Petition for Writ of Certiorari — Stacey Ian Humphreys, Petitioner v. Shawn Emmons, Warden

Supreme Court briefJan 31, 2025

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No. ______

In the Supreme Court of the United States

STACEY IAN HUMPHREYS,

PETITIONER,

SHAWN EMMONS, WARDEN,

GEORGIA DIAGNOSTIC & CLASSIFICATION PRISON

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

KELYN J. SMITH

S. JILL BENTON

FEDERAL DEFENDER

PROGRAM, INC.

101 Marietta Street,

Suite 1500

Atlanta, Georgia 30303

LINDSEY B. MANN

Counsel of Record

TROUTMAN PEPPER

LOCKE LLP

600 Peachtree Street,

N.E., Suite 3000

Atlanta, Georgia 30308

(404) 885-2743

lindsey.mann@

troutman.com

Attorneys for Petitioner

QUESTION PRESENTED

Whether a federal court must apply the

deferential review provisions of AEDPA to the state

court’s adjudication of an ineffective assistance of

counsel claim when deciding whether that claim

constitutes cause and prejudice to overcome a

procedural default.

PARTIES TO THE PROCEEDINGS

Stacey Ian Humphreys is the Petitioner here and

was the Petitioner-Appellant below.

Shawn Emmons, in his official capacity as

Warden of the Georgia Diagnostic & Classification

Prison, is the Respondent here and was the

Respondent-Appellee below.

iii

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

Superior Court of Cobb County, Georgia:

The State of Georgia v. Stacey Ian Humphreys,

No. 04-9-0673-05 (Sept. 30, 2007)

Superior Court of Butts County, Georgia:

Stacey Ian Humphreys v. Bruce Chatman,

Warden, Georgia Diagnostic and Classification

Prison, No. 2011-V-160 (Mar. 10, 2016)

Supreme Court of Georgia:

Humphreys v. The State, No. S09P1428 (Mar. 15,

2010)

Stacey Ian Humphreys v. Bruce Chatman,

Warden, No. S16E1799 (Aug. 28, 2017)

United States District Court for the Northern

District of Georgia:

Stacey Ian Humphreys v. Eric Sellers, No. 1:18cv-02534-LMM (Sept. 16, 2020)

United States Court of Appeals for the Eleventh

Circuit:

Stacey Ian Humphreys v. Warden, Georgia

Diagnostic Prison, No. 21-10387 (June 11, 2024)

Supreme Court of the United States:

Stacey Ian Humphreys v. Georgia, No. 10-6322

(Nov. 15, 2010)

Stacey Ian Humphreys v. Eric Sellers, No. 177306 (Apr. 16, 2018)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEEDINGS ........................ ii

STATEMENT OF RELATED PROCEEDINGS ...... iii

PETITION FOR WRIT OF CERTIORARI .................1

DECISIONS BELOW..................................................6

JURISDICTION ..........................................................6

CONSTITUTIONAL PROVISIONS

INVOLVED .............................................................7

STATUTORY AND REGULATORY

PROVISIONS INVOLVED .....................................7

STATEMENT ..............................................................8

A. Trial Proceedings ........................................9

1. A biased and unqualified juror, Linda

Chancey, was seated on Mr.

Humphreys’s jury. .................................9

2. All eleven other jurors were willing to

vote for a sentence of life without

parole. ...................................................10

3. The jury’s deadlock entitled Mr.

Humphreys to a non-death sentence

under Georgia law but Ms. Chancey

coerced a death verdict. .......................12

B. Motion for New Trial and Appeal

Proceedings ...............................................15

C. State Habeas Corpus Proceedings ...........17

1. The state habeas court found

Humphreys’s juror misconduct claim

was procedurally defaulted. ................17

2. The Supreme Court of Georgia held

that Humphreys’s juror misconduct

claim was procedurally defaulted. ......18

D. Federal Habeas Corpus Proceedings........19

1. The District Court denied relief. .........19

2. The Eleventh Circuit applied AEDPA

deference to the cause-and-prejudice

question ................................................20

REASONS FOR GRANTING THE PETITION .......21

A. The Courts of Appeal Are Divided on

Whether Cause and Prejudice Is

Reviewed Under AEDPA. .........................23

1. The Third, Sixth, and Ninth Circuits

review nested ineffective assistance

claims in the cause-and-prejudice

context de novo.....................................23

2. The Seventh Circuit reviews nested

ineffectiveness claims in the causeand-prejudice context by applying

AEDPA deference. ...............................25

B. The Decisions of the Third, Sixth, and

Ninth Circuits Are Consistent with the

Text of 28 U.S.C. § 2254(d) .......................25

C. The Question Is of Exceptional

Importance. ...............................................27

vii

1. The lower federal courts frequently

confront

nested

ineffectiveness

claims in the cause-and-prejudice

context. .................................................27

2. The availability of habeas relief often

turns on whether deference is owed,

as it does here. .....................................28

CONCLUSION ..........................................................34

viii

TABLE OF APPENDICES

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT, FILED JUNE 11,

2024 ........................................................................1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF GEORGIA,

ATLANTA

DIVISION,

FILED

SEPTEMBER 16, 2020 ........................................75a

APPENDIX C — OPINION OF THE

SUPREME COURT OF GEORGIA, DATED

AUGUST 28, 2017 .............................................207a

APPENDIX D — FINAL ORDER OF THE

SUPERIOR COURT OF BUTTS COUNTY,

STATE OF GEORGIA, FILED MARCH 10,

2016 ....................................................................212a

APPENDIX E — ORDER DENYING

REHEARING BY THE UNITED STATES

COURT

APPEALS

FOR

THE

ELEVENTH CIRCUIT, FILED OCTOBER

3, 2024 ................................................................332a

TABLE OF AUTHORITIES

CASES

Allen v. United States,

164 U.S. 492 (1896) ..........................................13, 15

Beck v. Alabama,

447 U.S. 625 (1980) ................................................31

Brecht v Abrahamson,

507 U.S. 619 (1993) ................................................33

Chase v. Macauley,

971 F.3d 582 (6th Cir. 2020) ..................................24

Coleman v. Thompson,

501 U.S. 722 (1991) .................................... 22, 26, 27

Cone v. Bell,

556 U.S. 449 (2009) ..................................................3

Fischetti v. Johnson,

384 F.3d 140 (3d Cir. 2004) ................... 4, 24, 27, 29

Gray v. Hardy,

598 F.3d 324 (7th Cir. 2010) ..................................25

Hall v. Vasbinder,

563 F.3d 222 (6th Cir. 2009) ..............................4, 23

Henderson v. Campbell,

353 F.3d 880 (11th Cir. 2003) ................................22

Humphreys v. Sellers,

584 U.S. 935 (2018) ................................................19

Humphreys v. Sellers,

No. 1:18-cv-02534-LMM (N.D. Ga.).........................2

Humphreys v. State,

694 S.E.2d 316 (Ga. 2010) .....................................16

Humphreys v. Warden, Ga. Diagnostic Prison,

2024 WL 2945070 (11th Cir. 2024) .........................1

Janosky v. St. Amand,

594 F.3d 39 (1st Cir. 2010) ....................................28

Joseph v. Coyle,

469 F.3d 441 (6th Cir. 2006) ..................................23

Mattox v. United States,

146 U.S. 140 (1892) ................................................31

McDonald v. Pless,

238 U.S. 264 (1915) ................................................30

McDonough Power Equip., Inc. v. Greenwood,

464 U.S. 548 (1984) ..........................................33, 34

Morgan v. Illinois,

504 U.S. 719 (1992) ................................................30

Pena-Rodriguez v. Colorado,

580 U.S. 206 (2017) .......................... 5, 21, 30, 32, 33

Powell v. Kelly,

531 F.Supp.2d 695 (E.D. Va. 2008) .......................28

Richardson v. Lemke,

745 F.3d 258 (7th Cir. 2014) ........................ 4, 23, 25

Sealey v. Warden, Ga. Diagnostic Prison,

954 F.3d 1338 (11th Cir. 2020) ..............................25

Shoop v. Twyford,

142 S. Ct. 2037 (2022) ............................................28

Strickland v. Washington,

466 U.S. 668 (1984) ................................ 4, 19, 20, 22

Tavarez v. Larkin,

814 F.3d 644 (2d Cir. 2016) ...................................28

United States v. Reid,

53 U.S. 361 (1851) ..................................................30

Visciotti v. Martel,

862 F.3d 749 (9th Cir. 2016) ........................ 4, 24, 26

Ward v. Hall,

592 F.3d 1144 (11th Cir. 2010) ..............................20

Warger v. Shauers,

574 U.S. 40 (2014) ................................ 31, 32, 33, 34

Woodson v. North Carolina,

428 U.S. 280 (1976) ................................................30

Wrinkles v. Buss,

537 F.3d 804 (7th Cir. 2008) ..................................25

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VI ......................................4, 7, 22

U.S. Const. amend. VIII..............................................7

U.S. Const. amend. XIV ..............................................7

STATUTES, RULES AND REGULATIONS

28 U.S.C. § 1254 ..........................................................7

28 U.S.C. § 2101 ..........................................................6

Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA),

28 U.S.C. § 2254 ........................... 3–8, 19–27, 29, 34

xii

Fed. R. Evid. 606(b) advisory committee’s note

(1972) ......................................................................30

O.C.G.A. § 17-10-31(c) .........................................13, 14

O.C.G.A. § 17-9-41...............................................16, 18

Supreme Court Rule 13.5 ...........................................7

Supreme Court Rule 30.2 ...........................................7

OTHER AUTHORITIES

Nancy J. King et al., Final Technical Report:

Habeas Litigation in U.S. District Courts 28

(Aug. 21, 2007), available at

https://www.ncjrs.gov/pdffiles1/nij/grants/219

559.pdf ....................................................................27

17B Wright & Miller, Federal Practice &

Procedure § 4266.1 (3d ed.) ....................................27

2 William J. Rich, Modern Constitutional Law

§ 31:38 (3d ed.) .......................................................27

PETITION FOR WRIT OF CERTIORARI

Before the start of Stacey Humphreys’s Georgia

capital trial, juror Linda Chancey revealed that she

had been the victim of an attempted rape and robbery.

