Petition for Writ of Certiorari — Aldermanman v. Terry (No. 06-1478)

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061478 MAY 7 - 2007

Supreme Court, U.S.

0) be

No. __OFFICE OF THE CLERK

In the

Supreme Court of the Enited States

JACK E. ALDERMAN,

Petitioner,

7.

HILTON HALL,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Leiv H. Bian Jr. Tuomas H. Dunn*

Jon R. Fritz GEORGIA RESOURCE CENTER

CiIFFORD Cuance US LLP 303 ELizABETH STREET

2001 K Street, NW ATLanta, GA 30309

WASHINGTON, D.C. 20006 (404) 222-9202

(202) 912-5000

*Counsel of Record

May 7, 2007

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

Y

i

CAPITAL CASE

QUESTION PRESENTED

Whether a defendant receives the effective assistance of

counsel guaranteed by the Sixth Amendment where a failure to

understand relevant law leads counsel to limit his investigation

of mitigating evidence and to omit a mitigation argument from

the resentencing phase of a capital trial.

**

TABLE OF CONTENTS |

COLFEDS LINAS PUMEIEICUEIED 6 occ ccovesersnseecussuwn i

Pi, tg ee > errr re ot ii

pe bee ee 8 er rer vil

PETITION FOR A WRIT OF CERTIORARI ........... l

SP PT Ve xk c ed ecen tins cans eanveuNenes I

STATEMENT OF JURISDICTION ........-.2ccceces 2

CONSTITUTIONAL AND STATUTORY

a rE esr ar ee en ir rere es 2

SEA TEerTE GP TER CASE ow. ccc ccc cee wevence 3

eg, OE ee rere rrr Eye 3

ee eer rrr ee 5

eS ib 5 ives hc cer ser bree vien 7

REASONS FOR GRANTING THE PETITION ....... 1-9

I. COUNSEL'S INVESTIGATION WAS

UNREASONABLE BECAUSE IT WAS LIMITED

TO A NARROW SET OF SOURCES AND

COUNSEL MADE NO ATTEMPT TO GATHER

ETE SEAS Ee Oe VRIES 8 ons vk vce ee tec vowees 10

ill

A. Counsel Unreasonably Limited The Scope Of His

Investigation To Information About Mr.

Alderman’s Good Character ........60ceceese 11

1. Counsel Had An Obligation To Look Beyond

A Narrow Set Of Sources ................. 12

a ai a a So 13

B. Counsel Made No Reasoned Strategic Or Tactical

Decision To Limit His Investigation; Instead, He

Did Not Understand That Relevant Law

Permitted Him To Go Beyond Character

Evidence To Gather And Present Mitigating

Evidence Of Mr. Alderman’s Life-History ...... 15

C. The State Court’s Decision Was Objectively

Unreasonable Because The Court Did Not Assess

Directly Whether Counsel’s Limited

Investigation Was Based On A Reasoned

Strategic Or Tactical Decision ................ 16

D. The Eleventh Circuit Merely Accepted The

Reasoning Of The State Court And Failed To

Apply Strickland As Directed By This Court .... 20

. COUNSEL UNREASONABLY OMITTED A

MITIGATION ARGUMENT FROM THE

RESENTENCING PHASE OF A CAPITAL TRIAL . 22

iV

Il. THERE IS A REASONABLE PROBABILITY

THAT, BUT FOR COUNSEL’S

UNPROFESSIONAL ERRORS, MR.

ALDERMAN’S RESENTENCING TRIAL JURY

WOULD HAVE RETURNED A LIFE SENTENCE . 24

A. Counsel’s Omitting A Mitigation Argument

Prejudiced Mr. Alderman ...........-cses0e0. 25

B. Counsel’s Limited Investigation And Presentation

Of Readily Available Life-History Evidence

TOOMICOE PAT. AROOETNON 6 oc ccc wc cela cs 25

oe 8 SEG ear er EA ee Sere pecan remem se pe 30

APPENDIX

Appendix A: Order of the U.S. Court of Appeals for

the Eleventh Circuit, dated December 8, 2006 ...... la

Appendix B: Opinion of the U.S. Court of Appeals

for the Eleventh Circuit, dated October 30, 2006 .... 3a

Appendix C: Order of the U.S. Court of Appeals for

the Eleventh Circuit, dated June 27, 2005 ......... 35a

Appendix D: Order of the U.S. Court of Appeals for

the Eleventh Circuit, dated November 15, 2004 .... 37a

Appendix E: Order of the U.S. District Court for

the Southern District of Georgia, dated October 1,

564 oe 064d EERE CL Le 39a

Vv

Appendix F: Order of the U.S. District Court for the

Southern District of Georgia, dated August 3, 2004 . 4la

Appendix G: Opinion of the U.S. District Court for

the Southern District of Georgia, dated July 16,

EN OAT Siar 9 Rec noe oy SES 43a

Appendix H: Opinion of the Supreme Court of

Georgia, dated January 10,2002 ................ 69a

Appendix [: Opinion of the Superior Court of Butts

County, dated December 29, 1999 ............... 73a

Appendix J: Letter from William K. Suter, Clerk of

the Supreme Court of the United States, granting

extension of time to file petition for writ of certiorari,

es yO NEE 2 6S coke be bl Ness nweee 118a

Appendix K: U.S. Const. 6th Amendment; U.S.

Pe err rece ee 120a

Appendix L: Excerpts of sections from Title 28 of

Se NE CUO re ov ace SiS eee e Seas 122a

Appendix M: Excerpts of Volume I of 1984

Resentencing Trial Transcript, dated March 26,

DU RS iGs Shed ies o4 er eu Gee penne ee 123a

Appendix N: Excerpts of Volume IV of 1984

Resentencing Trial Transcript, dated March 26,

PEE Oe aid ca Cece eae EOS EVE TANT eee eee eS 125a

Appendix O: Excerpts of Volume V of 1984

Resentencing Trial Transcript, dated March 30,

i oo Rien eed ya os rene ee eT eA 137a

v1

Appendix P: Excerpts of Volume VI of 1984

Resentencing Trial Transcript, dated March 31,

SG aiid Geeks 560 bE ES 173a

Appendix Q: Excerpts of Volume I of 1999 Habeas

Proceeding Transcript, dated May 5, 1999 ....... 202a

Appendix R: Affidavit of Jack L. Alderman, dated

NE es SO sini ded eb ee hetercs rane bee 26la

Appendix S: Affidavit of Catherine Thompson, dated

RO EEE bo eG pd e8S eA Oe eR EDERAL OSS 268a

Appendix T: Affidavit of Teresa R. Callaway, dated

BO SE 64 ew easn seston ban eeee 272a

Appendix U: Excerpt of Jack Alderman's medical

records from the Memorial Medical Center and

Memorial Hospital of Chatham County .......... 276a

Appendix V: Excerpts of Jack Alderman's

educational records from the Georgia Department of

Education and Georgia Academy for the Blind .... 287a

Vil

TABLE OF AUTHORITIES

CASES

Alderman v. Austin,

663 F.2d 558 (Sth Cir. Unit B Dec. 1981) ........... 3

Alderman v. Austin,

695 F.2d 124 (Sth Cir. Unit B 1982) ............... 3

Alderman v. Head, 559 S.E.2d 72 (Ga. 2002) ......... 1,4

Alderman v. Schofield, No. CV403-028,

2004 U.S. Dist. LEXIS 30125

Cae ee Se PU Eo cca chen hired a enes 1,4

Alderman v. State, 246 S.E.2d 642 (Ga. 1978) ....... ee

Alderman vy. State, 327 S.E.2d 168 (Ga. 1985) .......... 3

Alderman vy. Terry,

468. F.36 775 (1 3th Cir, 2006) 2. oe eee less passim

Alderman v. Zant, 22 F.3d 1541 (11th Cir. 1994) ........ 3

Armstrong v. Dugger,

Boe Fae Pe CECH, SFB) oe ons es cect eee ten 15

Burger v. Kemp, 483 U.S. 776 (1987) ................ 13

California v. Brown, 479 U.S. 538 (1987) ............. 25

Chandler v. United States,

218 F.3d 1305 (11th Cir. 2000) ............... 19, 22

Vili

Collier v. Turpin, 177 F.3d 1184 (11th Cir. 1999) ... 21,30

Conklin v. Schofield, 366 F.3d 1191 (11th Cir. 2004) .... 22

Darden v. Wainwright, 477 U.S. 168 (1986) ........... 13

Eddings v. Oklahoma, 455 U.S. 104 (1982) ........ 15, 23

Foster v. Strickland, 707 F.2d 1339 (11th Cir. 1983) .... 15

Harich v. Dugger, 844 F.2d 1464 (11th Cir. 1988) ... 20, 21

Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991) ........ 17

Lockett v. Ohio, 438 U.S. 586 (1978) .......... 10, 21, 22

Miller v. Wainwright,

798 F.2d 426 (11th Cir. 1986), vacated on other grounds,

ive vee va banvreeees 15, 23

Rompilla v. Beard, 545 U.S. 374 (2005) .............. 17

Simmons v. South Carolina, 512 U.S. 154 (1994) .... 15, 23

Skipper v. South Carolina, 476 U.S. 1 (1986) ....... $5.23

Smith v. Stewart, 189 F.3d 1004 (9th Cir. 1999) ........ 17

Spivey v. State, 246 S.E.2d 288 (Ga. 1978) ............ 23

Strickland v. Washington, 466 U.S. 668 (1984) ..... passim

Waters v. Thomas, 46 F.3d 1506 (11th Cir. 1995) ....... 22

Wiggins v. Smith, 539 U.S. 510 (2003) ........... passim

IX

Williams v. Taylor, 529 U.S. 362 (2000) .......... passim

Woodson v. North Carolina, 428 U.S. 280 (1976) 21, 22, 23

FEDERAL STATUTES

- lk 8 a Ee fT ee er err ert rm raneairr TO 2

ee EE Nw 65d aN DREN NERO OE OR 2, 3, 16, 20

8 Re ef, Seer eres eT PoE TET Ee EC er Ce 2

eg Seen eT ELIE C TEER Ee errr 2

OTHER

ABA Guidelines for the Appointment and Performance of

Counsel in Death Penalty Cases 11.8.6 (1989) ......... 13

ABA Guidelines for the Criminal Justice 4-4.1 (2d ed.

DE oc hie bos pe hina oe ese ee aes 14

WIE Sik kad hie en A ee ARES 13

Craig M. Cooley, Mapping the Monster's Mental Health and

Social History: Why Capital Defense Attorneys and Public

Defender Death Penalty Units Require the Services of

Mitigation Specialists, 30 OKLA. CITY U. L. REV. 23, 43-48

IRS iam PIP ae repel eyes ge Frege ME Be He oepn NE Ces 15

l

PETITION FOR A WRIT OF CERTIORARI

Jack E. Alderman respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The Eleventh Circuit’s denial of panel rehearing is

Alderman v. Terry, No. 04-14595-P (11th Cir. Dec. 8, 2006).

The Eleventh Circuit panel decision is Alderman v. Terry, 468

F.3d 775 (11th Cir. 2006). The Eleventh Circuit’s granting of

appealability is Alderman v. Terry, No. 04-14595-P (11th Cir.

Jun. 27, 2005). The Eleventh Circuit’s denial of appealability

is Alderman v. Schofield, No. 04-14595-P (11th Cir. Nov. 15,

2004). The District Court’s denial of appealability is Alderman

v. Schofield, No. CV403-028 (S.D. Ga. Oct. 1, 2004). The

District Court’s denial of alteration and amendment is

Alderman v. Schofield, No. CV403-028 (S.D. Ga. Aug. 3,

2004). The District Court decision denying Mr. Alderman

relief is Alderman v. Schofield, No. CV403-028, 2004 U.S.

Dist. LEXIS 30125 (S.D. Ga. July 16, 2004). Because this is

a habeas corpus action by a prisoner in state custody, Petitioner

has appended the post-conviction opinions of the Georgia

Supreme Court, Alderman v. Head, 559 S.E.2d 72 (Ga. 2002),

and the Superior Court of Butts County, Alderman v. Head,

No. 94-V-720 (Ga. Super. Ct. Butts County Dec. 29, 1999).

The above court decisions have been reprinted at pages la to

117a of the accompanying appendix (“App.”). In addition,

relevant parts of the transcripts, including exhibits thereto, of

the state habeas evidentiary hearing conducted in the Superior

Court of Butts County (May 5-6, 1999), and the resentencing

2

hearing conducted in the Superior Court of Chatham County

(Mar. 26-31, 1984), are reprinted at App. 123a to 301a.

+

STATEMENT OF JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1). This

Court granted Petitioner an extension of time until May 7, 2007

in which to file this petition for a writ of certiorari. App. | 18a.

This petition is timely filed.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Sixth Amendment to the United States Constitution

provides in relevant part: “In all criminal prosecutions, the

accused shall . . . have the Assistance of Counsel for his

defence.” App. 120a.

The Fourteenth Amendment to the United States

Constitution provides in relevant part: ““No State shall . . .

deprive any person of life, liberty, or property, without due

process of law.” App. 120a.

28 U.S.C. § 2254(d) provides in relevant part:

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

3

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. App.

122a.

STATEMENT OF THE CASE

A. Procedural History

On June 15, 1975, Mr. Alderman was .convicted of

murdering his wife and then sentenced to death in the Superior

Court of Chatham County. On direct appeal, the Georgia

Supreme Court affirmed his conviction and sentence.

Alderman v. State, 246 S.E.2d 642 (Ga. 1978). Mr. Alderman

sought state and federal post-conviction relief and ultimately

was granted a new sentencing trial on January 10, 1983.

Alderman v. Austin, 663 F.2d 558 (Sth Cir. Unit B Dec. 1981);

Alderman v. Austin, 695 F.2d 124 (Sth Cir. Unit B Jan. 1983)

(en banc).

Mr. Alderman was resentenced to death on April 1, 1984 in

the Superior Court of Chatham County. The Georgia Supreme

Court affirmed the death sentence. Alderman v. State, 327

S.E.2d 168 (Ga. 1985). Represented by resentencing counsel

(counsel whose effictiveness is being. challenged), Mr.

Alderman sought habeas relief in state and federal court. The

Eleventh Circuit upheld the denial of habeas relief. Alderman

v. Zant, 22 F.3d 1541 (11th Cir. 1994).

In 1994, represented by new counscl, Mr. Alderman again

sought habeas relief in the Superior Court of Butts County

alleging for the first time ineffective assistance of counsel at

4

his resentencing trial and on direct appeal. Following an

evidentiary hearing and submission of post-hearing briefs, the

state court denied habeas relief on December 29, 1999.

Alderman v. Head, No. 94-V-720 (Ga. Super. Ct. Butts County

Dec. 29, 1999). App. 73a. The Georgia Supreme Court denied

Mr. Alderman a Certificate of Probable Cause to Appeal on

January 10, 2002, Alderman v. Head, 559 S.E.2d 72 (Ga.

2002), and then denied his Motion for Reconsideration on

February 11, 2002, Jd. App. 69a.

In February 2003, Mr. Alderman sought federal habeas

review on his ineffective assistance of counsel claims. On July

16, 2004, the District Court denied all relief. Alderman, 2004

U.S. Dist. LEXIS 30125, at *41. App. 43a. The District Court

then denied Mr. Alderman’s timely filed Motion to Alter and

Amend on August 3, 2004. Alderman v. Schofield, No.

CV403-028 (Ga. Aug. 3, 2004). App. 41a. The District Court

denied Mr. Alderman a Certificate of Appealability on October

1, 2004. Alderman v. Schofield, No. CV403-028 (Ga. Oct. 1,

2004). App. 39a.

On November 15, 2004, the Eleventh Circuit denied Mr.

Alderman a Certificate of Appealability. Alderman v.

Schofield, No. 04-14595-P (11th Cir. Nov. 15, 2004). App.

37a. On June 27, 2005, the Eleventh Circuit granted Mr.

Alderman’s Motion for Reconsideration and granted a

Certificate of Appealability as to one issue: ‘““Whether appellant

was denied the effective assistance of counse! at the

resentencing on the ground that counsel failed adequately to

investigate, and present to the jury, appellant’s social-history

background.” Alderman v. Terry, No. 04-14595-P (11th Cir.

Jun. 27, 2005). App. 35a. On October 30, 2006, the Eleventh

Circuit affirmed the District Court’s denial of Mr. Alderman’s

requested relief. Alderman v. Terry, 468 F.3d 775 (11th Cir.

2006). App. 3a. Mr. Alderman sought panel rehearing, which

5

was denied on December 8, 2006. Alderman y. Terry, No. 04-

14595-P (11th Cir. Dec. 8, 2006). App. la.

B. 1984 Resentencing Trial

The State of Georgia sought the death penalty at Mr.

Alderman’s 1984 resentencing trial (“RST”). App. 197a. The

State asserted that the motive and manner in which Mr.

Alderman murdered his wife constituted two aggravating

circumstances, each of which independently warranted the

death penalty: he (1) murdered his wife to obtain insurance

money and (2) committed the murder in an “outrageously vile”

or “inhuman” way. App. 199a-200a.

Terry Jackson and Michael Schiavone represented Mr.

Alderman at the RST. App. 174a. Although another jury had

already convicted Mr. Alderman of murder on June 15, 1975,

lead counsel Jackson’s strategy was to pursue a residual doubt

defense: the jury should not sentence Mr. Alderman to death

if they were not sure beyond a reasonable doubt that he

committed the murder. App. 241a. Thus, counsel focused Mr.

Alderman’ s defense on attacking the underlying conviction and

discrediting the State’s principal witness — Mr. Alderman’s co-

defendant, John Brown. App. 178a-93a; 242a-45Sa.

