Opposition Brief — Robert Earl Butts, Petitioner v. Eric Sellers, Warden
Supreme Court briefDec 18, 2017
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No. 17-512
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In The
Supreme Court of the United States
----------------------------------------------------------------------ROBERT EARL BUTTS,
Petitioner,
v.
ERIC SELLERS,
Respondent.
----------------------------------------------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit
----------------------------------------------------------------------BRIEF IN OPPOSITION
----------------------------------------------------------------------CHRISTOPHER M. CARR
Attorney General of Georgia
SARAH HAWKINS WARREN
Solicitor General
ANDREW A. PINSON
Deputy Solicitor General
BETH A. BURTON
Counsel of Record
Deputy Attorney General
SABRINA GRAHAM
Senior Assistant Attorney General
OFFICE OF THE GEORGIA
ATTORNEY GENERAL
40 Capitol Square, SW
Atlanta, Georgia 30334
(404) 656-3300
bburton@law.ga.gov
Counsel for Respondent
================================================================
i
CAPITAL CASE
QUESTIONS PRESENTED
1. In analyzing a claim under Strickland v. Washington, 466 U.S. 668 (1984), “the performance inquiry
must be whether counsel’s assistance was reasonable
considering all the circumstances” and prevailing
norms are guides to determine what is reasonable.
Does a court unreasonably apply Strickland when it
finds that counsel is not per se deficient for not following the recommendations of advocacy groups to hire a
specialist to conduct a mitigation investigation, but instead reviews whether the investigation conducted by
trial counsel was objectively reasonable?
2. Strickland holds that “strategic choices made after
thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable,” 466
U.S. at 690-91, but the courts must still review whether
“counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. When a court concludes the investigation of counsel was reasonable, and
the strategic decision resulting therefrom was reasonable, does a court violate Strickland by holding it cannot second guess this reasonable strategic choice?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................
i
TABLE OF AUTHORITIES .................................
v
OPINIONS BELOW.............................................
1
STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED...........................................
1
INTRODUCTION ................................................
2
STATEMENT .......................................................
4
REASONS FOR DENYING THE PETITION ...... 17
I.
Butts’s argument that Strickland requires
judging attorney performance solely against
“national” standards as mandated by the
ABA does not warrant further review ....... 17
A. There is no split among the circuits .... 17
B. The Eleventh Circuit’s analysis was not
contrary to established Federal law ...... 23
C. Even the alleged split is not implicated
in this case ............................................. 25
II.
The question whether the court of appeals
applied the wrong standard for reviewing
counsel’s strategic decisions does not warrant this Court’s review ............................ 27
iii
TABLE OF CONTENTS – Continued
Page
A. The court of appeals did not create a circuit split because it did not hold that
strategic decisions are “wholly immune”
from review under Strickland ............... 27
B. The court of appeals’ decision regarding
counsel’s strategic decision to present a
residual-doubt strategy was correct ........ 32
III.
The State court properly found Butts failed
to establish Strickland prejudice ................ 33
A. The state court reviewed the totality of
the evidence and reweighed it against
the aggravating evidence ...................... 34
B. The state court’s findings are supported
by the facts............................................. 36
C. Courts are not required to give detailed
explanations to ease federal habeas review ........................................................ 38
CONCLUSION .......................................................
40
APPENDIX
Direct Appeal Opinion Affirming Convictions
and Sentences, Issued by the Georgia Supreme Court (Apr. 30, 2001) ............................ App. 1
Order Denying Petition for Writ of Certiorari
From Direct Appeal, Issued by the United
States Supreme Court (Jan. 7, 2002) ............ App. 27
Excerpts from the Southern Center for Human
Rights Defense Manual ................................. App. 28
iv
TABLE OF AUTHORITIES
Page
CASES
Bell v. Evatt, 72 F.3d 421 (4th Cir. 1995) ...................31
Bobby v. Van Hook, 558 U.S. 4 (2009) ....... 15, 19, 20, 22
Buck v. Davis, 137 S. Ct. 759 (2017) ...........................23
Bullock v. Carver, 297 F.3d 1036 (10th Cir. 2002)....... 31
Cullen v. Pinholster, 563 U.S. 170 (2011) ...................20
DeBruce v. Commissioner, 758 F.3d 1263 (11th
Cir. 2014) .................................................................31
Hamblin v. Mitchell, 354 F.3d 482 (6th Cir. 2003) ...... 22
Harrington v. Richter, 131 S. Ct. 770 (2011) ..............39
Harris v. Cotton, 365 F.3d 552 (7th Cir. 2004) ...........31
Heard v. Addison, 728 F.3d 1170 (10th Cir. 2013) ...... 21
Jackson v. Bradshaw, 681 F.3d 753 (6th Cir.
2012) ........................................................................31
La Vallee v. Delle Rose, 410 U.S. 690 (1973) ...............38
Lee v. Comm’r Ala. Dep’t of Corr., 726 F.3d 1172
(11th Cir. 2013)........................................................38
Lindsey v. Smith, 820 F.2d 1137 (11th Cir. 1987) ....... 31
Marshall v. Cathel, 428 F.3d 452 (3d Cir. 2005)... 21, 22
Mitchell v. United States, 790 F.3d 881 (9th Cir.
2015) ........................................................................31
Newland v. Hall, 527 F.3d 1162 (11th Cir. 2008) .......24
Outten v. Kearney, 464 F.3d 401 (3d Cir. 2006) ..........22
Porter v. McCollum, 558 U.S. 30 (2009) ................ 34, 35
v
TABLE OF AUTHORITIES – Continued
Page
Roe v. Flores-Ortega, 528 U.S. 470
(2000) ............................................... 19, 20, 24, 27, 32
Scheanette v. Quarterman, 482 F.3d 815 (5th Cir.
2007) ........................................................................31
Showers v. Beard, 635 F.3d 625 (3d Cir. 2011) ...........22
Strickland v. Washington, 466 U.S. 668 (1984) ... passim
United States v. Delva, 858 F.3d 135 (2d Cir.
2017) ........................................................................31
United States v. Rivera-Ruperto, 852 F.3d 1 (1st
Cir. 2017) .................................................................31
Vickers v. Superintendent Graterford Sci., 858
F.3d 841 (3d Cir. 2017) ............................................31
Viscotti v. Martel, 862 F.3d 749 (9th Cir. 2016) ..........21
Wiggins v. Smith, 539 U.S. 510 (2003).... 16, 20, 22, 24, 34
Williams v. Anderson, 460 F.3d 789 (6th Cir.
2006) ........................................................................22
Williams v. Taylor, 529 U.S. 362 (2000)......................34
Williams v. United States, 452 F.3d 1009 (8th
Cir. 2006) .................................................................31
Wilson v. Warden, 834 F.3d 1227 (11th Cir. 2016) ...... 15
Woodford v. Visciotti, 537 U.S. 19 (2002) ....................38
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. VI ...................................................1
U.S. Const. amend. XIV ................................................2
vi
TABLE OF AUTHORITIES – Continued
Page
STATUTES
28 U.S.C. § 2254 .................................................. passim
28 U.S.C. § 2254(d) .................................................. 2, 16
28 U.S.C. § 2254(d)(2) .................................................37
OTHER AUTHORITIES
Ohio Rules of Court, Code of Professional Responsibility, Canon 6 ...............................................22
1
OPINIONS BELOW
The decision of the Georgia Supreme Court in the
criminal direct appeal is published at 273 Ga. 760, 546
S.E.2d 472 (2001) and appears at Res.App.-1. This
Court’s denial of certiorari review following the direct
appeal is published at 534 U.S. 1086 (2002) and appears at Res.App.-27. The state habeas court’s decision
denying relief is unpublished but appears at Pet.App.247.1 The decision of the Georgia Supreme Court denying Butts’s application for certificate of probable cause
to appeal the state habeas court’s decision is unpublished but appears at Pet.App.-246. The decision of
the federal district court denying Butts’s petition for a
writ of habeas corpus under 28 U.S.C. § 2254 is unpublished but appears at Pet.App.-103. The opinion of
the Eleventh Circuit Court of Appeals is published at
834 F.3d 1227 (11th Cir. 2016) and appears at Pet.App.1.
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STATUTORY AND CONSTITUTIONAL
PROVISIONS INVOLVED
The Sixth Amendment of the United States Constitution provides in relevant part:
In all criminal prosecutions, the accused shall
. . . have the Assistance of Counsel for his defense.