Humphreys v. Warden, Ga. Diagnostic Prison, 2024

WL 2945070 (11th Cir. 2024) (unpublished) (Pet. App.

7a). “Chancey swore under oath during voir dire that

her attacker”—“a convicted murderer who had

escaped from a mental hospital”—“‘didn’t do [her] any

physical bodily harm’ because she ‘escape[d] before he

actually physically entered the dwelling.’” Id. at 71a

(Rosenbaum, J., concurring) (alterations in original).

But “[t]hat was false[.]” Id.

“In contrast to her answers during the voir dire

process,” Chancey told her fellow jurors that this

intruder did attack her while she laid naked in bed.

Id. at 7a. She reiterated this truth after trial, telling

investigators that she was nearly sexually assaulted

inside her home. Id. at 8a. “These were important

facts, and had Humphreys’s lawyers known of them,

they could have exercised the remaining peremptory

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.” Id. at 71a

(Rosenbaum, J., concurring).

Chancey secured a seat on Humphreys’s jury, and

her bias was decisive in his death sentence. When the

other eleven jurors reached consensus on a life

without parole sentence, Chancey “snapped.” D.42-

7:443.1 Juror Darrell Parker recalled: “it was as if an

evil force took over[.]” D.33-12:13. Ms. Chancey began

yelling and swearing, and she threw photos of the

victims’ bodies across the table demanding, “do you

want this to happen to someone you know?” Pet. App.

9a. She deliberately misled the other jurors to believe

that “they had to reach a unanimous decision or

[Humphreys] would be paroled” and screamed that

she intended to “stay here till forever if it takes it for

him to get death.” Id. (alteration in original); D.3312:14, 18. Ms. Chancey deceived the trial court as

well, editing a note to the court in order to conceal the

intractability of the jury’s deadlock and avoid a

mistrial. Pet. App. 9a–10a.

For days, Ms. Chancey refused to engage in

deliberations—she “put her feet up on the table and

said that she [] would not change her vote,” id. at 9a;

D.33-12:18—until each of her fellow jurors was forced

to surrender their honestly held convictions. As the

jury foreperson later testified, giving up her life

sentence vote “was one of the hardest things [she had]

ever done because [she] was not true to [her] own

1 Unless otherwise noted, record citations in this petition

refer to the district court record below in Humphreys v. Sellers,

No. 1:18-cv-02534-LMM (N.D. Ga.), and are in the following

form: District Court Docket Number - Attachment Number: page

number range. For example, the citation “D.42-7:443” would

refer to the Respondent’s Notice of Filing at District Court

Docket Entry 42, Attachment Number 7, page 443.

belief about what the proper sentence should be.” Pet.

App. 15a (alterations in original).

Humphreys’s appellate counsel failed to raise a

plainly meritorious juror misconduct claim at his

Motion for New Trial proceedings or on direct appeal.

As a consequence, Georgia law imposed a procedural

bar to any future consideration of jury misconduct

and the state postconviction courts could not review

the claim. Pet. App. 210a, 224a–225a, 228a–229a.

Humphreys’s federal habeas corpus petition

raised both a claim that his appellate counsel

provided ineffective representation in failing to

litigate the juror misconduct claim, and also alleged

that appellate counsel’s ineffective representation

provided the necessary cause and prejudice to

overcome the default of his separate jury misconduct

claim.

The deferential review provisions in subsection

(d) of the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.

1214, apply to claims that were rejected on the merits

by a state court. A federal court evaluates procedural

default questions de novo, including—crucially—

whether there is cause for and sufficient prejudice to

excuse a procedural bar imposed by the state court

when a prisoner failed to timely present his claim.

Cone v. Bell, 556 U.S. 449, 472 (2009).

The courts of appeal are divided, however, on how

to review a Sixth Amendment claim, like

Humphreys’s, that sits in both roles: on one hand,

adjudicated on the merits in state court, and on the

other, separately pled to constitute the cause and

prejudice necessary to excuse the procedural bar of

another claim in federal court. The Third, Sixth, and

Ninth Circuits have held that under such

circumstances, the cause-and-prejudice question

must be decided de novo. See, e.g., Fischetti v.

Johnson, 384 F.3d 140, 154–55 (3d Cir. 2004); Hall v.

Vasbinder, 563 F.3d 222, 236–37 (6th Cir. 2009);

Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016).

The Seventh Circuit, in contrast, evaluates cause and

prejudice through the deferential lens of § 2254(d).

See Richardson v. Lemke, 745 F.3d 258, 273 (7th Cir.

2014).

Here, the difference between de novo review and

deference is a matter of life and death. The Supreme

Court of Georgia ruled that Humphreys’s appellate

ineffectiveness claim failed on Strickland’s prejudice

prong, holding that the majority of Humphreys’s

evidence in support of the omitted misconduct claim

was inadmissible under Georgia’s no-impeachment

rule, which generally bars consideration of juror

testimony regarding jury deliberations to undermine

a verdict. According to the Georgia high court, the

Constitution does not compel an exception in the

circumstances here. And in the absence of admissible

proof, the juror misconduct claim would have failed if

counsel had raised it on direct appeal.

As Judge Rosenbaum wrote in the Eleventh

Circuit below, there is no question that the

manipulations of a biased juror were decisive in Mr.

Humphreys’s sentence. Pet. App. 72a–73a. But for

that juror’s actions, “Humphreys would have been

sentenced to life imprisonment without the possibility

of parole.” Id. at 72a. But applying AEDPA deference

to the Supreme Court of Georgia’s resolution of the

appellate

ineffectiveness

claim

“cuts

off”

Humphreys’s only avenue to relief from the ill-gotten

death verdict: a constitutionally-mandated exception

to the juror no-impeachment rule. Id. at 73a. While

this Court’s precedents establish that exceptions are

warranted in rare cases, this Court has not clearly

established that an exception is compelled in the face

of deliberate, malicious juror misconduct in the

penalty phase of a capital case. See, e.g., PenaRodriguez v. Colorado, 580 U.S. 206, 216 (2017)

(noting that the Court has “reiterate[d] that the noimpeachment rule may admit exceptions,” including

in cases of “juror bias so extreme that, almost by

definition, the jury trial right has been abridged”). De

novo review offers the federal courts the only

opportunity to confront the question squarely and

redress the violation of Humphreys’s jury trial right.

Thus the instant petition squarely presents the

question of whether AEDPA deference applies to

claims of appellate ineffective assistance of counsel

that were adjudicated by the state court but are also

“nested” within the cause-and-prejudice inquiry. It

provides the Court with an opportunity to interpret

AEDPA consistent with its plain text and provide the

lower federal courts with vital guidance on a

recurring question of AEDPA’s reach.

This Court should grant the Petition.

DECISIONS BELOW

The unpublished opinion of the Court of Appeals,

entered June 11, 2024, affirming the denial of relief

by the United States District Court for the Northern

District of Georgia is Pet. App. 1a–74a. The October

3, 2024 order of the Court of Appeals denying a

petition for panel rehearing and rehearing en banc is

Pet. App. 332a–333a. The September 16, 2020 opinion

of the district court denying Mr. Humphreys’s petition

for writ of habeas corpus is Pet. App. 75a–206a. The

August 28, 2017 opinion of the Supreme Court of

Georgia denying Mr. Humphreys a Certificate of

Probable Cause to Appeal is Pet. App. 207a–211a. The

March 10, 2016 opinion of the Superior Court of Butts

County denying Mr. Humphreys a writ of habeas

corpus is Pet. App. 212a–331a.

JURISDICTION

The Eleventh Circuit denied Humphreys’s timely

petition for panel rehearing and rehearing en banc on

October 3, 2024. Pet. App. 332a–333a. On December

13, 2024, Justice Thomas granted an application to

extend the time to file a Petition for Writ of Certiorari

until January 31, 2025. See 28 U.S.C. § 2101 and

Supreme Court Rules 13.5 and 30.2. This Court has

jurisdiction to review the Eleventh Circuit’s judgment

under 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS INVOLVED

This petition invokes the Sixth, Eighth, and

Fourteenth Amendments to the United States

Constitution, which state in pertinent part:

“In all criminal prosecutions, the

accused shall enjoy the right to…trial []

by an impartial jury…and to have the

Assistance of Counsel for his defense.”

U.S. CONST. AMENDMENT VI.

“…nor shall cruel and unusual

punishments [be] inflicted.” U.S. CONST.

AMENDMENT VIII.

“[N]o 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. U.S. CONST.

AMENDMENT XIV.

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Title 28 U.S.C. § 2254 provides, in relevant part:

§ 2254. State custody; remedies in

Federal courts

...

(d) 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.

STATEMENT

On the afternoon of November 3, 2003, Lori

Brown and Cynthia Williams were shot, strangled,

and robbed of their ATM and credit cards in the Cobb

County, Georgia model home where they worked as

real estate agents. Humphreys was convicted of the

murders after a month-long trial in September 2007.