Counsel offered direct evidence and the testimony of

character witnesses as indirect evidence of Mr. Alderman’s

innocence. App. 226a-27a. All of the defense’s character

witnesses testified that Mr. Alderman was not the type of

person who would commit murder. Counsel called a number

of corrections officers, friends, and co-workers, all of whom

6

testified to Mr. Alderman’s good character.’ App. 126a-36a;

139a-65a; 168a-72a. Mr. Alderman’s father testified that his

son had overcome significant hardship as a boy, including his

mother’s abandonment and a terrible eye injury.2, App. 165a-

68a. Mr. Alderman told the jury that his father’s testimony

established his good character as opposed to Brown’s highly

suspect character. App. 174a. Jackson argued that all of this

testimony established reasonable doubt of Mr. Alderman’s

guilt. App. 174a-97a.

Counsel did not present these character witnesses’

testimony as mitigation evidence. When asked by habeas

counsel why he failed to ask these witnesses whether the jury

should show Mr. Alderman mercy, Jackson responded: “I had

no such reason.” App. 229a-30a. Indeed, Jackson never asked

the jury to show Mr. Alderman mercy based on the character

evidence. App. 174a-97a. Instead, Jackson argued that the

jury should re-evaluate the finding of guilt: “[w]Je’ve shown

you Jack Alderman was a good person at the time and that he

had a good relationship with his wife at the time and think you

doubt . . . John Brown’s story.” App. 194a. He told the jury

that to sentence Mr. Alderman to death, “{yJou’ve got to

believe John Brown beyond a reasonable doubt... . Go back

there and give that man the death penalty and you’re going to

.... wonder, was John Brown lying? You’ve got to have a

doubt.” App. 194a.

' The corrections officers also testified that Mr. Alderman was

obedient and well-behaved, and Mr. Alderman’s friends and co-

workers also testified that he was dependable, reliable, and active in

church. App. 126a-36a; 139a-65a; 168a-72a.

? Dr. Smith, a psychiatrist who examined Mr. Alderman following

his indictment and testified at the 1975 tnal, consistently recounted

the details of Alderman’s eye injury. App. 138a.

7

Having heard no mitigation argument based on this

evidence, the jury was instructed to consider mitigating

circumstances in determining the appropriate punishment.

App. 198a. The judge defined mitigating circumstances as

those that “in fairness and mercy may be considered as

extenuating or reducing the degree of moral culpability so as to

justify a sentence of life imprisonment rather than a sentence

of death.” App. 198a. The judge explained that “[rJegardless

of the presence or absence of aggravating circumstances, the

jury has both the right and the authority to recommend mercy,

which would require the Judge to impose a sentence of

imprisonment for life.” App. 198a.

C. 1999 Habeas Proceedings

Jackson testified at the habeas proceedings that the defense

called Mr. Alderman’s friends and co-workers to establish his

truthfulness and the corrections officers to establish his good

conduct in prison. App. 247a. Counsel thought that evidence

of Mr. Alderman’s good conduct might influence the jury to

believe Mr. Alderman could not have committed the murder.

App. 258a. Jackson admitted that he did not present any

evidence at the RST outside the confines of his residual doubt

theory. App. 226a-27a; 241la-42a; 247a-48a. Schiavone

testified that counsel had no tactical or strategic reason not to

go beyond this character evidence into the details of Mr.

Alderman’s life-history; rather, counsel thought that this

character evidence “was the extent that [they] could go into at

the time.” App. 255a-56a.

As lead counsel, Jackson focused on locating and preparing

witnesses who could testify directly to Mr. Alderman’s

innocence. App. 213a; 240a-41a. He delegated to Schiavone

responsibility for locating and preparing the character

witnesses who could offer indirect proof that Mr. Alderman

8

was not the type of person who could have murdered his wife.

App. 250a-5la. Aware that Jackson was committed to a

residual doubt defense, Schiavone directed the team’s only two

investigators to “go out to get character evidence in support of

that [defense] ....” App. 252a. Schiavone did not direct the

investigators to find any evidence that would support a

mitigation argument. App. 251a-52a.

Jackson admitted that counsel failed to interview key

witnesses, such as Mr. Alderman’s sister, first wife, and

teachers, who could have offered broader life-history evidence.

App. 229a; 230a; 233a-35a. Jackson admitted that he did not

have a tactical or strategic reason for not contacting those

witnesses. App. 229a; 233a. After reviewing descriptive

narratives of Mr. Alderman’s life experiences as told by his

father, sister, first wife, high school teacher, and two members

of the clergy, Jackson also testified that he did not have any

tactical or strategic reason for not presenting this evidence at

the RST. App. 227a-28a; 254a-S6a.

Jackson also admitted that counsel] failed to collect relevant

life-history records. Counsel did not gather Mr. Alderman’s

medical records pertaining to his eye injury and temporary

blindness or his school records from the Georgia Academy for

the Blind and Savannah High. App. 233a-38a. Jackson

admitted that he did not have a tactical or strategic reason for

not collecting and presenting these records at the RST. App.

238a.

Had counsel collected and presented this substantial life-

history evidence, he could have made a compelling argument

based on the emotional damage Mr. Alderman suffered as a

result of his mother’s abandonment and his difficult

relationship with his absentee father. App. 272a-75a. Counsel

could have told the jury of the hardships Mr. Alderman

9

endured as the result of his eye injury and temporary blindness.

App. 261a-66a; 268a-70a; App. 276a-86a. Counsel could

have shown the jury Mr. Alderman’s educational records that

revealed the traumatic psychological impact these life

experiences had on him — he failed to develop a normal self

concept and proper control of his instinctive impulses. App.

287a-301a.

Counsel then could have contrasted Mr. Alderman’s bleak

upbringing with proof of Mr. Alderman’s rehabilitation while

in prison. The uncontested evidence demonstrated that Mr.

Alderman developed discipline, underwent a_ spiritual

conversion, and had a positive impact on prison staff and on

other prisoners, who regarded him as a mentor. App. 142a-

46a; 147a-S58a; App. 209a-12a; 214a-25a. Jackson testified

that none of this life-history evidence was inconsistent with his

residual doubt theory. App. 235a-38a; 240a. Schiavone

admitted that the only reason they failed to pursue and offer

this evidence was their erroneous belief that they could not

present life-history evidence through character witnesses;

rather, counsel believed that those witnesses could testify only

to Mr. Alderman’s truthfulness and good conduct. App. 254a-

56a.

REASONS FOR GRANTING THE PETITION

The state court’s conclusion that Mr. Alderman’s counsel

was not ineffective conflicts with this Court’s decisions. This

Court has enforced a constitutional duty to perform a

reasonable investigation to identify relevant mitigating

evidence and to make a reasoned strategic judgment regarding

use of that evidence at a sentencing trial. See Wiggins v. Smith,

539 U.S. 510, 533-35 (2003). Counsel here failed to do either.

The Eleventh Circuit therefore misapplied the relevant law in

upholding the state court’s decision. Further, the Eleventh

10

Circuit’s conclusion that counsel’s errors were not so serious

as to deprive Mr. Alderman of a fair trial, Alderman, 468 F.3d

at 795, conflicts with this Court’s admonition that sentencing

juries must give meaningful consideration and effect to all

mitigating evidence that might provide a basis for refusing to

impose the death penalty. See, e.g., Lockett v. Ohio, 438 U.S.

586, 604 (1978) (plurality opinion).

I. COUNSEL’S INVESTIGATION WAS

UNREASONABLE BECAUSE IT WAS LIMITED

TO A NARROW SET OF SOURCES AND

COUNSEL MADE NO ATTEMPT TO GATHER

MITIGATING EVIDENCE

Strickland v. Washington, 466 U.S. 668 (1984) established

the guiding principles the lower courts must apply in

evaluating the effectiveness of counsel. An _ ineffective

assistance of counsel claim has two components: petitioner

must show that counsel’s performance was deficient and that

the deficiency prejudiced the defendant. J/d. at 687. To

establish deficient performance, a petitioner must demonstrate

that counsel’s representation “fell below an objective standard

of reasonableness:”

[CJounsel has a duty to make reasonable investigations

or to make a reasonable decision that makes particular

investigations unnecessary. In any ineffectiveness

case, a particular decision not to investigate must be

directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference

to counsel’s judgments.

Wiggins, 539 U.S. at 521-22 (quoting Strickland, 466 U.S. at

688, 690-91). This Court has emphasized that “(t]he proper

measure of attorney performance remains reasonableness under

1]

prevailing professional norms.” /d. at 521 (internal quotations

omitted).

Counsel’s performance fell below an objective standard of

reasonableness for two reasons. First, his investigation was

limited to a narrow set of sources, which violated prevailing

professional norms on which this Court has relied in Sixth

Amendment cases. Second, counsel limited his investigation

only because he misunderstood the applicable law. The courts

below misapplied Strickland to these facts, and improperly

held that counsel’s deficient performance did not violate Mr.

Alderman’s Sixth Amendment rights.

A. Counsel Unreasonably Limited The Scope Of His

Investigation To Information About Mr. Alderman’s

Good Character

In assessing the reasonableness of counsel’s investigation,

a court must consider not only the quantum of evidence known

to counsel, but also whether that evidence would lead a

reasonable attorney to investigate further. Wiggins, 539 U.S.

at 527. Here, counsel knew he had obtained no more than a

rudimentary knowledge of Mr. Alderman’s life-history from

the character witnesses, and the evidence he did gather was

more than sufficient to lead a reasonable attorney to investigate

further. Moreover, counsel admittedly did not attempt to

gather more information about Mr. Alderman’s life-history, not

because he strategically concluded that this information would

not be helpful, but because he did not know that he could go

beyond character evidence and gather and present mitigating

evidence of Mr. Alderman’s life-history. App. 254a-S6a.

12

1. Counsel Had An Obligation To Look Beyond A

Narrow Set Of Sources

This case is not materially different from Wiggins. Counsel

there investigated Wiggins’ background by obtaining only his

social service records and a Pre-Sentence Investigation report,

which included a brief account of his “personal history.”

Wiggins, 539 U.S. at 523. The Court held that this

investigation was unreasonable because it developed only a

“rudimentary knowledge of [the defendant’s] history from a

narrow set of sources.” Jd. at 524. The Court held that

effective counsel would have gathered much more background

information, such as that described in a post-conviction social

history report, which used “social services, medical, and school

records, as well as interviews with [the defendant] and

numerous family members” to “chronicle[]} [the defendant’s]

bleak life history.” Jd. at 516.

Counsel here obtained only a rudimentary knowledge of

Mr. Alderman’s life-history; indeed, counsel made no attempt

to discover much, if anything, about it. Rather, counsel

investigated only a narrow set of sources for an extraordinarily

limited purpose: to testify to Mr. Alderman’s good character

in support of a residual doubt defense. Counsel did not attempt

to gather “social services, medical, and school records,” and

showed no interest in learning of Mr. Alderman’s “bleak life

history.” Cf id. This was particularly unreasonable because

counsel easily could have obtained mitigating evidence of Mr.

Alderman’s life-history from dozens of readily available

sources, including Mr. Alderman’s family and friends.

Schiavone’s only explanation was that counsel “just probably

didn’t ask them.” App. 255a. Jackson admitted that their

failure to contact Mr. Alderman’s sister, first wife, or any of

Mr. Alderman’s teachers was not based on any tactical or

strategic decision. App. 229a; 233a.

13

Counsel had no legitimate reason to conduct such a

truncated investigation. There was no evidence suggesting that

“a mitigation case, in its own right, would have been

counterproductive, or that further investigation would have

been fruitless[.]” Wiggins, 539 U.S. at 525. As in Wiggins,

“this case is therefore distinguishable from [Supreme Court]

precedents in which [this Court has] found limited

investigations into mitigating evidence to be reasonable.” /d.;

see, ¢.g., Burger v. Kemp, 483 U.S. 776, 794 (1987)

(concluding counsel’s limited investigation was reasonable

because he interviewed all witnesses brought to his attention,

discovering little that was helpful and much that was harmful);

Darden v. Wainwright, 477 U.S. 168, 186 (1986) (concluding

that counsel engaged in extensive preparation and the decision

to present a mitigation case would have resulted in the jury

hearing evidence that petitioner had been convicted of violent

crimes and spent much of his life in jail).

2. Counsel Ignored Prevailing Professional Norms

Counsel’s limited investigation did not satisfy prevailing

professional norms. The ABA Guidelines for the Appointment

and Performance of Counsel in Death Penalty Cases provide

that counsel should investigate a capital defendant’s

background for “all reasonably available mitigating evidence,”

including evidence of his “medical history, educational history,

employment and training history, family and social history...

and religious and cultural influences.” Wiggins, 539 U.S. at

524 (citing ABA Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases 11.8.6, p.113

(1989)) (emphasis in original).’ This Court has held that

3 See also 1 ABA Standards for Criminal Justice 4-4.1, commentary,

p. 4-55 (2d ed. 1982).

14

counsel who did not adhere to these prevailing professional

norms violated a defendant’s Sixth Amendment rights:

Our opinion in Williams v. Taylor is illustrative of the

proper application of these standards. In finding

Williams’ ineffectiveness claim meritorious, we

applied Strickland and concluded that counsel’s failure

to uncover and present voluminous mitigating evidence

at sentencing could not be justified as a tactical

decision to focus on Williams’ voluntary confessions,

because counsel had not “fulfill[ed] their obligation to

conduct a thorough investigation of the defendant’s

background.” 529 U.S. at 396 (citing ABA Standards

for Criminal Justice 4.4.1, commentary, p. 4-55 (2d ed.

1980)). . . . In highlighting counsel’s duty to

investigate, and in referring to the ABA Standards for

Criminal Justice as guides, we applied the same

“clearly established” precedent of Strickland we apply

today.

Wiggins, 539 U.S. at 522 (quoting Williams v. Taylor, 529 US.

362, 396 (2000).

Counsel admitted that he made no attempt to find the

evidence set forth in the ABA Guidelines. App. 227a-29a;

238a; 265a. Yet evidence of Mr. Alderman’s medical history,

educational history, employment and training history, family

and social history, and religious and cultural influences was

readily available to counsel, just as it was in Wiggins. That all

of this evidence was introduced at the habeas proceedings

shows that counsel only had to conduct a _ reasonable

investigation to find it. This case therefore is indistinguishable

from Wiggins. Here, as there, counsel’s failure to pursue this

evidence violated the prevailing professional norms on which

this Court has relied in evaluating effectiveness of counsel.

15

B. Counsel Made No Reasoned Strategic Or Tactical

Decision To Limit His Investigation; Instead, He Did

Not Understand That Relevant Law Permitted Him

To Go Beyond Character Evidence To Gather And

Present Mitigating Evidence Of Mr. Alderman’s Life-

History

Counsel arbitrarily limited his investigation because he

misunderstood applicable law. This misunderstanding

prevented counsel from “conduct[ing] the requisite, diligent

investigation into his client’s [] background and unique

personal circumstances[.]” Williams, 529 U.S. at 415.

(O’Connor, J. concurring). While a wide variety of

information may constitute mitigating evidence,’ including

family history,’ favorable prospects. for rehabilitation,®

poverty,’ cooperation with authorities,* character,’ and good

behavior while awaiting trial,'° counsel mistakenly thought that

* See generally Craig M. Cooley, Mapping the Monster's Mental

Health and Social History: Why Capital Defense Attorneys and

Public Defender Death Penalty Units Require the Services of

Mitigation Specialists, 30 OKLA. CITY U. L. REV. 23, 43-48

(2005).

> Eddings v. Oklahoma, 455 U.S. 104, 113 (1982).

® Miller v. Wainwright, 798 F.2d 426, 430-31 (11th Cir. 1986),

vacated on other grounds, 480 U.S. 901 (1987).

” Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir. 1987).

8 Foster v. Strickland, 707 F.2d 1339, 1347 (11th Cir. 1983).

% Simmons v. South Carolina, 512 U.S. 154, 163 (1994).

'0 Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986).

16

he was limited to gathering and presenting evidence of Mr.

Alderman’s good character. App. 254a-S6a.

Counsel admitted that their failure to go beyond character

evidence was not based on a tactical or strategic decision.

Asked to explain his tactical or strategic reasons for not

eliciting details of Mr. Alderman’s life-history, Schiavone

responded: “No tactical or strategic reason I can think of, . . . .

I mean I - I’m thinking the character evidence - we probably

were thinking that that was the extent that we could go into at

that time.” App. 254a-56a. Jackson also admitted that he had

no tactical or strategic reason not to ask these witnesses about

Mr. Alderman’s life experiences. App. 227a-29a.

C. The State Court’s Decision Was Objectively

Unreasonable Because The Court Did Not Assess

Directly Whether Counsel’s Limited Investigation

Was Based On A Reasoned Strategic Or Tactical

Decision

28 U.S.C. § 2254(d) states that an unreasonable application

of this Court’s precedent occurs when a state court “‘identifies

the correct governing legal principle from this Court’s

decisions but unreasonably applies that principle to the facts’

of petitioner’s case.” Wiggins, 539 U.S. at 510 (quoting

Williams, 529 U.S. at 413). That is, “the state court’s decision

must have been [not only] incorrect or erroneous [but]

objectively unreasonable.” Id. at 520-21.

The state court’s application of Strickland was objectively

unreasonable for several reasons.

First, the state court erroneously found that counsel

conducted a thorough investigation of Mr. Alderman’s

background merely because he hired two investigators who

17

questioned a number of fact and character witnesses.

Alderman v. Head, No. 94-V-720 at 25 (Ga. Super. Ct. Butts

County Dec. 29, 1999). App. 107a-08a. The court failed to

consider that the scope of counsel’s investigation was limited

to character evidence in support of a residual doubt theory and

ignored readily available mitigating evidence of Mr.

