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Esposito v. Humphrey

United States District Court, M.D. Georgia, Macon Division

December 10, 2014

CARL HUMPHREY, Warden, Respondent.


C. ASHLEY ROYAL, Chief District Judge.

JOHN ANTHONY ESPOSITO petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, Esposito's petition is DENIED.


A. Facts

The evidence at trial, which included 21 year-old Esposito's confession to federal authorities, showed that he and his codefendant, 19 year-old Alicia Woodward, both residents of New Jersey, arrived in Lumberton, North Carolina around September 15, 1996. (Docs. 13-12 at 14; 14-6 at 83).[1] After running out of money, they decided to rob and murder someone. (Doc. 14-15 at 50). Esposito explained that he thought about robbing a younger woman, but ultimately decided an elderly person would be better because "old people can't defend themselves. They don't have the motor skills to fight or run.'" (Doc. 14-15 at 58, 62). On Thursday, September 19, 1996, he and Woodward sat in the parking lot of a Winn-Dixie grocery store and waited for a potential victim. (Docs. 14-7 at 57-59; 14-15 at 50).

Lumberton resident Lola Davis, a 90 year-old retired high school librarian, took care of her 87 year-old husband, who suffered from Parkinson's disease and required constant assistance. (Docs. 14-6 at 66-70; 14-7 at 28-31). Mrs. Davis left him in the care of a health care attendant only once per week-for two to three hours each Thursday so she could have her hair done and buy groceries. (Docs. 14-6 at 70; 14-7 at 31, 37).

On Thursday, September 19, 1996, Mrs. Davis drove her 1978 Buick to Peggy's Beauty Salon, where she had been a regular client for seventeen years. (Docs. 14-6 at 73, 77; 14-7 at 15-18, 34). She had her hair styled and then drove to Winn-Dixie to buy groceries. (Doc. at 14-7 at 18). When Mrs. Davis exited the grocery store, Woodward approached her. (Docs. 14-7 at 89-91; 14-8 at 4). Woodward told Mrs. Davis that she was scared of, and needed to get away from, her boyfriend and asked for a ride out of the parking lot. (Doc. 14-15 at 51). Mrs. Davis agreed to help and drove Woodward to the rear of the grocery store, where Esposito jumped into the backseat of her car. (Doc. 14-15 at 51-52).

Esposito threatened to kill Mrs. Davis if she did not cooperate. (Doc. 14-15 at 51-52). He and Woodward had Mrs. Davis move to the passenger seat and Woodward started driving. (Doc. 14-15 at 52). They told Mrs. Davis to write a check for $300.00 made payable to cash and she complied. (Doc. 14-15 at 52). On the way to the bank to cash the check, Esposito went through Mrs. Davis' purse and found approximately $1, 000.00. (Doc. 14-15 at 52). They went through the drive-through window at the bank and cashed the $300.00 check. (Doc. 14-8 at 40, 44). The bank teller later identified both Woodward and Esposito. (Doc. 14-8 at 43, 46).

With Mrs. Davis in the passenger seat, they travelled approximately 300 miles from Lumberton, North Carolina to Madison, Georgia.[2] (Doc. 14-8 at 17-18). This trip took approximately five hours. (Doc. 14-8 at 18). They exited the interstate in Morgan County, Georgia and drove down a dirt road. (Docs. 14-8 at 86; 14-9 at 28). Esposito had Mrs. Davis exit the vehicle, kneel on the ground, and he proceeded beat her to death with a tree limb, and other "stuff on the ground.'" (Doc. 14-15 at 55). In his confession, Esposito said he didn't "have any remorse'" for murdering Mrs. Davis; he didn't "have a conscience.'" (Doc. 14-15 at 56)

When Mrs. Davis failed to return home on the afternoon of September 19, Mr. Davis became concerned and phoned the Sheriff's department. (Docs. 14-7 at 33; 14-8 at 7-10). A missing persons report was filed that day. (Docs. 14-7 at 33; 14-8 at 7-10). The next day, Mr. Davis learned that his wife had been killed and her body had been found in Georgia. (Docs. 14-7 at 34; 14-8 at 16).