When the jurors—who were sequestered

throughout—began their penalty phase deliberations

on Friday, September 28, it became obvious they were

deadlocked. Evidence later presented in state

postconviction proceedings revealed that the deadlock

was broken only through coercive misconduct

committed by an unqualified juror who had

deliberately concealed her bias in order to obtain a

seat on Humphreys’s jury.

A. Trial Proceedings

1. A biased and unqualified juror, Linda

Chancey, was seated on Mr. Humphreys’s

jury.

On the eleventh day of voir dire, the parties

questioned prospective juror L.A. Chancey. See, e.g.,

D.35-7:54–67, 270–75, 289–90. On her juror questionnaire, Ms. Chancey indicated that she had been the

victim of an armed robbery and attempted rape by an

escaped convict. Pet. App. 7a; D.42-7:485. When

asked about this experience, she responded that her

attacker “actually didn’t do [her] any physical bodily

harm. [She] was able to escape before he ever actually

physically entered the dwelling.” Pet. App. 7a

(alterations in original) (emphasis added); D.357:273. She also revealed that a close friend worked as

a real estate agent—the same occupation as the

victims in this case, who were killed at work. D.359:19–20; D.42-7:477; Pet. App. 3a. Nevertheless, she

professed no bias against Mr. Humphreys. These

representations were false.

2. All eleven other jurors were willing to vote

for a sentence of life without parole.

Ms. Chancey’s fellow jurors testified in

postconviction proceedings that she “had her mind

made up” “from day one”; “early in trial – before the

end of the [guilt] phase – she said something along the

lines of he’s guilty and he deserves to die.” Pet. App.

8a; D.42-8:58–60. During posttrial interviews,

Chancey herself admitted that she “would only vote

for death.” Pet. App. 8a; D.33-12:19.

But each of the eleven other jurors was willing to

vote for a sentence of life without parole.

The penalty phase of Mr. Humphreys’s trial

ended on Friday, September 28, 2007 and the

deliberations began at 4:18 that afternoon. D.3610:17. At some point that evening, the jury took an

initial vote. Three jurors voted for life imprisonment

without parole, while the remaining nine jurors cast

their votes for death. See D.42-8:60; Pet. App. 8a.

Initially, the jurors told the court that they wished to

deliberate until 11:00 p.m. D.36-10:118. Yet when

deliberations grew hostile a short time later, they sent

a note indicating that they wanted to “leave as soon

as possible.” D.36-10:119. “Several jurors were in

tears.” D.42-8:50.

Deliberations resumed the next morning at 8:24.

D.36-10:120. Because three jurors felt strongly that

the evidence warranted a life sentence, the entire

group decided they would unanimously vote for life

without parole and inform the court of their decision.

D.42-8:60; Pet. App. 8a. “[B]ut when the jurors tallied

their votes, Chancey voted for death. At that point,

the vote was 11-1 in favor of life without parole.” Pet.

App. 8a.

The foreperson wrote a note to the court

explaining that “[w]hile [they] agreed that life

imprisonment with parole is not an option, [they]

[we]re unable to come to a unanimous decision on

either death or life imprisonment without parole as a

sentence.” Pet. App. 9a. Chancey “believed the

manner in which the foreperson originally wrote the

note could have resulted in a mistrial” which would

have meant “do[ing] it over again” or that Humphreys

“would get parole and hunt the jurors down.” Id. at

10a. So Chancey “revised the note because she did not

want to give the court the impression that the jury

was at an impasse[,]” id., adding the word “currently”

to the note as drafted: “we are currently unable to

reach a unanimous decision.” Id. In response, the

judge instructed the jurors to continue deliberating

and “address the remaining issues.” Id.

3. The

jury’s

deadlock

entitled

Mr.

Humphreys to a non-death sentence under

Georgia law but Ms. Chancey coerced a

death verdict.

Outraged that the other jurors were all voting for

life without parole, Ms. Chancey “snapped.” D.427:443. Chancey screamed that she would “stay here

till forever if it takes it for him to get death.” Pet. App.

9a. Another juror later testified that “it was as if an

evil force took over[.]” D.33-12:13. Ms. Chancey began

yelling and swearing, and she threw photos of the

victims’ bodies across the table demanding, “do you

want this to happen to someone you know?” Pet. App.

9a. Chancey told the jurors “they had to reach a

unanimous decision or [Humphreys] would be

paroled.” Id.

At a loss, the jurors sent a note asking to review

a piece of the trial evidence. D.36-10:125. When the

jury was brought out, counsel observed again that

multiple jurors were crying. D.42-8:50.

At 6:34 Saturday night, the defense moved for a

mistrial outside the presence of the jury. The defense

noted that the jury had been deliberating for 10 hours.

D.36-10:127. It was clear that deliberations had been

fraught since they began and “[t]he same is true of

today…several of them also were obviously…having a

difficult time.” D.36-10:127. The defense contended

that the charge the court gave in response to the

deadlock note was coercive, and pointed out that the

Georgia capital sentencing statute, O.C.G.A. § 17-1031(c), required imposition of a non-death sentence if

the jury deadlocked. Pet. App. 11a.

Meanwhile the jurors engaged in “angry debates

about what would happen if [they] continued to be

deadlocked.” D.42-8:61. Some jurors erroneously

believed that if they could not reach a unanimous

verdict, Humphreys “would walk and the entire trial

would have been in vain.” D.42-8:61. Chancey later

admitted that she was the source of this belief. D.3312:19.

Chancey yelled at, harassed, and “ma[de]

personal attacks on the other jurors.” Pet. App. 11a.

One juror “‘took a swing’ at Chancey and punched a

hole in the wall.” Id. at 9a. Chancey told the other

jurors about her attack at the hands of an escaped

murderer. She recounted how he had assaulted her

while she slept naked in bed years earlier, contrary to

what she told counsel during voir dire—that her

attacker never made it inside the apartment. Id. at

7a.

The foreperson sent out a second note: “Due to the

hostile nature of one of the jurors, I am asking to be

removed from the jury.” Id. at 12a. In response, the

court gave an Allen charge,2 instructing the jury, inter

alia, that “[t]he case … has been submitted to you for

2 Allen v. United States, 164 U.S. 492, 501 (1896) (approving

the use of a “dynamite” charge in the face of a deadlock).

decision and verdict, if possible, and not for

disagreement. It is the law that a unanimous verdict

is required. …”3 Id. at 12a–13a.

The jury resumed its deliberations at 8:40 p.m.

Chancey “would not articulate her reasons for voting

for death and would not engage in debate.” D.42-8:62;

D.39-26:172–73. She sat alone “in the back of the jury

room, reading or doing yoga.” D.33-12:28–29.

“[S]creaming” could be overheard from the courtroom.

Pet. App. 15a. The foreperson became “extremely

distressed and locked [herself] in the bathroom and

cried.” Id. (alteration in original). The jury retired at

10:20 p.m.

After a final night sequestered, the jurors

reconvened at 8:25 Sunday morning. The parties

could again hear screaming. D.33-12:18. Two hours

later, they sent a note to the judge informing her that

they had reached a decision. D.36-10:139. The jury

sentenced Humphreys to death. Pet. App. 15a–16a;

D.36-10:139–43.

3 To the contrary, Georgia law does not require jurors to

come to a unanimous decision on the death penalty, and

explicitly provides that “[i]f the jury is unable to reach a

unanimous 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.” O.C.G.A. § 17-10-31(c).

B. Motion for

Proceedings

New

Trial

and

Appeal

Although Humphreys’s counsel were aware of the

irregularities in the deliberations, they inexplicably

failed to raise a claim of juror misconduct.

Counsel raised a claim that the trial court’s Allen

charge was improper. In support, counsel submitted

affidavits from two defense investigators who

interviewed Linda Chancey. The investigators

detailed how Chancey invited them into her home and

showed them the personal journal that she

maintained on Humphreys’s case. D.42-7:449.

Chancey pulled the original jury deadlock note from

the trial out of her journal:

D.42-8:137. She bragged that she had added the word

“currently” because “the way the forewoman had

written it they might have gotten a mistrial,” and she

“wasn’t going to let that happen.” D.42-7:451; Pet.

App. 10a. She confirmed that she deliberately

segregated herself from the other jurors. D.42-7:453.

She informed the investigators that “[a]ll of the jurors

thought that their sentencing vote had to be

unanimous,” D.42-7:451, and admitted that she bore

responsibility for the misimpression. D.33-12:19. She

prided herself on her ability to “control what went on

in the jury room.” D.42-7:450.

The trial court—upon Humphreys’s Motion for

New Trial—refused to consider the investigator

affidavits, asserting that they were barred by

O.C.G.A. § 17-9-41, and they did not fall within any

exception. Pet. App. 16a; D.33-12:47–48. The court

denied Humphreys’s Motion for New Trial. Id. at 17a.

On appeal, Humphreys’s counsel again

inexplicably failed to raise a claim of juror

misconduct. Id. The Supreme Court of Georgia

affirmed his conviction and sentence of death on

March 15, 2010. Humphreys v. State, 694 S.E.2d 316,

333 (Ga. 2010).

C. State Habeas Corpus Proceedings

1. The state habeas court found Humphreys’s

juror misconduct claim was procedurally

defaulted.

On February 14, 2011, Humphreys filed a petition

for writ of habeas corpus in the Superior Court of

Butts County, Georgia, raising claims of, inter alia,

juror misconduct and ineffective assistance of

appellate counsel. At an evidentiary hearing on the

petition, Mr. Humphreys presented both live and

affidavit testimony from the jurors, as well as

documentary evidence, detailing the course of the jury

deliberations recounted above.

