey and punched a hole in the wall.

Chancey went through the crime-scene photos, threw them on the

table and showed them to the other jurors and asked them, “[D]o

you want this to happen to someone you know? And Chancey

yelled at the other jurors that she intended to “stay here till forever

if it takes it for [Humphreys] to get death.” Chancey also “put her

feet up on the table and said that she was digging in and she would

not change her vote.” She told the others that “they had to reach a

unanimous decision or [Humphreys] would be paroled.”

After deliberating for approximately eight hours over a pe-

riod of two days, Jury Foreperson Barber, wrote a note to the court

which stated as follows:

We, the jury, have agreed on statutory aggravating

circumstances on both counts, but not on the penalty.

While we agreed that life imprisonment with parole

is not an option, we are unable to come to a unani-

mous decision on either death or life imprisonment

without parole as a sentence. Please advise.

(emphasis added). Before Barber provided the note to the court,

however, Chancey, added the word “currently.” Barber re-wrote

the note and the version sent to the court stated as follows:

We, the jury, have agreed on statutory aggravating

circumstances on both counts, but not on the penalty.

Currently we agreed life imprisonment with parole is

not an acceptable option. We are currently unable to

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form a unanimous decision on death or on life impris-

onment without parole. Please advise.

(emphasis added).

Chancey said she revised the note because she did not want

to give the court the impression that the jury was at an impasse.

She believed the manner in which Barber originally wrote the note

could have resulted in a mistrial, which she said she “wasn’t going

to let [] happen.” 1 The court placed the note in the record but did

not read it aloud, instead summarizing its contents for the parties

and letting them know that the court intended to instruct the jury

to keep deliberating.2 At that time, the trial court told the jury,

“[Y]ou need to continue with your deliberations, and address the

remaining issues.”

Humphreys points out that under controlling law at the

time, if the jury failed to reach a unanimous decision on the death

penalty, the court would have imposed a sentence of life without

1 Chancey said that if a mistrial were declared, the jury would either have to

“do it over again” or Humphreys “would get parole and hunt the jurors

down.”

2 The court summarized the contents of the note as follows:

[The jurors have] indicated that they have reached a verdict in

regard to some of the issues that have been submitted to them,

but have not yet reached a decision on other issues that were

submitted to them.

Humphreys, 694 S.E.2d at 331.

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the possibility of parole. See O.C.G.A. § 17-10-31.1(c) (repealed by

Ga. L. 2009 p.223, § 6, effective April 29, 2009). 3

Rather than informing the jury about this statute, the trial

court told the jury to continue deliberating after receiving its note.

When the jury did so, the deliberations became quite heated with

Chancey “yell[ing]” at and making personal attacks on the other

jurors. Chancey also apparently used her prior experience as a vic-

tim of a crime to pressure the other jurors to impose the death

penalty. As we’ve described, Chancey shared a version of her

3 The then-relevant statutory section provided as follows:

Where a jury has been impaneled to determine sentence and

the jury has unanimously found the existence of at least one

statutory aggravating circumstance but is unable to reach a unan-

imous verdict as to sentence, the judge shall dismiss the jury and

shall impose a sentence of either life imprisonment or imprisonment

for life without parole. In imposing sentence, the judge may sen-

tence the defendant to imprisonment for life without parole

only if the court finds beyond a reasonable doubt that the de-

fendant committed at least one statutory aggravating circum-

stance and the trial court has been informed by the jury fore-

man that upon their last vote, a majority of the jurors cast their

vote for a sentence of death or for a sentence of life imprison-

ment without parole; provided, however, that the trial judge

may impose a sentence of life imprisonment as provided by

law.

§ 17-10-31.1(c) (emphases added).

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assault that included a much closer encounter with her attacker

than she had shared during voir dire.

Following three more hours of deliberations, Foreperson

Barber sent a second note to the court asking that the jurors be

allowed to rehear a taped statement that Humphreys had given to

law enforcement. See Humphreys, 694 S.E.2d at 32. After listening

to the recording, the jury resumed deliberations for approximately

two more hours, at which point, defense counsel moved for a mis-

trial. Id. The trial court denied the motion, finding that the jury

had not indicated it was deadlocked. Id.

Another two hours of deliberations passed, and Barber sent

yet another note to the court. This one read, “Due to the hostile

nature of one of the jurors, I am asking to be removed from the

jury.” The trial court read the note to the parties and informed

them that it intended to give the jury a modified Allen 4 charge. De-

fense counsel renewed its motion for a mistrial, but the trial court

again denied the motion. The judge brought the jury into the

courtroom and issued the following charge:

The Court deems it advisable at this time to

give you some instruction in regard to the manner in

which you should be conducting your deliberations in

the case. You’ve been deliberating upon this case for

a period of time. The Court deems it proper to advise

4 See Allen v. United States, 164 U.S. 492 (1896).

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21-10387 Opinion of the Court 13

you further in regard to the desirability of agreement,

if possible.

The case has been exhaustively and carefully

tried by both sides and has been submitted to you for

decision and verdict, if possible, and not for disagree-

ment. It is the law that a unanimous verdict is required.

While this verdict must be the conclusion of

each juror independently, and not a mere acquies-

cence of the jurors in order to reach an agreement, it

is nevertheless necessary for all the jurors to examine

the issues and the questions submitted to them with

candor and with fairness and with a proper regard for

in [sic] deference to the opinion of each other.

A proper regard for the judgment of others

will greatly aid us in forming our own judgment.

Each juror should listen with courtesy to the argu-

ments of the other jurors with the disposition to be

convinced by them.

If the members of the jury differ in their view

of the evidence, the difference of opinion should

cause them all to scrutinize the evidence more care-

fully and closely and to reexamine the grounds of

their own opinion.

Your duty is to decide the issues that have been

submitted to you if you can consci[enti]ously do so.

In conferring, you should lay aside all mere pride of

opinion and should bear in mind that the jury room

is no place for hostility or taking up and maintaining

in a spirit of controversy either side of the cause.

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You should bear in mind at all times that, as ju-

rors, you should not be advocates for either side of

the case. You should keep in mind the truth as it ap-

pears from the evidence, examined in the light of the

instructions that the Court has given to you.

You may, again, retire to the jury room for a

reasonable time, examine your differences in a spirit

of fairness and candor and courtesy, and try to arrive

at a verdict if you can conscientiously do so. At this

time, you may return to the jury room.

(emphases added).

Later interviews with the jurors revealed that Foreperson

Barber and other jurors took from this instruction that the jury’s

decision on sentencing must be unanimous. And they believed if

they were deadlocked, Humphreys would get life imprisonment

with the possibility of parole or that he could “walk.” After receiv-

ing the third note, the court did not ask why Barber wished to be

removed from the jury. And Barber later explained that she did not

believe it was an option to send another note to the court stating

that the jury was deadlocked since “[t]he judge had made it clear

that it didn’t matter: [the jury] didn’t have a choice other than to

be unanimous.” That day, the jury deliberated for an additional

two hours before retiring for the evening at 10:20 p.m.

The next day, when the jury resumed deliberations, Foreper-

son Barber decided to “fight for [a sentence of ] life without pa-

role.” At that point in the deliberations, Foreperson Barber and

Juror Pogue were the only two not voting for death. Despite

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Barber’s intent to fight, Chancey would “not engage in debate at

all.” The parties could hear “screaming” coming from the jury

room. Barber became “extremely distressed and locked [herself ]

in the bathroom and cried.” She later expressed that she felt they

had run out of options because she “thought that unanimity was

our only choice.” Pogue deferred to Barber as to whether to “stick

it out” but the two finally relented, and after two hours of deliber-

ations, the jury returned two death sentences because they “didn’t

want Mr. Humphreys to go free.”

Barber expressed that she believed she “had absolutely no

other option . . . [She] cried the entire time. [She said] [i]t was one

of the hardest things [she had] ever done because [she] was not

true to [her] own belief about what the proper sentence should

be.” Barber also said if she had known that “not being unanimous

meant a sentence of life without parole in this case, it would have

been easy to stand [her] ground as long as [she] needed to.”

On September 30, 2007, the jury found the existence of sev-

eral statutory aggravating factors and recommended that Hum-

phreys be executed.5 The trial court ultimately imposed two death

sentences for the murders of Williams and Brown.

5 One of the five aggravating factors found by the jury is set forth in O.C.G.A.

§ 17-10-30(b)(10), which provides that a jury may impose a death sentence

when the “murder was committed for the purpose of avoiding, interfering

with, or preventing a lawful arrest or custody in a place of lawful confinement,

of himself or another.” The Supreme Court of Georgia later found that the

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C. Post-trial Proceedings

1. Motion for New Trial

After interviewing some jurors, who revealed the circum-

stances we’ve noted, Humphreys’s trial counsel filed a motion for

new trial. Although defense counsel raised various grounds in the

motion, they did not raise a claim of juror misconduct. Instead,

counsel challenged the trial court’s Allen charge, claiming it led ju-

rors to erroneously believe that they were required to reach a unan-

imous decision. In support of the claim, Humphreys submitted the

affidavits of Juror Darrell Parker and two investigators. See Hum-

phreys, 694 S.E.2d at 333.

The trial court denied the motion for new trial. Among

other conclusions, the trial court determined that both the juror

and investigator affidavits were inadmissible under O.C.G.A. § 17-

9-41 and did not fall under any exception. That statutory section

provided that the “[a]ffidavits of jurors may be taken to sustain but

not to impeach their verdict.” The trial court explained that excep-

tions to the rule are allowed “where extrajudicial and prejudicial

information has been brought to the jury’s attention improperly, or

where non-jurors have interfered with the jury’s deliberations.”

The trial court determined that the affidavits did not offer any evi-

dence of extrajudicial prejudicial information improperly brought

jury’s reliance on O.C.G.A. § 17-10-30(b)(10) as an aggravating factor was im-

proper but still affirmed the death sentence.

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to the jury’s attention or allege any non-juror interference had oc-

curred. Accordingly, the court concluded that the affidavits did not

fall into any exception to § 17-9-41 and could not be considered.

Regarding the Allen charge, the trial court looked to the de-

cision in Walker v. State, 635 S.E.2d 740, 748 (Ga. 2006). There, the

defendant made a similar claim of error because, during the sen-

tencing phase, the jury was told, “[Y]our verdict as to penalty must

be unanimous” and it was directed to continue deliberating after

the jury told the trial court that it could not reach a unanimous

verdict. Id. The trial court pointed out that in Walker, the Supreme

Court of Georgia rejected the claim of error since Georgia law ex-

pects a jury to consider all the evidence and attempt to reach una-

nimity on the issue of sentence, and, if possible, unanimously rec-

ommend a sentence. Based on Walker, the trial court rejected

Humphreys’s Allen-charge claim and ultimately denied the motion

for new trial.

2. Direct Appeal

In Humphreys’s direct appeal, he again raised the issue of

the Allen charge and again omitted any claim of juror misconduct.

He argued that the portion of the instruction that stated that “[i]t

is the law that a unanimous verdict is required” was an incorrect

statement of the law in the sentencing phase of a death-penalty

case and misled the jurors. Humphreys, 694 S.E.2d at 332–33. The

Supreme Court of Georgia disagreed, affirming Humphreys’s con-

victions and sentences. Id. at 334−36.

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The Supreme Court of Georgia also agreed with the trial

court’s ruling that the juror and investigator affidavits were inad-

missible under O.C.G.A. § 17-9-41. Id. at 333. Thus, it upheld the

trial court’s decision to exclude the juror and investigator affidavits

when analyzing the alleged coerciveness of the Allen charge. Id.