1
Respondent’s Appendix is denoted as “Res.App.” and Petitioner’s Appendix is denoted as “Pet.App.”
2
The Fourteenth Amendment of the United States
Constitution provides in relevant part:
No State . . . shall deprive any person of life,
liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the laws.
28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim –
(1) resulted in a decision that was contrary
to, or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
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INTRODUCTION
Petitioner Robert Butts presents two questions
arising out of the Eleventh Circuit Court of Appeals’
denial under 28 U.S.C. § 2254(d) of his claim that he
received ineffective assistance of counsel at the sentencing phase of his death-penalty trial.
3
The first question presented rests on the contention that there is a split in the circuits on whether “prevailing professional norms,” which Strickland noted
were “guides” to determining what constitutes reasonable performance, refers to local, state or national
norms. Butts argues that Strickland directs national
norms as set forth by two advocacy groups should be
utilized and trial counsel’s failure to follow those
norms and hire a mitigation specialist is in contravention of this Court’s precedent. This issue does not warrant review as there is no circuit split on this question
because: the circuits each follow this Court’s instruction that no particular set of rules prescribes the “prevailing professional norms” against which attorney
performance is judged under Strickland; all such sets
of rules are merely evidence that helps courts determine whether counsel’s conduct fell within the wide
range of reasonable professional assistance; and the
court of appeals correctly determined that the state
court did not unreasonably apply Strickland in concluding that counsel’s performance was reasonable.
The second question presented rests on the false
premise that the court of appeals deemed counsel’s
strategic decisions “wholly immune” from challenge
under Strickland. Petition-31. This claim is not worthy
of certiorari review as the Eleventh Circuit did not refuse to review counsel’s decision as alleged by Butts.
The court extensively reviewed counsel’s investigation
and the reasoning behind counsel’s decision to focus on
residual doubt; and then, in accordance with Strickland, determined counsel’s strategic decision was
4
reasonable. This review is conducted by every circuit
and there is no split.
Although he does not include it as a third question
presented, Butts also contends that the state habeas
court’s prejudice analysis was an unreasonable application of this Court’s precedent “in at least four respects.” As a plea for mere error correction, that
argument does not warrant this Court’s review.
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STATEMENT
1. Butts’s crimes. On the evening of March 28,
1996, Petitioner Robert Butts and Marion Wilson
“drove in Butts’s automobile to a local Wal-Mart store
and began searching for a victim.” Pet.App.-248. Both
men entered the store, with Butts “wearing a coat, under which he likely concealed the murder weapon.” Id.
The two men followed Donovan Parks through the
checkout line and out to his car. Pet.App.-248-49. Butts
asked Parks for a ride. Pet.App.-249. “Parks moved
items in his automobile to make room for Butts and
Wilson, Butts sat in the front passenger seat and Wilson sat in the back seat behind Parks.” Id. Witnesses
to whom Butts later confessed testified that “Butts revealed the shot gun a short distance away, and Parks
was ordered to stop the automobile.” Id. Wilson
dragged Parks from the car, and he was ordered to lie
face down on the road. Id. “Butts then fired one fatal
shot to the back of Parks’s head with the shotgun.” Id.
5
Wilson and Butts then sought out a “chop shop” to
dispose of Parks’s car. Pet.App.-249. After that endeavor failed, the men purchased gasoline and set the
car on fire. Id. They then walked to a public telephone
and Butts phoned his uncle “and arranged for a ride
for himself and Wilson back to Walmart to retrieve
Butts’s automobile.” Id.
In a search of Wilson’s residence, the police discovered a sawed-off shotgun and the type of ammunition
used to kill Parks. Pet.App.-250. Wilson’s girlfriend testified at trial that Butts had given the shotgun to Wilson “to hold temporarily.” Id. Two inmates who had
previously been incarcerated with Butts told law enforcement that Butts “had admitted to being the triggerman in the murder.” Id.
2. Trial and direct appeal. Butts was represented at trial by experienced death-penalty litigator,
Robert Westin,2 co-counsel Cassandra Montford-Ford,
and paralegal Cathy Crawford, who had worked on “at
least four capital cases” prior to Butts’s case. Pet.App.34-35, 37, 274. In the guilt phase, counsel presented a
defense focused on establishing residual doubt and argued that Butts was merely present at the murder.
Pet.App.-54-55, 61-62, 275-80. Counsel presented testimony that there was potentially a third person at the
murder scene and Butts testified that he did not
2
At the time of trial, Westin had practiced in the circuit
where Butts’s case was tried for 17 years. Pet.App.-35. Prior to
Butts’s case, he “had handled 16 to 18 murder cases” and “been
second-chair in five capital cases, and none of those five defendants were sentenced to death.” Id.
6
participate in the murder. Pet.App.-55, 144, 329.
“There was no physical evidence to link [Butts] to the
murder weapon, which was found in co-defendant Wilson’s home, so [counsel] attempted to portray [Butts]
as ‘an unwilling and unknowing participant in this
matter.’ ” Pet.App.-276. Butts was convicted of malice
murder, felony murder, armed robbery, hijacking a motor vehicle, possession of a firearm during the commission of a crime, and possession of a sawed-off shotgun.
Pet.App.-248.
During sentencing, continuing the residual-doubt
theme, trial counsel presented a Georgia Bureau of Investigation Agent who testified that he administered a
polygraph to Wilson, and it was his opinion, based upon
the results of that polygraph, that Wilson was the
shooter of Parks. Pet.App.-297. Trial counsel also introduced evidence that Butts “lacked a violent criminal
history,” and in closing, counsel argued that Butts was
“led into the crime” by Wilson, a violent person with an
“extensive criminal history,” who was “well known by law
enforcement to be a member of the Folks gang.”
Pet.App.-297-98. The trial court, based on the jury’s
binding recommendation, sentenced Butts to death. Id.
For the motion for new trial, Butts was represented by new counsel. Pet.App.-18. In those proceedings, Butts’s new counsel raised claims of ineffective
assistance of trial counsel, and the claims were presented during an evidentiary hearing at which Westin
testified. Pet.App.-18, 31, n.9. The trial court denied
the ineffective-assistance claims and Butts appealed to
the Georgia Supreme Court. As part of that appeal,
7
Butts alleged that trial counsel were ineffective for not
presenting family members to testify in mitigation.
Pet.App.-2. The court rejected that claim, stating:
Butts’s trial counsel testified in a hearing held
on remand that they contacted Butts’s family
members in the hope that some of them would
testify on Butts’s behalf during the sentencing
phase. Counsel testified that Butts’s mother
refused to testify. Counsel further testified
that, although they refused to testify even
when counsel “begged them” to do so, Butts’s
grandmother and aunt had assisted them in
preparing for trial. Counsel testified that “outside of [Butts’s] aunt and grandma, there was
nobody that could say a kind word about him.”