On March 10, 2016, the state habeas court issued

an order denying relief on all claims. Pet. App. 212a–

213a. The court found that the jury misconduct claim

was defaulted and, consequently, the court was

“barred from considering [it] on the[] merits due to the

fact that Petitioner has failed to demonstrate cause

and prejudice[.]” Id. at 224a.

With respect to the claim that appellate counsel

performed deficiently in failing to raise and support a

jury misconduct claim, the court held that “even if [it]

were to find that appellate counsel were deficient…,

this claim still fails as Petitioner has failed to show

resulting prejudice.” Id. at 328a. The court noted that

the affidavits of jurors4 were “inadmissible as they did

not fall within any exception to O.C.G.A. § 17-9-41

[the juror no-impeachment rule]” and “[t]herefore,

trial [sic] counsel is not deficient for failing to present

inadmissible evidence.” Id. at 328a–329a.

2. The Supreme Court of Georgia held that

Humphreys’s juror misconduct claim was

procedurally defaulted.

On July 8, 2016, Humphreys moved the Supreme

Court of Georgia for a certificate of probable cause to

appeal the denial of habeas corpus relief. In a short

written opinion, the court denied the application and

affirmed the state habeas court below. Pet. App.

207a–211a. The court ruled that Humphreys’s juror

misconduct claim was defaulted, and that the state

habeas court had correctly found that there was no

cause and prejudice to overcome that default. Id. at

208a–210a.

With respect to the ineffective assistance of

appellate counsel claim, the court noted an analytical

error in the state habeas court’s characterization of

some of the jury evidence, id. at 207a–208a, but

nevertheless affirmed. Id. at 208a–209a. The court

ruled that Humphreys’s ineffective assistance of

appellate counsel claim failed because, in the absence

of admissible evidence of juror misconduct,

4 The court did not mention the live testimony that jury

foreperson Susan Barber provided at the evidentiary hearing.

Humphreys could not satisfy the prejudice prong of

Strickland, i.e., he could not prove a reasonable

probability of success on the omitted jury claim. Id.

The Supreme Court of Georgia held that given

Humphreys could not show prejudice from appellate

counsel’s conduct, “the habeas court did not commit

reversible error by denying him relief on this claim.”

Id. at 209a.

This Court denied a timely-filed petition for writ

of certiorari to review the Supreme Court of Georgia’s

ruling on April 16, 2018. Humphreys v. Sellers, 584

U.S. 935 (2018).

D. Federal Habeas Corpus Proceedings

1. The District Court denied relief.

On May 24, 2018, Mr. Humphreys timely filed his

initial petition for writ of habeas corpus pursuant to

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

for the Northern District of Georgia. D.1. Following

briefing by both parties, the district court denied the

petition on September 16, 2020. Pet. App. 206a. The

court issued a Certificate of Appealability on

Humphreys’s claim that his trial counsel provided

prejudicially ineffective representation in failing to

adequately prepare for the penalty phase of trial. Id.

2. The Eleventh Circuit applied AEDPA

deference to the cause-and-prejudice

question

The Eleventh Circuit expanded the Certificate of

Appealability entered by the district court to include

both Humphreys’s jury misconduct claim and his

ineffective assistance of appellate counsel claim. On

June 11, 2024, the panel issued an unpublished per

curiam opinion affirming the district court’s denial of

relief. Pet. App. 70a.

While the court acknowledged that “[t]he issue of

whether a claim is subject to the doctrine of

procedural default” is reviewed de novo, id. 30a (citing

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

the panel also included a lengthy discussion of

AEDPA. It first noted that the appellate

ineffectiveness

question

was

“embedded

Humphreys’s juror-misconduct claim,” id. at 32a,

such that AEDPA deference must be applied “on top

of Strickland deference[.]” Id. at 34a. This, the panel

noted, requires a habeas petitioner to show both “that

counsel acted in a professionally unreasonable

manner (under Strickland) and that the state court’s

contrary determination was objectively unreasonable

(under § 2254).” Id. (parentheticals in original). After

noting that the state courts had found that

Humphreys’s appellate-ineffectiveness and juror

misconduct claims failed because the supporting

evidence was inadmissible, id. at 35a, the Eleventh

Circuit considered that ruling in light of

“constitutional standards of fairness that require

criminally accused defendants to enjoy a panel of fair

and impartial jurors.” Id. at 37a. Though “concerned

by Chancey’s conduct,” id. at 43a, the court

nevertheless affirmed the denial of habeas relief. Id.

at 70a.

While the per curiam majority’s discussion

includes elements of both de novo and deferential

review, Judge Rosenbaum’s concurrence underlined

that she believed the result was compelled by

AEDPA’s deference provisions. She noted that this

Court has previously acknowledged an exception to

the no-impeachment rule “in the gravest and most

important cases,” but “AEDPA’s standard of review

cuts off that avenue for granting the petition.” Pet.

App. 73a (Rosenbaum, J., concurring). Because this

Court “has applied the exception [to the juror noimpeachment rule] in only a single case ever,” see

Pena-Rodriguez, 580 U.S. at 225, it cannot be said

that the Georgia courts’ failure to apply the exception

here was unreasonable under AEDPA. Pet. App. 73a–

74a (Rosembaum, J., concurring).

REASONS FOR GRANTING THE PETITION

This case squarely presents a question that has

divided the circuits: Whether AEDPA deference

applies to claims of ineffective assistance of counsel

that were adjudicated by the state court but are also

nested within the cause-and-prejudice inquiry. The

Eleventh Circuit’s opinion here highlights the vital

need for this Court to provide clarity on this question.

And Mr. Humphreys’s case—where the differing

standards are the difference between life and death—

is the ideal vehicle for this Court to do so.

When a habeas applicant alleges that his

attorney’s ineffective representation provides the

necessary cause and prejudice to overcome a default,

the cause and prejudice analysis mirrors the twopronged test set forth in Strickland v. Washington,

466 U.S. 668 (1984). Counsel’s unreasonably deficient

performance provides the “objective factor external to

the defense [that] impeded the effort to raise the claim

properly in the state court,” e.g., it constitutes “cause”

for the default. Pet. App. 31a (citing Henderson v.

Campbell, 353 F.3d 880, 892 (11th Cir. 2003)); see also

Coleman v. Thompson, 501 U.S. 722, 754 (1991)

(holding that a Sixth Amendment violation

establishes “cause”). And to establish prejudice from

the default, “a petitioner must show that ’there is at

least a reasonable probability that the result of the

proceeding would have been different.’” Pet. App. 32a

(quoting Henderson, 353 F.3d at 892). In other words,

the cause and prejudice analysis is coextensive with

the Strickland analysis.

Every day, prisoners seeking redress of

constitutional violations from the federal courts

under 28 U.S.C. § 2254(d) allege that prior counsel’s

failure

provide

adequate

representation

establishes the cause necessary to allow the federal

courts to adjudicate a previously defaulted claim.

These “nested ineffective assistance issues” present in

a considerable subset of petitions for federal habeas

corpus relief by state prisoners. See Richardson, 745

F.3d at 273 (noting that the Seventh Circuit’s

treatment of “nested” claims differs from its sister

circuits). Whether AEDPA mandates that they

receive deferential review is a question of vital

importance.

A. The Courts of Appeal Are Divided on

Whether Cause and Prejudice Is

Reviewed Under AEDPA.

1. The Third, Sixth, and Ninth Circuits

review nested ineffective assistance claims

in the cause-and-prejudice context de novo.

Three courts of appeal acknowledge that

AEDPA’s text does not extend its deferential review

provisions to the question of cause-and-prejudice. The

Sixth Circuit has stated plainly “that ineffective

assistance of counsel [to] excuse a procedural default

is treated differently than a free-standing claim of

ineffective assistance of counsel. The latter must meet

the higher AEDPA standard of review, while the

former need not.” Hall, 563 F.3d at 236–37 (internal

quotations omitted); see also Joseph v. Coyle, 469 F.3d

441, 459 (6th Cir. 2006) (“Although Joseph must

satisfy the AEDPA standard with respect to his

independent IAC claim, he need not do so to claim

ineffective assistance for the purpose of establishing

cause.”); Chase v. Macauley, 971 F.3d 582, 592 (6th

Cir. 2020) (same).

The Third Circuit, too, performs de novo review,

and has acknowledged that this may lead to different

outcomes for the same ineffectiveness claim:

How can the denial of counsel suffice to

establish cause to overcome a procedural

default when we have already ruled that

it is not sufficient as a stand-alone claim

to warrant reversal of the underlying

convictions? The answer lies in the

differing standard for evaluating

constitutional error as a substantive

basis of relief and as a cause to avoid

default of other claims…AEDPA

authorizes the writ of habeas corpus to

be granted only for clearly erroneous

applications of Supreme Court case

decisions. The constitutional error here

does not meet this threshold. But

AEDPA does not establish a statutory

high hurdle for the issue of cause.

Fischetti, 384 F.3d at 154–55. The Ninth Circuit

“agree[d] with its sister circuits that have reviewed

IAC claims in the cause-and-prejudice context de

novo.” Visciotti, 862 F.3d at 769 (quoting Fischetti,

384 F.3d at 154). It too applies a “differing standard

for evaluating constitutional error as a substantive

basis of relief and as a cause to avoid default of other

claims.” Id. (quoting Fischetti, 384 F.3d at 154).

2. The Seventh Circuit reviews nested

ineffectiveness claims in the cause-andprejudice context by applying AEDPA

deference.