Alderman’s life-history. See Rompilla v. Beard, 545 U.S. 374,

379, 388-89 (2005) (counsel’s efforts to find mitigating

evidence by interviewing the defendant, several family

members, and consulting with three mental health experts did

not excuse them from pursuing an obvious investigative area).

The court failed to consider counsel’s admissions that their

failure to go beyond character evidence supporting a residual

doubt defense was not based on a reasoned tactical or strategic

decision, but rather a misunderstanding of applicable law. A

strategy premised on a misunderstanding of applicable law

cannot be a reasoned tactical or strategic decision under

Wiggins, 539 U.S. at 533. See Horton v. Zant, 941 F.2d 1449,

1462 (11th Cir. 1991) (counsel’s failure to do any investigation

because of the mistaken notion that mitigating evidence was

inappropriate indisputably fell below reasonable professional

norms; counsel began to follow one path, based upon a

misinterpretation of the law, without ever evaluating the merits

of alternative paths); Smith v. Stewart, 189 F.3d 1004, 1010

(9th Cir. 1999) (counsel’s decision not to pursue mitigating

evidence was not “strategic” where it was based on a lack of

understanding of what constituted mitigating evidence).

Second, the state court found that “trial counsel presented

substantial evidence in mitigation.” Alderman v. Head, No. 94-

V-720 at 25 (Ga. Super. Ct. Butts County Dec. 29, 1999)

(emphasis added). App. 108a. To the contrary, counsel

offered no mitigation defense at the RST. App. 174a-97a. The

court ignored the fact that counsel offered character evidence

only for the purpose of establishing residual doubt of Mr.

18

Alderman’s guilt. The court’s own words contradict its

eroneous finding that substantial evidence was presented in

mitigation:

Mr. Jackson’s adopted trial strategy was one of

establishing residual doubt — that even though

Alderman had already been found guilty, he argued the

jury should not return a death sentence because there

was still some residual doubt as to Alderman’s

culpability and involvement in the crime. (H.T. 100,

224). In furtherance of this trial strategy, in addition to

directly attacking the state’s case, Mr. Jackson

preserited witnesses to show that Alderman was not

violent, and that he was well respected and trusted in

the community and therefore would not have

committed this type of crime. (H.T. 149, 224-225). To

that end, many people were contacted and considered

as potential witnesses. Mr. Jackson also contacted

many prison guards who could testify about

Alderman’s non-violent attitude while incarcerated.

Alderman v. Head, No. 94-V-720 at 19 (Ga. Super. Ct. Butts

County Dec. 29, 1999) (emphasis added). App. 99a-100a.

Thus, in the court’s own words, Jackson contacted potential

witnesses only in support of his residual doubt defense.

Third, the state court erroneously concluded that Jackson’s

residual doubt defense was reasonable because a “mercy”

Strategy would have been incompatible with the evidence

presented in support of residual doubt. Alderman v. Head, No.

94-V-720 at 23 (Ga. Super. Ct. Butts County Dec. 29, 1999).

App. 105a. This conclusion directly conflicts with this Court’s

conclusion in Wiggins that mitigation and residual doubt are

not mutually exclusive sentencing strategies. 539 U.S. at 535;

19

see also Chandler v. United States, 218 F.3d 1305, 1311 (11th

Cir. 2000) (en banc).

Given the large volume of mitigating evidence of Mr.

Alderman’s life-history counsel failed to gather and present,

the state court’s decision was objectively unreasonable because

not only did it unreasonably apply this Court’s precedent, but

it also relied on erroneous factual findings that counsel

(1) conducted a thorough investigation and (2) presented

substantial evidence in mitigation. See Wiggins, 539 U.S. at

528 (“partial reliance on an erroneous factual finding further

highlights the unreasonableness of the state court’s decision’).

In Williams, this Court held that counsel was ineffective

because he failed to obtain the defendant’s juvenile records.

That the records contained harmful information was

immaterial: “{o]f course not all of the [} [unpresented]

evidence was favorable to Williams. ... But... failure to

introduce the comparatively voluminous amount of evidence

that did speak in Williams’ favor was not justified by a tactical

decision” because counsel did not adequately investigate and

therefore did not know what the evidence was. Williams, 529

U.S. at 396; accord Wiggins, 539 U.S. at 522.

Here, as in Williams, counsel could not have made a

reasoned strategic or tactical decision not to obtain and

introduce mitigating evidence of Mr. Alderman’s life-history

evidence because he did not know what that evidence was.

The state court’s focus on the two investigators and the

character evidence presented in support of the defense’s

residual doubt defense therefore was misplaced. The court

should have focused on counsel’s failure to gather and present

the comparatively voluminous amount of mitigating evidence

of Mr. Alderman’s life-history evidence, both records and

witness testimony, that was revealed to the court for the first

time at the habeas proceedings. The state court failed to do so.

20

In concluding that counsel performed reasonably and

effectively in their representation of Mr. Alderman, the state

court’s application of Strickland was objectively unreasonable.

Section 2254(d) thus poses no bar to this Court granting Mr.

Alderman habeas relief.

D. The Eleventh Circuit Merely Accepted The

Reasoning Of The State Court And Failed To Apply

Strickland As Directed By This Court

The Eleventh Circuit failed to assess directly the

reasonableness of counsel’s decision to limit their investigation

and presentation of mitigating evidence of Mr. Alderman’s

life-history. Instead, the Eleventh Circuit adopted a far stricter

approach. It required Mr. Alderman to “‘prove that the

approach taken by counsel would not have been used by

professionally competent counsel.’” Alderman, 468 F.3d at

792 (quoting Harich v. Dugger, 844 F.2d 1464, 1470 (1 1th Cir.

1988)) (abrogated on other grounds). The “approach” to which

the court referred was not the failure to investigate or present

mitigating evidence of Mr. Alderman’s life-history, but

counsel’s residual doubt defense. The Eleventh Circuit’s

standard thus relieved counsel of the obligation this Court

placed squarely on his shoulders — to demonstrate that his

failure to investigate or present this mitigating evidence was

based on a reasoned strategic or tactical decision.

Counsel’s admissions that he made no such decision should

have ended the analysis. Instead, the Eleventh Circuit

determined that it could affirm the state court’s ruling if other

professionally competent counsel would have adopted

counsel’s residual doubt defense, regardless of whether that

same counsel would have limited his investigation or

presentation of voluminous mitigating evidence in the same

way counsel did here. Alderman, 468 F.3d at 795. This turns

21

Strickland and its progeny on their heads, and it is for this

reason that the Eleventh Circuit unreasonably misapplied this

Court’s holdings.

Further, the Eleventh Circuit’s reliance on Harich is

irreconcilable with its decision in Collier v. Turpin, 177 F.3d

1184 (1ith Cir. 1999). In finding that counsel’s performance

during sentencing fell below professional standards and was

therefore ineffective, the Collier court noted that “defense

counsel did elicit testimony that Collier had a ‘good’

reputation, that he was generally known as a hard worker who

took care of his family, and that he had a good reputation for

truth and veracity.” /d. at 1201. The Eleventh Circuit found,

however, that counsel presented “no more than a [] shell of the

testimony necessary for a ‘particularized consideration of

relevant aspects of the character and record of [a] convicted

defendant before the imposition upon him of a sentence of

death.’” Jd. at 1201-02 (quoting Woodson v. North Carolina,

428 U.S. 280, 303 (1976)). The court further found that

“{ajlthough counsel were aware of the Supreme Court’s

opinion in Lockett, and recognized that the sentencing phase

was the most important part of the trial . . ., they presented

almost none of the readily available evidence of Collier’s

background and character that would have led the jury to

eschew the death penalty.” /d. at 1202.

Counsel’s performance here is indistinguishable from

Collier’s. While eliciting testimony of Mr. Alderman’s good

character at the RST in support of his residual doubt defense,

counsel presented almost none of the readily available evidence

of Mr. Alderman’s background. Counsel’s failure to present

this evidence fell below professional standards, and thus, the

assistance Mr. Alderman received at the RST violated his Sixth

Amendment right to effective counsel.

22

Il. COUNSEL UNREASONABLY OMITTED A

MITIGATION ARGUMENT FROM THE

RESENTENCING PHASE OF A CAPITAL TRIAL

The Eleventh Circuit’s decision was _ objectively

unreasonable because counsel’s omitting a mitigation argument

also must satisfy Strickland’s performance standards requiring

“reasonable professional judgment.” Strickland, 466 U.S. at

690-91. While counsel’s “strategic choices” made after a

thorough investigation are virtually, but not absolutely,

unchallengeable, id., the failure to make any strategic decision,

let alone a reasonable one, fails to satisfy the Strickland ~

standard.

While counsel is entitled to make a strategic decision to

forego a mitigation argument, winnow out some evidence to

stress other evidence, or not use mitigation evidence that could

be counterproductive or could provoke harmful cross-

examination and rebuttal witnesses, see Waters v. Thomas, 46

F.3d 1506, 1512 (11th Cir. 1995); Conklin v. Schofield, 366

F.3d 1191, 1204 (11th Cir. 2004); Chandler, 218 F.3d at 1319,

counsel here did not make such a strategic decision. Jackson |

admitted that his residual doubt defense did not prevent him

from making a mitigation argument. App. 238a.

Moreover, Jackson simply ignored substantial mitigating

evidence of Mr. Alderman’s life-history, and by doing so,

ignored this Court’s admonition that sentencing juries must not

be precluded from considering as a mitigating factor any aspect

of a defendant’s character proffered as a basis for a sentence

less than death. Lockett, 438 U.S. at 604 (plurality opinion);

see Woodson, 428 U.S. at 304 (“the fundamental respect for

humanity underlying the Eighth Amendment . . . requires

consideration of the character and record of the individual

offender and the circumstances of the particular offense as a

23

constitutionally indispensable part of the process of inflicting

the penalty of death”); see also Eddings v. Oklahoma, 455 U.S.

104 (1982) (the sentencer in capital cases must be permitted to

consider any relevant mitigating evidence); Skipper v. South

Carolina, 476 U.S. 1 (1986) (same); Spivey v. State, 246 S.E.2d

288, 290-91 (Ga. 1978) (“Georgia law nowhere defines

mitigating circumstances . .. . The conclusion is inescapable

that the legislature meant to empower the jury to consider as

mitigating anything they found to be mitigating, without

limitation or definition.”).

The character and life-history evidence presented at the

RST and proffered at the habeas proceedings clearly supported

a mitigation defense. See, e.g., Simmons v. South Carolina,

512 U.S. 154, 163 (1994) (character evidence); Skipper, 476

U.S. at 4-5 (evidence that defendant had adapted well to prison

life); Eddings, 455 U.S. at 113 (evidence of 16-year old

defendant’s troubled family history and emotional

disturbance); Miller v. Wainwright, 798 F.2d 426, 430-31 (1 1th

Cir. 1986) (favorable prospects for rehabilitation), vacated on

other grounds, 480 U.S. 901 (1987). Yet counsel failed to

argue any of this evidence in support of a mitigation defense.

Counsel’s failure to use this evidence in support of a

mitigation defense was not based on a reasoned strategic

decision. Indeed, counsel made no decision at all, reasonable

or otherwise. To the extent mitigation evidence was presented

at the RST, Jackson arbitrarily limited its use to show Mr.

Alderman’s good character in support of his residual doubt

defense. When asked by habeas counsel why he failed to ask -

any of the defense’s character witnesses whether the jury

should show Mr. Alderman mercy, Jackson admitted that he

had no such reason. App. 229a-30a. Jackson himself never

asked the jury to show Mr. Alderman mercy based on any of

this evidence, despite the judge’s instructions that the jury

24

consider mitigating circumstances as extenuating or reducing

the degree of Mr. Alderman’s moral culpability to justify a life

sentence. Instead of asking for mercy, Jackson told the jury

that they should consider this evidence in deciding whether

they believed Brown was lying about the murder. App. 194a-

96a.

To the extent other mitigating evidence was available, e.g.,

the substantial mitigating evidence of Mr. Alderman’s life-

history proffered at the habeas proceedings, counsel] did not use

it because he did not know about it; in fact, he made no attempt

to gather and present it because he did not understand that

relevant Jaw permitted him to go beyond character evidence.

Thus, counsel failed to properly use or simply ignored all of the

reasonably available mitigating evidence in omitting a

mitigation argument and thereby precluded the jury from

considering Mr. Alderman’s mitigating circumstances in

determining the appropriate punishment. This violated Mr.

Alderman’s Sixth Amendment right to effective counsel.

III. THERE IS A REASONABLE PROBABILITY

THAT, BUT FOR COUNSEL’S

UNPROFESSIONAL ERRORS, MR. ALDERMAN’S

RESENTENCING TRIAL JURY WOULD HAVE

RETURNED A LIFE SENTENCE

To establish prejudice under Strickland, a defendant must

show that there is “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Wiggins, 539 U.S. at 534. Here,

the existence of prejudice is clear, and had counsel performed

competently there is a reasonable probability that the RST jury

would have returned a life sentence. In reaching this

conclusion, the Court need not make the state law evidentiary

findings that would have been at issue at sentencing. /d. at

25

536. Rather, the Court need only evaluate the totality of the

evidence — “‘both that adduced at trial, and the evidence

adduced in the habeas proceeding.’” /d. (quoting Williams,

529 U.S. at 397-98) (emphasis omitted).

A. Counsel’s Omitting A Mitigation Argument

Prejudiced Mr. Alderman

By framing the character and life-history evidence before

the court as proof of Mr. Alderman’s innocence, Jackson

precluded the jury from performing their most critical function

at capital sentencing — giving meaningful consideration and

effect to all mitigating circumstances that might provide a basis

for refusing to impose the death penalty.

To counter effectively the State’s case for a death sentence,

Jackson should have told the jury that they were obligated to

consider Mr. Alderman’s character and life-history evidence as

mitigating factors supporting a life sentence. By failing to

make that argument, Jackson prevented the jury from focusing

on Mr. Alderman’s particularized characteristics and offering

a reasoned moral response to his character and life experiences.

See California v. Brown, 479 U.S. 538, 545 (1987) (O’ Connor,

J., concurring) (“the sentence imposed at the penalty stage

should reflect a reasoned moral response to the defendant’s

background, character, and crime’’) (emphasis in original). But

for Jackson’s failure, there is a reasonable probability that the

jury would have given Mr. Alderman a life sentence.

B. Counsel’s Limited Investigation And Presentation Of

* Readily Available Life-History Evidence Prejudiced

Mr. Alderman

The state and federal appellate courts failed to give

adequate consideration to the compelling mitigating evidence

26

the jury never heard. In evaluating the life-history evidence

presented for the first time at the 1999 habeas proceedings in

the form of live testimony, witness affidavits, and Mr.

Alderman’s medical and educational records, this Court should

find that, but for counsel’s unprofessional errors in not

presenting it at the RST, there is a reasonable probability that

the jury would have, placing the “totality of available [)

evidence” on the mitigation side of the scale, struck a different

balance and returned a life sentence. Wiggins, 539 U.S. at 534,

wat.

Counsel did not tell the jury about Mr. Alderman’s

psychological trauma caused by childhood events. Testimony

proffered at the habeas proceedings by Adlerman’s sister

would have revealed the emotional damage Mr. Alderman

suffered as a result of his neglect. Mr. Alderman’s sister,

Theresa Callaway, testified that Mr. Alderman’s mother never

had any contact with them, and that she and Mr. Alderman

moved in with their paternal grandparents. She testified that

they were “not a very close family and there was little warmth

or caring shown to us. ... My daddy always worked a lot, and

he drank a lot, so he really wasn’t around very much. He spent

very little time with me and Jackie. ... He gave us no

guidance and no control... .” App. 273a. Ms. Callaway

asserted that she and Mr. Alderman were repeatedly reminded

by their grandmother that she resented having to raise them.

App. 274a.

Additional testimony proffered at the habeas proceedings

by Mr. Alderman’s father and through his medical records

revealed the hardships caused by Mr. Alderman’s eye injury

and temporary blindness. Mr. Alderman’s father recalled that

“the violent attack and the loss of his eye had a profound affect

on Jackie throughout his life. He was picked on at school by

his peers. At times he would become discouraged and

27

depressed.” App. 263a. Alderman’s medical records indicated

that when he was 15, he had “an increasing number of

headaches” because he only used his right eye, and blurred

vision in his right eye became so severe that it prevented him

from reading. App. 278a-79a.

Counsel precluded the jury from giving meaningful

consideration and effect to Mr. Alderman’s bleak life-history

revealed by his educational records. When Mr. Alderman

transferred to the Georgia Academy for the Blind, his guidance

counselor compiled a case history that showed Mr. Alderman

was under the jurisdiction of the juvenile court, his father was

frequently absent and threatened to commit suicide, and his

step-grandfather went to stay with relatives in another town to

relieve himself of the tension at home. App. 291a-94a. The

school counselor assessed that Mr. Alderman was reluctant to

accept responsibility, possibly the result of “meager parental

control,” and that he had a weak self image created by his

weakening vision. App. 292a. Mr. Alderman was failing in

school because of his blindness. App. 292a.

Mr. Alderman’s experiences caused him to develop

psychological infirmities that the jury could have considered in

reducing the degree of his moral culpability. Repeated

references to his being blind while attending public school

caused him to develop an inferiority complex. App. 294a. The

school counselor concluded that the weak relationship with his

father and the lack of home support were a “threat to his

development of a normal self concept and proper control of his

instinctive impulses, causing the consequent development of a

reluctance to submit to the binding restrictions placed on him

by the society in which he lives.” App. 294a.

Morever, Counsel deprived the jury of the chance to

compare this bleak upbringing with Mr. Alderman’s significant

28

moral and psychological development while he was an inmate.