In light of this testimony and the absence of
evidence to the contrary, we conclude that
Butts’s trial counsel did not render ineffective
assistance.
Res.App.-18-19. This Court denied certiorari review.
Res.App.-27.
3. State habeas proceedings. In the state habeas
proceedings filed in 2002, represented by new counsel,
Butts again alleged that trial counsel were ineffective
in investigating and presenting mitigation at trial. He
also alleged that appellate counsel was ineffective for
not establishing trial counsel’s ineffectiveness in this
regard. Following a three-day hearing, Pet.App.-251,
the court concluded that Butts’s claims of trial counsel
ineffectiveness were procedurally barred. Pet.App.253, 258. The court then turned to appellate counsel’s
effectiveness. Applying Strickland, the court denied
8
relief, concluding that Butts had established appellate
counsel were deficient in presenting the ineffective assistance of trial counsel claim, but that he had failed to
show any resulting prejudice. Pet.App.-271-74.
The state habeas court assessed whether appellate counsel’s failure to raise Butts’s claim for ineffective assistance of trial counsel prejudiced Butts by
anaylyzing the merits of that claim. Starting with the
question whether trial counsel rendered deficient performance, the court found that trial counsel “spent a
great deal of time with [Butts]” learning about his
background, “including his prior employment history,
education and family background.” Pet.App.-282.3 The
court also found that the defense team spoke to a number of Butts’s family members, including his mother,
aunt, grandmother, brothers, younger sister, and uncle,
but the family “didn’t have anything positive to say”
about Butts or refused to testify. Pet.App.-285-87.
As found by the state habeas court, trial counsel
also obtained “all of [Butts’s] medical records, school
records, criminal history (including juvenile court records), Department of Family and Children Services
(DFCS) records, employment records, all of his past
and present jail records and spoke with the jailer.”
Pet.App.-283. Counsel also acquired “numerous
documents concerning [Butts], [Butts’s] family and codefendant Marion Wilson.” Id. “Additionally, trial
3
As an initial matter, the state habeas court found “all three
members of the defense team participated in a reasonable investigation of [Butts’s] background. . . .” Pet.App.-282.
9
counsel had obtained [Butts’s] family’s DFCS and [Department of Human Resources] records pertaining to
Dominique, [Butts’s] father’s Central State Hospital
records, [Butts’s] school records, and Oconee Center
Records on [Butts’s mother], Laura Butts.” Pet.App.284.
Through their record gathering, “the defense team
was aware that [Butts’s] father had mental health
problems, that [Butts’s] mother had substance abuse
problems, that Dominique had ‘behavioral’ problems,
and that [Butts’s] home life was dysfunctional.”
Pet.App.-284. They also learned from these records
Butts: did “pretty well in school until he reached age
sixteen”; was disciplined for fighting at school; had
fought with other inmates in jail and set fires in institutions where he was incarcerated; and had shoes
taken from him after he had written gang signs on
them and worn them to a pre-trial hearing. Pet.App.59, 289-90.
The state habeas court also reviewed the pre-trial
mental health evaluations trial counsel had obtained
of Butts. Pet.App.-290-92. The court found the courtappointed psychologist opined Butts had a personality
disorder characterized by poor judgment, impulse control and a disregard for social norms; and the independent psychologist found Butts was antisocial,
impulsive and “socially alienated.” Pet.App.-291-92.
The state habeas court found “trial counsel’s investigation into [Butts’s] background was reasonable
and thorough,” and they were aware of the same
evidence Butts presented as mitigation in the state
10
habeas proceeding. The court accordingly concluded
that appellate counsel could not have established
deficient performance on the part of trial counsel.
Pet.App.-295, 307-13.
Turning to the reasonableness of counsel’s decision to focus on residual doubt as their mitigation theory, the state habeas court found this determination
was made “after a thorough investigation.” Pet.App.280. The state habeas court also credited Westin’s testimony that, “based on their investigation the defense
team determined that [Butts] had a ‘tough upbringing’
as ‘do a lot of kids,’ but he did not think [Butts’s] ‘upbringing was extremely different from anybody else’s,
many other young men.’ ” Pet.App.-288. The court also
considered: Westin’s experience and his belief that this
type of testimony did not “play as well as it did at one
time” with the jurors in the Ocmulgee Judicial Circuit,
Pet.App.-281, 310; and the fact that trial counsel had
no medium through which to present testimony from
Butts’s family as counsel “ ‘couldn’t have drug them up
there with wild horses’ to testify for [Butts].” Id. See
also Pet.App.-285-86, 294-95 (mother “was a non-participant in this case;” Butts’s grandmother and aunt
would not testify; “were scared to death of him”; “said
he was a cold-blooded killer”). As for employers, Butts
“had been fired from five jobs for fighting with a coemployee,” the boss, or “even a customer.” Pet.App.289-90. The court noted that “[s]uch ‘strategic choices
made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’ ” Id. (quoting Strickland, 466 U.S. at 690).
11
Attempting to establish prejudice in the state
habeas proceedings, Butts presented mitigation expert
Jan Vogelsang. Pet.App.-298. Butts alleged that he
could establish both prongs of Strickland based on appellate counsel not presenting a similar witness who
could have testified “at trial or at the motion for new
trial to ‘the four most significant influences’ on his life,”
which he claimed were: his “mentally ill father, his
‘drug addicted and chronically absent mother,’ his ‘profoundly disturbed younger brother,’ and the use and
sale of drugs by some of the boyfriends of [Butts’s]
mother.” Pet.App.-299. The state habeas court assessed
Vogelsang’s testimony and found that Butts could not
establish prejudice from counsel not presenting like
testimony.
The state habeas court noted Vogelsang’s failure
to speak with either psychologist who evaluated
Butts prior to trial or the social worker that worked
with Butts’s brother Dominque who “had an enormous amount of contact with the family.” Pet.App.-300.
The court also found that much of Vogelsang’s presentation concerned Butts’s father, although he had “no
role” in Butts’s life. Pet.App.-301.4 Additionally, the
court held that much of Vogelsang’s testimony was contradicted by the record. Specifically, although Vogelsang testified that Butts’s “home life caused him to do
poorly in school,” the court found the records show that
he performed well in school and “had no significant
4
Ms. Butts testified that she had lived with Butts’s father,
but neither “she nor her children had contact with him” after
Butts was 11 months old. Pet.App.-73.
12
problems” until age 16, when he started “hanging
out with the wrong crowd.” Pet.App.-306. Similarly,
the court concluded that the record refuted Vogelsang’s conclusions that the children were left alone
without adult supervision and Butts was left to
parent Dominque, whom she described as “severely
mentally handicapped,” although his diagnosis was Attention Deficient and Hyperactivity Disorder (ADHD).
Pet.App.-301. The state habeas court found Butts’s
grandmother, aunt and Harold Burton (who was
consistently present in the home for 8-10 years) looked
after and provided for the children, not Butts.
Pet.App.-302-03. The court also credited the social
worker’s testimony that she was aware Mrs. Butts was
abusing drugs and leaving her children, but she confirmed “[t]hese kids were taken care of by other family
members including their uncle and grandmother.”
Pet.App.-303-04. The state habeas court found, “[w]hat
[Butts] established [ ] was that trial counsel were wellaware of the evidence, and potential theories, which
were presented by Petitioner’s current habeas attorneys.” Pet.App.-307.