In contrast, the Seventh Circuit applies AEDPA’s

limitations to the default inquiry: “In our circuit,

when we review a state court's resolution of an

ineffective assistance claim in the cause-andprejudice context, we apply the same deferential

standard as we would when reviewing the claim on its

own merits.” Richardson, 745 F.3d at 273; see also

Wrinkles v. Buss, 537 F.3d 804, 813 (7th Cir. 2008)

(applying § 2254(d) to cause); Gray v. Hardy, 598 F.3d

324, 330–31 (7th Cir. 2010) (“that [state] ruling [on

ineffectiveness] would be entitled to our deference”).

The Eleventh Circuit has not yet answered this

question, avoiding the creation of binding precedent

on this issue. Sealey v. Warden, Ga. Diagnostic

Prison, 954 F.3d 1338, 1365 n.16 (11th Cir. 2020)

(“[W]e needn’t address the conflict here…”). And its

obstruse, unpublished opinion in the instant case only

highlights the pervasive confusion over the scope of

proper review.

B. The Decisions of the Third, Sixth, and

Ninth Circuits Are Consistent with the

Text of 28 U.S.C. § 2254(d)

Humphreys’s juror misconduct claim arrived

before the federal courts having never been

adjudicated on the merits, and so § 2254(d) should

play no part in its adjudication. The approach utilized

by the majority of circuits that have addressed this

question is the proper one.

The text of Subsection (d), which establishes

AEDPA’s deferential regime, is self-limiting:

An application for a writ of habeas

corpus…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...; or

(2) resulted in a decision that was based on

an unreasonable determination of the

facts in light of the evidence presented…

28 U.S.C. § 2254(d) (emphasis added). An allegation

of cause-and-prejudice is not a “claim.”

As the Ninth Circuit observed, nothing in

Subsection (d) alters the long-established Coleman

cause-and-prejudice standard. Visciotti, 862 F.3d at

769. Coleman resolved the cause question “based on a

straightforward analysis of whether the denial of

counsel was ‘an independent constitutional vio-

lation.’” Id. (quoting Fischetti, 384 F.3d at 154–55,

and Coleman, 501 U.S. at 755). “Absent any

indication to the contrary in AEDPA, the Coleman

independent constitutional analysis continues to

apply, post-AEDPA, to a contention that trial counsel

IAC constitutes cause to excuse a procedural default.”

Id. The Seventh Circuit, and the Eleventh Circuit

here, should adjudicate the counsel question with a

“straightforward analysis” of the “independent

constitutional violation.”

C. The Question Is of Exceptional

Importance.

1. The lower federal courts frequently

confront nested ineffectiveness claims in

the cause-and-prejudice context.

Habeas corpus actions on behalf of state prisoners

overwhelmingly

present

questions

the

enforceability of a state court procedural default.5

And when procedural default is at issue,

consideration

counsel

ineffectiveness

inextricable. 17B Wright & Miller, Federal Practice &

Procedure § 4266.1 (3d ed.) (“Almost all procedural

defaults are attributable to counsel.”); 2 William J.

Rich, Modern Constitutional Law § 31:38 (3d ed.)

(“Unfortunately, the ‘cause’ of procedural defaults in

5 See Nancy J. King et al., Final Technical Report: Habeas

Litigation in U.S. District Courts 28 (Aug. 21, 2007), available at

https://www.ncjrs.gov/pdffiles1/nij/grants/219559.pdf.

all too many cases stems from failure on the part of

defense counsel who handled the state trial or

appeal.”).

How to operationalize the inquiry is a matter of

importance, both for the state prisoners seeking to

vindicate constitutional trial rights and for States

seeking to vindicate the validity and finality of their

convictions. See Shoop v. Twyford, 142 S. Ct. 2037,

2043 (2022). The lack of clarity on the proper

standard has led a number of courts to avoid

confronting the question where they were able to do

so. Janosky v. St. Amand, 594 F.3d 39, 44–45 (1st Cir.

2010) (noting the court was “reluctant to address an

important issue without adversarial briefing” and

that the case could simply be resolved on de novo

review); Tavarez v. Larkin, 814 F.3d 644, 650 (2d Cir.

2016) (finding that the court “need not decide which

standard of review applies” because the underlying

defaulted claims were without merit); Powell v. Kelly,

531 F.Supp.2d 695 (E.D.Va. 2008) (“whatever

significance this dispute…may have in some close

cases, it is academic here given that Powell's

ineffectiveness claim asserted as cause for default

fails under both [standards]”).

2. The availability of habeas relief often turns

on whether deference is owed, as it does

here.

The question presented is decisive for many state

prisoners seeking relief and States defending their

lawful judgments. As the Third Circuit observed,

applying the differing standards often leads to

differing outcomes. Fischetti, 384 F.3d at 154–55.

That could not be more clear than in the instant

case. As Judge Rosenbaum observed, “faithful[]

appl[ication of] AEDPA’s standard of review,” Pet.

App. 74a, renders relief unavailable for Mr.

Humphreys in spite of the blatant violation of his

right to an impartial and reliable jury determination

of his sentence:

[T]wo things seem clear: (1) [juror]

Chancey was dishonest 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.

Id. at 72a (Rosenbaum, J., concurring). Whether these

errors find redress depends on the answer to the de

novo-versus-deference question.

This Court’s precedents strongly indicate that the

no-impeachment rule must yield here. This Court has

long recognized that in “the gravest and most

important cases,” it would be impossible to refuse

juror testimony “without violating the plainest

principals of justice.” McDonald v. Pless, 238 U.S.

264, 268 (1915); United States v. Reid, 53 U.S. 361,

366 (1851); see Pena-Rodriguez, 580 U.S. at 225

(holding that the no-impeachment rule must give way

when racial bias infected jury deliberations); Fed. R.

Evid. 606(b) advisory committee’s note (1972) (“The

familiar rubric that a juror may not impeach his own

verdict, dating from Lord Mansfield’s time, is a gross

oversimplification…simply putting verdicts beyond

effective reach can only promote irregularity and

injustice”).

Moreover, capital cases, which are undoubtedly

the “gravest and most important,” demand

heightened reliability under the Constitution.

Woodson v. North Carolina, 428 U.S. 280, 305 (1976)

(plurality) (“the penalty of death is qualitatively

different from a sentence of imprisonment, however

long…Because of that qualitative difference, there is

a corresponding difference in the need for reliability

in the determination that death is the appropriate

punishment in a specific case.”). Accordingly, capital

juries are subject to heightened scrutiny as well. See,

e.g., Morgan v. Illinois, 504 U.S. 719, 730 (1992) (“we

have not hesitated, particularly in capital cases, to

find that certain inquiries must be made to effectuate

constitutional protections”). It is axiomatic that the

Constitution requires impartiality from jurors in a

capital sentencing proceeding. Beck v. Alabama, 447

U.S. 625, 637 (1980).

Mattox v. United States, the only capital case from

this Court to confront the no-impeachment rule,

further highlights these obligations. 146 U.S. 140

(1892). There, the Court held that a lower court’s

exclusion of juror affidavits detailing extraneous,

prejudicial information constituted reversible error.

Id. at 148–49. The Court’s chief concern was the

impropriety of the extrajudicial influences at issue—

not internal juror bias or misconduct. Id. Nonetheless,

in side-stepping the prevailing “public policy” of the

rule, for “the interest of justice,” the Court

emphasized the broad necessity of juror impartiality

in capital proceedings: “It is vital in capital cases that

the jury should pass upon the case free from external

causes tending to disturb the exercise of deliberate

and unbiased judgment. Nor can any ground of

suspicion that the administration of justice has been

interfered with be tolerated.” Id. (emphasis added).

The intentionally underhanded nature of Linda

Chancey’s conduct here weighs heavily in favor of a

constitutional imperative. Two cases are illustrative.

In Warger v. Shauers, a civil damages case, a juror

failed to disclose during voir dire that her daughter

had been at fault in a prior motor vehicle accident.

574 U.S. 40, 42 (2014). During deliberations, she

remarked that a lawsuit “would have ruined her

[daughter’s] life.” Id. at 43. The only evidence

regarding the juror’s statement was the affidavit of

another juror. Id. at 43–44. This Court ruled the juror

affidavit inadmissible, holding “that Rule 606(b)

applies to juror testimony during a proceeding in

which a party seeks to secure a new trial on the

ground that a juror lied during voir dire.” Id. at 44.

In contrast, in Pena-Rodriguez, a juror repeatedly

denied racial bias during voir dire and alleged there

was nothing that would “make it difficult for [him] to

be a fair juror.” 580 U.S. at 211–12. These statements

proved to be false, as he told his fellow jurors that

“nine times out of ten Mexican men were guilty of

being aggressive toward women and young girls,” and

“Mexican men had a bravado that caused them to

believe they could do whatever they wanted with

women.” Id. The Court held that the no-impeachment

rule must yield to guard against the insidious and

corrupting effect of racial bias in our system of justice.

Id.

Likewise, the Constitution cannot tolerate a juror

intentionally and repeatedly misleading the parties

and the trial court with the intention of producing a

death sentence. During voir dire, Chancey lied about

the circumstances of her assault at the hands of a

violent escapee, concealing facts from which the

parties could infer bias. Pet. App. 71a (Rosenbaum, J.,

concurring). When the other jurors sent a note to the

trial judge to convey their deadlock, Chancey altered

its meaning. Id. at 9a–10a. After the trial, she

admitted that she had altered the note specifically to

mislead the trial court: she knew that the note would

lead to a mistrial, and she “couldn’t let that happen”

because, if she did, “the defendant would get parole

and hunt the jurors down.” Id. at 10a; D.42-7:451.