(citing Gardiner v. State, 444 S.E.2d 300 (Ga. 1994) and noting that

exceptions to § 17-9-41 exist but do not include juror’s misappre-

hension regarding the law).

The Supreme Court of Georgia then turned to the issue of

whether the Allen charge was “so coercive as to cause a juror to

‘abandon an honest conviction for reasons other than those based

upon the trial or the arguments of other jurors.’” Id. at 333−34

(quoting Mayfield v. State, 578 S.E.2d 438, 443 (2003)). The Court

concluded it was not. Id. at 334.

Still, the Court recognized that the charge could lead to

claims of jury confusion that require an analysis of the circum-

stances of the jury instructions given. Id. It then analyzed the

charge in Humphreys’s case and found that the challenged “una-

nimity” language was just a “small portion of the extensive Allen

charge given.” Id. The court determined that the overall charge

passed muster. It explained,

[The overall Allen charge] [c]autioned the jurors that

the verdict was not to be the . . . mere acquiescence

[of the jurors] in order to reach an agreement, that

any difference of opinion should cause the jurors to

scrutinize the evidence more [carefully and] closely

and that the aim was to keep the truth in view as it

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21-10387 Opinion of the Court 19

appeared from the evidence, considered in light of the

court’s instructions.

Id. (cleaned up).

The Court also noted that after the publication of the ver-

dicts, the jury was polled. Id. At that time, each juror affirmed that

the verdicts announced were the verdicts that they had reached and

that each juror had reached the verdicts without pressure from an-

yone during deliberations. Id. Ultimately, the Court concluded the

Allen charge did not unduly coerce the jury into rendering a death

sentence because the “unanimous verdict” language was required

and was “one small portion of an otherwise balanced and fair Allen

charge.” Id. But because potential problems existed with the Allen

charge that could result in claims of jury confusion, the Court in-

structed future trial courts “to omit this language from Allen

charges given during the sentencing phase of death penalty trials.”

Id.

The Supreme Court of the United States denied Hum-

phreys’s petition for writ of certiorari on November 15, 2010. See

Humphreys v. Georgia, 562 U.S. 1046 (2010).

D. Habeas Proceedings

1. State Habeas Petition

Humphreys filed a petition for writ of habeas corpus in the

Superior Court of Butts County on February 14, 2011. He later

amended that petition to include twenty-one claims for relief. As

relevant here, Humphreys contended that (1) trial counsel were

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20 Opinion of the Court 21-10387

ineffective in their mitigation investigation and presentation; (2) his

constitutional rights were violated as a result of juror misconduct;

(3) the manner in which the trial court handled the jury deadlock

and Allen charge was erroneous; and (4) appellate counsel’s failure

to adequately litigate these claims during the motion for new trial

and direct appeal also deprived him of due process.

The state habeas court held an evidentiary hearing in Febru-

ary 2013. At that hearing, Humphreys’s new counsel presented

both affidavits and live testimony of jurors, the substance of which

we have already set forth. Humphreys also submitted evidence

during the habeas proceedings that painted a somewhat different

picture of his childhood than the one presented to the sentencing

jury—including the fact that he had been sexually abused by his

great grandmother.

When addressing the juror-misconduct claim, the state ha-

beas court recognized the claim included assertions that Chancey

(1) was not forthcoming during voir dire about her experience as a

victim of violent crime and her willingness to consider a sentence

other than death; (2) pressured and bullied other jurors into voting

for a death sentence, refused to deliberate, and used the Allen

charge to convince other jurors that they had to reach a verdict; and

(3) altered a note to the trial court to mislead it about the status of

deliberations. In support of these claims, Humphreys offered the

affidavits of three jurors—one of which was filed in support of the

motion for new trial. Humphreys also offered the live testimony

of Foreperson Barber.

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21-10387 Opinion of the Court 21

In denying relief, the state habeas court first found the juror-

misconduct claims to be procedurally defaulted under O.C.G.A.

§ 9-14-48(d) because Humphreys failed to raise them in the motion

for new trial or on direct appeal. It also determined that Hum-

phreys had not overcome the procedural default because he

showed neither cause for failing to raise the issue nor actual preju-

dice as a result of appellate counsel’s failure to raise these claims.

In conducting this analysis, the state habeas court acknowledged

that Humphreys sought to rely on juror affidavits and Foreperson

Barber’s testimony but found them to be inadmissible under

O.C.G.A. § 17-9-41, O.C.G.A. § 9-10-9, and Georgia law.6 Hum-

phreys presented no other evidence of Chancey’s alleged bias or

misconduct, so in the absence of the jurors’ affidavits and Barber’s

live testimony, nothing was left to support a valid challenge for

cause by defense counsel. The state habeas court further deter-

mined that even if it considered the juror testimony, Humphreys

still failed to show any resulting prejudice.

As for the ineffective-assistance-of-trial-counsel claim, the

court began by thoroughly detailing trial counsel’s qualifications,

the mitigation investigation counsel conducted, and counsel’s

presentation of evidence and experts during the sentencing phase.

The court concluded that trial counsel were not ineffective in their

presentation of mitigation evidence, and it determined that, in

6 The state habeas court acknowledged both the juror affidavits and Barber’s

live testimony and grouped them together, referring to them as “testimony.”

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22 Opinion of the Court 21-10387

particular, counsel were not ineffective for not presenting allega-

tions that Humphreys’s great grandmother had sexually abused

him. In support of this conclusion, the court noted that the defense

team had questioned Humphreys about sexual abuse, and Hum-

phreys had failed to disclose any such abuse.

The state habeas court also determined that trial counsel’s

investigation and presentation of mental-health and other mitigat-

ing evidence were reasonable. The only “new” evidence Hum-

phreys presented at the habeas hearing was of sexual abuse, but

Humphreys did not disclose it to trial counsel or anyone else when

asked, so, the court concluded, trial counsel could not be faulted

for failing to discover it.

Not only that, but the court determined that Humphreys

failed to show the requisite Strickland prejudice. As the court rea-

soned, the additional evidence presented to it during the habeas ev-

identiary hearing would not have created a reasonable probability

of a different outcome had it been presented originally. That was

so, the court reasoned, because the majority of the evidence pre-

sented in habeas proceedings (mostly having to do with physical

abuse, poor living conditions, and mental-health assessments) reit-

erated the testimony presented during sentencing. Indeed, the

court concluded that much of the testimony from both lay wit-

nesses and expert witnesses during the habeas proceedings was cu-

mulative. In the end, the court weighed the totality of the aggra-

vating evidence against the totality of the mitigating evidence and

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21-10387 Opinion of the Court 23

announced that “any additional mitigating testimony would not

have created a reasonable probability of a different outcome.”

Rounding out its decision, the state habeas court addressed

Humphreys’s claim that the trial court improperly instructed the

jury on the principle of unanimity in capital sentencing—the Allen

charge claim. Humphreys candidly acknowledged that the Su-

preme Court of Georgia had already reviewed and rejected the

claim, but he asserted that the Court had erred in its legal conclu-

sions. The state habeas court noted that it did not review in a ha-

beas proceeding issues raised and litigated on direct appeal. And

because Humphreys had failed to advise the state habeas court

about any changes in the law, the court determined the claim was

precluded from review under the doctrine of res judicata.

In sum, the state habeas court denied Humphreys’s petition

in its entirety.

2. Supreme Court of Georgia’s Denial of Certificate of Proba-

ble Cause to Appeal

Humphreys filed an application for certificate of probable

cause to appeal with the Supreme Court of Georgia. That court

denied the entirety of the application, finding that it lacked any ar-

guable merit.

Humphreys filed a petition for writ of certiorari, which the

Supreme Court of the United States denied on April 16, 2018.

3. Federal Habeas Petition (§ 2254 Petition)

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24 Opinion of the Court 21-10387

Humphreys filed a petition for writ of habeas corpus pursu-

ant to 28 U.S.C. § 2254 in the United States District Court for the

Northern District of Georgia. He later amended the petition.

On September 16, 2020, the district court issued a final order

denying relief on all claims and dismissed the petition with preju-

dice, except as to a challenge not applicable here. The district court

granted Humphreys a COA on the issue of whether his trial coun-

sel was ineffective in investigating and presenting his case in miti-

gation during the penalty phase of his trial.

4. Notice of Appeal and Motion to Expand COA

Humphreys timely filed his notice of appeal with this Court

and later sought an expansion of the COA to include six additional

claims of constitutional error. We granted the motion in part and

permitted Humphreys to appeal four claims as follows: (1) whether

Humphreys is entitled to relief from the denial of his habeas

petition on his claim that juror bias and misconduct deprived him

of his constitutional rights; (2) whether Humphreys is entitled to

relief from the denial of his habeas petition on his claim that the

trial judge gave inaccurate, misleading, or coercive instructions

and inadequately responded to juror misconduct; (3) whether

Humphreys is entitled to relief from the denial of his habeas pe-

tition on his claim that he was denied his Sixth Amendment right

to effective assistance of counsel by appellate counsel; and (4)

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21-10387 Opinion of the Court 25

whether his trial counsel was ineffective in investigating and pre-

senting his case in mitigation during the penalty phase of his trial.

The parties fully briefed these issues, and we heard oral ar-

gument.

II. STANDARD OF REVIEW

This Court reviews “de novo the denial of a petition for a

writ of habeas corpus.” Morrow v. Warden, 886 F.3d 1138, 1146 (11th

Cir. 2018) (quotation omitted). But the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”) governs our review of federal

habeas petitions and prescribes a highly deferential framework for

evaluating issues previously decided in state court. Pye v. Warden,

Ga. Diagnostic Prison, 50 F.4th 1025, 1034 (11th Cir. 2022) (en banc);

Sealey v. Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1354 (11th Cir.

2020). Under AEDPA, we may not grant habeas relief on claims

that were “adjudicated on the merits in [s]tate court” unless the

state court’s decision (1) “was contrary to, or involved an unreason-

able 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 of the evidence

presented in the [s]tate court proceeding.” Sealey, 954 F.3d at 1354

(quoting 28 U.S.C. § 2254(d)). These standards mean that we must

give state-court decisions “the benefit of the doubt.” Evans v. Sec’y,

Dep’t of Corr., 703 F.3d 1316, 1325 (11th Cir. 2013) (citation and in-

ternal quotation marks omitted).

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26 Opinion of the Court 21-10387

A state-court decision is not “contrary to” federal law under

2254(d)(1) “unless it contradicts the United States Supreme Court

on a settled question of law or holds differently than did that Court

on a set of materially indistinguishable facts.” Id. (citation and in-

ternal quotation marks omitted); see also Williams v. Taylor, 529 U.S.

362, 405 (2000).

And a state-court decision is not an “unreasonable applica-

tion” of federal law under 2254(d)(1) “unless the state court identi-

fies the correct governing legal principle as articulated by the

United States Supreme Court, but unreasonably applies that prin-

ciple to the facts of the petitioner’s case, unreasonably extends the

principle to a new context where it should not apply, or unreason-

ably refuses to extend it to a new context where it should apply.”

Evans, 703 F.3d at 1325 (citation and internal quotation marks omit-

ted); see also Williams, 529 U.S. at 407 (a state court decision is an

“unreasonable application” of clearly established law if the state

court identifies the correct governing legal rule from the Supreme

Court’s holdings but unreasonably applies it to the facts of the par-

ticular defendant’s case).