As to prejudice, the court concluded that, even if
the same evidence presented in the state habeas hearing had been presented at trial or the motion for new
trial, “there [was] not a reasonable probability that the
result of the trial or appeal would have been different. . . .” Pet.App.-313.
The state habeas court also addressed Butts’s
claim that trial counsel were per se deficient for determining not to hire a mitigation specialist. The state
13
court rejected this claim holding that Butts’s ineffectiveness claim should not be analyzed by a per se deficiency analysis, but by the well-established Strickland
standard. Pet.App.-298-99, n.9. The Georgia Supreme
Court denied Butts’s application to appeal in a summary order. Pet.App.-246.
4. Federal habeas proceedings. Applying 28
U.S.C. § 2254 and Strickland, the district court held
that, as the state habeas court had concluded that trial
counsel’s failure to investigate and present Butts’s
dysfunctional family life and background as mitigation
was procedurally defaulted, the claim could not be reviewed unless Butts could establish cause and prejudice. Pet.App.-116. However, the federal habeas court
noted that Butts had alleged ineffective assistance of
appellate counsel to overcome this default. Pet.App.116-17.
Looking to the state habeas court’s opinion on the
effectiveness of appellate counsel, the district court
agreed with Butts that appellate counsel had been deficient in not conducting an independent mitigation investigation. Pet.App.-119. Turning to the second prong,
the federal habeas court found the state habeas court’s
determination that Butts had failed to establish prejudice was not contrary to, or an unreasonable application of, Strickland. Pet.App.-190-91.
“[I]n the context of considering whether the state
habeas court reasonably concluded no prejudice resulted from appellate counsel’s deficient performance
when litigating the ineffectiveness of trial counsel,” the
14
district court had to review trial counsel’s performance. Pet.App.-122. After recounting trial counsel’s
investigation, the district court determined that “the
state habeas court’s finding that trial counsel’s pretrial
mitigation investigation was sufficient was reasonable
and cannot be upset by this Court.” Pet.App.-138-39. In
assessing the state habeas court’s finding as to prejudice, the district court reviewed all the evidence presented in the state habeas proceeding. Pet.App.-16174. “After a thorough review of the record, the Court
[was] unable to say that no reasonable jurist could
agree with the state habeas court’s prejudice determination.” Pet.App.-182. The court concluded “the state
habeas court’s determinations were not contrary to
and did not involve an unreasonable application of
Strickland, nor were they based on any unreasonable
factual determinations.” Pet.App.-190-91.
As to trial counsel’s strategy, the district court reviewed the evidence of Butts’s background known to
counsel, and concluded “trial counsel conducted a thorough investigation into Butts’s life history.” Pet.App.157. The court concluded, “counsel’s reliance on particular lines of defense to the exclusion of others –
whether or not he investigated those other defenses –
is a matter of strategy and is not ineffective unless the
petitioner can prove the chosen course, in itself, was
unreasonable. Butts has not made such a showing.”
Pet.App.-160.
The district court then turned to prejudice and reviewed the evidence and the state habeas court’s findings and holding. Pet.App.-161-81. The district court
15
held, “the [state habeas] court determined that had the
jury heard all of the new evidence, there is no reasonable probability they would have given Butts a different sentence. After a thorough review of the record, the
Court is unable to say that no reasonable jurist could
agree with the state habeas court’s prejudice determination.” Pet.App.-182.
The district court addressed separately Butts’s
claim that trial counsel’s failure to a hire a mitigation
specialist was per se deficient performance based on
the 1989 American Bar Association (“ABA”) Guidelines
for the Appointment and Performance of Counsel in
Death Penalty Cases (“Guidelines”) and capital case
training manual (“Manual”) published by the Southern Center for Human Rights. Pet.App.-139. The district court rejected this argument holding that “[t]he
Guidelines and Manual “are ‘only guides’ to what reasonableness means, not its definition.” Pet.App.-140
(citing Bobby v. Van Hook, 558 U.S. 4, 8 (2009) (quoting
Strickland, 466 U.S. at 688)). The district court noted
that Butts had failed to cite to any “Supreme Court
precedent holding that trial counsel must retain a mitigation expert.” Pet.App.-140.
5. The court of appeals’ decision.5 In reviewing
whether “any fair-minded jurist could agree with the
5
The court of appeals noted that their opinion in Wilson v.
Warden, 834 F.3d 1227 (11th Cir. 2016), cert. granted, Feb. 27,
2017 (argued Oct. 30, 2017), held that the Georgia Supreme
Court’s summary denial was the last opinion of the state court,
but held here that “[b]ecause it does not matter to the result, and
to avoid any further complications if the United States Supreme
Court disagrees with our Wilson decision, we have decided this
16
state trial court’s decision denying Butts relief,” the
court adopted the relevant portions of the “exceptionally
thorough and persuasive order” of the district court as
its own. Pet.App.-6. The court rejected Butts’s claim
that trial counsel’s performance was per se deficient as
it “did not follow in lock step the recommendations” of
the ABA Guidelines and the Southern Center Manual.
The court reiterated that Strickland mandates that
counsel must perform reasonably under “prevailing
professional norms,” but that the ABA and the Southern Center do not establish the norms. Pet.App.-9.
In distinguishing Wiggins v. Smith, 539 U.S. 510
(2003), in which counsel had conducted almost no
background investigation, the court of appeals found
“the defense team undertook an exhaustive investigation” into Butts’s background and concluded Butts had
failed to establish deficient performance on the part of
trial counsel. Pet.App.-12.
Addressing trial counsel’s strategic decision to
rely on residual doubt in mitigation, the court of appeals concluded that it could not and would not second
guess trial counsel’s reasonable strategic decision,
which was based on a reasonable investigation.
Pet.App.-13.
The court of appeals affirmed the district court’s
denial of habeas relief. Pet.App.-14.
----------------------------------------------------------------------appeal on the same basis that the district court did: by using the
more state-trial-court focused approach in applying § 2254(d).”
Pet.App.-4.
17
REASONS FOR DENYING THE PETITION
I.
Butts’s argument that Strickland requires
judging attorney performance solely against
“national” standards as mandated by the
ABA does not warrant further review.
In his first claim, Butts asserts that there is a split
among the federal circuit courts as to whether the “prevailing professional norms” referenced in Strickland
refers to national, state or local norms. He argues certiorari review should be granted to clarify this Court’s
meaning. That question does not warrant further review. There is no circuit split on this question; any such
split would not determine the outcome here; and the
court of appeals correctly determined that the state
court did not unreasonably apply Strickland in concluding that counsel’s performance was reasonable
with respect to the decision not to use a mitigation expert or otherwise.
A. There is no split among the circuits.6
Butts argues that there is a split in the circuits
over whether courts should assess Strickland reasonableness under local, state or national norms. He alleges
that the Eleventh Circuit relied on local norms of the
Ocmulgee Judicial Circuit, where Butts was tried, in
6
Because the district court “issued an exceptionally thorough and persuasive order explaining why Butts did not meet [the
§ 2254 standard],” the Eleventh Circuit “adopt[ed] and incorporate[d]” “the relevant parts of that order” as their own and attached that portion of the order as an appendix to its holding.
Pet.App.-6, n.2.
18
assessing the reasonableness of counsel’s performance
in contrast to other circuits that use national norms.
Pet.App.-23. Butts has failed to show that the circuits
are split on how to apply the deficiency prong of Strickland, which includes an assessment of reasonableness
under “prevailing professional norms.” Strickland, 466
U.S. at 688. Butts has merely shown that courts look to
local, state and national standards depending on the
record before that court when it conducts its fact-specific Strickland analysis. Butts has not shown that any
circuit prevents or mandates the use of local, state or
national standards. As there is no split, there is no issue worthy of certiorari review.