Unlike the information that the civil juror neglected

to reveal in Warger, Chancey intentionally concealed

evidence of her bias. And in Warger, the omitted

information revealed itself during an isolated

comment by the juror during deliberations. Here,

Chancey manipulated the entire deliberations process

end-to-end in order to secure a death verdict that

other jurors did not believe was warranted.

Chancey’s bias is far more akin to that this Court

confronted in Pena-Rodriguez. True, her actions did

not present as a boorish, derogatory statement

concerning an immutable characteristic of Mr.

Humphreys. But her misconduct was more

pronounced and insidious, as she took calculated,

manipulative steps to achieve her stated goal of

securing a death sentence. Indeed, it was outcome

determinative. Pet. App. 72a–74a (Rosenbaum, J.,

concurring) (“Put simply, I do not doubt that the

errors here ‘actually prejudice[d]’ Humphreys.”

(quoting Brecht v Abrahamson, 507 U.S. 619, 637

(1993)). In the process, Chancey entirely eschewed

her responsibilities as a juror and deprived the other

jurors of an opportunity to vote their conscience. See

D.33-12:28–29. Such intentional dishonesty is

constitutionally intolerable. See McDonough Power

Equip., Inc. v. Greenwood, 464 U.S. 548, 549 (1984);

id. at 556 (Blackmun, J., concurring); Irvin v. Dowd,

366 U.S. 717, 722 (1961).

On de novo review, the no impeachment rule

would yield in the face of Chancey’s conduct “so

extreme that, ... by definition, the jury trial right has

been abridged.” Warger, 574 U.S. at 51; see Pet. App.

71a–74a (Rosenbaum, J., concurring). It is the

application of AEDPA to the cause-and-prejudice

inquiry that “cuts off that avenue.” Pet. App. 73a

(Rosenbaum, J., concurring). This Court should

clarify the proper analysis of nested ineffective

assistance of counsel claims and remand the case to

the Eleventh Circuit for an adjudication of

Humphreys’s juror misconduct claim.

CONCLUSION

The petition for a writ of certiorari should be

granted, the decision below summarily reversed, and

the case remanded to the Eleventh Circuit for proper

adjudication under de novo review. Alternatively, the

writ should be granted and the case set for full

briefing and argument.

Respectfully submitted,

KELYN J. SMITH

S. JILL BENTON

FEDERAL DEFENDER

PROGRAM, INC.

101 Marietta Street,

Suite 1500

Atlanta, Georgia 30303

January 31, 2025

LINDSEY B. MANN

Counsel of Record

TROUTMAN PEPPER

LOCKE LLP

600 Peachtree Street,

N.E., Suite 3000

Atlanta, Georgia 30308

(404) 885-2743

lindsey.mann@

troutman.com

APPENDIX

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N IO N O F T H E

UNITED STATES COURT OF

A PPE A LS FOR T H E ELE V EN T H

CIRCUIT, FILED JUNE 11, 2024 . . . . . . . . . . . . . . . 1a

A PPEN DI X B — OR DER OF T H E

UNITED STATES DISTRICT COURT

FOR THE NORTHERNDISTRICT OF

GEORGIA, ATLANTA DIVISION, FILED

SEPTEMBER 16, 2020 . . . . . . . . . . . . . . . . . . . . . . . 75a

A P P E N DI X C — O P I N ION O F T H E

SU PR EM E C OU RT OF GEORGI A ,

DATED AUGUST 28, 2017 . . . . . . . . . . . . . . . . . . . 207a

APPENDIX D — FINAL ORDER OF THE

SUPERIORCOURTOFBUTTSCOUNTY,STATE

OF GEORGIA, FILED MARCH 10, 2016 . . . . . . 212a

APPENDIX E — ORDER FOR REHEARING

OF T H E U N I T ED S TAT E S C OU RT

OF A PPEA LS FOR THE ELEV ENTH

CIRCUIT, FILED OCTOBER 3, 2024 . . . . . . . . 332a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT, FILED JUNE 11, 2024

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.

Filed June 11, 2024

Appeal from the United States District Court

for the Northern District of Georgia

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

OPINION

Before William Pryor, Chief Judge, and Rosenbaum and

Newsom, Circuit Judges.

PER CURIAM:

Petitioner Stacey Humphreys, a death-row inmate in

Georgia, filed a petition for writ of habeas corpus pursuant

Appendix A

to 28 U.S.C. § 2254. Between the district court and this

Court, Humphreys received a certificate of appealability

(“COA”) on four issues. First, Humphreys asserts that

juror misconduct and bias plagued the proceedings

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 during the investigation

and presentation of mitigating evidence and that his

appellate counsel was ineffective for failing to raise the

juror-misconduct claim sooner.

After careful consideration of the claims and with the

benefit of oral argument, we affirm the district court’s

denial of the habeas petition.

BACKGROUND

Facts

Humphreys was arrested for the murders of Cynthia

Williams and Lori Brown in November 2003. Jimmy Berry

was appointed as trial counsel. After the state issued its

notice of intent to seek the death penalty in February

2004, the Georgia Capital Defender’s Office (“GCD”)

signed onto the case with its director, 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 Adams and worked on the case from January

2006 until June 2007. At that time, Deborah Czuba (who

Appendix A

had also been working on the case during the same period

as Thompson) became the second-chair attorney. Berry

was first chair, presenting both the guilt and sentencing

phases.

At trial, the evidence showed the following tragic facts

relating 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 calling 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 discovered, 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 Ms. Williams[’s] back and

positioned a bag of balloons between the gun

and her body to muffle the sound of gunshots.

Appendix A

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 attacked 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 obtain 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

sustained 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 exited 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.

Appendix A

A f t er i nt er v iew i ng the bu i lder a nd

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 surveillance.

Humphreys was apprehended in Wisconsin

the following day. Police there recovered

from the console of his rental vehicle a Ruger

9-millimeter pistol, 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 floormat 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 accounts. Two days after the murders,

Humphreys deposited $1,000 into his account,

and he had approximately $800 in cash in his

possession when he was arrested. Humphreys

Appendix A

claimed in a statement to the police that he did

not remember his actions at the time of the

crimes. However, when asked why he fled, he

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 Superior Court of Cobb County, Georgia, of two counts

each of malice 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 Humphreys’s claim, we must first discuss

Appendix A

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 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 jurors 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

Appendix A

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. Chancey told them that “a strange

man came in through the window 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—before 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 evidence 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 jurors 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 verdict

for death.

Appendix A

A post-trial investigation revealed some jurors

claimed that Chancey yelled and cursed at others

during deliberations. Chancey herself agreed that the

deliberations in the penalty phase were “volatile” 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 period of two days, Jury Foreperson Barber, wrote a

note to the court which stated as follows:

We, the jur y, have ag reed on statutor y

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 unanimous 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:

10a

Appendix A

We, the jur y, have ag reed on statutor y

aggravating circumstances on both counts,

but not on the penalty. Currently we agreed

life impr isonment w ith parole is not an

acceptable option. We are currently unable to

form a unanimous decision on death or on life

imprisonment 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.”

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.

11a

Appendix A

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 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 victim of

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 unanimous 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 sentence the defendant to imprisonment

for life without parole only if the court finds beyond

a reasonable doubt that the defendant committed at

least one statutory aggravating circumstance and the

trial court has been informed by the jury foreman

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

their vote for a sentence of death or for a sentence of

life imprisonment 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).

12a

Appendix A

a crime to pressure the other jurors to impose the death

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

her assault that included a much closer encounter with her

attacker than she had shared during voir dire.

Follow ing 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 mistrial. 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 Allen4 charge. Defense 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 you further

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

13a

Appendix A

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 disagreement. 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

acquiescence 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

ill greatly aid us in forming our own judgment.

Each juror should listen with courtesy to

the arguments 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 carefully 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

14a

Appendix A

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.

You should bear in mind at all times that,

as jurors, you should not be advocates for either

side of the case. You should keep in mind the

truth as it appears 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 receiving 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

15a

Appendix A

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,

Foreperson Barber decided to “fight for [a sentence of]

life without parole.” At that point in the deliberations,

Foreperson Barber and Juror Pogue were the only two not

voting for death. Despite 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 deliberations, 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 several statutory aggravating factors and recommended

16a

Appendix A

that Humphreys be executed. 5 The trial court ultimately

imposed two death sentences for the murders of Williams

and Brown.

Post-trial Proceedings

Motion for New Trial

After interviewing some jurors, who revealed the

circumstances 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 jurors to

erroneously believe that they were required to reach a

unanimous decision. In support of the claim, Humphreys

submitted the affidavits of Juror Darrell Parker and two

investigators. See Humphreys, 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

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 jury’s

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

improper but still affirmed the death sentence.

17a

Appendix A

verdict.” The trial court explained that exceptions 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 evidence of extrajudicial

prejudicial information improperly brought to the

jury’s attention or allege any non-juror interference

had occurred. 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 decision in Walker v. State, 635 S.E.2d 740, 748 (Ga.

2006). There, the defendant made a similar claim of error

because, during the sentencing 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 expects a jury to consider all the evidence

and attempt to reach unanimity on the issue of sentence,

and, if possible, unanimously recommend a sentence.

Based on Walker, the trial court rejected Humphreys’s

Allen-charge claim and ultimately denied the motion for

new trial.

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

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Appendix A

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 33233. The Supreme Court of Georgia disagreed, affirming

Humphreys’s convictions and sentences. Id. at 334-36.