Martha Murphy Davis, a Presbyterian pastor and director of the

Southern Prison Ministry in Georgia, met Mr. Alderman at the

Georgia State Penitentiary in 1979.'' She told the court:

I’ve known people on the row who have had all

different kinds of life experiences and different kinds of

emotional responses to their life experience. And Jack

has stood out in many, many ways; both in his

relationships with other prisoners; prison staff[;]} .. . his

friends outside of prison; .. . his capacity through...

all that he’s been through, which has been a real legal

and emotional roller coaster, to maintain a sense of

focus and an amazing level of discipline.

I think discipline is one of the rea] hallmarks that I

would cite, [{] physically . . . spiritually; intellectually.

He reads very widely. He has .. . found a real home in

the Catholic church and has found in the practice of his

faith a way to sort of order his own life and order his

days so that he understands how to -- how to structure

his life around his faith commitment.

App. 217a.

Ms. Davis further described Mr. Alderman’s spirituality as

'' Ms. Davis was instructed by counsel to confine her testimony to

her observations and knowledge of Alderman prior to the RST. In

response, Ms. Davis stated: “I’ve known him for 20 years so, you

know, what happened before ‘84 and, you know, what happened

afterwards I can’t be entirely sure. But I'll do my best to do that.

App. 218a.

29

His spirituality has been such a warm and deep

expression in his own life that he has — it’s kind of

spilled out to be a resource for other prisoners and for

prison staff.

... [Jack] has been in many instances a mentor to other

people; and particularly younger guys coming into

prison for the first time not knowing how to handle

themselves; having, you know, the impulse to act

quickly and without thinking.

And I’ve seen on so many occasions Jack . . . take

somebody under his wing and help them. . . learn how

to live in that very difficult context without brutalizing

each other.

App. 217a-19a.

Father Richard Paul Wise, the chaplain at the Georgia

Diagnostic and Classification Center from 1980 to 1986, told

the court that “Jack is an amazing man. . . . I respected Jack’s

wisdom. I respected his insight into things. I respected his

religious commitment, . . . [h]e always had a strong desire to

learn more.” App. 205a-06a.

The totality of available evidence reveals that Mr.

Alderman endured a deeply troubling childhood and failed to

develop a normal self concept, proper control of his instinctive

impulse, and an ability to submit to societal restrictions. Yet,

in prison he developed positive relationships with family and

friends outside of prison. He demonstrated physical, spiritual,

and intellectual growth and discipline. Mr. Alderman

mentored new prisoners who came into prison “having... the

impulse to act quickly and without thinking[,]” and taught them

30

how to live in that restrictive environment without brutalizing

others. App. 218a-20a.

This is a compelling mitigation case that counsel should

have made and that the state and federal appellate courts should

have considered to ensure a reliable result. As this Court stated

in Strickland:

[T]he ultimate focus of inquiry must be on the

fundamental fairness of the proceeding whose result is

being challenged. In every case the court should be

concerned with whether, despite the strong

presumption of reliability, the result of the particular

proceeding is unreliable because of a breakdown in the

adversarial process that our system counts on to

produce just results.

466 U.S. 696. By failing to present evidence of Mr.

Alderman’ s life-history that would have mitigated his sentence,

counsel precipitated a “breakdown in the adversarial process.”

See Collier, 177 F.3d at 1204. The RST jury was charged with

deciding whether a man unknown to them should live or die,

but they did not have the life-history evidence necessary to

balance the seriousness of his crime with the conditions of Mr.

Alderman’s life. Jd. Had the jury been able to do so, it is at

least reasonably probable that they would have returned a life

sentence.

CONCLUSION

This Court should issue its writ of certiorari and review the

decision of the Eleventh Circuit.

Respectfully Submitted,

Leiv H. Blad Jr.

Jon R. Fritz

Clifford Chance US LLP

2001 K Street, NW

Washington, D.C. 20006

(202) 912-5000

Thomas H. Dunn

Counsel of Record

Georgia Resource Center

303 Elizabeth Street

Atlanta, Georgia 30309

(404) 222-9202

Counsel for Petitioner

APPENDIX

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 04-1495-P

JACK E. ALDERMAN,

Petitioner-Appellant,

v.

WILLIAM TERRY, Warden,

Respondent-Appellee.

Dec. 8, 2006, Decided

On Appeal from the United States District Court for the

Southern District of Georgia

BEFORE: TJOFLAT, ANDERSON and CARNES, Circuit

Judges.

PER CURIAM:

The petition(s) for rehearing filed by appellant, Jack E.

Alderman, is Denied.

2a

ENTERED FOR THE COURT:

/s/

UNITED STATES CIRCUIT JUDGE ORD-41

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

Case No. 04-14595

JACK E. ALDERMAN,

Petitioner-Appellant,

v.

WILLIAM TERRY, Warden,

Respondent-Appellee.

October 30, 2006, Decided

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF GEORGIA

Before TJOFLAT, ANDERSON, and CARNES, Circuit

Judges.

TJOFLAT, Circuit Judge:

1 The petitioner, Jack E. Alderman, is a Georgia prisoner

on death row, having been convicted of the 1974 murder of his

wife, Barbara J. Alderman, in the Superior Court of Chatham

County, Georgia. On July 16, 2004, the United States District

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Court for the Southern District of Georgia denied his petition

for a writ of habeas corpus, and he appealed. We granted his

application for a certificate of appealability as to one issue:

whether Alderman’s trial attorneys denied him the effective

assistance of counsel in the penalty phase of his sentencing

proceedings by failing to investigate and present to the jury his

social — history background.

2 From the time of the murder to the present appeal, this

case has extended over thirty-two years. Needless to say, the

procedural history of this case is extensive and complex. For

the sake of clarity, we organize the opinion as follows: part I

provides the factual background and procedural history of the

case; part [I focuses on Alderman’s 1984 re-sentencing trial;

part [II outlines Alderman’s ineffective assistance claim, the

evidence presented to the Superior Court of Butts County,

Georgia at the evidentiary hearing it held on the claim, and that

court’s findings of fact and conclusions of law; part IV spells

out Alderman’s challenge to those findings and conclusions

and explains why we cannot overturn them and, therefore, must

deny the relief that Alderman seeks.

I.

A.

3 The following statement of facts is an excerpt from

Alderman v. Zant, 22 F.3d 1541, 1544-46 (11th Cir. 1994).

The Petitioner, Jack E. Alderman (“Alderman’’), and his

wife, Barbara Alderman (“Mrs. Alderman”), lived in an

apartment in Chatham County [,} Georgia. Alderman was

employed as an assistant manager at the local Piggly Wiggly

supermarket. Mrs. Alderman was employed in the Tax

Assessor’s office for the City of Savannah. In conjunction

with her employment, Mrs. Alderman maintained a $10,000.00

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life insurance policy that paid double benefits in the event of

accidental death. Mrs. Alderman also had another life

insurance policy in the amount of $25,000.00 which named her

mother as beneficiary.

Alderman met John Arthur Brown (“Brown”), later

convicted as an accessory to Mrs. Alderman’s murder, when

both Alderman and Brown were employed in the vehicle

maintenance department for the City of Savannah. Brown

testified that on September 19, 1974, Alderman phoned Brown

and asked him to meet him at the Piggly Wiggly supermarket.

Brown stated that during this meeting Alderman asked Brown

to kill Mrs. Alderman in exchange for half the insurance

proceeds. Brown, although claiming not to take Alderman

seriously, accepted the proposition.

On Saturday, September 21, 1974, Alderman asked Brown

to come to his apartment. When Brown arrived, Alderman

handed Brown a twelve-inch crescent wrench and instructed

Brown to go into the bedroom and kill Mrs. Alderman.

Testimony indicates that Brown was initially reluctant, but

agreed to strike Mrs. Alderman when persuaded by the gun

wielding Alderman. Brown entered the dining room and struck

Mrs. Alderman in the head with the wrench. Mrs. Alderman

cried out and ran into the living room where she confronted her

husband. Alderman tackled Mrs. Alderman, then assisted by

Brown, placed his hands over Mrs. Alderman’s nose and mouth

until she was unconscious. -

Alderman and Brown carried Mrs. Alderman’s limp body

to the bathroom and placed it in the bathtub. Alderman started

to fill the tub while Brown cleaned the blood stains from both

the living and dining rooms. Alderman and Brown changed

clothes and left the apartment for several hours. The two men

went to the Piggly Wiggly supermarket where Alderman

borrowed $100.00. Alderman and Brown then went to two

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local Savannah bars. At some time during the evening

Alderman gave Brown the $100.00.

Alderman and Brown returned to the apartment around

10:00 p.m., removed Mrs. Alderman’s body from the bathtub

and wrapped it in a green quilt. The two men carried the body

to Alderman’s 1974 Pontiac and placed it in the trunk. Brown

drove Alderman’s car as Alderman followed on his

motorcycle. Alongside a creek in Rincon, Georgia, Brown and

Alderman removed the body from the trunk and placed it in the

driver’s seat. At Alderman’s direction, Brown reached in the

driver’s window and released the emergency brake allowing

the car to roll into the creek. The car stopped halfway into the

creek. Again at Alderman’s direction, Brown opened the car

door, pulled Mrs. Alderman’s body halfway out and allowed

her face to fall into the creek. The two men removed the green

quilt and the rubber trunk mat from the car and fled the scene

on Alderman’s motorcycle.

Later that evening, on September 21, 1974, Randy Hodges

(“Hodges”) and Terry Callahan (“Callahan”) were driving

home on Baker Hill Road and Highway 131. As they turned

onto Highway 131 and approached Dasher’s Creek, they

‘noticed a car in the creek. Hodges jumped out, saw that there

was a woman in the car and sent Callahan to Lamar Rahn’s

house to call for help. Effingham County Sheriff Lloyd

Fulcher (“Fulcher”) responded to the call. Upon his arrival at

the scene, Fulcher found the victim’s car in the water adjacent

to the bridge. Fulcher noticed no apparent physical damage to

the car. He ordered Mrs. Alderman’s body to be removed from

the car and taken to the hospital. Fulcher observed that there

were no skid marks from the car but that motorcycle tracks

were apparent in the area. Fulcher also noticed blood stains on

the seat of the car and that the trunk mat was missing.

Ta

At the direction of Fulcher, Garden City police officer J.D.

Crosby (“Crosby”) went to Alderman’s apartment only to find

it locked. Crosby later returned to the apartment at

approximately 2:30 a.m. and found Alderman there with a

woman. Crosby informed Alderman that his wife had been

involved in a traffic accident, and asked him to accompany

Effingham County authorities to the hospital. Georgia Bureau

of Investigation Agent H.H. Keadle (“Keadle”) was present at

the Effingham County hospital. Keadle and Fulcher noticed

red/brown stains in the seat and crotch of Alderman’s pants and

on his belt. At that time, Alderman’s clothes were taken from

him.

Keadle’s investigation confirmed Crosby’s findings at the

accident scene. Keadle also recovered a stained portion of a

green rug and Alderman’s motorcycle helmet, which had been

removed from Alderman’s apartment by Mrs. Alderman’s

mother. Alderman’s father, Jack Alderman, Sr., also gave the

police the twelve inch crescent wrench that he had removed

from Alderman’s apartment.

Forensic Serologist Elizabeth Quarles, of the Georgia State

Crime Laboratory, examined the blood found on Alderman’s

clothes. The blood type was consistent with Mrs. Alderman’s

blood. An examination of the vehicle revealed one palm print

and four fingerprints which were stipulated as Alderman’s.

Brown’s fingerprints, however, were not found on the car.

Dr. Charles Sullinger (“Dr. Sullinger”) performed the

autopsy upon Mrs. Alderman’s body. Dr. Sullinger concluded

that the laceration on the back of Mrs. Alderman’s head was

inflicted by a blunt instrument. Dr. Sullinger also concluded

that because there existed only a small amount of blood in the

car, the blow to Mrs. Alderman’s head did not occur as a result

of the accident. Dr. Sullinger found no evidence of any

abnormalities in the heart, no scratches on the forearms and no

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evidence of strangulation. Dr. Sullinger concluded that the

liquid in Mrs. Alderman’s lungs revealed that Mrs. Alderman

died as a result of asphyxia due to drowning.

Keadle’s investigation led him to Brown. Brown

eventually gave a statement incriminating himself and

Alderman. At trial, Alderman testified on his own behalf and

denied that he killed his wife. Alderman testified that on the

night of September 21, 1974, he and his wife had an argument

and that he left the apartment alone. He allegedly took a bus to

Savannah where he spent some time at two local bars.

Alderman testified that he returned home at approximately

10:00 p.m. but his wife was not at home. Alderman decided to

go to Rincon, Georgia to see if Mrs. Alderman was at her

- grandparent’s home. A more complete version of Alderman’s

defense may be found in Alderman v. State, 241 Ga. 496, 246

S.E.2d 642, 644-45, cert. denied, 439 U.S. 991, 99 S.Ct. 593,

58 L.Ed.2d 666 (1978), reh’g denied, 439 U.S. 1122, 99 S.Ct.

1036, 59 L.Ed.2d 84 (1979).

Alderman testified that on his way to Rincon, he observed

his car on the side of the bridge at Dasher’s Creek. Alderman

stopped his motorcycle and went to the car where he

discovered his wife’s body. Alderman stated that he picked up

Mrs. Alderman’s head and placed it in his lap. Upon hearing

a noise, Alderman fled the scene in shock and fear. Alderman

allegedly forgot about his wife’s body, drove to Savannah and

returned to a local bar. Alderman then went to Johnny

Ganem’s for breakfast with friends. While at breakfast,

Alderman offered Gerlina Carmack (the female present in the

Alderman’s apartment when Officer J.D. Crosby arrived) a ride

home. Alderman had allegedly stopped at his apartment to

pick up a jacket when the police arrived and took him to the

hospital where he identified his wife’s body.

9a

Alderman testified that he did not know why he had left his

wife’s body in the creek; that he recalled nothing of his trip

back to Savannah; and, the fact that his wife was dead had

completely left his mind. Appellant testified that he first

realized the full facts surrounding his wife’s death after being

treated by a psychiatrist who was able to refresh his memory as

to the events surrounding her death. He further testified that

after being treated by the psychiatrist he realized that fear had

caused him to leave his wife’s body in the creek because he

knew her family would blame him for her death.

B.

4.As noted supra, on July 16, 2004, the district court denied

Alderman’s application for a writ of habeas corpus. Alderman

v. Schofield, No. CV403-028 at 5-9 (S.D.Ga. July 16, 2004).

In its dispositive order, the court recounted the procedural

history of this case — the prosecution in the Chatham County

Superior Court, the appeals to the Georgia Supreme Court, the

collateral attacks in the Butts County Superior Court, and the

habeas proceedings in federal court. |

On June 14, 1975, Petitioner was convicted in the Superior

Court of Chatham County for killing his wife, and then he was

sentenced to death. Following his conviction, he appealed to

the Georgia Supreme Court, which denied his appeal on June

27, 1978. Certiorari was later denied by the United States

Supreme Court on November 27, 1978. He then filed for state

habeas relief in the Superior Court of Chatham County,

Georgia. In June 1979, the Georgia Supreme, Court denied

Petitioner a certificate of probable cause to appeal. The United

States Supreme Court denied certiorari on February 19, 1980,

and denied a rehearing on March 19, 1980.

Petitioner then filed an application for habeas relief in

federal district court on June 27, 1980. This first round of

10a

federal habeas appeals culminated in 1983 when the Fifth

Circuit, Unit B, acting en banc, granted a new sentencing trial,

which began in March 1984. After his re-sentencing trial,

Petitioner was again sentenced to death on April 1, 1984. He

then filed a motion for new trial and an amendment thereto,

which were denied in an order filed on August 27, 1984.

Petitioner directly appealed his death sentence to the Georgia

Supreme Court, which affirmed his new death sentence on

February 28, 1985. On October 15, 1985, the United States

Supreme Court denied certiorari and later denied a rehearing

on November 18, 1985.

Petitioner then began a second round of habeas appeals in

the state and federal courts with the same attorneys who

represented him at the re-sentencing trial. He filed a state

habeas petition in the Superior Court of Butts County on

February 6, 1986. An amended habeas petition was filed June

16, 1987, and a second amended habeas petition was filed June

25, 1987. Following an evidentiary hearing on June 29, 1987,

the state habeas court dismissed the petition on September 10,

1987, holding that all of Petitioner’s claims were barred from

review because of procedural default. On October 28, 1987,

the Georgia Supreme Court denied the application for a

certificate of probable cause to appeal. The United States

Supreme Court subsequently denied certiorari on March 7,

1988, and denied a rehearing on April 25, 1988.

Petitioner then filed a petition for habeas relief in federal

district court on June 23, 1988. The federal petition was

denied at the trial level on June 6, 1989, without an evidentiary

hearing. Subsequent to the entry of judgment, both Petitioner

and the State filed motions to alter and amend. On June 22,

1989, the District Court entered an order denying Petitioner’s

motion, but did not rule on the State’s motion. During the

pendency of the State’s motion, Petitioner filed a notice of

la

appeal. On August 10, 1990, the Eleventh Circuit dismissed

the appeal of Petitioner for lack of jurisdiction. On remand, the

District Court entered an order on September 20, 1990,

granting the State’s motion to alter and amend in part and

denying the motion in part.

Petitioner then filed an appeal challenging the decision of

the District Court, while at the same time challenging the

court’s jurisdiction to consider his own appeal due to the

failure to rule on an issue. On December 27, 1991, the

Eleventh Circuit dismissed the appeal for lack of jurisdiction

because the District Court failed to rule on Petitioner’s claim

regarding the guilt — phase jury, but the Eleventh Circuit did

find that the District Court had jurisdiction to hold an

evidentiary hearing on Petitioner’s . . . claims [Giglio v. United

States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972);

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963)], and ordered the District Court to hold such a

hearing. After an evidentiary hearing on May 18, 1992, the

District Court found the Brady/ Giglio claims to be

procedurally barred, and thereby dismissed the petition on June

23, 1992. The Eleventh Circuit affirmed the ruling on April

14, 1994, and denied a rehearing en banc on July 12, 1994.

