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Butts v. GDCP Warden

United States Court of Appeals, Eleventh Circuit

March 9, 2017

ROBERT EARL BUTTS, Petitioner-Appellant,
GDCP WARDEN, Respondent-Appellee.

         Appeal from the United States District Court for the Middle District of Georgia

          Before ED CARNES, Chief Judge, TJOFLAT and HULL, Circuit Judges.

          ED CARNES, Chief Judge.

         Robert Earl Butts, Jr., a Georgia prisoner, murdered Donovan Corey Parks. Butts was sentenced to death after a jury found him guilty of malice murder, armed robbery, hijacking a motor vehicle, possession of a firearm during the commission of a crime, and possession of a sawed-off shotgun. The district court denied his 28 U.S.C. § 2254 petition for a writ of habeas corpus, in which he raised a number of claims challenging his convictions and sentence. The court granted him a certificate of appealability on the question whether "[t]rial and appellate counsel were ineffective for failing to investigate, develop, and present mitigating evidence during the sentencing phase of Butts's trial."

         A complicating factor in considering the issues certified for this appeal is the fact that in the state collateral proceeding the trial court ruled that Butts had procedurally defaulted a part of his claim that trial counsel was ineffective for failing to investigate, develop, and present mitigating evidence. During the unified appeal, Butts' new counsel had argued only that trial counsel was ineffective for failing to offer testimony by family members, who could have made a plea for mercy, at the sentencing phase of his trial.[1]

         In his later state habeas petition Butts, represented by yet another set of new counsel, reiterated his claim about trial counsel's failure to call family members to plead for mercy, but he also attempted to expand his claim to allege that trial counsel had "failed to conduct an adequate pretrial investigation into [his] family life and background to uncover and present to the jury evidence in mitigation." The state trial court found that Butts' failure to preserve that expanded part of his claim during the unified appeal barred it from considering that part of the claim on the merits. The court denied the claim based on that procedural bar. It also denied, on the merits, Butts' related claim that appellate counsel had rendered ineffective assistance by failing to adequately raise and preserve during the unified appeal the trial counsel ineffectiveness claim. The Georgia Supreme Court denied Butts a certificate of probable cause to appeal the state trial court's decision denying him habeas relief.

         Butts then filed in federal district court a petition for a writ of habeas corpus. With limited exceptions, "[w]hen a state court denies a claim as defaulted based on an adequate and independent state procedural rule, a petitioner may not bring the claim in federal habeas." Lucas v. Warden, Ga. Diagnostic & Classification Prison, 771 F.3d 785, 801 (11th Cir. 2014). One exception occurs when the habeas petitioner can show cause and prejudice. Id.; Jones v. Campbell, 436 F.3d 1285, 1304 (11th Cir. 2006). In an attempt to lift the procedural bar and have the district court decide his expanded trial counsel ineffectiveness claim on the merits, Butts asserted as cause a claim that his appellate counsel was himself ineffective for not adequately investigating and presenting during the state unified appeal the claim that trial counsel was ineffective. The district court rejected that contention on the ground that the state trial court's rejection of it was not unreasonable under 28 U.S.C. § 2254(d). In making that decision, the district court considered looking to the Georgia Supreme Court's unexplained denial of a certificate of probable cause to appeal, but it decided instead to look to the trial court's explained rejection of the claim. App'x at 12 n.8. We have since held that the denial of a certificate of probable cause to appeal by the Georgia Supreme Court is a decision on the merits entitled to deference under § 2254(d), and it is to that decision instead of the typically more specific trial court decision that a federal habeas court should look. Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1232-33 (11th Cir. 2016) (en banc), cert. granted, No. 16-6855, ___ U.S. ___ (Feb. 27, 2017). Because it does not matter to the result, and to avoid any further complications if the United States Supreme Court disagrees with our Wilson decision, we have decided this appeal on the same basis that the district court did: by using the more state-trial-court focused approach in applying § 2254(d).

         The state trial court, the district court, and the parties themselves agree that appellate counsel's performance in presenting the ineffective assistance of trial counsel claim was itself deficient. We accept that proposition for present purposes and turn to the prejudice requirement. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984) ("Unless a defendant makes both showings [deficient performance and prejudice], it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."); Brooks v. Comm'r, Ala. Dep't of Corr., 719 F.3d 1292, 1300 (11th Cir. 2013) ("Claims of ineffective assistance of appellate counsel are governed by the same standards applied to trial counsel under Strickland.") (quotation marks omitted).

         In the state habeas proceeding, the trial court found that Butts had not established prejudice from his appellate counsel's failures in investigating and presenting the trial counsel ineffectiveness claim during the unified appeal. We accord that decision the deference it is due under § 2254(d). See Harrington v. Richter, 562 U.S. 86, 100, 131 S.Ct. 770, 785 (2011) ("Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision 'was contrary to' federal law then clearly established in the holdings of [the United States Supreme] Court, § 2254(d)(1), or that it 'involved an unreasonable application of' such law, § 2254(d)(1), or that it 'was based on an unreasonable determination of the facts' in light of the record before the state court, § 2254(d)(2).") (one citation omitted).

         Determining whether appellate counsel's failure to adequately investigate and present the claim of trial counsel's ineffectiveness prejudiced Butts -- whether there is a reasonable probability of a different result in the appeal had the claim been presented in an effective manner - requires determining whether trial counsel was ineffective in the first place. If trial counsel was not ineffective, then any of appellate counsel's failures in attempting to build a case that he was ineffective could not have prejudiced Butts. See Hittson v. GDCP Warden, 759 F.3d 1210, 1262 (11th Cir. 2014) (recognizing that a petitioner could not be prejudiced by his counsel's failure to raise a meritless claim); Brown v. United States, 720 F.3d 1316, 1335 (11th Cir. 2013) ("It is also crystal clear that there can be no showing of actual prejudice from an appellate attorney's failure to raise a meritless claim."). So the question is whether the trial counsel ineffectiveness claim was meritorious.