Regarding AEDPA’s unreasonable-application-of-federal-law

provision under 2254(d)(1), “[t]he key word is ‘unreasonable,’

which is more than simply incorrect.” Sealey, 954 F.3d at 1354. To

meet this standard, “a prisoner must show far more than that the

state court’s decision was merely wrong or even clear error.” Pye,

50 F.4th at 1034 (quoting Shinn v. Kayer, 141 S. Ct. 517, 523 (2020)

(per curiam) (quotation marks omitted)). “[A] state court’s

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21-10387 Opinion of the Court 27

application of federal law is unreasonable only if no fairminded ju-

rist could agree with the state court’s determination or conclu-

sion.” Raulerson v. Warden, 928 F.3d 987, 995–96 (11th Cir. 2019)

(citations and internal quotation marks omitted). This is “a difficult

to meet and highly deferential standard . . . , which demands that

state-court decisions be given the benefit of the doubt.” Id. at 996

(citation and internal quotation marks omitted). Still, AEDPA does

not “prohibit a federal court from finding an application of a prin-

ciple unreasonable when it involves a set of facts different from

those of the case in which the principle was announced. The stat-

ute recognizes, to the contrary, that even a general standard may

be applied in an unreasonable manner.” Panetti v. Quarterman, 551

U.S. 930, 953 (2007) (citations and internal quotation marks omit-

ted).

For each claim presented, we review “the last state-court ad-

judication on the merits.” Greene v. Fisher, 565 U.S. 34, 40 (2011). If

the state court did not reach the merits of the claim, though, “fed-

eral habeas review is not subject to the deferential standard that

applies under AEDPA[.]” Cone v. Bell, 556 U.S. 449, 472 (2009). Ra-

ther, in that case, we review the claim de novo. Id. The Supreme

Court has instructed us to presume “the state court adjudicated the

claim on the merits in the absence of any indication or state-law

procedural principles to the contrary.” Harrington v. Richter, 562

U.S. 86, 99 (2011) (citation omitted). An indication to the contrary

exists when, for example, the state court has denied the petitioner’s

claim on only one prong of the Strickland test. In that case, we

review de novo the prong that the state court never reached. See,

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28 Opinion of the Court 21-10387

e.g., Rompilla v. Beard, 545 U.S. 374, 380, 390, (2005); Wiins v. Smith,

539 U.S. 510, 534 (2003).

We also defer to a state court’s determination of the facts

under 2264(d)(2) unless the state-court decision “was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d). Sec-

tion 2254(d)(2) is similar to § 2254(d)(1) in that it requires us to

give state courts “substantial deference.” Brumfield v. Cain, 576

U.S. 305, 314 (2015). “We may not characterize . . . state-court

factual determinations as unreasonable ‘merely because we would

have reached a different conclusion in the first instance.’” Id. at

313–14 (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)) (alteration

adopted). We also presume that the state court’s factual determi-

nations are correct, absent clear and convincing evidence to the

contrary. Pye, 50 F.4th at 1035; 28 U.S.C. § 2254(e)(1).

If the petition satisfies § 2254(d)’s requirements, we then

consider whether the state court’s error was harmless. Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993). In collateral-review cases, a

federal constitutional error is harmless unless it caused “actual

prejudice.” Id. at 637 (citation omitted). Put another way, we ex-

amine “whether the error ‘had substantial and injurious effect or

influence in determining the jury’s verdict.’” Id. at 623, 637 (quot-

ing Kotteakos v. United States, 328 U.S. 750, 776 (1946)); See also

Brown v. Davenport, 596 U.S. 118, 122 (2022) (“When a state

court has ruled on the merits of a state prisoner’s claim, a federal

court cannot grant relief without first applying both the test this

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21-10387 Opinion of the Court 29

Court outlined in Brecht and the one Congress prescribed in

AEDPA.”).

III. DISCUSSION

A. Juror Misconduct

Humphreys contends that juror misconduct infected the

trial from voir dire all the way through jury deliberations, resulting

in a violation of his due-process rights. He points to the following

as evidence of Chancey’s misconduct: (1) lying during voir dire

about her experience as a victim of a crime and her unwillingness

to consider a sentence other than death; (2) intimidating other ju-

rors and refusing to deliberate; and (3) altering a note to the trial

court to mislead it about the status of deliberations.

According to Humphreys, Chancey vacillated between re-

fusing to deliberate and berating other jurors, and she admitted

that she would vote for only a death sentence. Humphreys also

emphasizes that during deliberations, Chancey revealed that she

had been dishonest during voir dire about the home invasion and

attempted rape. Had Chancey revealed that information during

jury selection, Humphreys asserts, the defense would have stricken

her. Humphreys further takes issue with what he deems to be

Chancey’s “bullying” and coercion of the other jurors. He con-

tends that, paired with the trial court’s Allen charge, Chancey’s con-

duct caused at least one juror—Barber—to surrender her honestly

held beliefs about the appropriate sentence. Finally, Humphreys

characterizes Chancey’s alteration of the jury note by inserting the

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30 Opinion of the Court 21-10387

word “currently” as an attempt to mislead the trial court that the

jury was not deadlocked.

The state habeas court concluded Humphreys procedurally

defaulted these claims because he failed to raise them in his motion

for new trial or on direct appeal. The Supreme Court of Georgia

and the district court agreed.

The issue of whether a claim is subject to the doctrine of

procedural default “is a mixed question of fact and law, which we

review de novo.” Ward v. Hall, 592 F.3d 1144, 1175 (11th Cir. 2010)

(citation and internal quotation marks omitted).

The doctrine of procedural default bars a court from re-

viewing a petitioner’s claim when that claim has been or would be

rejected in state court on a state procedural ground. See Judd v. Ha-

ley, 250 F.3d 1308, 1313 (11th Cir. 2001). We have explained,

Federal habeas review reduces the finality of litiga-

tion and frustrates states’ sovereign power to punish

offenders and states’ good-faith attempts to honor

constitutional rights. So, when a state prisoner fails

to follow state procedural rules, thereby procedurally

defaulting on the claim, our authority to review the

prisoner’s state court criminal conviction is severely

restricted. Federal review of a petitioner’s claim is

barred by the procedural-default doctrine if the last

state court to review the claim states clearly and ex-

pressly that its judgment rests on a procedural bar,

and that bar provides an adequate and independent

state ground for denying relief.

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21-10387 Opinion of the Court 31

Atkins v. Singletary, 965 F.2d 952, 956 (11th Cir. 1992) (citations and

internal quotation marks omitted). Because the state habeas court

concluded that Humphreys procedurally defaulted his claims

about Chancey, those claims are also likely barred from review in

this proceeding.

Still, we have recognized that a petitioner may obtain federal

review of a procedurally defaulted claim if he can show both

“cause” for the default and actual “prejudice” resulting from the

default. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003)

(citing Murray v. Carrier, 477 U.S. 478, 485 (1986), and Wainwright v.

Sykes, 433 U.S. 72, 87 (1977)). To establish “cause,” a petitioner

“must demonstrate that some objective factor external to the de-

fense impeded the effort to raise the claim properly in the state

court.” Id. (quoting Wright v. Hopper, 169 F.3d 695, 703 (11th

Cir.1999)); Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008) (“Cause

exists if there was ‘some objective factor external to the defense

[that] impeded counsel’s efforts to comply with the State’s proce-

dural rule.’” (quoting Murray, 477 U.S. at 488)). To establish preju-

dice, a petitioner must show that “there is at least a reasonable

probability that the result of the proceeding would have been dif-

ferent.” Henderson, 353 F.3d at 892 (citing Wright, 169 F.3d at 703,

and Crawford v. Head, 311 F.3d 1288, 1327−28 (11th Cir. 2002)).

We have further explained that a federal court may also

grant a habeas petition on a procedurally defaulted claim, without

a showing of cause or prejudice, to “correct a fundamental miscar-

riage of justice.” Id. (citing Murray, 477 U.S. at 495−96). A

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32 Opinion of the Court 21-10387

fundamental miscarriage of justice occurs only in an extraordinary

case, where a constitutional violation has resulted in the conviction

of someone who is actually innocent. Id. (citing Murray, 477 U.S.

at 49596).

Here, Humphreys does not claim actual innocence, so he

must establish cause and prejudice to overcome the procedural bar

to his juror-misconduct claim. He says he can demonstrate cause

for the default because his appellate counsel was ineffective for fail-

ing to raise the claims about Chancey’s conduct earlier. So embed-

ded in Humphreys’s juror-misconduct claim is his separate claim

that his appellate counsel was ineffective.

For the reasons we explain below, we disagree with Hum-

phreys that his appellate counsel was ineffective. We therefore

deny that separate claim. And because Humphreys cannot show

that his counsel was ineffective, he also cannot show cause for the

procedural default of the juror-misconduct claim, so we deny that

claim, too.

1. Strickland Standard

When a federal habeas petitioner alleges ineffective assis-

tance of counsel, as here, the relevant law “as determined by the

Supreme Court” is Strickland v. Washington, 466 U.S. 668 (1984). To

prevail on an ineffective-assistance claim under Strickland, a peti-

tioner must show that (1) his “counsel’s representation fell below

an objective standard of reasonableness” and (2) a reasonable prob-

ability “that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. at 687–88, 694. We

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21-10387 Opinion of the Court 33

can resolve an ineffectiveness claim on either ground if a petitioner

cannot prove both. Atkins, 965 F.2d at 959; see also Strickland, 466

U.S. at 697. A reasonable probability of a different outcome is a

probability “sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. It is not enough for the defendant to

show that the errors had “some conceivable effect on the outcome

of the proceeding.” Id. at 693. Rather, defense counsel’s errors

must be “so serious” that they deprived the defendant of a “fair

trial, a trial whose result is reliable.” Id. at 687.

When we assess counsel’s performance, we must avoid

viewing their decisions through the “distorting effects of hind-

sight.” Id. at 689. We must also “indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable profes-

sional assistance.” Id. The defendant bears the burden to show that

counsel made errors “so serious that counsel was not functioning

as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. at

687. He must show that the attorney’s representation amounted

to incompetence under prevailing professional norms. Id. at 690.

As we have explained, “The test has nothing to do with what the

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

lawyers would have done.” Waters v. Thomas, 46 F.3d 1506, 1512

(11th Cir. 1995) (en banc) (citation and internal quotation marks

omitted). Instead, the inquiry is whether counsel’s actions were “so

patently unreasonable that no competent attorney would have cho-

sen [them].” Kelly v. United States, 820 F.2d 1173, 1176 (11th Cir.

1987) (per curiam) (citation and internal quotation marks omitted).

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34 Opinion of the Court 21-10387

And when we apply AEDPA deference on top of Strickland

deference, we may reject a state-court finding that trial counsel was

adequate only upon the dual-determination that counsel acted in a

professionally unreasonable manner (under Strickland) and that the

state court’s contrary determination was “objectively unreasona-

ble” (under § 2254). It is a “rare” circumstance when a federal court

finds in favor of a habeas petitioner on both accounts. Johnson v.

Sec’y, Dep’t of Corr., 643 F.3d 907, 910–11 (11th Cir. 2011).

2. Admissibility of Juror Testimony

Because Humphreys’s ineffective-assistance claim is prem-

ised on the evidence contained in the affidavits and testimony coun-

sel obtained about juror deliberations, Humphreys can establish

the necessary “cause” to avoid procedural default of his juror-mis-

conduct claims only if that evidence is admissible. The state habeas

court refused to consider that evidence, finding it to be inadmissi-

ble. Previously, both the trial court and Supreme Court of Georgia

had reached the same conclusion with respect to Humphreys’s

claim that the Allen charge was coercive.

