# Petition for Writ of Certiorari — Aldermanman v. Terry (No. 06-1478) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2491%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text FILE 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 4a 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 5a 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 6a 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 8a 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 MICHAEL SCHIAVONE, ESQ., Savannah, Georgia. 124a Reported By: BARBARA B. WRIGHT, Certified Court Reporter A-9, Savannah, Georgia. * * * [12}.... THE COURT: All right, Mr. Searcey. MR. SEARCEY: Your Honor, if I may — I should have done this this morning with the whole panel: I may have to do it with each individual and I hope the Court will bear with me. EXAMINATION BY MR. SEARCEY: Q.. Mrs. Bell, my name is Bill Searcey, this is Mr. David Lock. We will be presenting the case for the jury’s consideration on behalf of the State. These two gentlemen back here are Terry Jackson and Mr. Schiavone, are representing the defendant in this case, who is Mr. Alderman, to Mr. Schiavone’s right over here. 125Sa APPENDIX N [737] IN THE SUPERIOR COURT OF CHATHAM COUNTY FOR THE EASTERN JUDICIAL CIRCUIT OF GEORGIA THE STATE OF GEORGIA V. JACK ALDERMAN INDICTMENT 23,498 -- Murder Vv IV - MARCH 26, 1984 Transcript of the proceedings at the trial of the above matter, beginning on the 26th day of March, 1984 and ending on the Ist day of April, 1984, in the Court House at Savannah, Chatham County, Georgia, before a Jury and The Honorable Frank S. Cheatham, Jr., Judge, Superior Court, E.J.C. of Georgia. APPEARANCES: For The State: DAVID LOCK, ESQ.., WILLIAM SEARCEY, ESQ., Assistant District Attorneys, Savannah, Georgia. For The Defense: G. TERRY JACKSON, ESQ., MICHAEL SCHIAVONE, ESQ., Savannah, Georgia. 126a Reported By: BARBARA B. WRIGHT, Certified Court Reporter A-9, Savannah, Georgia. ** * [880] MR. SCHIAVONE: Yes, your Honor. THE COURT: Call your witnesses, then. MR. SCHIAVONE: Marvin Massey. MARVIN MASSEY WAS SWORN AS A WITNESSES FOR THE DEFENSE AND TESTIFIED AS FOLLOWS: DIRECT EXAMINATION BY MR. SCHIAVONE: Q. Mr. Massey, would you state your name, please to the Court? A. Marvin Massey, Marvin Eugene Massey. Q. And where do you live at this present time? A. West Columbia. Q. All right, and how are you presently employed? A. With Piggly-Wiggly. I’m a store manager with Piggly-Wiggly. Q. Store manager with Piggly-Wiggly? 127a A. Right. Q. And back in 1974, around September or August of "74, where were you employed? A. Piggly-Wiggly in Garden City. Q. All right, and was this the same Piggly-Wiggly that Mr. Raymond Shores was the manager? A. That’s correct. Q. And at that time was Jack Alderman employed? A. He sure was. Q. All right, back then did you know Jack? [881] A. Very well. Q. And Jack was third level manager? A. That’s correct. basis? A. Yes, sir. Q. Would you characterize him as being reliable and dependable? MR.LOCK: Your Honor, I would object to leading questions, however. THE COURT: Don’t lead the witnesses. Q. And you had occasion to work with him on a daily 128a Q. All right, how would you characterize Mr. Alderman as a manager - - as an assistant manager? A. I felt like he was reliable. He and I had several dealings together, working together and all, and I thought he was a first class employee. Q. All right, did you ever have an occasion when Jack injured himself? Were you present? A. I was present, but it’s been a long time ago. Q. Do you remember anything about it? Do you recall -- I know it’s been a long time. A. The only thing that I can remember is that a roller, a conveyor that we roll groceries off trucks, fell and hit his hand. Q. And was he cut? A. I don’t remember. {[882}Q. Okay, now, in your -- did you ever socialize with him? A. Yes, I did. Q. And would that have been with both him and his wife? A. Not so much with his wife. Q. All right, did you have an occasion to attend church with him? A. Yes, I did. 129a Q. Were you members of the same church? A. If my memory serves me correctly, I wasn’t a member. I think we both just attended the church. I’m not sure if both of us were members. Q. All right, was that the same church that Raymond Shores was a deacon? A. That’s correct. Q. And a Reverend Hilton, was he the pastor? A. That’s correct. Q. And back at the time that you knew Jack up until the time that this thing happened, you never had any problems? A. No, Jack had ~ he and I both had motorcycles and we rode motorcycles together and he had told me that he’d had problems in the past, he was trying to turn his life around. That’s why he started attending church. MR. SCHIAVONE: All right, thank you very much. CROSS-EXAMINATION BY MR. SEARCEY: Q. Mr. Massey, do you know how old Mr. Alderman was at the [883] time you knew him ten years ago? A. I can guess. I'd guess him twenty-six, twenty- seven. Q. And how old were you at that time, sir? A. Seventeen. 