The United States Supreme Court again denied certiorari on

December 12, 1994, and denied a rehearing on February 21,

1995.

Petitioner began a third round of habeas action in the

Superior Court of Butts County on December 22, 1994,

challenging his new death sentence on two grounds:

ineffective assistance of counsel during the re-sentencing trial

and ineffective assistance of counsel during the appeal from the

re-sentencing trial. The State filed its answer on January 13,

1995. For reasons unknown to the Court, no action apparently

12a

occurred in Petitioner’s case in the state court system until

1999.

On March 29, 1999, an amended habeas petition was filed

in the state court. An evidentiary hearing was conducted in the

state habeas court on May 5 and 6, 1999, and Petitioner’s

claims were denied on December 29, 1999. Petitioner’s

application for a certificate of probable cause to appeal was

denied by the Georgia Supreme Court on January 10, 2002. On

October 21, 2002, the United States Supreme Court denied

certiorari.

5 In February 2003, after exhausting these remedies,

Alderman once again returned to the district court for habeas

corpus relief. In a new petition, he claimed that he was denied

constitutionally effective assistance of counsel at his 1984 re-

sentencing trial and in his direct appeal from the death sentence

he received. The district court, relying on the record compiled

by the Superior Court of Butts County on Alderman’s March

29, 1999 habeas petition and the court’s order denying relief,

denied Alderman’s petition and his subsequent motion to alter

and amend the judgment. In June 2005, we granted

Alderman’s application for a certificate of appealability on the

ineffective assistance of counsel issue set out in the opening

paragraph of this opinion.

Il.

6 In subpart A, we outline the case that the State

presented against Alderman at his 1984 re-sentencing trial

(“RST”). In subpart B, we outline the case Alderman

presented.

A.

7 At Alderman’s RST, the State sought the death penalty

on the grounds that the motive and manner in which Alderman

13a

murdered his wife constituted two aggravating circumstances,

each of which independent*y warranted the death penalty: (1)

he murdered his wife to obtain insurance money, and (2) he

committed the murder in an “outrageously vile” or “inhuman”

way.

8 Addressing the first aggravating circumstance, the

prosecutor told the jury that Alderman deserved the death

penalty because he murdered Mrs. Alderman “ for. . . the

purpose of receiving [insurance] money.” The prosecutor

established this motive by presenting the testimony of City of

Savannah employee, Sandra Sullivan. Sullivan, the City’s

personnel technician who handled employee benefits and

records in September 1974, testified that Mrs. Alderman was

employed by the City at the time of her death and explained

that, as a City employee, Mrs. Alderman participated in the

City’s group life insurance policy. The prosecutor produced a

- copy of the City’s group policy, which provided for a death

benefit commensurate with salary — up to $10,000 — with

double indemnity upon accidental death. He also offered a

copy of Mrs. Alderman’s enrollment card for the City’s group

policy, which listed Alderman as the sole beneficiary. Sullivan

also testified that at the time of Mrs. Alderman’s death, her

salary qualified her for the maximum $10,000 death benefit,

which would double to $20,000 in the event of accidental

death.

9 The prosecutor used John Brown to cement his theory

that Alderman killed his wife for the insurance benefits.

Brown testified that in the days preceding Mrs. Alderman’s

death, Alderman enlisted him in a plot to kill her. Brown said

that Alderman promised him half of the insurance money for

his role in the murder.

10 Regarding the second aggravating circumstance, the

prosecutor urged the jury to invoke the death penalty because

14a

the “offense of murder . . . was outrageously or wantonly vile,

horrible, or inhuman in that it involved torture, depravity of

mind, or an aggravated battery to the victim.” Brown

provided the State’s only evidence on this point. His testimony

painted a picture of what the prosecutor termed an “‘[e]xecution

type [sic] killing.”

11 Brown recounted the events of the night of Mrs.

Alderman’s death. Brown said that when he came over to

Alderman’s apartment that evening, Alderman had him follow

Mrs. Alderman around the apartment with a wrench in his

hand. Brown struck Mrs. Alderman in the back of her head

with the wrench. Alderman then got Mrs. Alderman on the

floor and held his hand over her nose and mouth so that she

could not breathe. The two men then took Mrs. Alderman to

the bathroom tub and filled it with water. Alderman held her

head under water. The two men then left her there and headed

to the local bar for a few drinks. Upon their return to the

apartment two hours later, Brown and Alderman put Mrs.

Alderman’s body in the trunk of the Aldermans’ car and drove

the car to a creek that was on the way to Mrs. Alderman’s

grandmother’s house. They then put Mrs. Alderman’s body in

the driver’s seat, rolled down the windows, put the gear in

neutral, and sent the car into the creek to make it look like an

accident.B.

12 Alderman countered the State’s case by showing that

Brown had a better motive for killing Mrs. Alderman than he

did, and that Brown had confessed to a fellow jail inmate that

he had, in fact, committed the murder. Put another way,

Alderman’s attorneys pursued a lingering or residual doubt

theory as to whether Alderman murdered his wife and, in doing

so, gave the jury a basis for returning a verdict of life

imprisonment instead of the death penalty. Counsel felt that

the lingering doubt theory was the appropriate strategy because

l5a

a new jury had been empaneled for the RST, the jury that

convicted Alderman in 1975 having been discharged. If

successful, the lingering doubt strategy would yield a sentence

of life imprisonment instead of death.

13 In carrying out this strategy, counsel focused on the

inconsistencies in the State’s case, asking in their opening

statement (after the State rested its case) and again in closing

argument that the jury not sentence Alderman to death because

there was considerable doubt as to whether he had committed

the crime. They supported this strategy with an alternative

theory of how the murder occurred: Brown acted alone and

killed Mrs. Alderman for drug money.

14 Defense counsel proceeded with Alderman’s defense as

follows (each category to be discussed in greater detail, infra).

First, they planted the seeds of their lingering doubt theory by

impeaching Brown’s credibility — his story about what

motivated Mrs. Alderman’s murder and how it occurred. They

accomplished this principally through their cross-examination

of Brown while he was on the witness stand in the State’s case.

Then, they put on witnesses who said that Aldertnan’s

reputation (in 1974) for being a law-abiding citizen was good

— such that it would have been completely out of character for

Alderman to have murdered his wife — and that his reputation

for truthfulness (in 1974 or at the time of the RST) was beyond

reproach. Counsel elicited testimony of Alderman’s

reputation for telling the truth because he would be their final

witness, and the jury would have to believe him if they were to

have a linger:=2 doubt as to his guilt.

15 After calling these “reputation” witnesses, counsel

presented evidence — mainly through the testimony of

Alderman’s father - about Alderman’s upbringing and the

struggles Alderman had to overcome to become a productive

member of society. Counsel added to this the testimony of

16a

those monitoring Alderman’s prison behavior; they said that

Alderman was a model prisoner who posed no threat to the

safety of fellow inmates or prison personnel, thus implying that

the jury need not sentence him to death to protect those in

prison. With all of this testimony before the jury, counsel

called Alderman to the stand.

l.

16 Because the State’s case hinged principally on Brown’s

testimony, defense counsel went all out in an effort to destroy

Brown’s credibility. To that end, counsel portrayed Brown as

a lying drug addict. Counsel questioned Brown at great length

about his heavy use of alcohol and illegal drugs. Brown

conceded that he went through about four fifths of whiskey per

week and smoked as much as an ounce of marijuana per day.

He also admitted to taking barbiturates by the handful and

using speed, LSD, opium, and qualudes.

17 While presenting Alderman’s case, counsel read to the

jury a transcript of an interview that an agent of the Georgia

Bureau of Investigation conducted with Brown wherein Brown

admitted that he was intoxicated at the time he helped

Alderman kill his wife. Brown also admitted that he

experienced sporadic flashbacks on account of his LSD use.

During these flashbacks, he would blackout, hallucinate, and

generally have no recollection of what he did during the

flashback. Brown acknowledged, moreover, that during his

trip back to the United States from military service in Vietnam,

he removed from his medical records, which had been

entrusted to him, references to his frequeat blackouts, inability

* to control himself, and inability to remember his actions during

blackouts.

18 In addition to portraying Brown as having extreme

difficulty remembering critical events, Alderman’s defense

17a

counsel countered Brown’s description of how the murder

occurred. First, they presented the testimony of a man, Robert

S. Walters, who occupied the same cell block that Brown did

in December 1974, while Brown was under indictment and

awaiting trial for the Alderman murder. Walters testified that

Brown gave him three different versions of how Mrs.

Alderman died. In the first version, Alderman forced Brown

to. kill her by threatening him with a knife. In the second

version, Alderman threatened Brown with a gun. In the final

version, Brown recounted how he alone killed Mrs.

Alderman—without reference to any involvement on the part

of Alderman. In that account, Brown told Walters that he and

Mrs. Alderman had been “having an affair and that he needed

money for dope and that him and her [sic] got into an argument

and from that argument he picked up a wrench and hit her and

then put her in the trunk of the car and drove her out to the

creek.”

19 The second way in which defense counsel countered

Brown’s description of the murder was to present the testimony

of Dr. Sandra Conradi, a forensic pathologist. In his testimony

in the State’s case, Brown said that Alderman put his wife on

the floor and held his hand over her mouth and nose so she

could not breathe. She became unconscious. He then helped

Alderman take her to the bathroom where she was placed in the

tub and drowned. Dr. Conradi testified that her examination of

Mrs. Alderman’s autopsy report, the transcript of the 1975 trial

testimony of the Director of the Chatham County Branch of the

State Crime Lab, and various other documents indicated that

there was no strangling, choking, squeezing of the nose, or any

other sign of struggle with Mrs. Alderman prior to her death.

2.

20 Several witnesses portrayed Alderman as a man

incapable of the act John Brown and the State accused him of

18a

committing and as a person with unimpeachable veracity. The

pastor of the Aldermans’ church, members of that church,

neighbors, and former co-workers testified that Alderman had

a reputation in the community for being law-abiding and

truthful. They described him as a hard-working man of good

character. Alderman’s pastor, Rev. Jesse W. Hilton, a Baptist

minister who baptized Alderman, also told of the Aldermans

involvement in his church; they were active in not just one, but

in all of the church’s ministries. A Catholic chaplain, Father

Richard Paul Wise, who had considerable interaction with

Alderman in the prison setting, echoed the pastor’s sentiments,

adding that Alderman was one of the most honest people he

had ever met in prison work.

3.

21 Alderman’s father described his son’s childhood and

upbringing. He and his wife divorced when Alderman was

three years old. Following the divorce, he took Alderman and

his younger sister to live with their paternal grandmother and

step-grandfather.

22 The father told how Alderman lost his left eye and the

impact that had on his son’s development. At the age of four,

Alderman was fishing with his grandmother and step-

grandfather when he accidentally stabbed himself in the left

eye with a fishing knife. Following surgery and his release

from the hospital, a child hit him in the same eye with a

hacksaw blade, which left him blind in that eye. Despite this

handicap, Alderman’s father recounted that when his son was

“in the fifth grade, he had already [gone] through the sixth

grade books and . . . his teacher and the principal wanted him

to skip the sixth grade.” A sympathetic blindness, “optical

neuritis,” began to develop in Alderman’s functional eye,

however, and Alderman lost so much vision that he could not

see or write. As a result, he was sent to the Georgia Academy

19a

for the Blind in Macon. He stayed there through his junior

year of high school, excelling academically.

23 While at the academy, Alderman was hospitalized on

three occasions for eye surgery. The first surgery was

experimental to reduce inflammation. The last surgery was

performed to remove the eye so a prosthesis could be

implanted. Meanwhile, the sight in his right eye improved

enough to enable him to transfer to Savannah High School for

his senior year. His performance during that year so impressed

his high school counselor that she recommended him to an

employer who was looking for a student to train in its business.

24 Alderman’s father concluded his direct — examination

by saying that he loved his son, that he visited him at the prison

“a couple of times,” and that he “wanted to go more, but [his]

health wouldn’t permit it.”

4.

25 Operating under the assumption that their lingering

doubt strategy might fail, defense counsel sought to avoid the

death penalty by convincing the jury that Alderman would pose

no threat to the safety of fellow prison inmates and people

working at the prison. To this end, they presented the

testimony of eleven prison guards. All said that Alderman was

a model prisoner. They described him as a committed

Christian who frequently assisted them in caring for fellow

inmates. Although they did not say so explicitly, they clearly

implied that his execution was not necessary for the protection

of inmates and those working in the prison facility.

3.

26 Counsel presented Alderman as their final witness.

Their direct examination was tailored to the lingering doubt

theory they had set before the jury in their opening statement.

20a

Alderman described his relationship with his wife and his

whereabouts on the night of her death, a description that stood

in sharp contrast to what Brown had told the jury. Alderman

testified that he and Mrs. Alderman had a fight that day

regarding their inability to conceive a child. Both were

considerably upset, so he left their apartment for a while.

Upon his return, he found that she was not there. Thinking that

she had gone to her grandparents’ house, he began driving

there. About a half a mile from their house, he saw a car

partially submerged in a creek and decided to investigate.

Upon closer inspection, he recognized the car as his own. In

the car, he found his wife’s body. Alderman said that from the

time he discovered her body in the creek until he identified her

body at the hospital, he had no memory of his actions or any

awareness of her death.

27 To bolster this statement, Alderman’s counsel read to

the jury a transcript of the testimony Dr. Herbert Smith, a

psychiatrist, had given at his trial in June of 1975. Dr. Smith

had examined Alderman a month or so before his trial to

determine the cause of Alderman’s lack of memory at such a

critical point in time. He opined that Alderman suffered from

a “selective amnesia [that was] probably secondary to

disassociative reaction,” and that upon seeing his wife’s body

in the creek, he “was emotionally upset, suffering from shock

and disbelief, and overwhelmed with grief.” Alderman then

heard a car approaching and assumed that because he was so

close to the grandparents’ house, the car probably contained

her relatives. He reasoned that “if they saw him there they

would jump to the conclusion that he was responsible and they

would hurt him physically,” as “they had threatened to do...

in the past.”

28 Dr. Smith then explained how “the mechanisms of fight

or flight went into operation and [Alderman] fled the scene to

21a

avoid what he considered almost certain physical harm.” To

keep from “feeling unmanly and cowardly” about leaving his

wife there, Alderman experienced a disassociative reaction.

The part of his consciousness that knew he had discovered his

wife “was split off from the rest of it and . . . repressed into the

unconsciousness. This created a disassociative reaction and

along with it the amnesia.” This, in turn, enabled Alderman to

“subconsciously deny that he had found his wife’s body and

therefore deny that she was actually dead at all, so that he did

not have to feel guilty about leaving his wife and he would also

be able to escape the terrible fear of physical harm by his in-

laws.” Dr. Smith said that Alderman’s amnesia “lasted from

the time he spotted his wife’s body in the creek until the time

he identified [her} body at the hospital.”

29 Responding to the State’s theory that he killed his wife

to collect insurance proceeds, Alderman testified that he and

Mrs. Alderman had a good marriage and that he had no more

monetary incentive to kill his wife than any other husband

whose wife had life insurance. Contrary to Brown’s story,

Alderman testified that his wife was not contemplating a

divorce. Alderman said that he and Mrs. Alderman had a

normal, healthy marital relationship.

30 Alderman’s lawyers thus impugned John Brown’s

credibility, and therefore the State’s theory of the case, by

portraying Brown as a lying drug-addict, and offering his own,

exculpatory version of events.

iil.

31 In his habeas petition to the Butts County Superior

Court on December 22, 1994, Alderman claimed that his

attorneys denied him the effective assistance of counsel by

failing to investigate and present to the jury his social - history

background. The heart of his claim was that his “counsel’s

22a

failure to investigate, develop and present mitigating evidence

beyond lingering doubt evidence was not the result of a tactical

or strategic decision. Rather it was the result of a complete

failure to understand the meaning, purpose and scope of

mitigation evidence at a capital sentencing trial.”

32 The superior court held an evidentiary hearing on the

petition on May 5-6, 1999. Alderman’s habeas attorneys

examined six witnesses: Father Richard Paul Wise, Catherine

Thompson, Martha Murphy Davis, Jack Boyd Deal, George

Terry Jackson, and Michael Schiavone. Father Wise was the

chaplain at the Georgia Diagnostic and Classification Center

from 1980-1986, and came to know Alderman while he was on

death row there. Father Wise, who had testified as a defense

witness at the RST, complained that he “didn’t get a chance to

say what [he] wanted to say.” He remembered, however,

being asked his opinion of Alderman and commenting that “he

was probably one of the most honest people [he had] met in

prison work.” Catherine Thompson, Alderman’s ex-wife,

stated that while she testified as a defense witness at

Alderman’s 1975 trial, she was not asked to testify at his RST.

Thompson would have testified that Alderman never abused

her, and that she had “never seen him get in any kind of

arguments, fights. . . that wasn’t his nature.” Similarly, Martha

Murphy Davis, a Presbyterian pastor and director of the

Southern Prison Ministry in Georgia, averred that she did not

testify at Alderman’s RST but would have been willing to do

so. Alderman’s lawyers at the evidentiary hearing also called

Jack Boyd Deal, a retired high school teacher who taught

Alderman at Savannah High School in 1968 and 1969. Deal

said that he was not contacted to serve as a defense witness at

the RST, but if given the chance to testify he would have

described Alderman as a model student who “got along well

with his peers and his other teachers.”

23a

33 The crux of the evidentiary hearing focused on the

testimony of Alderman’s attorneys, George Terry Jacksua and

Michael Schiavone. In terms of experience, Jackson had been

a practicing attorney for twelve years, and had handled several

death penalty cases, some of which went to trial, by the time he

was appointed to represent Alderman. In light of his

experience in capital cases, Jackson was writing articles and

speaking at seminars regarding death penalty litigation.