A cattle ranch overseer discovered Mrs. Davis' body on September 20, 1996 under a large oak tree in a hayfield. (Docs. 14-8 at 62, 70-73; 14-9 at 34). Her head was "wedged and driven down into the tree root" and there was a large tree limb left on her body. (Doc. 14-9 at 16, 56-57). The forensic pathologist who performed the autopsy testified that Mrs. Davis died from blunt force trauma to her head. (Doc. 14-12 at 73). He explained that she had significant blunt force injuries, including contusions, lacerations, and abrasions about her face, neck, and ears; cartilage was protruding from her left ear; there was extensive hemorrhaging and bruising in her scalp; she had significant brain injury as a result of the outside head trauma; and there were defensive wounds on her right hand and left wrist. (Doc. 14-12 at 61-62, 68, 78).

After murdering Mrs. Davis, Esposito and Woodward headed to Alabama, where they abandoned her car and purse. (Docs. 14-9 at 87; 14-15 at 56-57); Esposito v. State, 273 Ga. 183, 183, 538 S.E.2d 55, 57 (2000). "Davis' automobile was shown at trial to contain fingerprints, palm prints, and footprints matching Esposito's and Woodard's. Saliva on a cigarette butt found in the automobile was shown to contain DNA consistent with Esposito's DNA." Esposito, 273 Ga. at 183, 538 S.E.2d at 57.

Evidence presented at the sentencing phase showed that, after killing Mrs. Davis, Esposito bludgeoned to death two more elderly people. In Alabama, Esposito and Woodward boarded a Greyhound bus and headed west to Oklahoma City. (Doc. 14-17 at 49). When they ran out of money in Oklahoma City, they decided to find another elderly victim to rob and murder. (Doc. 14-17 at 51). To that end, they waited in the parking lot of a grocery store until they spotted Larry and Marguerite Snider[3] leaving the store. (Doc. 14-17 at 52; 14-18 at 8-9).

Esposito approached the couple, told them his car had broken down, and asked for a ride to a hotel. After Mr. Snider agreed and started driving, Esposito had him pull over, grabbed him around the neck, and told him that he would kill Mrs. Snider if he failed to do as he was told. (Doc. 14-17 at 53). When Mr. Snider resisted, Esposito hit him in the face. (Doc. 14-17 at 53). With Woodward driving, they stopped at an automatic teller machine, where Esposito made Mr. Snider withdraw money from his account. (Doc. 14-17 at 53-54). They continued down the interstate until Esposito directed Woodward to exit and drive into a "large field with a dirt road that ran down the middle."[4] (Doc. 14-17 at 54-55).

After retrieving a tire iron from the trunk of the car, Esposito had Mr. Snider exit the car and he proceeded to hit him in the head with the tire iron until Mr. Snider fell to the ground. (Doc. 14-17 at 56). In his confession, Esposito explained that killing Mr. Snider "wasn't too bad. I did not get any brains on my face or anything.'" (Doc. 14-17 at 56). Esposito then drug Mr. Snider to a grassy area next to the car and left him there. (Doc. 14-17 at 57).

Esposito returned to the car, pulled Mrs. Snider out of the backseat, and hit her in the head with the tire iron. (Doc. 14-17 at 57). When she fell to the ground, he hit her again in the chin and in the right side of her face. (Doc. 14-17 at 57). In his confession, Esposito explained that hit her four times until he saw her "skull, pop up.'" (Doc. 14-17 at 57). He drug Mrs. Snider and placed her next to Mr. Snider. He confessed that when he placed Mrs. Snider next to her husband, Mr. Snider was not breathing and Mrs. Sniders' "eyes were open and one eye was looking at him and one eye was coming out of her head.'" (Doc. 14-17 at 58). He confessed that "he would never forget that sight... she was breathing real hard'"... not blinking" and "[y]ou could have thrown dirt in her eyes and she wouldn't have blinked.'" (Doc. 14-17 at 58). He "recalled seeing brain matter on the side of [Mrs. Snider's] face." (Doc. 14-17 at 58).