To prove a claim for ineffective assistance of counsel under Strickland, a petitioner must show that
counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland,
466 U.S. at 687. Demonstrating deficient performance
requires showing that counsel was not reasonably effective “under prevailing professional norms.” 466 U.S.
at 688.
This Court has declined to prescribe any particular set of rules as the “prevailing professional norms”
for judging the reasonableness of attorney performance. The Court explained in Strickland that “[p]revailing norms of practice as reflected in American Bar
Association standards and the like . . . are guides to
determining what is reasonable, but they are only
guides.” Id. at 688. This is because “[n]o particular set
of detailed rules for counsel’s conduct can satisfactorily
take account of the variety of circumstances faced by
19
defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.”
Id. at 688-89. Also, making “[a]ny such set of rules” controlling “would interfere with the constitutionally protected independence of counsel and restrict the wide
latitude counsel must have in making tactical decisions” and “could distract counsel from the overriding
mission of vigorous advocacy of the defendant’s cause.”
Id. at 689.
For these reasons, this Court has already rebuffed
at least one court of appeals’ attempt to prescribe a
particular set of rules as controlling standards for attorney performance. In Van Hook, the Court chastised
the Sixth Circuit for “treat[ing] the ABA’s 2003 Guidelines not merely as evidence of what reasonably diligent attorneys would do, but as inexorable commands
with which all capital defense counsel must fully comply.” 558 U.S. 4, 8-9 (2009) (per curiam). “Strickland,”
the Court pointed out, “stressed that ‘American Bar
Association standards and the like’ are ‘only guides’ to
what reasonableness means, not its definition.” Id. at
8. Although both “states” “are free to impose whatever
specific rules they see fit to ensure that criminal defendants are well represented, . . . the Federal Constitution imposes one general requirement: that counsel
make objectively reasonable choices.” Id. at 9 (quoting
Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000)).
Accordingly, this Court has looked to a variety of
standards – national, state, and local – as potential evidence of prevailing professional norms. For example,
20
in Wiggins, this Court judged counsel’s decision not to
obtain a social history report against both the ABA
standards for capital defense work and the “standard
practice in Maryland in capital cases at the time of
Wiggins’ trial.” 539 U.S. at 524. In Cullen v. Pinholster,
this Court looked to both state and local professional
norms prevailing in Los Angeles at the time of Pinholster’s 1984 trial. 563 U.S. 170, 196 (2011); see also
Flores-Ortega, 528 U.S. at 479 (looking to California
state law to review ineffectiveness claim).
In Wiggins, reiterating its holding in Strickland,
this Court again directed: “In assessing counsel’s investigation, we must conduct an objective review of
their performance, measured for ‘reasonableness under prevailing professional norms,’ which includes a
context-dependent consideration of the challenged conduct as seen “ ‘from counsel’s perspective at the time.’ ”
539 U.S. at 523 (quoting Strickland, 466 U.S. at 688,
689). Conducting the fact-specific inquiry into the reasonableness of counsel’s investigation from his perspective at the time of representation, a fair analysis
often cannot turn solely on national norms. In short,
the various national, state, and local standards are all
permissible “evidence of what reasonably diligent attorneys would do.” Van Hook, 558 U.S. at 9. The circuits
are in accord.
The cases Butts cites as evidence of a split do not
show otherwise. Rather, consistent with cases like
Strickland, Flores-Ortega, and Van Hook, his cases
21
show that circuits have looked to various sets of standards – national, state, and local – and sometimes more
than one set in the same case, as evidence that aids the
overarching determination whether counsel’s performance was reasonable. See Petition-20-23 (citing, e.g.,
Heard v. Addison, 728 F.3d 1170, 1180-81 (10th Cir.
2013) (reviewing “counsel’s local practice environment
and the resources available to her, insofar as those reflect the ‘prevailing professional norms’ in her state”);
Marshall v. Cathel, 428 F.3d 452, 467 (3d Cir. 2005)
(taking into account “national guidelines, state specific
standards, and [trial counsel’s] own testimony regarding his previous capital experience” in determining
reasonableness of performance); Viscotti v. Martel, 862
F.3d 749, 772, n.14 (9th Cir. 2016) (assessing state
norms in concluding counsel’s performance was not unreasonable)). Decisions showing that courts have
looked to different sets of standards as evidence for assessing reasonableness in different cases do not
demonstrate a split; to the contrary, they show that the
circuits are properly following this Court’s lead by declining to treat any particular set of standards as prescriptive or required. Butts fails to identify a single
circuit that has either mandated judging attorney performance against a particular set of guidelines (like
ABA guidelines) to the exclusion of other standards
(like local professional norms) or held that one set of
standards trumps other conflicting standards.
Butts highlights the Third Circuit as one that
judges attorney performance against the ABA guidelines, but that circuit too has expressly relied on
22
multiple standards as evidence of the prevailing professional norms. See Marshall, 428 F.3d at 467 (looking
to ABA guidelines as well as state and local norms).
Moreover, for his characterization of the Third Circuit’s position, Butts relies on Outten v. Kearney, 464
F.3d 401 (3d Cir. 2006), but the Third Circuit decided
Outten prior to this Court’s decision in Van Hook,
which repudiated the Sixth Circuit’s more blatant attempt to treat ABA guidelines as more than mere evidence of what reasonableness means, see Van Hook,
558 U.S. at 8.7 Since Van Hook, the Third Circuit has
properly treated ABA guidelines as “informative, albeit
not dispositive.” Showers v. Beard, 635 F.3d 625, 633
(3d Cir. 2011).
The court of appeals’ decision below is in accord
with the other circuits. Like those circuits, the court of
appeals declined to treat Butts’s proffered standards –
the 1989 ABA Guidelines and the Southern Center for
Human Rights Defense Manual – as “establish[ing]”
7
Butts’s citation to the Sixth Circuit’s decision in Hamblin
v. Mitchell, 354 F.3d 482 (6th Cir. 2003), must be dismissed for the
same reasons. There, the Sixth Circuit misread Wiggins “for the
proposition that the ABA standards for counsel in death penalty
cases provide the guiding rules and standards to be used in defining the ‘prevailing professional norms’ in ineffective assistance
cases.” Id. at 486. Van Hook disabused the Sixth Circuit of that
notion, and Butts cites no Sixth Circuit case post-Van Hook that
repeats it. Moreover, like the other circuits, the Sixth Circuit has
also relied on state standards in assessing attorney performance.
See Williams v. Anderson, 460 F.3d 789, 800 (6th Cir. 2006) (finding counsel’s performance was objectively unreasonable relying,
in part, on the Ohio Rules of Court, Code of Professional Responsibility, Canon 6).
23
the prevailing professional norms and rejected Butts’s
argument “that trial counsel’s performance was automatically deficient because they did not follow in lock
step” those recommendations. Pet.App.-8-9. Instead,
the court followed this Court’s instructions to view
such standards only as guides for determining whether
the lawyer’s “decisions fall within the ‘wide range of
professionally competent assistance.’ ” Pet.App.-11
(quoting Buck v. Davis, 137 S. Ct. 759, 775 (2017)). The
court concluded that standard was met in this case
where counsel “undertook an exhaustive investigation
into [Butts’s] childhood and upbringing” and “the records show[ed]” that “mitigation experts were not routinely used in capital cases in the judicial circuit where
this case was tried.” Pet.App.-12. Butts has failed to
show that the court of appeals’ holding or reasoning
conflicts with that of any other circuit.