Jackson occupied the first chair, and Schiavone was the second

chair at Alderman’s RST.

34 At the RST, Jackson was primarily responsible for

preparing witnesses on the lingering doubt theory, and

Schiavone mainly organized the mitigation evidence. Jackson

testified that while lingering doubt was their primary defense

to the death penalty, they also wanted “to show what kind of

person Jack Alderman was, that he was well respected in the

community and trusted.” Jackson explained that their character

witnesses were questioned at the RST about Alderman’s

reputation in the community for being a truthful, law abiding

citizen, and that there was no tactical reason for not asking

them about Alderman’s life and background. Jackson also said

that he did not have a particular reason for not having

Alderman’s ex-wife testify or introducing portions of

Alderman’s medical and educational records.

35 Jackson testified that he hired two investigators to

locate a number of witnesses. In particular, he was interested

in determining the whereabouts of Jon Sato. Sato and Brown .

were housed in the same cellblock following Brown’s

conviction in 1975. Sato gave a taped, sworn statement to his

attorney describing how Brown had confessed to committing

the murder alone, without Alderman’s involvement. Prior to

the RST, Sato anc the tape disappeared. Jackson described the

lengths the defense team went to in an attempt to secure Sato’s

24a

testimony. They discovered Sato but only after the jury had

returned its verdict against Alderman and he had been

sentenced. Jackson also discussed his decision to call Dr.

Conradi as a defense witness. While Dr. Conradi was not part

of the defense’s case at the 1975 trial, Jackson wanted to

emphasize the absence of the physical findings that should

have been present on Mrs. Alderman’s body had Brown been

telling the truth.

36 As for mitigating evidence, Jackson and Schiavone

called as character witnesses eleven corrections officers, seven

of Alderman’s friends, and five of Alderman’s previous

employers or co-workers. Schiavone testified that “[he]

wanted background information about Jack and about his

family and things of that nature. You know, my recollection is

that even though it was a re-sentencing hearing the main thrust

of our approach was that — was to prove Jack’s innocence, that

they shouldn’t put an innocent man to death.” When asked

whether he had a strategical reason for not inquiring into the

details of Alderman’s “life experiences,” Schiavone responded

that there was “no tactical or strategic reason I can think of,

just probably didn’t ask them.” Upon further inquiry,

Schiavone said: “we probably were thinking that [the

reputation evidence] was the extent that we could go into at the

time.”

37 On December 29, 1999, the Butts County Superior

Court denied Alderman’s petition for writ of habeas corpus.

After discussing Jackson and Schiavone’s representation of

Alderman, the court found that “trial counsel brought ‘to bear.

such skill and knowledge as will render the trial a reliable

adversarial testing process.’” Alderman v. Head, No. 94-V-720

at 20 (Super. Ct. of Butts County Dec. 29, 1999) (citing

Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052,

_ 80 L.Ed.2d 674 (1984)). The court further found that defense

25a

“eé

counsel’s “strategy to show ‘residual doubt,’ was a reasonable,

professional decision in light of the information and facts that

were available to trial counsel at the time.” Id.

As the jury at the re-sentencing trial was not the same jury

who found Alderman guilty of the crime, there was a

possibility that this jury, who heard the entire guilt/innocence

evidentiary presentation, would believe that some doubt existed

as to Alderman’s guilt. It was reasonable for Mr. Jackson to

believe that presenting evidence that Alderman’s mother had

left the family when he was a child and evidence about his

vision problems would not sway a jury to impose a life

sentence instead of death. In fact, in order to effectively

present a penalty phase defense of mercy based on sad

circumstances of his childhood and adolescence, Alderman

may have had to admit to committing the crime and then ask

the jury to spare him the death penalty due to his difficult

childhood. Because Alderman maintained his innocence

throughout the first trial and the re-sentencing trial, such a

strategy would have been incompatible with his testimony;

therefore, the residual doubt strategy used by Mr. Jackson was

a reasonable one based on the facts and circumstances as Mr.

Jackson knew them to be at that time.

Alderman v. Head, No. 94-V-720 at 23 (Super. Ct. of Butts

County December 29, 1999).

38 In response to the claim that his attorneys failed to

conduct an adequate pretrial investigation of Alderman’s life

history, the court found that counsel thoroughly investigated

Alderman’s background with the aid of two investigators. The

court also rejected the claim that counsel failed to understand

the scope of available mitigating evidence, and thus failed to

present sufficient evidence in mitigation. The court found that

Alderman’s attorneys presented “substantial” mitigation

evidence. Id. at 25. In sum, the court concluded that

26a

“Alderman has failed to establish that he received ineffective

assistance of counsel under either prong of the Strickland

standard and relief on this claim is denied on the merits.” Id.

at 30.

IV.

39 Alderman challenges the Butts County Superior Court’s

findings of fact and conclusions of law on the ground that both

are unreasonable under the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d). Because

the state court adjudicated his habeas corpus claim on the

merits, we can grant his application for a writ of habeas corpus

only if that court’s adjudication:

(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.

28 U.S.C. § 2254(d). Accordingly, for Alderman to secure

federal habeas corpus relief, he must demonstrate that his case

satisfies the conditions set forth in either § 2254(d)(1) or

§ 2254(d)(2).

40 Specifically, the Supreme Court provided guidance

about how to interpret § 2254(d) in Williams v. Taylor, 529

U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under

section 2254(d)(1), the “contrary to” and “ unreasonable

application” clauses are interpreted as independent statutory

modes of analysis. See Williams, 529 U.S. at 405-407, 120

S.Ct. at 1519-1520. Williams held that there are two ways in

which a state — court decision may be “contrary to” Federal

law:

27a

“First, a state — court decision is contrary to this Court’s

precedent if the state court arrives at a conclusion opposite to

that reached by this Court on a question of law. Second, a state

— court decision is also contrary to this Court’s precedent if the

state court confronts facts that are materially indistinguishable

from a relevant Supreme Court precedent and arrives at a result

Opposite to ours.”

529 U.S. at 405, 120 S.Ct. at 1519 (O’Connor, J., for

majority). However, Williams does not limit the construction

of “contrary to” to the two examples set forth above. Section

2254(d)(1)’s “contrary to” simply implies that “the state court’s

decision must be substantially different from the relevant

precedent of this Court.” Id.

41 Alternatively, when the federal court is faced with a

“run-of-the-mill state-court decision applying the correct legal

rule,” the companion “unreasonable application” provision of

§ 2254(d)(1) is the proper statutory lens. 529 U.S. at 406, 120

S.Ct. at 1520. In other words, if the state court identified the

correct legal principle but unreasonably applied it to the facts

of a petitioner’s case, then the federal court should look to

§ 2254(d)(1)’s “unreasonable application” clause for guidance.

“A federal habeas court making the ‘unreasonable application’

inquiry should ask whether the state court’s application of

clearly established federal law was objectively unreasonable.”

529 U.S. at 409, 120 S.Ct. at 1521 (emphasis added).

42 In addition to § 2254(d)(1), § 2254(d)(2) regulates

federal court review of state court findings of fact; the section

limits the availability of relief to “decision[s] that w[ere] based

on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”

§ 2254(d)(2). Finally, § 2254(d) provides the framework for

granting habeas corpus relief in situations where the federal

court has found constitutional error. See, e.g., Wiggins v.

28a

Smith, 539 U.S. 510, 528, 123 S.Ct. 2527, 2539, 156 L.Ed.2d

471 (2003); Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th

Cir.2004), cert. denied, 543 U.S. 1038, 125 S.Ct. 809, 160

L.E.2d 605 (2004).

43 Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), establishes the test that governs

claims of ineffective assistance of counsel, i.e., the “clearly

established Federal law” relevant to this case under 28 U.S.C.

§ 2254(d). The petitioner must satisfy Strickland’s two-part

test to mount successfully an ineffective assistance of counsel

claim. 466 U.S. at 687, 104 S.Ct. at 2064. In other words, the

petitioner must show both 1) deficient performance of counsel

and 2) prejudicial impact stemming from counsel’s deficient

performance. Id. Under the first prong, the petitioner must

show “that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Id. The hallmark of the second prong is

reliability: “This requires showing that counsel’s errors were

sO serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Id.

44 When assessing whether counsel fulfilled their

obligations under Strickland, the Supreme Court has “focus[ed]

on whether the investigation supporting counsel’s decision not

to introduce mitigating evidence of [petitioner’s] background

was itself reasonable.” See, e.g., Wiggins v. Smith, 539 U.S.

510, 523, 123 S.Ct. 2527, 2536, 156 L.Ed.2d 471 (2003)

(concluding that counsel’s decision not to expand their

investigation beyeed three sources fell short of the required

professional standards). Furthermore, in evaluating the

reasonableness of the investigation, “a court must consider not

only the quantuim of evidence already known to counsel, but

also whether the known evidence would lead a reasonable

29a

attorney to investigate further.” Wiggins, 539 U.S. at 527, 123

S.Ct. at 2538.

45 This is not to suggest that there is some latent magic

number of witnesses to interview or documents or exhibits to

review. On the contrary, there is “no absolute duty to

investigate particular facts or a certain line of defenses.”

Fugate v. Head, 261 F.3d 1206, 1217 (11th Cir. 2001) (noting

that “a complete failure to investigate may constitute deficient

performance of counsel in certain circumstances”). Rather

than scrutinizing counsel’s performance through the narrow

lens of hindsight, the court must consider “the sum total of

{counsel’s] efforts.” Id. at 1240. Furthermore, there is not one

“correct” way for counsel to provide effective assistance.

To uphold a lawyer’s strategy, we need not attempt to

divine the lawyer’s mental processes underlying the strategy

. . . No lawyer can be expected to have considered all of the

ways. If a defense lawyer pursued course A, it is immaterial

that some other reasonable courses of defense (that the lawyer

did not think of at ali) existed and that the lawyer’s pursuit of

course A was not a deliberate choice between course A, course

B, and so on . . . our inquiry is limited to whether this strategy

... Might have been a reasonable one.

Chandler v. United States, 218 F.3d 1305, 1316 n. 16(11th

Cir. 2000).

46 Even if the petitioner claims that his attorney was

unaware of a relevant defense, “petitioner must prove that the

approach taken by defense counsel would not have been used

by professionally competent counsel.” Harich v. Dugger, 844

F.2d 1464, 1470 (1 Ith Cir. 1988) (abrogated on other grounds).

As Strickland emphasized, “a court must indulge a strong

presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance; that is, the defendant

30a

must overcome the presumption that, under the circumstances,

the challenged action ‘might be considered sound trial

strategy.’” 466 U.S. at 689, 104 S.Ct. 2052 (citing Michel v.

Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83

(1955)).

47 Here, Alderman contends that the state habeas court

unreasonably applied Strickland’s standard as to the deficient

performance prong of his ineffectiveness claims. Alderman

maintains that under Strickland, his attorneys’ failure to

investigate life-history mitigation evidence was reasonable

only if counsel made an informed strategic decision to forego

such an investigation. In this regard, Alderman questions the

state habeas court’s determination that counsel’s presentation

of lingering doubt evidence effectively precluded a finding of

deficient performance.

48 Alderman further claims that the state habeas court’s

decision should be disregarded because the court based its

decision on unreasonable determinations of fact in light of the

evidence before the court. He contends that the record clearly

establishes that his attorneys did not make a strategic or tactical

decision to forego presenting life — history mitigation evidence,

but instead misunderstood the law regarding mitigation

evidence, i.e., they believed that the only evidence the law

permitted them to present was testimony concerning his

reputation in the community for being law abiding and truthful.

Alderman emphasizes Jackson’s statement at the evidentiary

hearing that the mitigation evidence Alderman’s habeas

attorneys proffered was not inconsistent with the lingering

doubt theory that counse] adopted at the RST.

49 We conclude that the state court’s application of

Strickland was not objectively unreasonable, and that defense

counsel’s life — history investigation and presentation of

mitigating evidence did not constitute ineffective assistance of

<=

3la

counsel under Strickland. We also conclude that defense

counsel’s failure to present the evidence habeas counsel

proffered at the evidentiary hearing did not constitute an error

so “serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.”

50 Counsel was not required to examine every possible

legal strategy or defense available. Strickland focuses on

whether the investigation supporting counsel’s decision was

itself reasonable. Contrary to Alderman’s view, the state court

determined that counsel conducted a thorough background

investigation with the aid of two investigators, presented

substantial evidence in mitigation, and had a reasonable trial

strategy. As the court stated, “trial counsel’s strategy to show

‘residual doubt’ was a reasonable, professional decision in light

of information and facts that were available to trial counsel at

the time.” Alderman v. Head, No. 94-V-720 at 20 (Super. Ct.

of Butts County Dec. 29, 1999).

5i Furthermore, Alderman’s claim that counsel needed to

make a strategic decision to forego a life — history investigation

to satisfy Strickland presupposes that counsel did not in fact

make such a decision. At trial, through the testimony of

Alderman, his father, and Dr. Smith, counsel elicited an

account of Alderman’s upbringing: Alderman did not

remember his mother at all; the challenges he faced due to his

eye injury and subsequent blindness; and the year that he spent

away from his family while at the Georgia Academy for the

Blind. In addition, defense counsel elicited his father’s

testimony of love for his son.

52 Notwithstanding counsel’s presentation of such

mitigating evidence, Alderman contends that the state court’s

finding that defense counsel presented “substantial” mitigating

evidence constitutes an unreasonable determination of fact in

light of the evidence before the court. Specifically, he

32a

contends that his attorneys did not, and could not, make a

strategic or tactical decision to forego presenting life — history

mitigation evidence, because they misunderstood what the law

would permit as mitigating evidence. According to Alderman,

counsel thought that the only evidence the court would permit

to come before the jury in mitigation would be what is

traditionally referred to as “character” evidence. That is, the

court would allow witnesses to testify about Alderman’s good

reputation in the community, but not his difficult childhood and

the hurdles he faced as a result of his eye injury. Alderman

bases his assertion on Schiavone’s testimony. When asked

whether he had a tactical reason for not presenting the details

of Alderman’s life history, Schiavone responded that there is

“no tactical or strategic reason I can think of, just probably

didn’t ask thém.” Alderman v. Turpin, No. 94-V-720,

Evidentiary Hr’g at 256 (Super. Ci. of Butts County May 21,

1999). Upon further inquiry, Schiavone speculated that they

“were thinking that [the character evidence] was the extent that

we could go into at the time.” Id. at 257. Alderman seizes

upon this statement as proof that Schiavone and Jackson

believed that they were limited in their presentation of

mitigating evidence.

53 These responses must be viewed, however, in light of

both Schiavone’s guidance to the character witnesses and the

mitigating evidence counsel actually presented to the jury. For

example, Schiavone commented on what he told the character

witnesses in preparing them to testify: “I mean I assume I

wanted background information about Jack and about his

family and things of that nature. . . my recollection is that even

though it was a re-sentencing hearing the main thrust of our

approach was that — was to prove Jac’s innocence, that they

shouldn’t put an innocent man to death.” Furthermore, it

would be inaccurate to sever Schiavone’s statement from the

testimony the jury actually heard regarding Alderman’s sccial

33a

— history background. As related above, the jury heard about

Alderman’s childhood, eye injury, subsequent blindness, year

away from the family, and the father’s love. Significantly,

upon reviewing this testimony, the state court, in making its

credibility choices and finding the salient facts, had the

authority to discredit Schiavone’s statement — that defense

counsel believed that the law limited mitigation evidence to

“character” evidence — and to find, as it did, that “trial counsel

brought ‘to bear such skill and knowledge as will render the

trial a reliable adversarial testing process.’” Alderman v. Head,

No. 94-V-720 at 20 (Super. Ct. of Butts County Dec. 29, 1999).

54 The state habeas court was not unreasonable in deciding

that Alderman’s lawyers made a strategic decision to forego

the presentation of life — history evidence as fully as

Alderman’s habeas counsel claims the Constitution requires.

Under § 2254(d)(2), there is nothing in the record to suggest

that the state court engaged in unreasonable determinations of

fact. Considering Jackson and Schiavone’s testimony as a

whole, and the over — arching “lingering — doubt” strategy

counsel employed, we cannot say that the state court based its

decision on unreasonable determinations of fact in light of the

evidence before it.

55 Often inherent in the choice to pursue one strategy is a

latent decision not to engage in a different tactic or line of

defense. While Schiavone responded that he could not think of

a tactical reason for not pursuing more detailed responses from

his witnesses about Alderman’s life history, that is simply a

reflection of the cardinal emphasis on the lingering doubt

strategy. Even assuming that his attorneys were not fully

aware of the scope of permissible mitigating evidence,

Alderman would need to show that the approach they

ultimately took “would not have been used by professionally

competent counsel.” Harich v. Dugger, 844 F.2d 1464, 1470

34a

(11th Cir. 1988) (abrogated on other grounds). Given the state

court’s findings regarding counsel’s skill, knowledge, and

performance, coupled with the court’s finding that “counsel

performed both reasonably and effectively in their

representation of Alderman,” Alderman v. Head, No. 94-V-720

at 30 (Super. Ct. of Butts County Dec. 29, 1999), we cannot

say that Alderman was denied his constitutional right to

competent representation.

56 Addressing Strickland’s second prong, prejudice, the

state habeas court concluded that defense counsel’s failure to

introduce life — history evidence to the extent habeas counsel

contend the Constitution requires caused Alderman no

prejudice. The district court, reviewing that conclusion,

agreed. Assuming, for the sake of argument, that counsel’s

performance failed to meet Strickland’s first prong, we readily

conclude on the record before us that “counsel’s errors were

[not] so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” 466 U.S. at 687, 104 S.Ct. at 2064.