Esposito told authorities that Woodward had thrown the tire iron into the field, but she "didn't do anything'"; he was the one who killed the Sniders. (Doc. 14-17 at 59-60). As with Mrs. Davis' murder, Esposito said he had no remorse for killing Mr. and Mrs. Snider. He explained, "I don't have a conscience. I really don't care.'" (Doc. 14-17 at 60).

After killing the Sniders, Esposito and Woodward took the Snider's car and drove to Colorado, where they were finally arrested on October 2, 1996 in Mesa Verde National Park. (Docs. 14-14 at 35-42; 14-17 at 61). Esposito explained that had they not been arrested, their plan was to "go to the Wal-mart, which is located in Cortez, rob and murder another elderly woman and use the money to fly to San Diego." (Doc. 14-17 at 62).

B. Procedural history

On September 30, 1998, a jury found Esposito guilty of malice murder, felony murder, armed robbery, and hijacking a motor vehicle. Esposito, 273 Ga. at 183 n.1, 538 S.E.2d at 57 n.1. He was sentenced to death for the crime of malice murder, and the Georgia Supreme Court affirmed his conviction and sentence on October 30, 2000. Id. at 183, 538 S.E.2d at 57.

After the Georgia Supreme Court denied his motion for reconsideration and the United States Supreme Court denied his petition for writ of certiorari, Esposito filed a petition for writ of habeas corpus in the Superior Court of Butts County on May 3, 2002. (Docs. 15-19 to 15-21; 15-23; 15-25). He amended the petition on November 6, 2006 and, after a three-day evidentiary hearing on September 4, 5, and 6, 2007, the court denied relief in an order dated April 5, 2011. (Docs. 17-2; 17-8 to 27-23; 27-39). The Georgia Supreme Court denied Esposito's application for a certificate of probable cause to appeal ("CPC application") on March 19, 2012. (Docs. 27-41 to 27-42; 27-44).

On May 8, 2012, Esposito filed a Petition for Writ of Habeas Corpus by a Person in State Custody in this Court. (Doc. 1). The Respondent filed his answer and the Court denied Esposito's motion for discovery, motion for an evidentiary hearing, and renewed motion for an evidentiary hearing. (Docs. 10, 37, 42, 65). Both parties have now briefed the issues of exhaustion, procedural default, and the merits of any remaining claims. (Docs. 54 to 58).


A. Exhaustion and procedural default

Procedural default bars federal habeas relief when a habeas petitioner has failed to exhaust state remedies that are no longer available or when the state court rejects the habeas petitioner's claim on independent state procedural grounds. Frazier v. Bouchard, 661 F.3d 519, 524 n.7 (11th Cir. 2011); Ward v. Hall, 592 F.3d 1144, 1156-57 (11th Cir. 2010).

There are two exceptions to procedural default. If the habeas respondent establishes that a default has occurred, the petitioner can overcome the default by establishing "cause for the failure to properly present the claim and actual prejudice, or that the failure to consider the claim would result in a fundamental miscarriage of justice." Conner v. Hall, 645 F.3d 1277, 1287 (11th Cir. 2011) (citing Wainwright v. Sykes, 433 U.S. 72, 81-88 (1977)). A petitioner establishes cause by demonstrating that some objective factor external to the defense impeded his efforts to raise the claim properly in the state courts. Spencer v. Sec'y, Dep't of Corr., 609 F.3d 1170, 1180 (11th Cir. 2010) (quoting Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003)). A petitioner demonstrates prejudice by showing that there is a reasonable probability that the result of the proceedings would have been different. Id. Regarding what is necessary for a petitioner to establish a fundamental miscarriage of justice, the Eleventh Circuit has stated:

To excuse a default of a guilt-phase claim under [the fundamental miscarriage of justice] standard, a petitioner must prove a constitutional violation has probably resulted in the conviction of one who is actually innocent. To gain review of a sentencing-phase claim based on [a fundamental miscarriage of justice], a petitioner must show that but for constitutional error at his sentencing hearing, no reasonable juror could have found him eligible for the death penalty under [state] law.

Hill v. Jones, 81 F.3d 1015, 1023 (11th Cir. 1996) (citations and quotation marks omitted).