B. The Eleventh Circuit’s analysis was not
contrary to established Federal law.
Butts contends that counsel’s performance fell below the standards set out in the 1989 ABA guidelines
because counsel did not hire a mitigation expert.8
8
Butts also cites the Southern Center Manual, but introduced into the record only a two-page excerpt and a questionnaire
from that manual. Res.App.28-31. There is no indication from
those portions that counsel’s performance with respect to these
areas fell short of its standards. See also Pet.App.-8-9 (court of
appeals explaining that the manual “recommended considering ‘[t]he use of social workers and other experts to present the
case in mitigation.’ ” (emphasis added)). The Warden was unable
to locate a copy of the full manual.
24
However, as the well-established law does not mandate
the hiring of a mitigation specialist for the effectiveness of counsel, the state court’s holding could not be
contrary to, or an unreasonable application of, established federal precedent. 28 U.S.C. § 2254. This Court
should deny certiorari review.
There is no support in the law for the per se deficiency requirement Butts is attempting to create. The
Eleventh Circuit, through the district court order, held:
“Butts cites no Supreme Court precedent holding
that trial counsel must retain a mitigation expert.”
Pet.App.-51. The Eleventh Circuit found Butts’s reliance on Wiggins “misplaced,” explaining that this
Court “did not find counsel’s failure to utilize a social
worker per se ineffective; rather, it was that such failure rendered counsel’s performance deficient under
the relevant professional standards.” Id. (quoting Newland v. Hall, 527 F.3d 1162, 1206 (11th Cir. 2008) (citing Wiggins, 539 U.S. at 524-25)). This Court has also
rejected similar per se deficiency arguments. See Roe
v. Flores-Ortega, 528 U.S. 470, 478 (2000) (“We reject
this per se rule as inconsistent with Strickland’s holding that ‘the performance inquiry must be whether
counsel’s assistance was reasonable considering all the
circumstances.’ ”).
The state habeas court, in rejecting Butts’s argument, concluded that Butts’s ineffectiveness claim
was not analyzed by a per se deficiency analysis, but
by the well-established Strickland standard. Id.
Reviewing the claim under this proper standard,
the state habeas court extensively examined the
25
investigation conducted by the defense team and
concluded Butts had failed to show deficient performance. Pet.App.-281-96. The state court concluded
that “trial counsel’s investigation into [Butts’s] background was reasonable and thorough. . . .” Pet.App.295. That conclusion was not contrary to or an unreasonable application of Strickland.
Properly applying § 2254 and Strickland, the
Eleventh Circuit found that the state habeas court’s
Strickland analysis was not contrary to, or an unreasonable application of, this Court’s precedent as
counsel’s investigation was objectively reasonable.
Pet.App.-14. Adding “a few points,” Pet.App.-6, to the
district court’s order, the court of appeals held that
even though “mitigation experts were not routinely
used in capital cases in the judicial circuit where this
case was tried” at the time of Butts’s trial, “an exhaustive investigation” was still conducted into Butts’s
background. Pet.App.-12. This analysis is in direct accordance with the longstanding precedent of this
Court. Further review is not warranted.
C. Even the alleged split is not implicated
in this case.
Finally, even if there were a split regarding the set
of standards that should serve as prevailing professional norms, it would be irrelevant in this case because Butts has failed to show that the question
whether his counsel was deficient turns on which set
of standards applies.
26
Butts primarily contends that counsel’s performance fell below the standards set out in the 1989 ABA
guidelines because counsel did not hire a mitigation
expert. But those guidelines do not require hiring a
mitigation expert; they state only that “counsel should
secure the assistance of experts where it is necessary or
appropriate for . . . presentation of mitigation.” 1989
ABA Guidelines, Guideline 11.4.1.D.7. Moreover, with
respect to the mitigation investigation, those guidelines contemplate “counsel . . . interviewing potential
witnesses” and suggest that “[a]lternatively, counsel
should have an investigator or mitigation specialist
conduct the interviews.” Id. at 11.4.1.D.3.9 Because applying Butts’s preferred set of standards would not
make a difference in this case, it is not be a suitable
vehicle for resolving a split regarding which set of
standards control even if there were one.
9
Butts also contends that trial counsel rendered deficient
performance because they allegedly did not conform to the ABA
guidelines requiring counsel to make “efforts to discover all reasonably available mitigating evidence and evidence to rebut any
aggravating evidence” and to introduce “humanizing mitigation
during the penalty phase” of trial. Petition-26-27. Yet, the portion
of counsel’s testimony and the federal court’s language he relies
upon only concern trial counsel not hiring a mitigation specialist
and the Warden has only addressed that argument. Notably, however, the state habeas court concluded “trial counsel’s investigation into [Butts’s] background was reasonable and thorough.”
Pet.App.-295. The court of appeals agreed: “We do not often see
cases in which a defense team investigated mitigating circumstance evidence more thoroughly than this team did.” Pet.App.-89. Also, the state habeas court concluded, and the court of appeals
confirmed, that counsel had sound strategic reasons for focusing
on residual doubt at sentencing. See section II.
27
II.
The question whether the court of appeals
applied the wrong standard for reviewing
counsel’s strategic decisions does not warrant this Court’s review.
Butts’s second argument contends that the court
of appeals created a circuit conflict regarding whether
counsel’s strategic decisions are “wholly immune” from
challenge under Strickland. Petition-31. This argument fails at its premise: The court of appeals did not
hold that counsel’s decision to present a residual doubt
theory is ever “wholly immune” from review. Instead,
the court of appeals determined – correctly – that the
state court did not unreasonably apply Strickland in
concluding that trial counsel’s decision to pursue a residual doubt strategy at sentencing in this case, made
after a thorough investigation into mitigating circumstances, was a reasonable one. Certiorari review of that
determination is unwarranted.
A. The court of appeals did not create a circuit split because it did not hold that
strategic decisions are “wholly immune”
from review under Strickland.
To show deficient performance under Strickland,
the defendant “must show that counsel’s representation fell below an objective standard of reasonableness.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000)
(quoting Strickland, 466 U.S. at 688). That standard
applies to counsel’s strategic choices too. Strickland,
466 U.S. at 690. If counsel has thoroughly investigated
the law and facts relevant to a strategic choice,
28
however, Strickland makes clear that the bar for successfully challenging that choice is high: “[S]trategic
choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690.
In reviewing trial counsel’s strategic decision to focus on residual doubt as their mitigation theory, the
court of appeals straightforwardly applied these standards; it did not deem all strategic decisions “wholly immune” from review. The adopted district court order
reviewed counsel’s decisions under this Court’s wellestablished standard. Pet.App.-53-72. That order described at length Westin’s testimony explaining counsel’s mitigation investigation and his reasons for
choosing a residual-doubt strategy over presenting the
mitigation evidence they found regarding Butts’s background. For example, the court noted that “Westin did
not think Butts’s ‘upbringing was extremely different
from anybody else’s, many other young men,’ ” and that
he “felt that jurors in the Ocmulgee Judicial Circuit
were not as sympathetic to the fact that someone had
a bad childhood as they may have been at one time.”
Pet.App.-53. The district court also quoted Westin’s
state habeas testimony in which he explained that
they had “made the ‘conscious decision’ to use residual
doubt” as their mitigation theory because “[m]ost of
[the evidence the defense team uncovered in their investigation] really wasn’t positive,” Pet.App.-61, and
that they had concluded that using a relatively weak
dysfunctional-childhood strategy would undermine
the “point that he wasn’t the killer.” Pet.App.-62. And
29
the court pointed out that Westin provided other reasons for choosing residual doubt too: “They were unable to locate family members who would testify for
Butts, there was no physical evidence linking Butts to
the murder weapon, Wilson was older than Butts and
was a gang leader, and Wilson had already been found
guilty of murdering Parks and was on death row.”