Humphreys acknowledges that the lower courts, relying on

Georgia law, refused to consider the juror statements. In Georgia,

in general, jurors may not impeach their own verdict. O’Donnell v.

Smith, 751 S.E.2d 324, 327 (Ga. 2013); see also Henley v. State, 678

S.E.2d 884, 887 (Ga. 2009) (“[A] jury verdict may not be challenged

based on an affidavit from one or more jurors.”). Indeed, former

O.C.G.A. § 17-9-41 (repealed by Ga. L. 2011, Act 52, § 33, effective

January 1, 2013), referred to as the “no-impeachment rule,”

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21-10387 Opinion of the Court 35

provided that “[t]he affidavits of jurors may be taken to sustain but

not impeach their verdict.” 7 This rule applies equally to juror affi-

davits and live testimony by jurors, even in death-penalty cases. See

Roebuck v. State, 586 S.E.2d 651, 658 (Ga. 2003); Oliver v. State, 461

S.E.2d 222 (Ga. 1995); Spencer v. State, 398 S.E.2d 179 (Ga. 1990).

That said, this general rule cannot override a defendant’s right to a

fair trial. O’Donnell, 751 S.E.2d at 327 (citing Henley, 678 S.E.2d at

888, and Turpin v. Todd, 493 S.E.2d 900 (Ga. 1997)).

Multiple exceptions to the general rule also exist: “when (1)

prejudicial, extrajudicial information has been brought to the jury’s

attention; (2) nonjurors have interfered with deliberations; or (3)

there has been irregular jury conduct so prejudicial that the verdict

lacks due process.” Tate v. State, 628 S.E.2d 730, 73233 (Ga. Ct.

App. 2006); see also Crowe v. Hall, 490 F.3d 840, 846 (11th Cir. 2007).

Analogously, Federal Rule of Evidence 606(b) also gener-

ally precludes courts from relying on post-trial juror testimony dur-

ing an inquiry into the validity of a verdict. That rule provides,

“During an inquiry into the validity of a verdict . . . , a juror may not

testify about any statement made or incident that occurred during

the jury’s deliberations; the effect of anything on that juror’s or an-

other juror’s vote; or any juror’s mental processes concerning the

verdict or indictment.” Fed. R. Evid. 606(b)(1) (emphasis added).

Because of this rule, a court may not consider a juror’s affidavit or

7 This statute was in place at the time of Humphreys’s motion for new trial

and direct appeal in 2008 and 2010, respectively.

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36 Opinion of the Court 21-10387

testimony on these matters. Id. As with the Georgia rule, the fed-

eral rule contains exceptions. Under Federal Rule of Evidence

606(b)(2), a jury may testify about its verdict when “(A) extraneous

prejudicial information was improperly brought to the jury’s atten-

tion; (B) an outside influence was improperly brought to bear on

any juror; or (C) a mistake was made in entering the verdict on the

verdict form.” Rule 606(b) reveals Congress’s endorsement of a

“broad no-impeachment rule, with only limited exceptions.” Pena-

Rodriguez v. Colorado, 580 U.S. 206, 217 (2017).

Rule 606(b) arose from the common-law rule against admit-

ting jury testimony to impeach a verdict. In Tanner v. United States,

the Supreme Court explained that “full and frank discussion in the

jury room, jurors’ willingness to return an unpopular verdict, and

the community’s trust in a system that relies on the decisions of

laypeople would all be undermined by a barrage of postverdict

scrutiny of juror conduct.” 483 U.S. 107, 120–21 (1987). The Su-

preme Court has reasoned that Rule 606(b) “promotes full and vig-

orous discussion by providing jurors with considerable assurance

that after being discharged they will not be summoned to recount

their deliberations, and they will not otherwise be harassed or an-

noyed by litigants seeking to challenge the verdict. The rule gives

stability and finality to verdicts.” Pena-Rodriguez, 580 U.S. at 218.

Here, Humphreys does not claim that the verdict came as a

result of external influences or a mistake in the verdict form. And

“juror misconduct” is not an exception to the no-impeachment

rule, so post-trial testimony from jurors regarding alleged

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21-10387 Opinion of the Court 37

misconduct is not admissible under Federal Rule 606(b). See Warger

v. Shauers, 574 U.S. 40 (2014); Tanner, 483 U.S. 107 (1987).

But Humphreys argues the state habeas court unreasonably

refused to consider the juror testimony establishing Chancey’s mis-

conduct based on constitutional standards of fairness that require

criminally accused defendants to enjoy a panel of fair and impartial

jurors.

In Humphreys’s view, the no-impeachment rule presup-

poses the existence of specific trial safeguards the Supreme Court

recognized in Tanner that bring misconduct to light during the trial

proceedings, eliminating the need for post-trial inquiries into delib-

erations. Those safeguards include (1) “[t]he suitability of an indi-

vidual for the responsibility of jury service . . . is examined during

voir dire[,]” (2) “[t]he jury is observable by the court, by counsel,

and by court personnel[,]” (3) “jurors are observable by each other,

and may report inappropriate juror behavior to the court before

they render a verdict[,]” and] (4) “nonjuror evidence of miscon-

duct.” Tanner, 483 U.S. at 127; See also Warger, 574 U.S. at 51. But

Humphreys contends the Tanner safeguards are not infallible and

they sometimes fail to capture serious juror misconduct.

As Humphreys sees things, this is a “rare” case in which all

four of the Tanner safeguards failed. And because the Tanner safe-

guards failed, the no-impeachment rule should yield and the state

habeas court should have considered the juror testimony. He em-

phasizes the Supreme Court’s acknowledgment that “[t]here may

be cases of juror bias so extreme that, almost by definition, the jury

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38 Opinion of the Court 21-10387

trial right has been abridged. If and when such a case arises, the

Court can consider whether the usual safeguards are or are not suf-

ficient to protect the integrity of the process.” Warger, 574 U.S. at

51 n.3. Humphreys argues this is such a case.

In short, Humphreys asserts Chancey’s bias and miscon-

duct implicate his Eighth Amendment right to a fair and reasonable

sentencing determination and his due-process right to an impartial,

unbiased jury. He says the no-impeachment rule should be

“stripped away” to preserve his rights and we should find the state

habeas court unreasonably refused to take that action. Still, Hum-

phreys acknowledges that the Supreme Court has considered the

application of the no-impeachment rule in only a small number of

cases. See Blue Brief at 69, n. 27 (citing United States v. Reid, 53 U.S.

361 (1851), Mattox v. United States, 146 U.S. 140 (1892), McDonald v.

Pless, 238 U.S. 264 (1915), Tanner v. United States, 483 U.S. 107 (1987),

Warger v. Shauers, 574 U.S. 40 (2014), and Pena-Rodriguez v. Colorado,

580 U.S. 206 (2017)). But he asserts that Pless, Tanner, Warger, and

Pena-Rodriguez establish the lower courts’ authority to review and

consider the juror testimony.

Humphreys’s argument is somewhat novel. Indeed, the Su-

preme Court issued three of the cases he relies on—Reid (1851),

Mattox (1892), and Pless (1915)—before Congress adopted Rule

606(b) in 1975, which endorsed a broad no-impeachment rule, with

“limited exceptions.” See Pena-Rodriguez, 580 U.S. at 215218. And

although both Reid and Pless noted the possibility of an exception

to the no-impeachment rule in the “gravest and most important

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21-10387 Opinion of the Court 39

cases[,]” Pless, 238 U.S. at 269, the Supreme Court has addressed this

circumstance in only three cases—Tanner, Warger, and Pena-Rodri-

guez. See Reid, 53 U.S. at 366. Yet in only one of those cases—Pena-

Rodriguez—did the Court actually allow an exception to the no-im-

peachment rule.

In Tanner, the Court rejected a Sixth Amendment exception

for evidence that some jurors were under the influence of drugs

and alcohol during the trial. Tanner, 483 U.S. at 125. In reaching

this conclusion, the Court noted the “long-recognized and very

substantial concerns” supporting “the protection of jury delibera-

tions from intrusive inquiry.” Id. at 127. In particular, the Court

did not want attorneys to use juror testimony to attack verdicts be-

cause, the Court ruled, that would result in jurors being “harassed

and beset by the defeated party,” thus destroying “all frankness and

freedom of discussion and conference.” Id. at 120 (quoting Pless,

238 U.S. at 267–68). The Court also expressed concerns about at-

tempts to impeach a verdict that would “disrupt the finality of the

process” and undermine both “jurors’ willingness to return an un-

popular verdict” and “the community’s trust in a system that relies

on the decisions of laypeople.” Id. at 120–21.

Besides identifying the problems with cracking open jury de-

liberations post-verdict, the Court emphasized the existing safe-

guards that protect the defendant’s right to an impartial and com-

petent jury beyond post-trial juror testimony, which we noted ear-

lier. Id. at 127. Balancing the concerns and safeguards against the

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40 Opinion of the Court 21-10387

defendant’s Sixth Amendment interest, the Court affirmed the ex-

clusion of affidavits about the jury’s inebriated state.

Warger was a civil case. There, the Supreme Court again de-

clined to recognize an exception to the no-impeachment rule. Af-

ter the trial court entered the verdict, the losing party sought to

proffer evidence that the jury forewoman failed to disclose pro-de-

fendant bias during voir dire. Warger, 574 U.S. at 43. Like in Tanner,

the Court relied substantially on existing safeguards for a fair trial.

The Court stated, “Even if jurors lie in voir dire in a way that con-

ceals bias, juror impartiality is adequately assured by the parties’

ability to bring to the court’s attention any evidence of bias before

the verdict is rendered, and to employ nonjuror evidence even after

the verdict is rendered.” Id. at 51.

Still, the Warger Court reiterated that the no-impeachment

rule may have exceptions. As in Reid and Pless, the Court warned

of “juror bias so extreme that, almost by definition, the jury trial

right has been abridged.” Id. at 51 n.3. The Court announced, “If

and when such a case arises,” it would “consider whether the usual

safeguards are or are not sufficient to protect the integrity of the

process.” Id.

As it turned out, in Pena-Rodriguez, the Supreme Court en-

countered such a grave case. There, the Court held,

where a juror makes a clear statement that indicates

he or she relied on racial stereotypes or animus to

convict a criminal defendant, the Sixth Amendment

requires that the no-impeachment rule give way in

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21-10387 Opinion of the Court 41

order to permit the trial court to consider the evi-

dence of the juror’s statement and any resulting de-

nial of the jury trial guarantee.

Pena-Rodriguez, 580 U.S. at 225. Despite finding an exception, the

Supreme Court once again emphasized that its recognition in

Warger—that there may be extreme cases where the jury trial right

requires an exception to the no-impeachment rule—“must be in-

terpreted in context as a guarded, cautious statement.” Id. at 221.

As the Court explained, such a begrudging exception was neces-

sary “to avoid formulating an exception that might undermine the

jury dynamics and finality interests the no-impeachment rule seeks

to protect.” Id. But given that “racial animus was a significant mo-

tivating factor in [the juror’s] finding of guilt,” the Court held that

the Constitution required an exception to the no-impeachment

rule. Id. at 221, 225. That was so, the Court explained, because

such statements cast “serious doubt” on the fairness of the trial and

resulting verdict. Id. at 225.