57 The judgment of the district court is accordingly

affirmed.

SO ORDERED.

35a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 04-14595-P

JACK E. ALDERMAN

Petitioner-Appellant,

v.

WILLIAM TERRY, Warden,

Respondent-Appellee.

On Appeal from the United States District Court for the

Southern District of Georgia

BEFORE: TJOFLAT, ANDERSON and CARNES, Circuit

Judges.

BY THE COURT:

Appellant’s motion for reconsideration of the November 15,

2004 order denying appellant’s application for a certificate of

appealability isGRANTED with respect to the following issue:

Whether appellant was denied the effective assistance of

counsel at resentencing on the ground that counsel failed

36a

adequately to investigate, and present to the jury, appellant’s

social-history background.

With the exception of this issue, appellant’s certificate of

appealability is DENIED.

FILED: June 27, 2005

37a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 04-14595-P

JACK E. ALDERMAN,

Petitioner-Appellant,

V.

DERRICK-SCHOFILED, Warden,

Respondent-Appellee.

On Appeal from the United States District Court for the

Southern District of Georgia

ORDER:

Appellant’s application for certificate of appealability is

DENIED.

s/ [illegible signatur

UNITED STATES CIRCUIT JUDGE

Scott L. Poff

Clerk, U.S. District Court

125 Bull Street, Rm 306

Savannah, GA 31401

November 15, 2004

Appeal Number: 04-14595-P

Case Style Jack E. Alderman v. Derrick Schofield

District Court Number 03-00028 CV

TO Scott L. Poff

CC Thomas H. Dunn

CC Susan V. Boleyn

CC Administrative File

39a

APPENDIX E

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

JACK E. ALDERMAN

Petitioner,

\ P

DERRICK SCHOFIELD, Warden,

Georgia Diagnostic Prison

Case no. CV403-028

ORDER

Before the Court is Petitioner’s Application for Certificate of

Appealability. (Doc. 46). Pursuant to 28 U.S.C. § 2253(c), an

appeai may not be taken in this matter unless the Court issues

a Certificate of Appealability. This certificate may issue only

if the Petitioner has made a substantial showing of the denial

of aconstitutional right. The Court finds that Petitioner has not

made a substantial showing of the denial of a constitutional

right. Accordingly, 2

IT IS HEREBY ORDERED thai Petitioner’s motion for

Certificate of Appealability is denied.

JOHN F. NAGLE

40a

UNITED STATES DISTRICT COURT

Dated: October 1, 2004

UNITED STATES DISTRICT COURT

Southern District of Georgia

Case Number: 4:03-cv-00028

Date Served: October 4, 2004

Served By: Nancy Y. Sutlive

Attorneys Served:

Thomas H. Dunn, Esq.

Susan V. Boleyn, Esq.

Mitchell Philip Watkins, Esq.

U.S. Court of Appeals

Copy placed in Minutes

Copy given to Judge

Copy given to Magistrate

4la

APPENDIX F

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

JACK W. ALDERMAN,

Petitioner,

Ve

DERRICK SCHOFIELD, Warden,

Georgia Diagnostic Prison

Respondent

Case No. CV403-028

ORDER

Before the Court is Petitioner's motion to amend the

judgment entered on June 19, 2004 (Doc. 41), denying

Petitioner's application for writ of habeas corpus. Specifically,

~ Petitioner argues that the Court misconstrued the nature of his

claims of ineffective assistance of counsel and that the Court

failed to consider evidence in the record which supported those

claims. Petitioner's memorandum in support of the instant

motion does not present any argument that the Court has not

already exhaustively considered in issuing its previous Orders

in this proceeding. Accordingly, Petitioner's motion to alter and

amend the judgment (Doc. 43) is DENIED.

So Ordered,

42a

s/ John F. Nangle

JOHN F. NANGLE

UNITED STATES DISTRICT JUDGE

Dated: August 3, 2004

Case Number: 4:03-cv-00028

Date Served: August 3, 2004

Served By:

Attorneys Served:

Thomas H. Dunn, Esq.

Susan V. Boleyn, Esq.,

Mitchell Philip Watkins, Esq.

____. Copy placed in Minutes

____. Copy given to Judge

Copy given to Magistrate

43a

APPENDIX G

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

Case No. CV405-028

JACK E. ALDERMAN,

Petitioner-Appellant,

Ve

WILLIAM TERRY, Warden,

Respondent-Appellee.

ORDER

Petitioner Jack E. Alderman, asserting two claims for relief,

petitions this Court for writ of habeas corpus under 28 U.S.C.

§ 2254. Thirty years ago, the heinous murder of Petitioner’s

wife occurred. Approximately twenty-nine years ago,

Petitioner was found guilty of this crime by a jury of his peers.

Both the original trial and the re-sentencing trial were presided

over by one of the most respected trial judges in this part of the

country. Petitioner has twice been sentenced to death by a

jury.

BACKGROUND

I. Facts

The following statement of facts is taken from Alderman v.

Zant, 22 F.3d 1541 (11th Cir. 1994).

44a

The Petitioner, Jack E. Alderman (“Alderman”), and his

wife, Barbara Alderman (“Mrs. Alderman”), lived in an

apartment in Chatham County, Georgia. Alderman was

employed as an assistant manager at the local Piggly Wiggly

supermarket. Mrs. Alderman was employed in the Tax

Assessor’s office for the City of Savannah. In conjunction

with her employment, Mrs. Alderman maintained a $10,000.00

life insurance policy that paid double benefits in the event of

accidental death. Mrs. Alderman also had another life

insurance policy in the amount of $25,000.00 which named her

mother as beneficiary.

Alderman met John Arthur Brown (“Brown”), later

convicted as an accessory to Mrs. Alderman’s murder, when

both Alderman and Brown were employed in the vehicle

maintenance department for the City of Savannah. Brown

testified that on September 19, 1974, Alderman phoned Brown

and asked him to meet him at the Piggly Wiggly supermarket.

Brown stated that during this meeting Alderman asked Brown

to kill Mrs. Alderman in exchange for half the insurance

proceeds. Brown, although claiming not to take Alderman

seriously, accepted the proposition.

On Saturday, September 21, 1974, Alderman asked Brown

to come to his apartment. When Brown arrived, Alderman

handed Brown a twelve-inch crescent wrench and instructed

Brown to go into the bedroom and kill Mrs. Alderman.

Testimony indicates that Brown was initially reluctant, but

agreed to strike Mrs. Alderman when persuaded by the gun

wielding Alderman. Brown entered the dining room and struck

Mrs. Alderman in the head with the wrench: Mrs. Alderman

cried out and ran into the living room where she confronted her

husband. Alderman tackled Mrs. Alderman, then assisted by

Brown, placed his hands over Mrs. Alderman's nose and mouth

unti! she was unconscious.

45a

Alderman and Brown carried Mrs. Alderman’s limp body

to the bathroom and placed it in the bathtub. Alderman started

to fill the tub while Brown cleaned the blood stains from both

the living and dining rooms. Alderman and Brown changed

clothes and left the apartment for several hours. The two men

, went to the Piggly Wiggly supermarket where Alderman

borrowed $100.00. Alderman and Brown then went to two

local Savannah bars. At some time during the evening

Alderman gave Brown the $100.00.

Alderman and Brown returned to the apartment around

10:00 p.m., removed Mrs. Alderman’s body from the bathtub

and wrapped it in a green quilt. The two men carried the body

to Alderman’s 1974 Pontiac and placed it in the trunk. Brown

drove Alderman’s car as Alderman followed on his

motorcycle. Alongside acreek in Rincon, Georgia, Brown and

Alderman removed the body from the trunk and placed it in the

driver’s seat. At Alderman’s direction, Brown reached in the

driver’s window and released the emergency brake allowing

the car to roll into the creek. The car stopped halfway into the

creek. Again at Alderman’s direction, Brown opened the car

door, pulled Mrs. Alderman’s body halfway out and allowed

her face to fall into the creek. The two men removed the green

quilt and the rubber trunk mat from the car and fled the scene

on Alderman’s motorcycle.

Later that evening, on September 21, 1974, Randy Hodges

(“Hodges”) and Terry Callahan (“Callahan”) were driving

home on Baker Hill Road and Highway 131. As they turned

onto Highway 131 and approached Dasher’s Creek, they

noticed a car in the creek. Hodges jumped out, saw that there

was a woman in the car and sent Callahan to Lamar Rahn’s

house to call for help. Effingham County Sheriff Lioyd

Fulcher (“Fulcher”) responded to the call. Upon his arrival at

the scene, Fulcher found the victim’s car in the water adjacent

46a

to the bridge. Fulcher noticed no apparent physical damage to

the car. He ordered Mrs. Alderman’s body to be removed from

the car and taken to the hospital. Fulcher observed that there

were no skid marks from the car but that motorcycle tracks

were apparent in the area. Fulcher also noticed blood stains on

the seat of the car and that the trunk mat was missing.

At the direction of Fulcher, Garden City police officer J.D.

Crosby (“Crosby”) went to Alderman’s apartment only to find

it locked. Crosby later returned to the apartment at

approximately 2:30 a.m. and found Alderman there with a

woman. Crosby informed Alderman that his wife had been

involved in a traffic accident, and asked him to accompany

Effingham County authorities to the hospital. Georgia Bureau

of Investigation Agent H.H. Keadle (“‘Keadle’’) was present at

the Effingham County hospital. Keadle and Fulcher noticed

red/brown stains in the seat and crotch of Alderman’s pants and

on his belt. At that time, Alderman’s clothes were taken from

him.

Keadle’s investigation confirmed Crosby’s findings at the

accident scene. Keadle also recovered a stained portion of a

green rug and Alderman’s motorcycle helmet, which had been

removed from the Alderman’s apartment by Mrs. Alderman’s

mother. Alderman’s father, Jack Alderman, Sr., also gave the

police the twelve-inch crescent wrench that he had removed

from Alderman’s apartment.

Forensic Serologist Elizabeth Quarles, of the Georgia State

Crime Laboratory, examined the blood found on Alderman’s

clothes. The blood type was consistent with Mrs. Alderman’s

blood. An examination of the vehicle revealed one palm print

and four fingerprints which were stipulated as Alderman’s.

Brown’s fingerprints, however, were not found on the car.

47a

Dr. Charles Sullinger (“Dr. Sullinger’) performed the

autopsy upon Mrs. Alderman’s body. Dr. Sullinger concluded

that the laceration on the back of Mrs. Alderman’s head was

inflicted by a blunt instrument. Dr. Sullinger also concluded

that because there existed only a small amount of blood in the

car, the blow to Mrs. Alderman’s head did not occur as a result

of the accident. Dr. Sullinger found no evidence of any

abnormalities in the heart, no scratches on the forearms and no

evidence of strangulation. Dr. Sullinger concluded that the

liquid in Mrs. Alderman’s lungs revealed that Mrs. Alderman

died as a result of asphyxia due to drowning.

Keadle’s investigation led him to Brown. Brown

eventually gave a statement incriminating himself and

Alderman. At trial, Alderman testified on his own behalf and

denied that he killed his wife. [footnote omitted]. Alderman

testified that on the night of September 21, 1974, he and his

wife had an argument and that he left the apartment alone. He

allegedly took a bus to Savannah where he spent some time at

two local bars. Alderman testified that he returned home at

approximately 10:00 p.m. but his wife was not at home.

Alderman decided to go to Rincon, Georgia to see if Mrs.

Alderman was at her grandparent’s home.

Alderman testified that on his way to Rincon, he observed

his car on the side of the bridge at Dasher’s Creek. Alderman

stopped his motorcycle and went to the car where he

discovered his wife’s body. Alderman stated that he picked up

Mrs. Alderman’s head and placed it in his lap. Upon hearing

a noise, Alderman fled the scene in shock and fear. Alderman

allegedly forgot about his wife’s body, drove to Savannah and

returned to a local bar. Alderman then went to Johnny

Ganem’s for breakfast with friends. While at breakfast,

Alderman offered Gerlina Carmack (the female present in the

Alderman’ s apartment when Officer J.D. Crosby arrived) a ride

48a

home. Alderman had allegedly stopped at his apartment to

pick up a jacket when the police arrived and took him to the

hospital where he identified his wife’s body.

Alderman testified that he did not know why he had left his

wife’s body in the creek; that he recalled nothing of his trip

back to Savannah; and, the fact that his wife was dead had

completely left his mind. [Alderman] testified that he first

realized the full facts surrounding his wife’s death after being

treated by a psychiatrist who was able to refresh his memory as

to the events surrounding her death. He further testified that

after being treated by the psychiatrist he realized that fear had

caused him to leave his wife’s body in the creek because he

knew her family would blame him for her death.

II. Procedural! History

On June 14, 1975, Petitioner was convicted in the Superior

Court of Chatham County for killing his wife, and then he was

sentenced to death. Following his conviction, he appealed to

the Georgia Supreme Court, which denied his appeal on June

27, 1978. Certiorari was later denied by the United States

Supreme Court on November 27, 1978. He then filed for state

habeas relief in the Supenor Court of Chatham County,

Georgia. In June 1979, his state habeas corpus application was

denied, after a hearing that did not restrict counsel in the

presentation of evidence or argument. On September 6, 1979,

the Georgia Supreme Court denied Petitioner a certificate of

probable cause to appeal. The United States Supreme Court

denied certiorari on February 19, 1980, and denied a rehearing

on March 19, 1980.

Petitioner then filed an application for habeas relief in

federal district court on June 27, 1980. This first round of

federal habeas appeals culminated in 1983 when the Fifth

Circuit, Unit B, acting en banc, granted a new sentencing trial,

49a

which began in March 1984. After his re-sentencing trial,

Petitioner was again sentenced to death on April 1, 1984. He

then filed a motion for new trial and an amendment thereto,

which were denied in an order filed on August 27, 1984.

Petitioner directly appealed his death sentence to the Georgia

Supreme Court, which affirmed his new death sentence on

February 28, 1985. On October 15, 1985, the United States

Supreme Court denied certiorari and later denied a rehearing

on November 18, 1985.

Petitioner then began a second round of habeas appeals in

the state and federal courts with the same attorneys who

represented him at the re-sentencing trial. He filed a state

habeas petition in the Superior Court of Butts County on

February 6, 1986. An amended habeas petition was filed June

16, 1987, and a second amended habeas petition was filed June

25, 1987. Following an evidentiary hearing on June 29, 1987,

the state habeas court dismissed the petition on September 10,

1987, holding that all of Petitioner’s claims were barred from

review because of procedural default. On October 28, 1987,

the Georgia Supreme Court denied the application for a

certificate of probable cause to appeal. The United States

Supreme Court subsequently denied certiorari on March 7,

1988, and denied a rehearing on April 25, 1988.

Petitioner then filed a petition for habeas relief in federal

district court on June 23, 1988. The federal petition was

denied at the trial level on June 6, 1989, without an evidentiary

hearing. Subsequent to the entry of judgment, both Petitioner

and the State filed motions to alter and amend. On June 22,

1989, the District Court entered an order denying Petitioner’s

motion, but did not rule on the State’s motion. During the

pendency of the State’s motion, Petitioner filed a notice of

appeal. On August 10, 1990, the Eleventh Circuit dismissed

the appeal of Petitioner for lack of jurisdiction. On remand, the

50a

District Court entered an order on September 20, 1990,

granting the State’s motion to alter and amend in part and

denying the motion in part.

Petitioner then filed an appeal challenging the decision of

the District Court, while at the same time challenging the

court’s jurisdiction to consider his own appeal due to the

failure to rule on an issue. On December 27, 1991, the

Eleventh Circuit dismissed the appeal for lack of jurisdiction

because the District Court failed to rule on Petitioner’s claim

regarding the guilt-phase jury, but the Eleventh Circuit did find

that the District Court had jurisdiction to hold an evidentiary

hearing on Petitioner’s Brady/Giglio claims, and ordered the

District Court to hold such a hearing. After an evidentiary

hearing on May 18, 1992, the District Court found the

Brady/Giglio claims to be procedurally barred, and thereby

dismissed the petition on June 23, 1992. The Eleventh Circuit

affirmed the ruling on April 14, 1994, and denied a rehearing

en banc on July 12, 1994. The United States Supreme Court

again denied certiorari on December 12, 1994, and denied a

rehearing on February 21, 1995.

Petitioner began a third round of habeas action in the

Superior Court of Butts County on December 22, 1994,

challenging his new death sentence on two grounds:

ineffective assistance of counsel during the re-sentencing trial

and ineffective assistance of counsel during the appeal from the

re-sentencing trial. The State filed its answer on January 13,

1995. For reasons unknown to the Court, no action apparently

occurred in Petitioner’s case in the state court system until

1999.

On March 29, 1999, an amended habeas petition was filed

in the state court. An evidentiary hearing was conducted in the

state habeas court on May 5 and 6, 1999, ard Petitioner’s

claims were denied on December 29, 1999. Petitioner’s

5la

application for a certificate of probable cause to appeal was

denied by the Georgia Supreme Court on January 10, 2002. On

October 21, 2002, the United States Supreme Court denied

certiorari, and Petitioner then filed this action in this Court on

February 10, 2003.

The foregoing reads like a judicial nightmare. The

procedural history of this case is an embarrassment to our

judicial system, both state and federal. An exceedingly

voluminous record of all papers related to this case has been

filed herein. Summarizing, the procedural background is as

follows:

1. Mrs. Alderman, the victim in this case, was killed on

September 21, 1974.

2. On June 14, 1975, her husband, Petitioner, was

convicted for killing her and was then sentenced to death.

3. Following conviction, Petitioner appealed to the

Georgia Supreme Court, which appeal was denied on June 27,

1978.

4. In 1978, the United States Supreme Court denied

certiorari.