Pet.App.-67.
After recounting these various factors on which
trial counsel relied to choose a residual-doubt strategy,
the district court concluded that Butts had not
shown that this decision was “outside the wide range
of reasonable professional assistance.” Pet.App.-69. Relying on this Court’s precedent, the court explained
that “[s]uch decisions, when ‘made after thorough investigation of law and facts relevant to plausible
options[,] are virtually unchallengeable. . . .’ ” Id.
(quoting Strickland, 466 U.S. at 690). The court further
reasoned that “Westin’s ‘sense of the jury’s reaction to
testimony or evidence is a sound basis on which to
make strategic decisions.’ ” Id. And the court concluded
that Butts had failed to show “ ‘that the approach
taken by defense counsel would not have been used by
professionally competent counsel.’ ” Id. The order
adopted by the court of appeals reflects a fulsome review of counsel’s mitigation investigation and the strategic decision that followed, not a belief that such
decisions are “wholly immune” from review.
Nor does the court of appeals’ additional analysis
of counsel’s strategic decision to use a residual-doubt
strategy suggest that the court deems strategic
30
decisions “wholly immune” from review. Butts points to
the court’s statement that “[w]e cannot and will not
second guess trial counsel’s strategic decision to focus
on residual doubt instead of mitigation evidence, especially where that decision was made after a thorough
investigation into mitigating circumstances.” Petition31. But as the court made clear, that statement follows
directly from Strickland itself, which explains that
“strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690. Further, the court pointed out that it had already “held a
number of times” that the residual-doubt strategy “can
be an effective strategy at the sentencing stage of a
capital case.” Pet.App.-12. Thus, placed in context, the
court’s statement that it could not second guess trial
counsel’s strategic decision was not a statement that
strategic decisions are immune from review; it was a
conclusion that this particular strategic decision was
reasonable because (1) this kind of strategy is often effective, and (2) counsel made a thorough investigation
of the law and facts relevant to that decision before
making it in this case.
Because the court of appeals did not hold that
strategic decisions are “wholly immune” from review,
Butts’s attempt to manufacture a split fails. He cites
various court of appeals’ decisions taking the uncontroversial position that counsel’s strategic decisions
are still subject to Strickland’s requirement that they
be objectively reasonable. Pet.App.-29-30. But as just
discussed, the court of appeals’ decision comports with
31
that position. Indeed, in a recent case, the Eleventh
Circuit granted habeas relief under § 2254 based on a
determination that a particular strategic decision was
unreasonable. See DeBruce v. Commissioner, 758 F.3d
1263, 1274 (11th Cir. 2014) (“ . . . no lawyer could reasonably have made a strategic decision to forego the
pursuit of mitigation evidence based on the results of
the pre-trial report governing competency to stand
trial . . . ”).10 Nor do any of the decisions Butts cites
appear to depart from Strickland’s guidance for reviewing strategic decisions made after thorough investigation of the law and facts relevant to the decision,
466 U.S. at 690, which the court of appeals expressly
applied. Accordingly, Butts has not shown that the
court of appeals’ decision creates a conflict among circuits, and certiorari review is therefore unwarranted.11
10
All federal circuit courts appear to assess the reasonableness of counsel’s strategic decisions under “objective standard of
reasonableness” set by this Court in Strickland. See United States
v. Rivera-Ruperto, 852 F.3d 1, 8 (1st Cir. 2017); United States v.
Delva, 858 F.3d 135, 157 (2d Cir. 2017); Vickers v. Superintendent
Graterford Sci., 858 F.3d 841, 852 (3d Cir. 2017); Bell v. Evatt, 72
F.3d 421, 430 (4th Cir. 1995); Scheanette v. Quarterman, 482 F.3d
815, 820 (5th Cir. 2007); Jackson v. Bradshaw, 681 F.3d 753, 760
(6th Cir. 2012); Harris v. Cotton, 365 F.3d 552, 556 (7th Cir. 2004);
Williams v. United States, 452 F.3d 1009, 1013 (8th Cir. 2006);
Mitchell v. United States, 790 F.3d 881, 886 (9th Cir. 2015); Bullock
v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002); Lindsey v. Smith,
820 F.2d 1137, 1152 (11th Cir. 1987).
11
Butts also alleges a conflict between the First Circuit and
“[s]everal state courts” on the basis that the former has “adopted
a ‘patently unreasonable’ test” for strategic decisions, while
the latter have “enforced a ‘manifestly unreasonable’ standard.”
32
B. The court of appeals’ decision regarding
counsel’s strategic decision to present a
residual-doubt strategy was correct.
Certiorari is also unwarranted because the court
of appeals correctly determined that the state court did
not unreasonably apply Strickland by concluding that
counsel’s strategic decision to present a residual-doubt
theory at sentencing was reasonable. The relevant
question is whether counsel’s choices were reasonable,
and to carry that burden the “defendant must show
that counsel’s representation fell below an objective
standard of reasonableness.” Roe v. Flores-Ortega, 528
U.S. 470, 481 (2000) (quoting Strickland, 466 U.S. at
688). And Strickland explains that “strategic choices
made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” 466 U.S. at 690.
The state habeas court extensively assessed the
investigation conducted by trial counsel, Pet.App.281-95, and then held that, armed with this information, trial counsel made a reasonable strategic
decision not to press Butts’s dysfunctional background
as mitigation at trial. Pet.App.-307-12. The state habeas court credited trial counsel’s concern that this
type of evidence would “give[ ] up the point that he
wasn’t the killer.” Pet.App.-281. The court held that
“[t]his concern, which formed the partial basis of trial
counsel’s decision to present family/background
Petition-31. He fails to explain, however, why those similar-sounding standards would be meaningfully different standards.
33
evidence in mitigation” was reasonable. Pet.App.-308.
Additionally, the court found “Mr. Westin’s experience
in the Ocmulgee Judicial Circuit” and the “circumstantial evidence presented in the guilt phase” also supported the reasonableness of the mitigation theory and
counsel were not deficient. Pet.App.-308-09. Applying
this Court’s precedent, the court held that “[s]uch ‘strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable.’ ” Id. (quoting Strickland, 466 U.S. at
690). The court of appeals correctly determined that
this conclusion was not an unreasonable application of
Strickland. Review is accordingly unwarranted.
III. The State court properly found Butts failed
to establish Strickland prejudice.
In his third argument, Butts alleges that the state
habeas court’s determination that he was not prejudiced by trial counsel’s mitigation investigation was
based on an unreasonable application of this Court’s
precedent and an unreasonable determination of the
facts, so the court of appeals erred by concluding otherwise. As a plea for mere error correction, that decision does not warrant further review. In any event,
there is no error to correct. The court of appeals, relying on the extensive review conducted by the state habeas court as set forth above and properly applying
Strickland, correctly held that the state habeas court’s
findings were supported by a reasonable determination of the facts and were not contrary to, or an unreasonable application of, any precedent of this Court.
34
A. The state court reviewed the totality of
the evidence and reweighed it against the
aggravating evidence.
Butts argues that in assessing the prejudice prong
of Strickland the state habeas court unreasonably applied Porter v. McCollum, 558 U.S. 30 (2009), because
the court failed to “consider what effect the totality of
the new mitigation evidence might have had on the
jury.” Petition-35. He also claims that the state court’s
analysis was an unreasonable application of Porter,
Williams v. Taylor, 529 U.S. 362 (2000) and Wiggins,
because the court allegedly failed to “reweigh the
newly-offered mitigation evidence against the original
aggravating evidence.” Id.