Against this legal landscape, we cannot say that Hum-

phreys’s appellate counsel acted unreasonably in refraining from

raising the juror-misconduct claims in the motion for new trial or

in the direct appeal. For starters, only Pena-Rodriguez has ever ap-

plied an exception to the no-impeachment rule. But that case in-

volved prejudice based on a protected status. And that type of bias

is in a category of its own. Plus, Pena-Rodriguez was not decided

until well after the motion for new trial and direct appeal were filed.

When counsel filed those documents, the Court had never recog-

nized an exception to the no-impeachment rule. In fact, counsel

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42 Opinion of the Court 21-10387

didn’t have the benefit of Warger, either, when moving for a new

trial and filing the direct appeal.

That leaves Reid, Pless, and Tanner. To be sure, in Reid and

Pless, the Supreme Court left the door open for a case in which ju-

ror bias was so severe that the right to a fair trial was abridged. But

those cases did not give any concrete examples to guide counsel.

Here, Chancey allegedly revealed that she had lied during

voir dire about the particulars of being a victim of a crime, bullied

other jurors, was loud and unwilling to deliberate, and altered a

note. The other jurors knew all these things during deliberations

and could have brought them to the trial court’s attention. They

did not—even though Chancey was the only juror involved in the

troubling conduct and even though Chancey’s conduct did not in-

volve racial bias. As the Supreme Court explained in Pena-Rodri-

guez, “[t]he stigma that attends racial bias may make it difficult for

a juror to report inappropriate statements during the course of ju-

ror deliberations.” 580 U.S. at 225. The same is not true here. So

while we certainly understand and are concerned by Chancey’s

conduct, we cannot say that counsel unreasonably decided that it

did not fall into a then-theoretical exception to the no-impeach-

ment rule.

In short, appellate counsel’s representation did not fall below

an objective standard of reasonableness when counsel did not pur-

sue the juror-misconduct claims in the motion for new trial or on

direct appeal. Perhaps, some other lawyer may have pursued the

claim. But the test is not what the best lawyer or even a good

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21-10387 Opinion of the Court 43

lawyer would have done. Not raising these claims was not “so pa-

tently unreasonable that no competent attorney would have cho-

sen” counsel’s actions. 8 Kelly, 820 F.2d at 1176.

Ultimately, because Humphreys has not shown that appel-

late counsel was ineffective for failing to pursue the juror-miscon-

duct claims sooner, he cannot demonstrate the cause required to

defeat the procedural default of those claims. For this reason, we

are barred from examining the merits of the juror-misconduct

claims. The claims are therefore denied.

8 We recognize that appellate counsel submitted other affidavits in support of

the Allen charge claim. But that claim is markedly different because the affida-

vits made up only a small portion of the evidence supporting the claim. The

Allen charge claim was based on an amalgamation of the trial judge’s own

words, the jury notes to the court, the amount of time it took the jurors to

deliberate, the yelling coming from the jury room, and other evidence. In

contrast, the juror-misconduct claims are based exclusively on the post-trial

juror interviews, juror affidavits, and juror testimony. In short, the entirety of

the juror-misconduct claim is premised upon juror testimony—evidence that

is inadmissible under the no-impeachment rule. See Fed. R. Evid. 606(b) (“a

juror may not testify about any statement made or incident that occurred dur-

ing the jury’s deliberations”); see also Gavin v. Comm’r, Ala. Dep’t of Corr., 40

F.4th 1247 (11th Cir. 2022); Roebuck, 586 S.E.2d at 658; Oliver, 461 S.E.2d at 223–

24. It was not unreasonable for counsel to refrain from pursuing those claims

under Humphreys’s novel theory where it was nearly a foregone conclusion

that the only piece of evidence—the juror testimony—would not be consid-

ered and the court would be left with nothing to support the juror-misconduct

claims.

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44 Opinion of the Court 21-10387

B. Ineffective Assistance of Appellate Counsel

Humphreys’s ineffective-assistance-of-appellate-counsel

claim necessarily fails for the same reason that Humphreys cannot

show cause for his procedural default: as we’ve explained, counsel

did not act unreasonably when they did not pursue the juror-mis-

conduct claims sooner. Consequently, we reject Humphreys’s

claim that his appellate counsel was ineffective under Strickland.

C. Allen Charge

Humphreys also argues that the trial court coerced a sen-

tencing verdict by instructing the jurors that “[i]t is the law that a

unanimous verdict is required,” by repeatedly returning them to

the jury deliberation room despite their declaration of a deadlock,

and by ignoring Foreperson Barber’s plea to be excused “due to the

hostile nature” of one of her fellow jurors. On direct appeal, the

Supreme Court of Georgia found the trial court’s instructions did

not constitute coercion and the trial court’s unanimity instruction

was correct. Humphreys, 694 S.E.2d at 332−34.

Because the Supreme Court of Georgia adjudicated the co-

ercion claim on the merits, it is entitled to AEDPA deference. 9 We

9 Although the state habeas court briefly addressed the Allen-charge claim, it

determined that it was barred from adjudicating it because the claim had al-

ready been litigated on direct appeal and could not be reviewed absent a

change in the law. We therefore look to the decision of the Supreme Court

of Georgia on direct appeal since it is the “last state-court adjudication on the

merits” with respect to the Allen-charge claim. Greene, 565 U.S. at 40.

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21-10387 Opinion of the Court 45

may grant relief on this claim only if the Supreme Court of Geor-

gia’s determination was (1) “contrary to, or involved an unreason-

able application of, clearly established federal law, as determined by

the Supreme Court of the United States,” or (2) “based on an un-

reasonable determination of the facts in light of the evidence pre-

sented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d).

Trial courts may not coerce juries into rendering verdicts.

See United States v. Davis, 779 F.3d 1305, 1312 (11th Cir. 2015). And

a defendant “being tried by a jury is entitled to the uncoerced ver-

dict of that body.” Lowenfield v. Phelps, 484 U.S. 231, 241 (1988).

That said, the Supreme Court has held that a trial court may in-

struct a deadlocked jury to keep deliberating. Id. at 237 (citing Allen

v. United States, 164 U.S. 492 (1896)). Therefore, “[i]n an Allen

charge, the judge instructs a deadlocked jury to undertake further

efforts to reach a verdict.” United States v. Chigbo, 38 F.3d 543, 544

n.1 (11th Cir. 1994) (per curiam). Although we’ve acknowledged

the potential for coercion in an Allen charge, we’ve also approved

the use of the charge. Rubinstein v. Yehuda, 38 F.4th 982, 996−97

(11th Cir. 2022). Accordingly, district courts have broad discretion

in issuing Allen charges but must take care to not “coerce any juror

to give up an honest belief.” United States v. Anderson, 1 F.4th 1244,

1269 (11th Cir. 2021) (quoting Davis, 779 F.3d at 1312).

We recently reiterated that “[c]oercion does not mean ‘sim-

ple pressure to agree.’” Sears v. Warden, 73 F.4th 1269, 1301 (11th

Cir. 2023) (per curiam) (quoting Brewster v. Hetzel, 913 F.3d 1042,

1053 (11th Cir. 2019)). “Pressure becomes coercive when the

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46 Opinion of the Court 21-10387

actions of the court result in ‘a minority of the jurors sacrificing

their conscientious scruples for the sake of reaching agreement.’”

Id. (quoting Brewster, 913 F.3d at 1053)).

In our Circuit, whether a verdict was coerced presents a

mixed question of law and fact. Id. We look at the language the

trial court employed and “examine the totality of the circum-

stances to see if the court’s actions created a substantial risk that

one or more jurors would be coerced into abandoning their honest

convictions.” Brewster, 913 F.3d at 1053 (citing United States v.

Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008)). The relevant, but

not exhaustive, circumstances we consider include the following:

(1) the total length of deliberations; (2) the number of

times the jury reported being deadlocked and was in-

structed to resume deliberations; (3) whether the

judge knew of the jury's numerical split when he in-

structed the jury to continue deliberating; (4) whether

any of the instructions implied that the jurors were

violating their oaths or acting improperly by failing to

reach a verdict; and (5) the time between the final sup-

plemental instruction and the jury's verdict.

Id. (citations omitted).

Here, the Supreme Court of Georgia concluded that the Al-

len charge, considered as a whole, was not coercive. Humphreys,

694 S.E.2d at 334. The court noted that it had previously consid-

ered the same “a unanimous verdict is required” instruction given

as part of an Allen charge in the sentencing phase of a death-penalty

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21-10387 Opinion of the Court 47

trial and found that it was technically a correct statement of the

law. Id. (citing Legare v. State, 302 S.E.2d 351 (Ga. 1983)). Relying

on Legare, the Supreme Court of Georgia explained that “it is true

that any ‘verdict’ rendered [in the sentencing phase] must be unan-

imous and thus also true, stated in isolation, that it is ‘the law that

a unanimous verdict is required.’” Id. (quoting Legare, 302 S.E.2d at

353).

The Supreme Court of Georgia further expounded, noting

that Georgia requires a unanimous verdict even in the sentencing

phase of a capital case because under its death-penalty law,

“[w]here a jury is unable to agree on a verdict, that disagreement is

not itself a verdict.” Id. (quoting Romine v. State, 350 S.E.2d 446, 451

(Ga. 1986)). As the court explained Georgia law, “[t]he jury’s dead-

lock may lead to a sentence of life with or without parole imposed

by the trial court, but it does not result either in a mistrial subject

to retrial (as in other contexts where a jury deadlocks) or an auto-

matic verdict (as occurs under the death penalty law of other

states).” Id. (citing Romine, 350 S.E.2d at 451). Thus, the court em-

phasized, it had “repeatedly held that a trial court is not required to

instruct the jury in the sentencing phase of a death penalty trial

about the consequences of a deadlock.” Id. (citing Jenkins v. State,

498 S.E.2d 502 (Ga. 1998)).

Still, the Supreme Court of Georgia recognized that the

charge could lead to claims of jury confusion, requiring an analysis

of the “circumstances of the jury instructions given[.]” Id. The

court then considered the circumstances here and determined that

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48 Opinion of the Court 21-10387

the unanimity language amounted to merely a small portion of the

extensive Allen charge the trial court gave. In the court’s view, sev-

eral other aspects of the Allen charge minimized the unanimity lan-

guage in these ways:

[It] cautioned the jurors that the verdict was not to be

the . . . mere acquiescence [of the jurors] in order to

reach an agreement, that any difference of opinion

should cause the jurors to scrutinize the evidence

more [carefully and] closely and that the aim was to

keep the truth in view as it appeared from the evi-

dence, considered in light of the court’s instructions.

Id. (citation and internal quotation marks omitted). Plus, the court

observed, the trial court polled the jury, and each juror affirmed

that the verdicts announced were the verdicts that they had

reached. Id. Each juror also confirmed that they had rendered their

verdicts without any pressure from anyone during their delibera-

tions. Id.

In the end, the Supreme Court of Georgia concluded that

the Allen charge did not unduly coerce the jury into rendering a

death sentence because the unanimous-verdict language was re-

quired at the time and was “but one small portion of an otherwise

balanced and fair Allen charge.” Id. Still, the court recognized that

the unanimity language may result in claims of “jury confusion.”

For this reason, the court instructed future trial courts to exclude

this language from Allen charges given during the sentencing phase

of death-penalty trials. Id.