5. Petitioner filed his request for state habeas relief, which

application was denied in 1979 after a full hearing by the trial

court.

6. Later in 1979, the Georgia Supreme Court denied a

certificate of probable cause to appeal.

7. The United States Supreme Court again denied

certiorari on February 19, 1980.

52a

8. After his first round of federal habeas appeals,

Petitioner was granted a re-sentencing trial by the Fifth Circuit,

Unit B, in 1983. On remand, a re-sentencing trial ensued and

Petitioner was again sentenced to death on April 1, 1984.

9. In 1985, the Georgia Supreme Court affirmed his death

sentence, and the United States Supreme Court again denied

certiorari.

10. In 1986, Petitioner began another round of habeas

appeals in state court which ultimately were denied, with the

Georgia Supreme Court denying his application for a certificate

of probable cause to appeal.

11. The United States Supreme Court again denied

certiorari in 1988.

12. In 1988, Petitioner began his second federal habeas

appeal which ultimately was denied by the District Court in

1992 and affirmed by the Eleventh Circuit in 1994.

13. The United States Supreme Court again denied

certiorari on December 12, 1994.

14. In December 1994, Petitioner began a third round of

habeas action in the state court. The state field its answer in

January 1995, and the record is unclear as to what happened in

this matter until March 1999.

15. In March 1999, an amended petition was filed. An

evidentiary hearing was conducted in the state court, and the

state court denied Petitioner’s claims in December 1999.

16. Petitioner’s application for a certificate of probable

cause to appeal was denied by the Georgia Supreme Court in

2002, and, later in 2002, the United States Supreme Court

denied certiorari in this case for the SIXTH time.

a

53a

17. In February 2003, the petition herein was filed.

FEDERAL HABEAS CLAIMS

I. AEDPA standards

Section 2254, as amended by the Anti-Terrorism and

Effective Death Penalty Act (““AEDPA”) in 1996, establishes

a more deferential standard of review of state habeas

judgments. Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir.

2001). The Court considers a state habeas court’s factual

determinations under “a highly deferential standard of review.”

Id. The state court’s factual determinations are presumed to be

correct, and Petitioner can overcome this presumption only by

clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Federal habeas relief for a claim adjudicated on the merits in

State court is appropriate only where the state court’s judgment:

(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.

| 28 U.S.C. § 2254(d).

A state court’s decision is contrary to clearly established

Federal law if the state court arrives at a conclusion opposite to

that of the U.S. Supreme Court on a question of law or if the

State court decides a case differently than the U.S. Supreme

Court has on a set of materially indistinguishable facts.

Williams v. Taylor, 529 U.S. 362, 412-413, 120 S. Ct. 1495,

1523, 146 L. Ed. 2d 389 (2000). Even if a federal court might

have reached a different result relying on the same law, the

state court’s decision that applies the correct legal rule will

54a

withstand challenge unless it is “substantially different’ from

the relevant Supreme Court precedent.” Fugate, 261 F.3d at

1216 (quoting Williams, 529 U.S. at 405, 120 S. Ct. at 1519).

Under the “unreasonable application” clause, the Court may

grant habeas relief “if the state court identifies the correct

governing [U.S. Supreme Court] legal principle . . . but

unreasonably applies that principle to the facts of the prisoner’s

case.” Williams, 529 U.S. at 413, 120 S. Ct. at 1523.

II. Federal ineffectiveness standards

Claims of ineffective assistance of counsel are governed by

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984). To prevail on an ineffective assistance

claim, a habeas petitioner must show (1) that “counsel’s

performance was deficient” because it “fell below an objective

standard of reasonableness[.]” and (2) that “the deficient

performance prejudiced the defense.” Id. at 687-88. .

Judicial scrutiny of counsel’s performance should be highly

deferential, and “a court must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must oversee the

presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.” Id. at 689

(quoting Michel v. Louisiana, 350 U.S. 91, 101, 76S. Ct. 158,

164, 100 L. Ed. 83 (1955)). “This presumption is even stronger

when the reviewing court is examining the performance of an

experienced trial counsel.” Fugate, 261 F.3d at 1216. “In

order to show that counsel’s performance was unreasonable,

the petitioner ‘must establish that no competent counsel would

have taken the action that his counsel did take.’’’ Id. at 1217

(quoting Chandler v. United States, 218 F.3d 1305, 1315 (11th

Cir. 2000)).

5Sa

To establish prejudice, a petitioner “must show that there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

Il. Claim One - Ineffective assistance of re-sentencing

counsel

A. Substance and background of claim

In Claim One, Petitioner asserts that he was denied

constitutionally effective assistance of counsel at the capital re-

sentencing trial in violation of the Sixth and Fourteenth

Amendments to the United States Constitution. He alleges that

his counsel acted unreasonably in failing to investigate his

social history and background and in failing to adequately

investigate, prepare, and confront the State’s witness, John

Brown. He further alleges that his counsel’s deficient

performance was the result of a fundamental misunderstanding

of the law, an unreasonable reliance upon prior counsel’s

investigation and a failure to conduct a_ reasonable

investigation.

Petitioner takes issue with his counsel’s decision to present

a lingering doubt defense and argues that because of this

defense choice, his counsel failed to effectively investigate and

present mitigating evidence. Alleging that his counsel

misunderstood the law regarding the scope of mitigation

evidence and thus, failed to uncover and present readily

available mitigation evidence, Petitioner has submitted to the

Court several affidavits of family and friends to show

mitigation evidence that was available to, but not presented by,

his re-sentencing counsel. Petitioner argues that his counsel

56a

ultimately adopted the lingering doubt defense based upon their

misunderstanding of the law.

B. Discussion

The state habeas court, after holding an evidentiary hearing,

denied habeas relief as to Petitioner’s claim of ineffectiveness

of resentencing trial counsel. After correctly identifying

Strickland as the controlling legal authority concerning

ineffective assistance of counsel claims, the state habeas court

made lengthy factual findings and analyzed them under the

Strickland standard. “When the state habeas court has held an

evidentiary hearing, as in this case, the findings of fact by the

state court are generally presumed to be correct unless clearly

erroneous.”: Conklin v. Schofield, 366 F.3d 1191, 1199-1200

(11th Cir. 2004). As the factual findings of the state habeas

court are fully supported in the record and Petitioner has not

shown that they are clearly erroneous, this Court finds that the

following state habeas court’s factual findings are correct.

At the time of his appointment, [George Tem] Jackson had

been a practicing attorney for twelve years and had practiced

mostly criminal defense and general practice for nine to ten

years. Also at the time of appointment, Mr. Jackson had

previously handled twelve to eighteen murder cases with eight

or ten going to trial. Four of the murder cases handled by Mr.

Jackson were death penalty cases. At the time of his

representation of Alderman, Mr. Jackson had handled more

than a dozen non-death penalty appeals and had handled five

or six death penalty cases that had been remanded to the trial

court for resentencing or new trial hearings . . . . [Michael]

Schiavone had practiced law for four years, and Alderman’s

case was the second death penalty case in which he had been

involved.

S7a

State Habeas Order (“S.H.O.”), December 29, 1999 Order,

94-v-720, at 18 (citations to record omitted) .

Mr. Jackson spoke with Alderman many times about his

case prior to trial and saw him more than twelve times in

person. Alderman furnished Mr. Jackson with the names of

potential fact and character witnesses, which trial counsel

investigated. In fact, it was the practice of Mr. Schiavone to

follow-up as many leads on potential witnesses as he

reasonably could. Mr. Jackson also met with Alderman on a

number of occasions for the purpose of preparing Alderman for

his own testimony.

S.H.O. at 19 (citations to record omitted).

Petitioner’s counsel requested and were granted funds to

hire two investigators and a forensic pathologist. S.H.O. at 18.

Bills from the investigators reveal that they tried to locate and

interview many witnesses including John Edward Sato. S.H.O.

at 20. Mr. Jackson adopted a trial strategy of establishing

residual doubt-that even though Petitioner had already been

found guilty, the jury should not return a death sentence

because there was still residual doubt as to his culpability and

' involvement in the crime. S.H.O. at 19. Mr. Jackson sought to

establish this by directly attacking the State’s case, presenting

witnesses to show that Petitioner was not violent, and showing

that Petitioner was well respected and trusted in the

community, and therefore, would not have committed this type

of crime. Id.

To show that Petitioner was incapable of committing the

murder,

Mr. Jackson called many witnesses who testified that

Alderman was not a violent person and would never have

committed the crime of which he was accused.... character

58a

witnesses, Mr. Jackson presented witnesses in addition to who

testified that, if any life insurance policies had existed at the

time of the murder, they had lapsed prior to Mrs. Alderman’s

death. In addition to these numerous witnesses, Alderman

testified on his own behalf Alderman told that jury about his

eye injury and its effects on his life, that he had a normal

childhood which revealed that he was an intelligent, likeable

child and young adult who was conscientious about his work.

S.H.O. at 21-22 (citations to record omitted).

The state habeas court found that Alderman also testified

that on the night of his wife’s murder,

[he] returned home and discovered that Mrs. Alderman had

not returned, and he rode his motorcycle to Mrs. Alderman’s

family’s home to apologize to her for the argument [earlier that

night]. As he was driving, he came upon his car jutting up the

embankment, partially submerged in Dasher’s Creek.

Alderman testified that he panicked and left the area.

Alderman vehemently denied having anything to do with the

death of his wife.

S.H.O. at 22-23 (citations to record omitted).

The state habeas court additionally found that Mr. Jackson

vigorously and thoroughly cross-examined John Brown stating

that:

Mr. Jackson was able to show that Brown had an extensive

past history with drug abuse, including during his service in the

military, had psychotic episodes, that Brown stole his own

medical records from the military to keep others from learning

about his drug use and schizophrenia, and at times had

difficulty distinguishing what was real and what was not real.

In addition, Mr. Jackson got Brown to admit that he began

using LSD and marijuana again after he returned to Savannah

59a

following his discharge from the service, that he experienced

drug-induced blackouts, and that he drank heavily. It was

revealed that, at the time of the murder, Brown was living with

a girlfriend, was separated from his wife, and was supporting

his drug habit rather than supporting his wife and four children.

Mr. Jackson cross-examined Brown about his relationship

with the victim. Brown admitted that he thought that the

victim was standoffish and thought she was too good for him.

Mr. Jackson impeached Brown with his prior inconsistent

testimony concerning his drug use around the victim’s parents

and his prior inconsistent testimony concerning why Alderman

wanted Brown to kill the victim. On cross-examination, Brown

admitted that he had thought of ways to kill the victim, and that

he had the victim drive him to Bloomingdale where he

considered killing her during the trip and never warned her that

her husband was planning to kill her. Mr. Jackson got Brown

to admit that he could have walked out of the apartment

without killing Mrs. Alderman after Alderman gave him the

wrench, and that he was impaired by drugs and alcohol at the

time. Brown also admitted that Alderman threatened to shoot

both of them, but he never saw Alderman in possession of a

gun. Finally, Mr. Jackson cross-examined Brown on any deals

or understandings that he may have had with the district

attorney in exchange for his testimony, including his request to

be transferred to another prison to be with another prisoner.

S.H.O. at 21 (citations to record omitted).

The state court found that:

In his closing argument, Mr. Jackson argued to the jury that

the prosecutor’s entire case was based on Brown’s testimony.

Mr. Jackson attacked the credibility and veracity of Brown, and

he poked holes in the theory that Alderman killed Mrs.

Alderman to collect insurance money. Most importantly, Mr.

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Jackson focused on the lack of evidence and reasonable doubt,

and he argued that the jury should not sentence Alderman to

death if they were not sure that Alderman had actually

committed the crime regardless of the fact that he had already

been convicted of it - the residual doubt theory.

S.H.O. at 23 (citations to record omitted).

Petitioner’s counsel filed Brady and Giglio motions

concerning Brown, but these did not reveal any deals,

agreements, or understandings. S.H.O. at 20. Because they

never had any information concerning a deal between Brown

and the prosecutor, Petitioner’s counsel] did not raise a

Brady/Giglio claim on direct appeal. S.H.O. at 20.

1. Applying AEDPA

After applying the Strickland standard, the state habeas

court found that:

Trial counsel’s strategy to show “residual doubt,” was a

reasonable, professional decision in light of information and

facts that were available to trial counsel at the time, especially

since the prosecutor’s case rested primarily on the testimony of

John Brown.

S.H.O. at 20-21.

As the jury at the re-sentencing trial was not the same jury

who found Alderman guilty of the crime, there was a

possibility that this jury, who heard the entire guilt/innocence

evidentiary presentation, would believe that some doubt existed

as to Alderman’s guilt. It was reasonable for Mr. Jackson to

believe that presenting evidence that Alderman’s mother had

left the family when he was a child and evidence about his

61a

vision prob:.;. would not sway a jury to impose a life

sentence instead of death. In fact, in order to effectively

present a penalty phase defense of mercy based on sad

circumstances of his childhood and adolescence, Alderman

may have had to admit to committing the crime and then ask

the jury to spare him the death penalty due to his difficult

childhood. Because Alderman maintained his innocence

throughout the first trial and the re-sentencing trial, such a

strategy would have been incompatible with his testimony;

therefore, the residual doubt strategy used by Mr. Jackson was

a reasonable one based on the facts and circumstances as Mr.

Jackson knew them to be at that time.

S.H.O. at 23.

Alderman alleges that trial counsel failed to conduct an

adequate pretrial investigation into Alderman’s life and

background to uncover and present to the jury evidence in

mitigation. As discussed above, trial counsel conducted a

thorough background investigation of Alderman with the

assistance of two investigators. Furthermore, trial counsel’s

decision to present a residual doubt theory, instead of pursuing

a theory based on a supposed sad and difficult childhood,

which Alderman did not testify to at trial, was a reasonable,

strategic decision.

Alderman alleges that trial counsel failed to comprehend

the scope of potential mitigating evidence and thereby failed to

present ample evidence in mitigation that was available. As

discussed extensively above, trial counsel presented substantial

evidence in mitigation and had a reasonable strategy for not

presenting evidence of Alderman’s mother leaving the family

and of his vision problems.

62a

S.H.O. at 25.

The state habeas court then concluded that:

the guiding principles set forth by the United States

Supreme Court and adopted by the Georgia Supreme Court,

i.e., according a strong presumption of effectiveness to trial

counsel’s conduct, viewing trial counsel’s representation under

the totality of the circumstances and from the perspective of

trial counsel at the time of trial, and presuming the

reasonableness of judgment calls and trial strategy, this court

concludes that trial counsel performed both reasonably and

effectively in their representation of Alderman. Alderman has

failed to establish that he received ineffective assistance of trial

counsel under either prong of the Strickland standard and relief

on this claim is denied on the merits.

S.H.O. at 30.

This Court finds that the state habeas court correctly

applied federal standards in finding that re-sentencing trial

counsel performed both reasonably and effectively in their

representation of Petitioner. Further, this Court finds that the

state habeas court’s determinations regarding re-sentencing

trial counsel’s effectiveness were not based on an unreasonable

determination of the facts in light of the evidence presented.

2. On the merits

Even if AEDPA did not require the Court to defer to the

state habeas court’s adjudication in this instance, the Court

finds that when reviewed de novo, Petitioner’s ineffectiveness

claim fails. “Under the totality of the circumstances test [of

Strickland, the Court] asks ‘whether some reasonable lawyer

at the trial could have acted, in the circumstances, as defense

counsel acted at trial,’ rather than asking what most ‘good’

lawyers would have done.” Conklin, 366 F.3d at 1204 (quoting

63a

Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). “In

evaluating counsel’s performance, [the Court] ‘always avoid[s]

second guessing with the benefit of hindsight’ and ‘allow[s]

lawyers broad discretion to represent their clients by pursing:

their own Strategy.’” Fugate, 261 F.3d at 1223 (quoting White

v. Singletary, 972 F.2d 1218, 1220, 1221 (11th Cir. 1992).

Re-sentencing counsel’s decision to forego some mitigation

evidence in favor of presenting a residual doubt defense is a

reasonable strategic decision. The Eleventh Circuit has found

that a lingering doubt defense at sentencing can be a reasonable

one and is perhaps the most effective. Chandler v. United

States, 218 F.3d 1305, 1320 (11th Cir. 2000). In Tarver v.

Hopper, 169 F.3d 710 (11th Cir. 1999), the Eleventh Circuit

noted:

“Residual doubt” over the defendant’s guilt is the most

powerful “mitigating” fact—[The study] suggests that the best

thing a capital defendant can do to improve his chances of

receiving a life sentence has nothing to do with mitigating

evidence strictly speaking. The best thing he can do, all else

being equal, is to raise doubt about his guilt.

169 F.3d at 115-16 (quoting Stephen P. Garvey,

Aggravation and Mitigation in Capital Cases: What do Jurors

Think?, 98 Column L. Rev. 1538, 1563 (1998)).

“([C]Jounsel need not present all available mitigating

circumstance evidence in order for counsel’s conduct to be

deemed effective at the sentencing stage. Indeed, ‘the Supreme

Court and this Court in a number of cases have held counsel’s

performance to be constitutionally sufficient when no

mitigating circumstance evidence at all was introduced, even

though such evidence...was available.’”” Conklin. 366 F.3d at

1204 (quoting Waters, 46 F.3d at 1511).. “Considering the

realities of the courtroom, more is not always better. Stacking

64a

defenses can hurt a case. Good advocacy requires ‘winnowing

out’ some arguments, witnesses, evidence, and so on, to stress

others.” Chandler, 218 F.3d at 1319 (citations omitted).

“Which witness, if any, to call, and when to call them, is the

epitome of a strategic decision, and it is one that we will

seldom, if ever, second guess.” Waters, 46 - F.3d at 1512.

A lawyer presenting a lingering doubt defense could

reasonably fear that additional character witnesses

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