B. Review of claims that were adjudicated on the merits in the state courts

Under AEDPA, [5] this Court may not grant habeas relief with respect to any claim that was adjudicated on the merits in state court unless the state court's decision was (1) contrary to clearly established Federal law; (2) involved an unreasonable application of clearly established Federal law; or (3) 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)(1)-(2); see also Harrington v. Richter, 131 S.Ct. 770 (2011). The phrase "clearly established Federal law" refers to the holdings of the United States Supreme Court that were in existence at the time of the relevant state court decision. Thaler v. Haynes, 559 U.S. 43, 47 (2010); Williams v. Taylor, 529 U.S. 362, 412 (2000).

"The contrary to' and unreasonable application' clauses of § 2254(d)(1) are separate bases for reviewing a state court's decisions." Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001) (citing Williams, 529 U.S. at 404-05).

Under § 2254(d)(1), "[a] state court's decision is contrary to'... clearly established law if it applies a rule that contradicts the governing law set forth in [the United States Supreme Court's] cases' or if it confronts a set of facts that are materially indistinguishable from a decision of [the United States Supreme] Court and nevertheless arrives at a [different] result....'"

Michael v. Crosby, 430 F.3d 1310, 1319 (11th Cir. 2005) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)).

A state court's decision involves an "unreasonable application" of federal law when "the state court identifies the correct governing legal rule but unreasonably applies it to the facts of the particular state prisoner's case, or when it unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context.'" Reese v. Sec'y, Fla. Dep't of Corr., 675 F.3d 1277, 1286 (11th Cir. 2012) (quoting Greene v. Upton, 644 F.3d 1145, 1154 (11th Cir. 2011)). An "unreasonable application" and an "incorrect application" are not the same:

We have explained that an unreasonable application of federal law is different from an incorrect application of federal law. Indeed, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable. This distinction creates a substantially higher threshold for obtaining relief than de novo review. AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt.

Renico v. Lett, 559 U.S. 766, 773 (2010) (citations and quotation marks omitted).

Pursuant to 28 U.S.C. § 2254(d)(2), district courts can "grant habeas relief to a petitioner challenging a state court's factual findings only in those cases where the state court's decision was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Price v. Allen, 679 F.3d 1315, 1320 (11th Cir. 2012) (quoting 28 U.S.C. § 2254(d)(2)). A state court's determination of a factual issue is "presumed to be correct, " and this presumption can only be rebutted by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

Within this framework, the Court reviews Esposito's claims.


A. Claim One: Petitioner was deprived of his right to the effective assistance of counsel at trial and on appeal, in violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

1. The clearly established federal law and deference

Strickland [6] is "the touchstone for all ineffective assistance of counsel claims." Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008). "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. Esposito "must meet both the deficient performance and prejudice prongs of Strickland " to obtain relief. Wong v. Belmontes, 558 U.S. 15, 16 (2009). To establish deficient performance, he must show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. The Court must apply a "strong presumption' that counsel's representation was within the wide range' of reasonable professional assistance." Richter, 131 S.Ct. at 787 (quoting Strickland, 466 U.S. at 689). "To overcome that presumption, [Esposito] must show that counsel failed to act reasonabl[y] considering all the circumstances.'" Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (quoting Strickland, 466 U.S. at 688). To establish prejudice, Esposito must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. When determining if prejudice exists, "it is necessary to consider all the relevant evidence that the jury would have had before it if [Esposito's counsel] had pursued the different path-not just the mitigation evidence [his counsel] could have presented, but also the [aggravating evidence] that almost certainly would have come in with it." Wong, 558 U.S. at 20; see also Porter v. McCollum, 558 U.S. 30, 40-41 (2009).

Federal courts must "take a highly deferential' look at counsel's performance through the deferential lens of § 2254(d).'" Pinholster, 131 S.Ct. at 1403 (quoting Strickland, 466 U.S. at 689; Knowles v. Mirzayance, 556 U.S. 111, 121 n.2 (2009)). Thus, Esposito must do more than satisfy the Strickland standard. "He must also show that in rejecting his ineffective assistance of counsel claim the state court applied Strickland to the facts of his case in an objectively unreasonable manner.'" Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004) (quoting Bell v. Cone, 535 U.S. 685, 699 (2002)). That is, "[t]he question is not whether counsel's actions were reasonable [but] whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 131 S.Ct. at 788.