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21-10387 Opinion of the Court 49

Humphreys argues it was unreasonable for the Supreme

Court of Georgia to find that the jury charge, which results in jury

confusion, was constitutional. And he claims that when a trial

court insists that the jury must reach a decision, even in the face of

a deadlock, that instruction is unconstitutionally coercive. We re-

ject both claims. First, the Supreme Court of Georgia did not find

that the “unanimous verdict language” in the jury charge results in

jury confusion; rather, it found that it could result in jury confusion.

Second, the court made an individualized determination of the cir-

cumstances in Humphreys’s case to ascertain whether juror confu-

sion occurred in Humphreys’s trial and determined it did not. 10

We must defer to the Supreme Court of Georgia’s decision

so long as it did not unreasonably determine the facts in light of

the evidence presented and its decision was not contrary to, or an

unreasonable application of, clearly established federal law as de-

termined by the Supreme Court. Humphreys cannot meet the

AEDPA standard on either ground.

With respect to its factual determinations, the Supreme

Court of Georgia accurately recounted the circumstances leading

to the jury’s verdict. It correctly noted that, during the sentencing

phase, the jury deliberated for approximately eight hours over a

10 Importantly, the Supreme Court of Georgia found that the inclusion of the

unanimity language in an Allen charge would require a detailed analysis of the

full circumstances of the jury instructions given. Here, the court engaged in

that analysis.

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50 Opinion of the Court 21-10387

period of two days before Foreperson Barber sent the trial court a

note that stated,

We, the jury, have agreed on statutory aggravating

circumstances on both counts, but not on the penalty.

Currently we agreed life imprisonment with parole is

not an acceptable option. We are currently unable to

form a unanimous decision on death or on life impris-

onment without parole. Please advise.

Humphreys, 694 S.E.2d at 331 (emphasis added).

The Supreme Court of Georgia recounted that the trial

judge informed counsel of the note and summed up its details, ad-

vising counsel that the jury “indicated that they have reached a ver-

dict in regard to some of the issues that have been submitted to

them, but have not yet reached a decision on other issues that were

submitted to them.” Id. So the trial court declared its intention to

call the jury in and instruct it to continue deliberating. Id. When

the jurors were brought into the courtroom, the judge instructed

them as follows:

I guess you’ve been deliberating now about eight

hours in the case. And the case was a lengthy trial,

and there are a lot of issues. And you need to con-

tinue with your deliberations, and address the re-

maining issues.

The Supreme Court of Georgia next correctly noted that

the jury returned to the jury room and continued deliberations

for about three more hours before sending a second note to the

court. Id. at 332. In that note, the jury asked to listen to Hum-

phreys’s taped statement to detectives. Id. The court allowed the

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21-10387 Opinion of the Court 51

jury to listen to the statement, and the jury returned to the jury

room to continue deliberations. Id. After about two hours or so,

defense moved for a mistrial. Id. The trial court denied the mo-

tion, emphasizing that the jury had not indicated that it was dead-

locked. Id.

Following that motion, the jury deliberated for another

roughly two hours, when Foreperson Barber sent a note to the

court. She asked to be removed from the jury “[d]ue to the hostile

nature of one of the jurors.” Id. In response to this note, the trial

court announced that it intended to give the jury a modified Allen

charge. Id. The Supreme Court of Georgia correctly set forth the

verbatim Allen charge in its decision, acknowledging that Foreper-

son Barber’s note and the trial court’s intent to give an Allen charge

prompted an objection from the defense and a renewal of the de-

fense’s motion for mistrial, which the trial court again denied. Id.

at 332 & n.7

After reading the juror’s note and without identifying from

whom it came, the trial court gave the modified Allen charge. Id.

at 332. The jury retired to the jury room at 8:40 p.m., where it

deliberated until 10:20 p.m., and then went home for the evening.

Id. at 333. The following morning, the jurors reconvened and de-

liberated for two more hours, and the jury returned a death sen-

tence for the two murders. Id.

After reviewing the complete record, we cannot say that

clear and convincing evidence exists that the Supreme Court of

Georgia clearly erred in its factual determinations based on the

evidence presented. The sequence of events and other facts set

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52 Opinion of the Court 21-10387

forth by the court were correct. Humphreys does not appear to

dispute this. Rather, he argues that the court’s legal conclusion of

no coercion was unreasonable.

But on this record, we cannot say that the Supreme Court

of Georgia’s decision was contrary to or an unreasonable applica-

tion of clearly established federal law as determined by the Su-

preme Court of the United States. With respect to the trial court’s

first decision to send the jurors back for further deliberations, the

court correctly observed that whether a jury is “hopelessly dead-

locked” is a determination to be made by the trial court and will

be reversed on appeal only for an abuse of discretion. Humphreys,

694 S.E.2d at 332. And here, the court emphasized, the trial was

lengthy, the jury “had been deliberating for less than nine hours,

and the language twice used in the note that the jurors ‘currently’

were not able to agree indicated that deliberations were ongoing.”

Id.

As for the two later notes, the Supreme Court of Georgia

again pointed to the length of the trial in relation to the time the

jury had been deliberating, and the court also noted that the jurors

had recently requested to rehear evidence. Id. at 333. These facts,

the court said, showed that the jurors were continuing to actively

deliberate. Id. We can’t say that the Supreme Court of Georgia’s

determinations in these regards were unreasonable.

With respect to the Allen charge, the Supreme Court of

Georgia recognized the correct law in its analysis, considering

whether, as a whole, the charge was “so coercive as to cause a juror

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21-10387 Opinion of the Court 53

to abandon an honest conviction for reasons other than those based

upon the trial or the arguments of other jurors.” Id. (citation and

internal quotation marks omitted). It concluded that it was not.

Then, the court emphasized that the trial court polled the jurors,

and each juror disavowed any coercion. Id. at 334. Again, these

determinations are neither unreasonable nor contrary to law.

The Supreme Court’s case law on what constitutes a coerced

verdict is quite limited. When the Supreme Court of Georgia is-

sued its decision here, the leading case on this topic was Lowenfield.

There, the Supreme Court determined that a jury’s penalty-phase

verdict was not coerced after the trial court polled the jurors on

whether further deliberations would be helpful and then instructed

the jury to continue deliberating. 484 U.S. at 240–41.

In Lowenfield, the Supreme Court acknowledged that juror

coercion can support a constitutional claim and that the relevant

inquiry is the totality of the circumstances. Id. at 237–38. That

said, the Supreme Court hasn’t shed further light on what consti-

tutes juror coercion that violates a defendant’s constitutional

rights. Given this fact and the Supreme Court of Georgia’s analysis

here, we cannot conclude that the Supreme Court of Georgia un-

reasonably applied existing federal law.

To the extent that Humphreys relies on Jenkins to support

his argument that his conviction should be reversed, we disagree.

In Jenkins, the Supreme Court reversed a conviction based on jury

instructions given in a federal prosecution. But the Court has since

explained that it based its decision there on the Court’s

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54 Opinion of the Court 21-10387

“supervisory power over the federal courts, and not on constitu-

tional grounds.” Lowenfield, 484 U.S. at 239 n.2 (citation omitted);

Early v. Packer, 537 U.S. 3, 10 (2002) (per curiam). The same is true

of the Court’s decision in United States v. Gypsum Co., 438 U.S. 422

(1978), another case upon which Humphreys relies. Consequently,

both Jenkins and Gypsum Co. “are off the table as far as § 2254(d) is

concerned.” Sears, 73 F.4th at 1304 (quoting Packer, 537 U.S at 10).

In sum, the Supreme Court of Georgia accurately portrayed

the facts and examined the Allen charge in its entirety, determining

that the trial court did not coerce the jury to return a death sen-

tence. Under AEDPA, we must defer to the Supreme Court of

Georgia’s decision because it did not unreasonably determine the

facts in light of the evidence presented, and its finding of no coer-

cion was not contrary to, or an unreasonable application of, clearly

established federal law as determined by the Supreme Court.

D. Ineffective Assistance of Trial Counsel

In his final claim, Humphreys challenges the state habeas

court’s finding that his trial counsel was not ineffective in investi-

gating and presenting mitigation evidence. In Humphreys’s view,

trial counsel’s failure to conduct a thorough and accurate mitiga-

tion case caused them not to learn about years of childhood sexual

abuse that Humphreys endured from his great-grandmother, the

full extent of his mother’s neglect and abuse, or his lengthy family

history of mental illness, abuse, and drug dependency. Humphreys

also complains that the defense did not accept the diagnoses of

their own mental-health clinician because someone on the defense

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21-10387 Opinion of the Court 55

team had already “chosen” another diagnosis for Humphreys—As-

perger’s Syndrome. Based on these claims, Humphreys contends

trial counsel’s representation of him fell below the prevailing pro-

fessional norms. Had a jury had heard the undiscovered, un-

presented evidence, Humphreys contends, “there is clearly a rea-

sonable probability that the . . . jury . . . ‘would have struck a differ-

ent balance.’”

As we’ve noted, the state habeas court denied Humphreys’s

claims after holding an evidentiary hearing during which new

counsel presented evidence in support of Humphreys’s claims.

The Supreme Court of Georgia denied a certificate of probable

cause to appeal, and the district court denied relief on the claim.

We apply AEDPA deference to the state habeas court’s opinion.

That requires us to deny Humphreys’s petition on this ground.

First, the state habeas court discussed at length the qualifica-

tions of the defense team and, based on these details, it determined

that Humphreys’s trial counsel were death-penalty qualified and

their experience supported a finding of effective assistance of coun-

sel.

Next, the state habeas court described the investigation the

defense team conducted and found it to be reasonable. The court

noted that counsel interviewed Humphreys’s family members,

friends, co-workers, and teacher, where available. The defense

team also spoke with Humphreys, his father, stepmother, brother-

in-law, paternal grandmother, aunt, uncle, and stepfather about

Humphreys’s mental-health history and questioned them about

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56 Opinion of the Court 21-10387

any physical, mental, or sexual abuse Humphreys suffered. During

this investigation, neither Humphreys nor any of his family mem-

bers indicated that he had been sexually abused.

Besides these steps, defense counsel reviewed Humphreys’s

prison records, criminal records, employment records, family rec-

ords, financial records, legal records, medical records, social-ser-

vices records, psychological records, and school records. And to

prepare for the sentencing phase, defense counsel hired a licensed

clinical social worker (Marti Loring, who met with Humphreys and

diagnosed him with post-traumatic stress disorder (“PTSD”) and

Asperger’s Syndrome), a prison adaptability expert ( James Aiken),

a neuropsychologist (Robert Schaffer, who diagnosed Humphreys

with PTSD, Dissociative Disorder, and Asperger’s Syndrome), a

psychiatrist (Bhushan Agharkar, to render an opinion as to trauma

and abuse), 11 a victim outreach specialist, and a trauma expert.

As for the investigation of childhood sexual abuse, at the ev-

identiary hearing, mitigation specialist Laura Switzer testified that

she suspected Humphreys had been sexually abused. But during

the defense team’s interviews of witnesses (including Humphreys),

no one reported that he had been sexually abused. In fact, the de-

fense team asked Humphreys directly about sexual abuse, but

Humphreys denied any recollection of such abuse.

11 Dr. Agharkar disagreed with the diagnosis of Asperger’s Syndrome, and de-

fense counsel decided he would not testify since his evaluation did not support

their sentencing-phase theory.