The court of appeals, through the adoption of the
district court order, correctly rejected this argument
because it is not supported by the record. The court explained that, “[c]ontrary to Butts’s assertion, the state
habeas court did not fail to ‘reweigh the evidence in
aggravation against the totality of available mitigating
evidence.’ ” Pet.App.-86 (quoting Wiggins, 539 U.S. at
534). The district court order pointed out that the state
habeas court “provided a detailed analysis of the evidence presented at the state habeas evidentiary hearing,” including that “Laura was frequently absent from
her children’s lives and used drugs; Butts, Sr. was mentally ill and had no role in Butts’s life, and Butts’s
younger brother Dominique had behavioral problems.”
Pet.App.-86. The order also recognized the state habeas court reviewed the testimony of Butts’s former
teachers, Pet.App.-92, numerous records concerning
35
Butts and his family, and the testimony of Vogelsang,
finding much of her “testimony was undermined or
contradicted in several respects.” Pet.App.-86-93. The
district court order concluded:
. . . the state habeas court did not fail to analyze the effect of the new mitigating evidence
and reweigh it against the evidence in aggravation. Nothing in the state habeas court’s
opinion indicates it “discount[ed] entirely the
effect” that the new evidence, including Vogelsang’s testimony, would have had on the jury.
Porter, 558 U.S. at 43. Instead, the court determined that had the jury heard all of the new
evidence, there is no reasonable probability
they would have given Butts a different sentence. After a thorough review of the record,
the Court is unable to say that no reasonable
jurist could agree with the state habeas
court’s prejudice determination.
Pet.App.-93. Therefore, there was no prejudice resulting from appellate counsel’s deficient performance and
the determinations by the state court denying this
claim “were not contrary to and did not involve an unreasonable application of Strickland, nor were they
based on any unreasonable factual determinations.”
Pet.App.-101-02.
Contrary to Butts’s arguments, the state habeas
court, as acknowledged by the court of appeals, clearly
considered the aggravating evidence. See Pet.App.289-94. It also clearly considered Butts’s background,
his mother’s absence, her behavior and drug usage, his
father’s mental health issues and Dominique’s
36
behavioral issues, but found it undermined by the record and not compelling. See Pet.App.-284, 287-88, 299306. The holdings of the court of appeals rejecting
Butts’s challenge to the state habeas court’s prejudice
analysis are firmly supported by the record and provide no basis for certiorari review.
B. The state court’s findings are supported
by the facts.
Butts also argues that the state habeas court
based its finding that trial counsel were not deficient
on an unreasonable determination of the facts. The
court of appeals, adopting the district court order, rejected this claim, holding that one specific fact-finding
relied on by the state habeas court was erroneous, but
the state habeas court’s conclusion was still fairly supported by the remaining determination of facts.
Pet.App.-66-68.
In concluding that trial counsel made a strategic
decision to focus on residual doubt as their mitigation
theory, the state habeas court quoted Westin’s testimony from the motion for new trial hearing. In that
hearing, Westin testified that “Wilson’s criminal record
was part of the reason he chose to use residual doubt,
and he ‘brought in Mr. Wilson’s prior record; . . . [and]
read from the sentencing phase of Mr. Wilson’s trial,
that he had shot at least two people that [Mr. Westin]
recall[ed]; shot a dog.’ ” Pet.App.-66. The district court
order noted that this was incorrect, because “trial
counsel did not present Wilson’s record to the jury,”
37
id., but the court concluded that “the state habeas
court’s factual finding that Westin made the strategic
decision to pursue residual doubt remains supported.”
Pet.App.-67. So, although the state habeas court recited one erroneous fact, the court’s decision did not
rest on an unreasonable determination of the facts under § 2254(d)(2).
The district court order explained that other evidence amply supported the state habeas court’s conclusion that the decision was strategic. This included
Westin’s testimony that they chose residual doubt
based on the defense team’s inability to “locate family
members who would testify for Butts”; the lack of
any “physical evidence linking Butts to the murder
weapon”; and that Wilson was older than Butts, was a
gang leader, and Wilson had already been found guilty
of murdering Parks and was on death row. Pet.App.-67.
The court of appeals and the district court also each
noted that trial counsel had argued, without any objection from the prosecution, that Wilson was well-known
to law enforcement to be a member of the FOLKS gang,
a violent person, and had a “very extensive criminal
history.” Pet.App.-60, 66, 297-98. So, while Wilson’s
criminal history was not read into the record, the fact
that he had an extensive criminal history, was violent
and in a gang, was clearly put before jury by trial counsel and still a relevant basis for trial counsel’s strategic
decision.
The district court order concluded that “the state
habeas court’s ultimate conclusion that Westin made
the strategic choice to use residual doubt rests on
38
sufficient factual bases apart from any unreasonable
finding regarding what Westin ultimately presented at
the sentencing hearing.” Pet.App.-67. The reasonableness of the state habeas court’s holding is supported by
the record and provides no basis for certiorari review.
C. Courts are not required to give detailed
explanations to ease federal habeas review.
Finally, Butts argues that the state habeas court
conducted a “truncated prejudice inquiry” because it
never explained why the new evidence did not establish prejudice. Petition-36-37. To the contrary, as noted
by the district court, the state habeas court “provided
a detailed analysis of the evidence presented in the
state habeas hearing” and found Butts had failed to establish Strickland prejudice. Pet.App.-86-93. The court
of appeals concluded, even if every detail and fact is
not parsed out in the state court order, it is not entitled
to less deference. Pet.App.-45.
Relying on this Court’s precedent, the district
court order held that even if every fact is not explained
or addressed by the state court, the state court decision
must be “given the benefit of the doubt.” Pet.App.-45
(citing Lee v. Comm’r Ala. Dep’t of Corr., 726 F.3d 1172,
1212 (11th Cir. 2013) (quoting Woodford v. Visciotti,
537 U.S. 19, 24 (2002)). See also La Vallee v. Delle Rose,
410 U.S. 690, 694, 1205 (1973). Additionally, this Court
has held that when “determining whether a state
court’s decision resulted from an unreasonable legal or
39
factual conclusion does not require that there be an
opinion from the state court explaining the state
court’s reasoning.” Harrington v. Richter, 131 S. Ct.
770, 784 (2011).
The record is clear that in this case, the state habeas court conducted an extensive analysis of the record in denying relief. Regardless of whether the state
habeas court made a point-by-point comparison of aggravating and mitigating evidence, or even addressed
specific parts of the allegedly mitigating evidence, its
findings are entitled to deference and not contrary to,
or an unreasonable application of, Supreme Court
precedent or based on an unreasonable determination
of the facts. Certiorari review should be denied.
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40
CONCLUSION
For the reasons stated above, this Court should
deny the petition for writ of certiorari.
Respectfully submitted,
CHRISTOPHER M. CARR
Attorney General of Georgia
SARAH HAWKINS WARREN
Solicitor General
ANDREW A. PINSON
Deputy Solicitor General
BETH A. BURTON
Counsel of Record
Deputy Attorney General
SABRINA GRAHAM
Senior Assistant Attorney General
OFFICE OF THE GEORGIA
ATTORNEY GENERAL
40 Capitol Square, SW
Atlanta, Georgia 30334
(404) 656-3300
bburton@law.ga.gov
Counsel for Respondent
December 18, 2017
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.