Esposito argues that "two particular errors of law... fundamentally mar the habeas court's legal analysis" and, therefore, this Court should conduct a de novo review of several of [his] ineffectiveness claims." (Doc. 56 at 34). First, Esposito maintains this Court is unconstrained by § 2254's deference in relation to Strickland's prejudice prong because the state habeas court's reliance on Lockhart [7] constituted an unreasonable application of clearly established federal law. (Doc. 56 at 34-36). Second, he claims the state habeas court's rejection of several ineffective assistance claims was unreasonable because the "court erred as a matter of law in relying on counsel's fear of opening the door' to the state's presentation of an illegal custodial statement." (Doc. 56 at 36) (emphasis omitted).

The short answer to both of these arguments is that the state habeas court's analysis and reasoning are irrelevant. After the state habeas court denied relief, Esposito filed, and the Georgia Supreme Court summarily denied, his CPC application. (Docs. 27-41 to 27-42, 27-44). The Eleventh Circuit recently explained that the relevant state court decision for AEDPA purposes is the Georgia Supreme Court's summary denial of a petitioner's CPC application, not the superior court's denial of his state habeas petition. Hittson v. GDCP Warden, 759 F.3d 1210, 1231-32 (11th Circ. 2014). This Court is not to "review the reasoning given in the Butts County Superior Court decision; rather, [it] review[s] the decision of the Georgia Supreme Court, in accordance with Richter's instructions." Id. at 1232 n.25. Because the Georgia Supreme Court did not explain its decision, "[o]ur task... is to review the record before the Georgia Supreme Court to determine what arguments or theories supported or, ... could have supported, the state court's decisions.'" Id. at 1232 (quoting Richter, 131 S.Ct. at 786). Under this standard, Esposito "may only obtain federal habeas relief by showing there was no reasonable basis for the [Georgia Supreme] [C]ourt to deny relief.'" Id. at 1233 (quoting Richter, 131 S.Ct. at 784).

However, assuming for the sake of argument that the Butts County Superior Court's analysis is relevant, AEDPA deference still applies. First, the Court finds that the superior court did not unreasonably apply Lockhart. The complete "prejudice prong" analysis in the "legal standard" section of the superior court's order reads as follows:

In Strickland, the Supreme Court held that there is prejudice stemming from ineffective assistance of counsel if there is a reasonable probability that, absent the deficiencies, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. The Supreme Court in Lockhart further defined the "prejudice" component of Strickland, holding that "an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law the does not entitle him. Lockhart, 506 [U.S.] at 369-70.
In Smith v. Francis, 253 Ga. at 783, the Supreme Court of Georgia interpreted the prejudice prong to require that a petitioner prove that the outcome of the proceedings would have been different. "In order to establish that trial counsel's performance was so defective as to require a new trial, [the Petitioner] must show that counsel's performance was deficient and that the deficient performance so prejudiced [the Petitioner] that there is a reasonable likelihood that, absent counsel's errors, the outcome of the trial would have been different." Roberts v. State, 263 Ga. 807, 807-808 (1994). "Regarding death penalties, the question is whether there is a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Smith v. Francis, 253 [Ga.] at 783-784.
In the instant case, this Court has applied the guiding principles set forth in Strickland and its progeny, as adopted by the Georgia Supreme Court, i.e., according a strong presumption of effectiveness to counsel's conduct; viewing counsel's representation objectively from the perspective of counsel at the time of trial; refusing to engage in hindsight analysis; presuming the reasonableness of judgment calls and trial strategy; acknowledging that even the most qualified counsel would likely represent a capital litigant differently; and recognizing that even the most experienced and effective attorney might be unable to prevent the imposition of the death penalty in a particular case. This Court finds that Petitioner failed to establish that counsel's performance "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. This Court also finds that Petitioner failed to establish that, but for alleged errors or omissions by counsel, there is a reasonable probability that the result of the proceeding would have been different. Id. at 694. Accordingly, this Court hereby denies habeas corpus relief as to the entirety of Petitioner's claims of ineffective assistance of counsel.