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21-10387 Opinion of the Court 57

The state habeas court summarized defense counsel’s

presentation during the guilt-innocence phase as follows: (1) Hum-

phreys’s childhood was characterized by violence, trauma, and insta-

bility and that he was raised by a dysfunctional, abusive family; (2)

Humphreys’s parents divorced when he was two years old, and he

lived with his mother for a while, during which he received a head

injury that resulted in a concussion; (3) when Humphreys’s father

gained custody of him, violence and disruption occurred in the

home; and (4) Humphreys was placed in special education because

of behavioral problems. The state habeas court also noted that trial

counsel advised the jury about Humphreys’s mental-health issues,

including about dissociative episodes that started when he was a

teenager, and about his obsessive-compulsive behavior (“OCD”).

Finally, the state habeas court acknowledged that trial counsel pre-

sented evidence that Humphreys was non­violent and non-con-

frontational.

As for the state habeas court’s findings about counsel’s per-

formance during the penalty phase of the trial, it determined that

trial counsel “made a reasonable presentation during the sentenc-

ing phase based on their strategy and the information discovered

during their investigation.” It recognized the strategy was to pre-

sent evidence of Asperger’s Syndrome as well as Humphreys’s

traumatic childhood to allow the jurors to have some empathy for

him. The state habeas court pointed out that defense counsel used

the testimony of six lay witnesses and three experts to present the

information to the jury.

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58 Opinion of the Court 21-10387

The state habeas court summarized the testimony of each

witness. As relevant here, the court pointed out that trial counsel

presented the testimony of Humphreys’s stepmother, Janie Swick,

who conveyed the dynamics in the home, including that Hum-

phreys’s father was verbally and physically abusive to him. Swick

explained that Humphreys’s father “bullied” him and caused him

to run away in fear. She recalled an incident in which Humphreys’s

father struck him in the arm with a broom, requiring Humphreys

to go to the hospital. Swick also informed the jury that Humphreys

did not have many friends growing up and had mental problems,

and she said she regretted not getting psychological help for Hum-

phreys.

Next, Humphreys’s half-sister Julia testified to the abuse

their father inflicted on them. Although the father disciplined all

the children, Julia characterized the abuse he inflicted upon Hum-

phreys as “very bad.” Julia explained that her father used switches

and belts to discipline the children. And she recalled an incident

where their father challenged Humphreys to a fight. During that

fight, their father repeatedly punched Humphreys in the head be-

fore he finally escaped.

Later, the state habeas court turned to the testimony of

Humphreys’s sister Dayna, who gave examples of their “rather dif-

ficult” early childhood. According to Dayna, their father was an

unhappy man who was hard on them and showed very little affec-

tion. He did not handle stress well and often became angry and

violent. Dayna testified that their father physically abused her and

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21-10387 Opinion of the Court 59

Humphreys throughout their childhood, imposing whippings with

a large belt or stick. Their father beat Humphreys with his fist.

The state habeas court further recounted the testimony of

the two expert witnesses trial counsel presented to the jury during

the mitigation phase. Dr. Loring, who was qualified as an expert

in social work and trauma, testified that she met with Humphreys

on four occasions for approximately three hours each time. Dr.

Loring also interviewed sixteen individuals to get their percep-

tions, experiences, and observations of Humphreys. To complete

her analysis of Humphreys, Dr. Loring reviewed extensive records

including police records, school records, jail records, divorce rec-

ords, work records, and hospital records.

Dr. Loring testified to the jury that Humphreys’s childhood

was marked by abuse; he spent his early childhood living in a home

where drugs were bought and sold. As evidence of the “extensive

physical abuse,” Dr. Loring testified that the Department of Family

and Children Services discovered cigarette burns on Humphreys

when he was a child. At age two, Humphreys’s entire body was

bruised following a beating by his father, who admitted that he had

“lost it” and beaten him. At age three, he was taken to the hospital

for a fractured skull. At age four, his shoulder was dislocated as the

result of a violent shaking by his father. Dr. Loring also spoke of

the incident where Humphreys’s father hit Humphreys with a

broom handle. After the incident, his father threatened to kill his

stepmother if she tried to take Humphreys to the hospital for treat-

ment. Besides these incidents, Dr. Loring recounted that

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60 Opinion of the Court 21-10387

Humphreys’s father had severely beaten by him because he got

into a car accident and, on another occasion, his father sat on his

private parts, holding Humphreys’s hands above his head and con-

tinually beating him in the head and the chest.

And the state habeas court noted that Dr. Loring explained

to the jury that Humphreys’s father flew “into a rage as a matter of

pattern, not just one time or two, and he would whip or beat

[Humphreys].” Dr. Loring described the abuse as “not only explo-

sive physically, where [Humphreys] would get slapped and

punched, thrown across the room, indeed, but there was a very

remarkable emotional component to the abuse that [his father]

committed upon [Humphreys and his sister].” In Dr. Loring’s

view, this was “ritualistic emotional abuse,” meaning a series of

steps led up to the physical abuse.

The state habeas court also considered Dr. Loring’s testi-

mony that, growing up, Humphreys was in special education and

exhibited “odd classroom behavior, inappropriate behavior, that

was marked by a lack of focus, being hyper, [and] a lack of concen-

tration.” She said these symptoms were often seen in children who

are traumatized and abused. Dr. Loring also told the jury that as a

result of his abusive upbringing, Humphreys tended to wander off,

even to different states, evidencing Humphreys’s dissociation.

Dr. Loring advised the jury that she had diagnosed Hum-

phreys with PTSD and Asperger’s Syndrome. In Dr. Loring’s view,

Humphreys suffered from PTSD because of the trauma he

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21-10387 Opinion of the Court 61

experienced during his childhood and teenage years. Regarding

her diagnosis of Asperger’s Syndrome, Dr. Loring educated the

jury that individuals with Asperger’s Syndrome were “very im-

paired in their ability to be close or intimate with another person”

and severely suffered from a “sustained impairment in social inter-

action.” Dr. Loring provided several indicia to support her diagno-

sis of Humphreys. She opined that he had “a real impaired ability

to relate to people and to empathize with them,” and his life expe-

riences caused him to be “much more involved with objects or

cleaning or a kind of ritual of what you do at what moment in

time.”

When the state habeas court finished reviewing Dr. Loring’s

testimony to the jury, it then went through Dr. Robert Shaffer’s

testimony. Dr. Schaffer, a clinical psychologist, interviewed six in-

dividuals about their observations of Humphreys. Dr. Shaffer also

spoke with Dr. Loring about the social history she prepared on

Humphreys and reviewed police reports, hospital records, school

records, and prison records. Based upon his evaluation, Dr. Shaffer

opined that Humphreys suffered from PTSD, Dissociative Disor-

der, and Asperger’s Syndrome.

In support of his diagnosis of Asperger’s Syndrome, Dr. Shaf-

fer testified that Humphreys had very unusual cleaning routines,

and he explained that Humphreys became uncomfortable and agi-

tated if his routine was disturbed. Dr. Shaffer also testified that

Humphreys met the criteria for Asperger’s in that he had an “ex-

treme interest” in reading science fiction and constantly talked

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62 Opinion of the Court 21-10387

about these books for hours with different people as if they really

could be true. Additionally, Dr. Shaffer recounted Humphrey’s

lack of the normal emotional give and take.

As for Dissociative Disorder, Dr. Shaffer said that involved

an individual who “split[s] off from their normal state of aware-

ness” and experiences “periods of productive and active behaviors,

and then later, ha[s] no recollection of that.” Dr. Shaffer opined to

the jury that Humphreys suffered from Dissociative Disorder as a

result of the violence in his home, so Humphreys was unaware of

the “normal judgment and thoughts and memories that he has to

bring to bear on a situation.”

Besides this testimony, Dr. Shaffer told the jury that Hum-

phreys met all the diagnostic criteria for PTSD. In Dr. Shaffer’s

view, there was “pretty strong evidence that there was significant

abuse before [Humphreys’s] age of earliest memory.” And he also

said that the second category of diagnostics for PTSD—avoidance

of the memories—also applied to Humphreys, as there was “clear

evidence of a great deal of denial” by Humphreys. Finally, Dr.

Shaffer testified that Humphreys’s denial was his attempt to “avoid

re-experiencing the problems and horrors” that occurred in his life.

The state habeas court then recounted the evidence pre-

sented during the habeas proceedings: (1) the testimony of Hum-

phreys’s step-siblings, who testified that Humphreys’s mother ver-

bally and physically abused them, (2) Humphreys’s ROTC teacher,

who testified that he was in special education classes for a

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21-10387 Opinion of the Court 63

behavioral disorder, (3) Humphreys’s childhood neighbor, who

testified that Humphreys’s father yelled at him often and spanked

him in the yard after he soiled his underwear, and (4) two expert

witnesses.

The most relevant testimony here was that of the two expert

witnesses, Dr. Julie Rand Dorney and Dr. Victoria Reynolds. The

state habeas court recounted that testimony.

It noted that Dr. Dorney, an expert in forensic psychiatry, tes-

tified she performed an examination of Humphreys over the

course of two days, and diagnosed him with obsessive-compulsive

disorder and depressive disorder, NOS. She also found that he had

many symptoms of both PTSD and bipolar disorder, but she con-

cluded he did not meet all the criteria for either diagnosis. Dr. Dor-

ney testified that, in her second meeting with Humphreys, he told

her that he had been sexually abused by his great-grandmother.

As for Dr. Reynolds, an expert in trauma and its impact on

victims, she testified about much of the evidence presented in the

sentencing proceedings. She acknowledged that when she spoke

to Humphreys about his great-grandmother, he did not reveal the

sexual abuse. Still, Dr. Reynolds suspected Humphreys had been

sexually abused based on his level of dissociativeness, his level of

compartmentalization, and his sexual activity. Dr. Reynolds also

spoke about the trauma Humphreys endured growing up, includ-

ing a skull fracture, the instability in the home, and physical abuse.

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64 Opinion of the Court 21-10387

After these detailed inventories of defense counsel’s presen-

tation of evidence at the mitigation stage and habeas counsel’s

presentation of evidence at the habeas hearing, the state habeas

court concluded that trial counsel performed adequately. And

“particularly in light of trial counsel’s thorough investigation and

strategic decisions[,]” the state habeas court determined that Hum-

phreys was not prejudiced by counsel’s failure to discover and pre-

sent the additional mitigation evidence Humphreys said should

have been presented. As the state habeas court emphasized, trial

counsel was not required to present all mitigation evidence and

“[c]onsidering the realities of the courtroom, more is not always

better. . . . [G]ood advocacy requires ‘winnowing out’ some argu-

ments, witnesses, evidence, and so on, to stress others.”

Plus, the state habeas court observed that the evidence sub-

mitted during the habeas proceedings was largely cumulative of

the evidence presented at trial. Indeed, the court concluded, the

only truly “new evidence” concerned Humphreys’s past sexual

abuse, although neither Humphreys nor anyone else had disclosed

the abuse prior to the habeas proceedings. Still, the state habeas

court noted, Humphreys’s defense team remained suspicious and

investigated further. The court explained that it “weigh[ed] heav-

ily the information provided by the defendant” in evaluating the

reasonableness of counsel’s investigation.

Here, Humphreys did not provide the court with any evi-

dence of sexual abuse that would have been available to trial coun-

sel. The only evidence was his self-report to Dr. Dorney, after the

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21-10387 Opinion of the Court 65

sentencing proceedings. Given these circumstances, the state ha-

beas court explained that trial counsel “does not render ineffective

assistance by failing to discover and develop evidence of childhood

abuse that his client does not mention to him.” Accordingly, the

state habeas court concluded trial counsel’s performance was not

deficient “for not presenting evidence that [Humphreys] withheld

from them.”