The Supreme Court of Georgia also agreed with

the trial court’s ruling that the juror and investigator

affidavits were inadmissible 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

misapprehension 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

circumstances of the jury instructions given. Id. It then

analyzed the charge in Humphreys’s case and found that

the challenged “unanimity” language was just a “small

portion of the extensive Allen charge given.” Id. The

court determined that the overall charge passed muster.

It explained,

19a

Appendix A

[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

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 verdicts, 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 anyone 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

instructed 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

Humphreys’s petition for writ of certiorari on November

15, 2010. See Humphreys v. Georgia, 562 U.S. 1046 (2010).

20a

Appendix A

Habeas Proceedings

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 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 February 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.

W hen addressing the juror-misconduct claim,

the state habeas 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

21a

Appendix A

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.

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 Humphreys had not overcome

the procedural default because he showed neither cause

for failing to raise the issue nor actual prejudice 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 Humphreys 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

determined that even if it considered the juror testimony,

Humphreys still failed to show any resulting prejudice.

6. The state habeas court acknowledged both the juror

affidavits and Barber’s live testimony and grouped them together,

referring to them as “testimony.”

22a

Appendix A

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 particular, counsel were not ineffective for

not presenting allegations 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

Humphreys 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 mitigating evidence were reasonable. The only

“new” evidence Humphreys 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 reasoned, the additional evidence

presented to it during the habeas evidentiary 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 presented in habeas proceedings (mostly having

to do with physical abuse, poor living conditions, and

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mental-health assessments) reiterated the testimony

presented during sentencing. Indeed, the court concluded

that much of the testimony from both lay witnesses and

expert witnesses during the habeas proceedings was

cumulative. In the end, the court weighed the totality

of the aggravating evidence against the totality of the

mitigating evidence and 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 Supreme

Court of Georgia had already reviewed and rejected the

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

conclusions. The state habeas court noted that it did not

review in a habeas 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.

Supreme Court of Georgia’s Denial of

Certificate of Probable Cause to Appeal

Humphreys filed an application for certificate of

probable cause to appeal with the Supreme Court of

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Georgia. That court denied the entirety of the application,

finding that it lacked any arguable merit.

Humphreys filed a petition for writ of certiorari, which

the Supreme Court of the United States denied on April

16, 2018.

Federal Habeas Petition (§ 2254 Petition)

Humphreys filed a petition for writ of habeas corpus

pursuant 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 prejudice, except as to a challenge not

applicable here. The district court granted Humphreys

a COA on the issue of whether his trial counsel was

ineffective in investigating and presenting his case in

mitigation during the penalty phase of his trial.

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

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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 petition on his

claim that he was denied his Sixth Amendment right to

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

whether his trial counsel was ineffective in investigating

and presenting his case in mitigation during the penalty

phase of his trial.

The parties fully briefed these issues, and we heard

oral argument.

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 unreasonable application of, clearly

established Federal law, as determined by the Supreme

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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

internal quotation marks omitted).

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 internal

quotation marks omitted); see also Williams v. Taylor,

529 U.S. 362, 405 (2000).

And a state-court decision is not an “unreasonable

application” of federal law under 2254(d)(1) “unless the

state court identifies the correct governing legal principle

as articulated by the United States Supreme Court, but

unreasonably applies that principle to the facts of the

petitioner’s case, unreasonably extends the principle to

a new context where it should not apply, or unreasonably

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

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

marks omitted); 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 particular

defendant’s case).

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Regarding AEDPA’s unreasonable-application-offederal-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 application of federal law is unreasonable only if

no fairminded jurist could agree with the state court’s

determination or conclusion.” 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 statecourt 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 principle unreasonable when it involves a

set of facts different from those of the case in which the

principle was announced. The statute 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 omitted).

For each claim presented, we review “the last statecourt adjudication 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, “federal habeas review

is not subject to the deferential standard that applies

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

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

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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, e.g., Rompilla v. Beard,

545 U.S. 374, 380, 390, (2005); Wiggins 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). Section 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 . . . statecourt 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 determinations

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

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is harmless unless it caused “actual prejudice.” Id. at 637

(citation omitted). Put another way, we examine “whether

the error ‘had substantial and injurious effect or influence

in determining the jury’s verdict.’” Id. at 623, 637 (quoting

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 Court outlined in Brecht and

the one Congress prescribed in AEDPA.”).

III. DISCUSSION

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 jurors

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

refusing 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,

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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 contends that, paired with the trial court’s Allen

charge, Chancey’s conduct 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 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. Haley, 250 F.3d 1308, 1313 (11th Cir.

2001). We have explained,

Federal habeas review reduces the finality

of litigation and frustrates states’ sovereign

power to punish offenders and states’ good-

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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 proceduraldefault doctrine if the last state court to review

the claim states clearly and expressly that its

judgment rests on a procedural bar, and that

bar provides an adequate and independent state

ground for denying relief.

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

defense 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

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objective factor external to the defense [that] impeded

counsel’s efforts to comply with the State’s procedural

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

prejudice, a petitioner must show that “there is at least a

reasonable probability that the result of the proceeding

would have been different.” 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 miscarriage of justice.” Id. (citing

Murray, 477 U.S. at 495-96). A 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 failing to raise the

claims about Chancey’s conduct earlier. So embedded 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

Humphreys that his appellate counsel was ineffective.

We therefore deny that separate claim. And because

Humphreys cannot show that his counsel was ineffective,

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he also cannot show cause for the procedural default of

the juror-misconduct claim, so we deny that claim, too.

Strickland Standard

When a federal habeas petitioner alleges ineffective

assistance 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 petitioner

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

below an objective standard of reasonableness” and

(2) a reasonable probability “that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different.” Id. at 687-88, 694. We 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 professional assistance.” Id. The

defendant bears the burden to show that counsel made

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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 chosen [them].” Kelly v. United

States, 820 F.2d 1173, 1176 (11th Cir. 1987) (per curiam)

(citation and internal quotation marks omitted).

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

unreasonable” (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).

Admissibility of Juror Testimony

Because Humphreys’s ineffective-assistance claim is

premised on the evidence contained in the affidavits and

testimony counsel obtained about juror deliberations,

Humphreys can establish the necessary “cause” to avoid

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procedural default of his juror-misconduct claims only if

that evidence is admissible. The state habeas court refused

to consider that evidence, finding it to be inadmissible.

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,” provided that “[t]he affidavits

of jurors may be taken to sustain but not impeach their

verdict.” 7 This rule applies equally to juror affidavits 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

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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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

generally precludes courts from relying on post-trial

juror testimony during 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 another 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 testimony on these matters.

Id. As with the Georgia rule, the federal 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 attention; (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 noimpeachment rule, with only limited exceptions.” PenaRodriguez v. Colorado, 580 U.S. 206, 217 (2017).

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

admitting jury testimony to impeach a verdict. In Tanner

v. United States, the Supreme Court explained that “full

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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 Supreme

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

vigorous 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 annoyed 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 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 misconduct 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

presupposes 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

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deliberations. Those safeguards include (1) “[t]he

suitability of an individual 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 misconduct.” 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 noimpeachment rule should yield and the state habeas

court should have considered the juror testimony. He

emphasizes the Supreme Court’s acknowledgment that

“[t]here may be cases of juror bias so extreme that, almost

by definition, the jury trial right has been abridged. If and

when such a case arises, the Court can consider whether

the usual safeguards are or are not sufficient 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

misconduct 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,

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Humphreys 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 PenaRodriguez 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 Supreme 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

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

addressed this circumstance in only three cases—Tanner,

Warger, and Pena-Rodriguez. 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-impeachment

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”

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supporting “the protection of jury deliberations from

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

did not want attorneys to use juror testimony to attack

verdicts because, 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 26768). The Court also expressed concerns about attempts

to impeach a verdict that would “disrupt the finality of

the process” and undermine both “jurors’ willingness to

return an unpopular 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 deliberations post-verdict, the Court emphasized the

existing safe-guards that protect the defendant’s right to

an impartial and competent jury beyond post-trial juror

testimony, which we noted earlier. Id. at 127. Balancing

the concerns and safeguards against the defendant’s Sixth

Amendment interest, the Court affirmed the exclusion of

affidavits about the jury’s inebriated state.

Warger was a civil case. There, the Supreme Court

again declined to recognize an exception to the noimpeachment rule. Af-ter the trial court entered the

verdict, the losing party sought to proffer evidence that

the jury forewoman failed to disclose pro-defendant 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 conceals bias, juror impartiality is

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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 noimpeachment 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 encountered 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 noimpeachment rule give way in order to permit

the trial court to consider the evidence of the

juror’s statement and any resulting denial 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 interpreted in

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

the Court explained, such a begrudging exception was

necessary “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 motivating 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

Humphreys’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 applied an exception to the

no-impeachment rule. But that case involved 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 recognized an exception to the no-impeachment

rule. In fact, counsel 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 juror 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.

43a

Appendix A

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 involve racial bias. As the Supreme Court explained

in Pena-Rodriguez, “[t]he stigma that attends racial bias

may make it difficult for a juror to report inappropriate

statements during the course of juror 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-impeachment rule.

In short, appellate counsel’s representation did not

fall below an objective standard of reasonableness when

counsel did not pursue 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 lawyer would

have done. Not raising these claims was not “so patently

unreasonable that no competent attorney would have

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

8. We recognize that appellate counsel submitted other

affidavits in support of the Allen charge claim. But that claim is

markedly different because the affidavits 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

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Appendix A

Ultimately, because Humphreys has not shown that

appellate counsel was ineffective for failing to pursue the

juror-misconduct 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.