(Doc. 27-39 at 18-19).

While the state habeas court cited Lockhart, as other courts have done, [8] it clearly stated that its prejudice analysis was governed by "Strickland and its progeny." (Doc. 27-39 at 19). Also, the court found Esposito had not established prejudice because he failed to "establish that, but for alleged errors or omissions by counsel, there is a reasonable probability that the result of the proceeding would have been different." (Doc. 27-39 at 19). This the correct prejudice standard under Strickland.

Furthermore, when the state habeas court analyzed each of Esposito's individual ineffective assistance claims, it applied only the Strickland prejudice analysis. Discussing trial counsel's investigation and presentation of life history mitigation, the state habeas court found: "Because Petitioner... failed to prove that there is a reasonable probability that he suffered actual prejudice... Petitioner has failed to meet his burden under Strickland " (Doc. 27-39 at 21), and "even if the Court were to conclude that [counsel's] presentation... was deficient, Petitioner has failed to establish that he suffered any actual prejudice such that there is a reasonable probability that the outcome of the trial would have been different" (Doc. 27-39 at 29). Analyzing trial counsel's investigation and presentation of mental health mitigation evidence, the state habeas court found: "[T]his Court further finds that Petitioner also failed to prove that the alleged deficient performance so prejudiced him that there is a reasonable likelihood that, absent counsel's errors, the outcome of the trial would have been different'" (Doc. 27-39 at 35), and "[w]ith regard to the evidence of Petitioner's mental health that was presented at the habeas hearing but not presented at trial, this Court is not persuaded that there is a reasonable probability that this additional evidence would have changed the outcome of the trial" (Doc. 27-39 at 35). Addressing trial counsel's failure to hire a forensic pathologist, the state habeas court explained: "Even if the Court were to find that such conduct constituted deficient performance, which the Court does not, this Court finds that Petitioner failed to establish a reasonable probability that such testimony would have affected the outcome of Petitioner's trial...." (Doc. 27-39 at 42). Thus, there are no indications that the state habeas court's prejudice analyses involved anything other than what is required by Strickland. [9] The court did not impose any additional requirements or make any separate inquiries into whether the outcome was "fundamentally unfair" under Lockhart. Lockhart, 506 U.S. at 843.

Esposito argues that the state habeas court's prejudice analysis was the same as that conducted by the Virginia Supreme Court in Williams, which the Supreme Court found was "contrary to, or involved an unreasonable application of, clearly established Federal law.'" Williams, 529 U.S. at 367, 373 (quoting 28 U.S.C. § 2254(d)(1)) The Supreme Court faulted the state court for imposing additional requirements upon the habeas petitioner: "The Virginia Supreme Court read our decision in Lockhart to require a separate inquiry into fundamental fairness even when [the Petitioner] is able to show that his lawyer was ineffective and that his ineffectiveness probably affected the outcome of the proceeding."[10] Williams, 529 U.S. at 393. In Esposito's case, the state habeas court referenced Lockhart in its general discussion, but it conducted a straightforward Strickland analysis when it addressed each of Esposito's ineffective assistance allegations. Unlike the Virginia Supreme Court, it did not find trial counsel's "ineffectiveness probably affected the outcome of the proceeding, " and then conduct a separate inquiry into fundamental fairness. Instead, it found that trial counsel's performance was not deficient and, even if it were, there was not a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. (Doc. 27-39 at 21, 29, 35, 42). This is the correct Strickland prejudice analysis.

Esposito's second argument for de novo review of certain ineffectiveness claims is that the state habeas court erred as a matter of law in relying on counsel's fear of "opening the door" to the State's presentation of the illegal custodial statement. (Doc. 56 at 36). Again, assuming for the sake of argument that the Butt's County Superior Court's reasoning is relevant, Esposito's argument fails.