130a Q. And what you knew about Mr. Alderman was confined primarily to your association with him as a worker at Piggly-Wiggly? A. Pretty much, yes, sir. Q. He was twenty-six, you say, about twenty-six and you were seventeen. A. That’s correct. Q. Spend a lot of time with him? A. I'd say a fair amount. We rode motorcycles together from time to time. Q. Did you ever visit his home? . Which one? ~ . The one at Chatham City. . No, sir. A Q A Q. Never went to that place at all? A. Not that I can remember. Q . Never saw Alderman and his wife together at any time? . Yes. A Q. In the home? A. In Effingham County I did, once. Q . All right, when they were living there? l3la [884] A. That’s right. Q. But at the Chatham City apartment where they lived, you never went in the place. A. Not that I can remember. Q. You never saw them in that apartment together. A. Not that I can remember. Q. All right, you don’t know anything about their relationship as man and wife at that time. A. No, sir -- what are you trying to say exactly? Q. I’m trying to ask you questions about what you know about Mr. Alderman. A. Yes, sir. Q. You know nothing about his -- I’m saying to you, do you know anything about his relationship with his wife, Barbara Alderman? His wife at that time. A. As far as I knew, it was a good relationship. That’s all I knew. Q. As far as you knew, but you knew nothing about his home life. You never visited in his home or anything like that, did you? A. No, sir. Q. Never saw Mr. Alderman and his wife together in their home. 132a A. No, sir. Q. You knew nothing whatsoever about the relationship [885] between Mr. Alderman and his wife. A. No, sir. Q. So in short, all you know, sir, is -- I’m not quarreling with you, don’t misunderstand -- all you know is that he was a good employee with you where you worked. A. That's right. Q. And in riding the motorcycles he was a pretty nice fellow. A. That’s right. MR. SEARCEY: Okay, sir, that’s all I have. MR. SCHIAVONE: You can step down Mr. Massey. Can this witness be excused? THE COURT: Yes, sir. MR. LOCK: Sure. (NOTE: The witness withdrew) MR. SCHIAVONE: Father Richard Wise. RICHARD WISE WAS SWORN AS A WITNESS FOR THE DEFENSE AND TESTIFIED AS FOLLOWS: DIRECT EXAMINATION BY MR. SCHIAVONE. Q. Would you state your name, please? 133a A. Father Richard Wise. Q. And Father Wise, where -- I’m not sure how to ask you this -- do you have a parish, or of that nature? A. I'm associate pastor at St. Phillip . . . Church in Jonesboro. [886] Q. In Jonesboro? A. That’s right. Q. And what’s your background? What’s your educational background? A. I received my bachelor’s degree from St. Joseph’s College in Rensselaer, Indiana, and master’s degree ‘from Catholic Theological Union in Chicago, which is a subsidiary, I guess, of the University of Chicago. Q. Okay, now, in the course of your work, have you ever had an occasion to see Jack Alderman while he was on Death Row in Jackson? A. Yes. I’m one of the Catholic Chaplains for the prison at Jackson. Q. All right, and what type of contact did you have with Mr. Alderman? A. Usually Il saw him once a week, every week, usually on Wednesdays. Q. Okay, and for how long a period would this occur? A. I began going there in 1980. 134a Q. All right, and during the course of those encounters, did you have any discussions with him about general topics, all types of topics? A. We talked about a lot of different things, including religion, a lot of things about his life, his outlook on life, the different things he would write. [887] Q. At that time, was he writing poetry? Is that one of the writing that - - - A. Yes. Q. And were you able during that period of time to make a determination of an opinion as to Jack? Did you formulate an opinion as to Jack? THE COURT: Just be a little bit more specific. An opinion about Jack as an individual. Yes. I felt that I could trust Jack Alderman. Had he always been honest to you? Yr. eo F. & I felt so. Q. Now, you’ ve had an occasion to talk with a number of people up at Jackson, have you not? A. I work primarily on Death Row. Q. So Jack’s not the only inmate that you would have occasion to speak with? A. No. 135a Q. And what type of background had you had before going and working, having part of your duties at Jackson? What other exposure had you had to people that might be involved in the type of situation that these people were? A. Well, I worked nine years in the inner city in Cleveland and Chicago, worked seven years -- I’ve been seven years in the prison, in jail ministry, two years in Cleveland, one year in Chicago, four years here. [888] Q. Are you ever faced with people that are not -- are less than truthful to you? A. Oh, year, sure. Q. Okay, that’s not unusual, is it, in an environment such as Ja [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2491%3A1. Public record. Not legal advice.