B. Ineffective Assistance of Appellate Counsel

Humphreys’s ineffective-assistance-of-appellatecounsel 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-misconduct claims

sooner. Consequently, we reject Humphreys’s claim that

his appellate counsel was ineffective under Strickland.

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 jurormisconduct 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 during 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 22324. 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 considered and the court would be left

with nothing to support the juror-misconduct claims.

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Appendix A

Allen Charge

Humphreys also argues that the trial court coerced a

sentencing 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 coercion claim on the merits, it is entitled to AEDPA

deference. 9 We may grant relief on this claim only if

the Supreme Court of Georgia’s determination was (1)

“contrary to, or involved an unreasonable application

of, clearly established federal law, as determined by the

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

an unreasonable determination of the facts in light of the

evidence presented in the [s]tate court proceeding.” 28

U.S.C. § 2254(d).

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 already 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.

46a

Appendix A

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 verdict of that body.” Lowenfield

v. Phelps, 484 U.S. 231, 241 (1988). That said, the Supreme

Court has held that a trial court may instruct 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

‘simple 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 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

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Appendix A

totality of the circumstances 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 instructed to resume

deliberations; (3) whether the judge knew of

the jury’s numerical split when he instructed

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 supplemental instruction and

the jury’s verdict.

Id. (citations omitted).

Here, the Supreme Court of Georgia concluded that

the Allen charge, considered as a whole, was not coercive.

Humphreys, 694 S.E.2d at 334. The court noted that it

had previously considered the same “a unanimous verdict

is required” instruction given as part of an Allen charge

in the sentencing phase of a death-penalty 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

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Appendix A

phase] must be unanimous 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 automatic 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 the unanimity

language amounted to merely a small portion of the

extensive Allen charge the trial court gave. In the court’s

view, several other aspects of the Allen charge minimized

the unanimity language in these ways:

49a

Appendix A

[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 evidence,

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 deliberations. 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 required 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.

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,

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Appendix A

that instruction is unconstitutionally coercive. We reject

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 circumstances in

Humphreys’s case to ascertain whether juror confusion

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 determined 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 period

of two days before Foreperson Barber sent the trial court

a note that stated,

We, the jur y, have ag reed on statutor y

aggravating circumstances on both counts,

but not on the penalty. Currently we agreed

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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Appendix A

life impr isonment w ith parole is not an

acceptable option. We are currently unable to

form a unanimous decision on death or on life

imprisonment 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, advising counsel that the jury “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.” 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 continue with your deliberations,

and address the remaining 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 Humphreys’s taped statement to

detectives. Id. The court allowed the jury to listen to the

statement, and the jury returned to the jury room to

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

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Appendix A

defense moved for a mistrial. Id. The trial court denied

the motion, 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 Foreperson 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 defense’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 deliberated for two

more hours, and the jury returned a death sentence 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 forth by the court

were correct. Humphreys does not appear to dispute this.

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Appendix A

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 application of clearly established federal

law as determined by the Supreme 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 to abandon an honest

54a

Appendix A

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 issued 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 constitutes 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

unreasonably 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

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Appendix A

explained that it based its decision there on the Court’s

“supervisory power over the federal courts, and not on

constitutional 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 sentence. 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 coercion was not

contrary to, or an unreasonable application of, clearly

established federal law as determined by the Supreme

Court.

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 investigating and presenting mitigation

evidence. In Humphreys’s view, trial counsel’s failure to

conduct a thorough and accurate mitigation 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

56a

Appendix A

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 team had

already “chosen” another diagnosis for Humphreys—

Asperger’s Syndrome. Based on these claims, Humphreys

contends trial counsel’s representation of him fell below

the prevailing professional norms. Had a jury had heard

the undiscovered, unpresented evidence, Humphreys

contends, “there is clearly a reasonable probability that

the . . . jury . . . ‘would have struck a different 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

qualifications 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 counsel.

Nex t , the st at e habea s cou r t descr ibed 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

57a

Appendix A

with Humphreys, his father, stepmother, brother-in-law,

paternal grandmother, aunt, uncle, and stepfather about

Humphreys’s mental-health history and questioned them

about any physical, mental, or sexual abuse Humphreys

suffered. During this investigation, neither Humphreys

nor any of his family members indicated that he had been

sexually abused.

Besides these steps, defense counsel reviewed

Hu mph reys’s pr ison records, cr i m i na l records,

employment records, family records, financial records,

legal records, medical records, social-services 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 evidentiary 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

11. Dr. Agharkar disagreed with the diagnosis of Asperger’s

Syndrome, and defense counsel decided he would not testify since

his evaluation did not support their sentencing-phase theory.

58a

Appendix A

that he had been sexually abused. In fact, the defense

team asked Humphreys directly about sexual abuse, but

Humphreys denied any recollection of such abuse.

The state habeas court summarized defense counsel’s

presentation during the guilt-innocence phase as follows:

(1) Humphreys’s childhood was characterized by violence,

trauma, and instability 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 presented evidence that Humphreys

was non-violent and non-confrontational.

As for the state habeas court’s findings about

counsel’s performance during the penalty phase of the

trial, it determined that trial counsel “made a reasonable

presentation during the sentencing phase based on their

strategy and the information discovered during their

investigation.” It recognized the strategy was to present

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

59a

Appendix A

defense counsel used the testimony of six lay witnesses

and three experts to present the information to the jury.

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 Humphreys’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

Humphreys.

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 Humphreys 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 before he finally escaped.

Later, the state habeas court turned to the testimony

of Humphreys’s sister Dayna, who gave examples of their

“rather difficult” early childhood. According to Dayna,

their father was an unhappy man who was hard on them

60a

Appendix A

and showed very little affection. He did not handle stress

well and often became angry and violent. Dayna testified

that their father physically abused her and 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

perceptions, experiences, and observations of Humphreys.

To complete her analysis of Humphreys, Dr. Loring

reviewed extensive records including police records,

school records, jail records, divorce records, 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

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Appendix A

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 treatment. Besides these incidents, Dr.

Loring recounted that 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 continually

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 explosive 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

testimony 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 concentration.” 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.

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Dr. Loring advised the jury that she had diagnosed

Humphreys with PTSD and Asperger’s Syndrome. In Dr.

Loring’s view, Humphreys suffered from PTSD because

of the trauma he 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 impaired in their

ability to be close or intimate with another person”

and severely suffered from a “sustained impairment in

social interaction.” Dr. Loring provided several indicia

to support her diagnosis of Humphreys. She opined that

he had “a real impaired ability to relate to people and to

empathize with them,” and his life experiences 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 individuals 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 Disorder, and Asperger’s

Syndrome.

In support of his diagnosis of Asperger’s Syndrome,

Dr. Shaffer testified that Humphreys had very unusual

cleaning routines, and he explained that Humphreys

became uncomfortable and agitated if his routine was

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disturbed. Dr. Shaffer also testified that Humphreys met

the criteria for Asperger’s in that he had an “extreme

interest” in reading science fiction and constantly talked

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 awareness” 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

Humphreys 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

presented during the habeas proceedings: (1) the

testimony of Humphreys’s step-siblings, who testified that

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Appendix A

Humphreys’s mother verbally and physically abused them,

(2) Humphreys’s ROTC teacher, who testified that he was

in special education classes for a 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, testified 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 concluded

he did not meet all the criteria for either diagnosis.

Dr. Dorney 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.

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Appendix A

Dr. Reynolds also spoke about the trauma Humphreys

endured growing up, including a skull fracture, the

instability in the home, and physical abuse.

After these detailed inventories of defense counsel’s

presentation 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

Humphreys was not prejudiced by counsel’s failure to

discover and present 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 arguments,

witnesses, evidence, and so on, to stress others.”

Plus, the state habeas court observed that the

evidence submitted 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] heavily the information provided by the

defendant” in evaluating the reasonableness of counsel’s

investigation.

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Appendix A

Here, Humphreys did not provide the court with any

evidence of sexual abuse that would have been available

to trial counsel. The only evidence was his self-report to

Dr. Dorney, after the sentencing proceedings. Given these

circumstances, the state habeas 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 evidence presented in the habeas proceedings

would not have created a reasonable probability of a

different outcome. As the court explained, 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

recognized that the habeas experts diagnosed Humphreys

with OCD, but the trial experts diagnosed him with PTSD,

dissociative disorder, and Asperger’s Syndrome. But the

court reasoned that the diagnoses were based on the same

behaviors and symptoms. And while OCD could be one

possible diagnosis, it was not the only reasonable 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

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Appendix A

noted, the court found it wasn’t because the defense team

expressly asked about sexual abuse and Humphreys and

his relatives and friends did not disclose it), Humphreys

still did not demonstrate a reasonable probability that the

outcome would have been different if the evidence had

been presented at trial, given the weight of the mitigation

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-assistance-of-trial-counsel claims.

As we have already noted, to succeed on an ineffectiveassistance-of-counsel claim, the petitioner must show

both that (1) his attorney’s performance was deficient,

and (2) the deficiency prejudiced his defense. Strickland,

466 U.S. at 687. And because Strickland’s standard

itself requires deference to counsel’s performance, and

AEDPA, by its terms, requires deference to state-court

decisions, our review of state courts’ resolution of the

deficient-performance prong of Strickland’s ineffectiveassistance 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 performance 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

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Appendix A

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 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

Humphreys’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 nonsexual abuse and his mental conditions, counsel presented

substantial mitigation evidence, and the new habeas

evidence was mostly cumulative of what was presented

during the trial and sentencing proceedings. 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 dissociative episodes, his OCD behaviors, and

his other odd behavior.

The state habeas court reasonably concluded that

any additional 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).

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Appendix A

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 Syndrome, we cann

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