The record shows that following his arrest, Esposito confessed on two separate occasions to murdering Mrs. Davis and the Sniders. First, on October 2, 1996, the day of his arrest, he confessed to Federal Bureau of Investigation ("FBI") Special Agent Ron Knight. (Doc. 14-15 at 43-44). On October 8, 1996, he confessed to Georgia Bureau of Investigation ("GBI") Agent James Wooten in a videotaped interview.[11] (Doc. 13-12 at 4-10; Resp't Ex. 169-170). Trial counsel sought to suppress both confessions. (Doc. 13-11 at 3-4). The trial court conducted a hearing on December 10, 1997 and ruled that Esposito's confession to Knight was admissible but reserved ruling on the videotaped confession to Wooten. (Doc. 13-13 at 44-44).

In a September 11, 1998 pretrial hearing, the trial court indicated that the videotaped confession to Wooten should be suppressed and trial counsel presented a proposed order to the court. The last sentence of the order read: "[S]aid video statement and interrogation is hereby suppressed and the State is directed not to use such evidence in the prosecution against this Defendant." (Doc. 13-5 at 77). While the prosecutor agreed that he should not "bring it up in [the] case in chief, " he argued that under Harris v. New York, 401 U.S. 222 (1971), he should be allowed to use the videotaped confession for impeachment or rebuttal. (Doc. 13-21 at 72). His argument was that Esposito, through his polygraph expert, sought to show that he "is not the one who delivered the fatal blow" and the videotaped confession could be used as "rebuttal or impeachment evidence of the result of that polygraph."[12] (Doc. 13-21 at 73, 75). The trial judge stated he was "not ruling on that" and explained, "I'm going to state it this way on the record. I'm going to go ahead and sign his Order and state on the record that my Order does not apply to possible use for impeachment or rebuttal and if that comes up, a hearing will be held." (Doc. 13-21 at 73, 75). Trial counsel stated they understood, but did not agree with, the court's ruling. (Doc. 13-21 at 75-76). On the order granting Esposito's motion to suppress the videotaped confession, the trial judge wrote "this [o]rder does not apply to possible use for impeachment or rebuttal." (Doc. 13-5 at 77). Thus, the trial court left open the possibility that the videotaped confession might be shown to the jury.

During the state habeas evidentiary hearing, trial counsel explained they thought the "video confession was terrible for" Esposito and its presentation to the jury "would have [had] a devastating effect." (Doc. 17-10 at 46). Therefore, throughout the sentencing phase of the trial they were careful not to open the door to the possibility of having the videotape played for the jury. Counsel explained:

[B]etween [the District Attorney] and the judge, you know, ... if anybody got up and was going to profess John's innocence, it at least had us concerned that that might be enough to do that. And so I was cautious to try to tell [our] witnesses let's don't get into an area that could possibly open up a door and let some things in that would be devastating.... [W]e didn't want that confession to come in.

(Doc. 17-10 at 78).

The state habeas court accepted this justification as legitimate and reasonable, excusing some of trial counsel's challenged actions on the ground that counsel made the tactical decision to refrain from presenting certain evidence for fear of opening the door to the videotaped confession. (Doc. 162 at 28-29, 42) Esposito argues:

Because the trial court erred as a matter of law in ruling that a videotaped confession that it had excluded... could nonetheless be admitted to rebut any evidence presented by the defense that contradicted the suppressed statement, defense counsel's so called "strategic" decisions to avoid presenting evidence suggesting that Mr. Esposito was not the killer or otherwise challenging the degree of his culpability were inherently unreasonable. In turn, the state habeas court's reliance on this justification was an unreasonable application of clearly established federal law, and to the extent the court relied on this justification to find counsel performed adequately, the habeas court's rulings are not entitled to any deference.

(Doc. 56 at 36-37).

The Court disagrees because the record reveals that the state habeas court's reliance on trial counsel's justification was reasonable. Contrary to Esposito's argument, the trial court did not "rul[e] that a videotaped confession that it had excluded... could nonetheless be admitted to rebut any evidence presented by the defense that contradicted the suppressed statement." (Doc. 56 at 36). Instead, it clearly left the issue open, explaining that, if necessary, it would hold a hearing to address the admissibility of the videotape in the future. (Doc. 13-21 at 73, 76). Given that the trial court had not definitively ruled on the scope of the confession's possible admission, it was reasonable for trial counsel to believe that the court might allow the statement to be admitted, even if, as Esposito argues, the statement's admission would be contrary to Supreme Court precedent.