And in any case, the state habeas court determined that

Humphreys failed to show any prejudice since the additional evi-

dence presented in the habeas proceedings would not have created

a reasonable probability of a different outcome. As the court ex-

plained, a comparison of the trial record with the habeas record

“shows the majority of the evidence presented in habeas reiterated

the testimony presented at trial.”

As for the expert testimony, the state habeas court recog-

nized that the habeas experts diagnosed Humphreys with OCD,

but the trial experts diagnosed him with PTSD, dissociative disor-

der, and Asperger’s Syndrome. But the court reasoned that the di-

agnoses were based on the same behaviors and symptoms. And

while OCD could be one possible diagnosis, it was not the only rea-

sonable diagnosis that could be made from the information.

With respect to the new evidence of past sexual abuse, even

assuming the investigation was deficient (as we’ve noted, the court

found it wasn’t because the defense team expressly asked about sex-

ual abuse and Humphreys and his relatives and friends did not dis-

close it), Humphreys still did not demonstrate a reasonable

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66 Opinion of the Court 21-10387

probability that the outcome would have been different if the evi-

dence had been presented at trial, given the weight of the mitiga-

tion evidence that counsel did present.

In sum, the state habeas court found that Humphreys failed

to show deficient performance or the required resulting prejudice.

Consequently, the state habeas court denied the ineffective-assis-

tance-of-trial-counsel claims.

As we have already noted, to succeed on an ineffective-assis-

tance-of-counsel claim, the petitioner must show both that (1) his

attorney’s performance was deficient, and (2) the deficiency preju-

diced his defense. Strickland, 466 U.S. at 687. And because Strick-

land’s standard itself requires deference to counsel’s performance,

and AEDPA, by its terms, requires deference to state-court deci-

sions, our review of state courts’ resolution of the deficient-perfor-

mance prong of Strickland’s ineffective-assistance standard requires

double deference. See Cullen v. Pinholster, 563 U.S. 170, 202 (2011).

After careful consideration, and applying AEDPA deference,

we conclude that the state habeas court reasonably determined

that Humphreys failed to show unconstitutionally deficient perfor-

mance on the part of his trial counsel. In answering this question,

we reweigh the aggravating evidence against the totality of the

available mitigating evidence. See Ferrell v. Hall, 640 F.3d 1199, 1234

(11th Cir. 2011). In doing so, we find nothing unreasonable about

the state court’s determination that counsel were not deficient in

not uncovering Humphreys’s sexual abuse. Here, members of the

defense team interviewed Humphreys and others, asking

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21-10387 Opinion of the Court 67

specifically whether Humphreys had been sexually abused. No

one responded that he had. Counsel also reviewed medical,

school, and other records, but they, too, failed to reveal Hum-

phreys’s sexual abuse. A defense attorney preparing for sentencing

in a capital trial is not required “to scour the globe on the off chance

something will turn up.” Everett v. Sec’y, Fla. Dep’t of Corr., 779 F.3d

1212, 1250 (11th Cir. 2015) (quoting Rompilla, 545 U.S. at 382−383).

As for the additional evidence of Humphreys’s non-sexual

abuse and his mental conditions, counsel presented substantial mit-

igation evidence, and the new habeas evidence was mostly cumu-

lative of what was presented during the trial and sentencing pro-

ceedings. The jury learned of the severe and frequent physical and

mental abuse, as well as neglect, that Humphreys suffered as a

child. It also learned of Humphreys’s mental-health issues—his dis-

sociative episodes, his OCD behaviors, and his other odd behavior.

The state habeas court reasonably concluded that any addi-

tional evidence about these issues would be cumulative. The

“mere fact that other witnesses might have been available or that

other testimony might have been elicited from those who testified

is not a sufficient ground to prove ineffectiveness of counsel.”

Chandler v. United States, 218 F.3d 1305, 1316 n.20 (11th Cir. 2000)

(citation omitted).

Finally, as for Humphreys’s suggestion that his trial counsel

conducted a last-minute mental-health investigation and reached

an unreasonable conclusion that he suffered from Asperger’s Syn-

drome, we cannot conclude that the state habeas court

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68 Opinion of the Court 21-10387

unreasonably rejected that claim, either. Dr. Shaffer conducted his

first evaluation of Humphreys in May 2005, but at that time, he was

instructed not to prepare a written report. Dr. Shaffer later con-

ducted a second evaluation of Humphreys in August of 2007 after

reviewing additional records, reviewing case information, and in-

terviewing witnesses. After the second evaluation, Dr. Shaffer di-

agnosed Humphreys with PTSD, Dissociative Disorder, and Asper-

ger’s Syndrome. This timeline refutes the idea that defense counsel

waited until just prior to trial to develop a mitigation strategy and

hire defense experts.

Humphreys focuses on the opinion of another doctor who

agreed with Dr. Shaffer’s findings that Humphreys exhibited symp-

toms of PTSD but disagreed with the Asperger’s Syndrome diag-

nosis. The defense was not required to present the testimony of

the second doctor; it made a strategic decision not to present it.

And the state habeas court was not unreasonable in concluding that

decision was within competent counsel’s discretion. See Nance v.

Warden, Ga. Diagnostic Prison, 922 F.3d 1298, 1302 (11th Cir. 2019)

(“It is especially difficult to succeed with an ineffective assistance

claim questioning the strategic decisions of trial counsel who were

informed of the available evidence.”). After all, other evidence sup-

ports defense counsel’s strategy. Along with Dr. Shaffer, Dr. Lor-

ing opined that Humphreys suffered from PTSD and Asperger’s

Syndrome. Consequently, two doctors’ findings supported the de-

fense team’s decision. And both Dr. Loring and Dr. Shaffer testified

as to how they came up with their diagnoses.

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21-10387 Opinion of the Court 69

For these reasons, the state habeas court’s determination

that defense counsel was not ineffective is entitled to deference.

We will not disturb that finding on the grounds advanced by Hum-

phreys.

Though this conclusion requires us to deny Humphreys’s

petition even without considering the state habeas court’s preju-

dice determination, we nonetheless find that the court’s prejudice

determination was likewise not unreasonable. As the state habeas

court explained, with the exception of the sexual-assault evidence,

the remainder of the evidence was largely cumulative of the hefty

mitigation evidence trial counsel presented to the jury. And we

cannot say the habeas court unreasonably concluded that the addi-

tion of the sexual-assault evidence would have made an overall dif-

ference in the impact of the mitigation case, given the strong evi-

dence of abuse and mental-health issues counsel presented. So for

this reason, too, we reject Humphreys’s claim of ineffective assis-

tance.

IV. CONCLUSION

Our review of the record compels the conclusion that Hum-

phreys is not entitled to relief on any of the claims he presented in

his petition for writ of habeas corpus. We therefore affirm the dis-

trict court’s denial of Humphreys’s habeas petition.

AFFIRMED.

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21-10387 ROSENBAUM, J., Concurring 1

ROSENBAUM, Circuit Judge, Concurring:

I concur in the panel opinion because I think that a combi-

nation of the no-impeachment rule and the Antiterrorism and Ef-

fective Death Penalty Act of 1996 (“AEDPA”) require it. But I am

deeply concerned about what transpired during jury deliberations

here.

Linda Chancey swore under oath during voir dire that her

attacker “actually didn’t do [her] any physical bodily harm” because

she “escape[d] before he actually physically entered the dwelling.”

That was false. Chancey told jurors that she “was naked in her bed

and a man broke in and attacked her” in her bed. And after trial,

Chancey told Humphreys’s investigators that “a strange man came

through the window of her apartment, robbed her, and tried to

rape her.” These were important facts, and had Humphreys’s law-

yers known of them, they could have exercised the remaining per-

emptory strike to remove Chancey from the jury. But they didn’t

know about them. And they didn’t know because Chancey lied

during voir dire.

Even worse, Susan Barber testified that on “day one,

[Chancey] had her mind made up: early in the trial—before the

end of the first phase—she said something along the lines of he’s

guilty and he deserves to die.” Indeed, according to Barber,

Chancey told the other jurors that she “would only vote for death.”

So even when the other eleven jurors, after deliberating

many hours, voted for life without parole, Chancey would not even

consider it. Of course, it was Chancey’s right to vote for death if

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2 ROSENBAUM, J., Concurring 21-10387

she thought the facts warranted it. But Humphreys had the right

to expect that (a) Chancey had told the truth during voir dire, and

(b) she would at least honestly consider imposing a sentence of life

without parole.

Worse still, Chancey incorrectly told the other jurors that

“they had to reach a unanimous decision or [Humphreys] would

be paroled.” That, of course, was wrong. In fact, had the jurors

failed to reach a unanimous decision, Humphreys would have been

sentenced to life without parole under Georgia law. But Chancey’s

incorrect statement, combined with the court’s repeated instruc-

tions to the jury to continue deliberating, caused Barber to believe

incorrectly that if the jury didn’t return a death verdict, Hum-

phreys would be sentenced to life imprisonment with the possibil-

ity of parole or that he could “walk.”

Based on Barber’s testimony about what occurred during

jury deliberations, two things seem clear: (1) Chancey was dishon-

est during voir dire, and her undisclosed bias likely made her unable

to consider any verdict other than death, and (2) had the jury not

incorrectly believed, as a result of the trial court’s instructions and

Chancey’s statements, that Humphreys would have been released

or been sentenced to life with the possibility of parole if the jury

couldn’t return a verdict, the jury wouldn’t have returned a verdict,

and Humphreys would have been sentenced to life imprisonment

without the possibility of parole. Put simply, I do not doubt that

the errors here “actually prejudice[d]” Humphreys. See Brecht v

Abrahamson, 507 U.S. 619, 637 (1993). When an error “actually

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21-10387 ROSENBAUM, J., Concurring 3

prejudices” a defendant and that error is the difference between life

and death, in my view, we should be able to correct that error.

But we can’t here. The problem is that proving prejudice

requires us to consider the jurors’ testimony about what occurred

during deliberations. Yet Georgia law and the no-impeachment

rule prohibit us from doing just that.

True, the Supreme Court has identified an exception to the

no-impeachment rule. But the Court has never recognized an ex-

ception under the specific circumstances here (and when the state

courts considered Humphreys’s case, the Supreme Court had yet

to apply the limited exception in any case).

And while the Court has limited any exception to the “grav-

est and most important of cases”—a category into which death-

penalty cases would seem to fall—AEDPA’s standard of review cuts

off that avenue for granting the petition. As I’ve noted, the Su-

preme Court has applied the exception in only a single case ever—

and the reason there was the juror’s racial bias, which was not the

case here. And though a Supreme Court case need not be directly

on point to make it applicable, here, the Supreme Court has other-

wise consistently refused to apply the exception and has cautioned

time and again against construing the exception in any way but ex-

tremely narrowly.

Given this precedent, if we faithfully apply AEDPA’s stand-

ard of review, we cannot find that the state court’s decision was

“contrary to” federal law. 28 U.S.C. § 2254(d)(1). That’s so because

the state court’s decision does not “contradict[] the United States

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4 ROSENBAUM, J., Concurring 21-10387

Supreme Court on a settled question of law or hold[] differently

than did that Court on a set of materially indistinguishable facts.”

Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1325 (11th Cir. 2013) (ci-

tation omitted).

So I must reluctantly concur in today’s opinion. But I don’t

think that makes it right.