According to Esposito, trial counsel's actions were not strategic; they simply were unaware of the applicable law contained in James v. Illinois, 493 U.S. 307 (1990). In James, the Supreme Court held that the impeachment exception to the exclusionary rule does not permit the prosecution to introduce illegally obtained evidence to impeach the testimony of defense witnesses. Id. at 309. Unfortunately, the record does not show if trial counsel were aware of James or not. At the state habeas evidentiary hearing, they were not questioned regarding their knowledge of James. Therefore, the Court agrees with Respondent that Esposito's basis for alleging that trial counsel misunderstood the law is speculative. "An ambiguous or silent record is not sufficient to disprove the strong and continuing presumption of counsel's competency. Therefore, where the record is incomplete or unclear about [counsel]'s actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment.'" Williams v. Allen, 598 F.3d 778, 794 (11th Cir. 2010) (quoting Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000)). Trial counsel may well have been concerned that the trial court would admit the video confession despite contrary authority.[13] Thus, their attempts to prevent such were reasonable, as was the state habeas court's reliance on this justification.

Having determined that the state courts' ineffective assistance adjudications must be afforded deference, the Court now considers the actions of counsel, the state courts' determinations, and Esposito's various arguments.

2. Trial counsel's investigation and presentation of evidence during the mitigation phase of Esposito's trial

On October 10, 1996, the trial court appointed two experienced criminal defense attorneys, Roy R. Kelly, III and Wiley Dan Roberts, to represent Esposito. (Doc. 13-1 at 15). Kelly, who had been practicing law since 1974, concentrated on criminal defense, divorce, and real estate work. (Doc. 17-10 at 30). He had handled five death penalty cases prior to his appointment in Esposito's case. (Doc. 17-10 at 30). Two of his previous death penalty cases went to the jury and three ended in plea agreements. (Doc. 17-10 at 30). Roberts graduated from law school in the 1960s and, after working in the Navy and the Post Office, opened his private practice in 1969. (Doc. 17-11 at 5). He handled criminal cases, real estate, probate work, and some personal injury cases. (Doc. 17-11 at 6). Roberts had handled three previous death penalty cases. (Doc. 17-11 at 6-7). They all ended in pleas, but he had tried some noncapital murders. (Doc. 17-11 at 7, 40). Kelly and Roberts had worked together on one previous death penalty case. (Doc. 17-10-at 32).

Though they worked together to prepare for both phases of trial, trial counsel were aware there was a good chance Esposito would be found guilty and, therefore, they realized their realistic goal was to save him from the death sentence. (Doc. 17-10 at 34-35, 43, 65). While Kelly and Roberts originally hoped to do some of the mitigation investigation work themselves, they ultimately decided to hire an investigator. (Docs. 13-16 at 3-4). The Georgia Indigent Defense Counsel recommended Hector Guevara. (Doc. 17-10 at 47). In a March 1998 pretrial hearing, counsel explained to the trial court that they needed to hire Guevara to locate and interview witnesses "specifically for sentencing phase mitigation type testimony." (Doc. 13-16 at 5). Counsel requested $20, 000, explaining that Guevara would need to interview numerous people who resided in various states. (Doc. 13-16 at 5). The trial court expressed concern, explaining that "it seems extremely high, " but eventually agreed to the amount because "witnesses [were] scattered over such a wide area of the country." (Docs. 13-16 at 7-8; 13-18 at 4-7).

Trial counsel and Guevara regularly visited Esposito, whom counsel described as cooperative. (Doc. 17-10 at 33-34; 17-11 at 8-9). Guevara questioned Esposito extensively about his background on numerous occasions. (Docs. 20-2 at 45-80, 20-3 at 1-42). Esposito provided Guevara with names of numerous potential mitigation witnesses. (Doc. 19-27 at 3-5). Guevara interviewed the suggested witnesses that he could locate, along with many additional people from Esposito's past. (Docs. 19-22 at 5-17; 20-1 at 1-16, 25-28; 20-2 at 2-11; 21-42). Guevara provided counsel with an alphabetized list of more than 80 people he interviewed. (Doc. 20-1 at 25-28). These individuals included family members, friends, ...

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