         The more specific question, because of the deference we owe state courts under the Antiterrorism and Effective Death Penalty Act, is whether any fairminded jurist could agree with the state trial court's decision denying Butts habeas relief. See 28 U.S.C. § 2254(d); Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012). "[I]f some fairminded jurists could agree with the state court's decision, although others might disagree, federal habeas relief must be denied." Holsey, 694 F.3d at 1257 (quotation marks omitted). The district court issued an exceptionally thorough and persuasive order explaining why Butts did not meet that standard. We adopt and incorporate as our own the relevant part of that order, which is attached as an appendix to this opinion.[2] We add, or emphasize, just a few points beyond what Judge Treadwell said in his order.

         First, Butts contends that his trial team, and particularly its lead counsel, Robert Westin, was inexperienced. To the contrary, we rarely see a trial attorney who is more experienced in capital defense, or has a better record in capital trials, than Westin. As the district court pointed out, Westin had represented five capital defendants before Butts (and an additional three after him), and none of his other clients received a death sentence. Westin was assisted by a co-counsel who had handled at least 25 to 50 felony cases before the Butts case. And the paralegal who rounded out the defense team had worked on several death penalty cases before this one. It was an experienced capital defense team, and that matters. See Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000) (en banc) ("When courts are examining the performance of an experienced trial counsel, the presumption that his conduct was reasonable is even stronger."); Reed v. Sec'y, Fla. Dep't of Corr., 593 F.3d 1217, 1244 (11th Cir. 2010) (same); Williams v. Head, 185 F.3d 1223, 1229 (11th Cir. 1999) ("It matters to our analysis that Richard Allen is an experienced criminal defense attorney."); Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998) ("Our strong reluctance to second guess strategic decisions is even greater where those decisions were made by experienced criminal defense counsel.").

         Second, Butts contends that his defense team did not investigate any potential mitigation evidence. Appellant's Br. at 38 ("Neither counsel conducted any mitigation interviews or substantive investigation . . . and counsel did nothing to investigate clear red flags in available records."). To the contrary, we do not often see cases in which a defense team investigated mitigating circumstance evidence more thoroughly than this team did. As the district court recounted:

Trial counsel reviewed Butts's school records, medical records, employment records, juvenile and adult criminal records, records from the Baldwin County Department of Family and Children Services ("DFACS"), records from the Georgia Department of Human Resources ("DHR"), records from the Oconee Psychoeducational Center, and jail records. Trial counsel also reviewed records of [Butts' father]'s mental illness and [Butts' mother]'s alcoholism and cocaine addiction.

(Footnote and citations omitted). In addition, Butts' trial team interviewed three of his four siblings, an uncle, his maternal great-aunt and maternal grandmother, a friend, other members of a gang Butts was associated with, and all of Butts' previous employers, supervisors, and co-workers that they could find. They also attempted to interview Butts' mother, who was uncooperative.

         Third, Butts contends that trial counsel's performance was automatically deficient because they did not follow in lock step the recommendations of the American Bar Association and the Southern Center for Human Rights. At the time of the trial, the ABA recommended conducting "a thorough investigation of the defendant's life history and background" with "the assistance of investigators and other assistants." ABA Guideline 8.1, cmt. (1989). And the Southern Center for Human Rights recommended considering "[t]he use of social workers and other experts to present the case in mitigation." Southern Center for Human Rights Manual, ch. 1, p. 20.

         Counsel must perform reasonably under "prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. Those norms, Butts insists, are established by the recommendations of the ABA and the Southern Center for Human Rights. They aren't. Butts argues that the Supreme Court's decision in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527 (2003), establishes that trial counsel performed deficiently by failing to follow those recommendations. It doesn't.

         In Wiggins, trial counsel's investigation into Wiggins' life history consisted of reading a one-page description of his personal history from a presentence investigation report and gathering records about his placements in foster care. Id. at 523, 123 S.Ct. at 2536. Although those scant records referred to Wiggins' self- described "disgusting" history, trial counsel did no further investigation. Id. at 523-26, 123 S.Ct. at 2536-38. If counsel had investigated, they would have discovered that Wiggins had suffered "severe physical and sexual abuse . . . at the hands of his mother and while in the care of a series of foster parents." Id. at 516- 17, 123 S.Ct. at 2533. And despite asserting up until the day before Wiggins' sentencing phase began that they intended to introduce mitigation evidence, trial counsel did not end up presenting any of the probative evidence that they did have. Id. at 526, 123 S.Ct. at 2537-38. Instead, they put on a "halfhearted mitigation case" about the general effect of life sentences on prisoners and challenged Wiggins' direct responsibility for the murder. Id. at 526, 123 S.Ct. at 2538.

         Faced with those facts the Supreme Court held that "[c]ounsel's decision not to expand their investigation . . . fell short of the professional standards that prevailed in Maryland" at the time of Wiggins' trial. Id. at 524, 123 S.Ct. at 2536. The Court reached that conclusion in part because trial counsel chose not to obtain a social history report, even though "standard practice in Maryland in capital cases at the time of Wiggins' trial included the preparation of a social history report." Id. at 524, 123 S.Ct. at 2536-37. It also noted that "[c]ounsel's conduct similarly fell short of the standards for capital defense work articulated by the [ABA] - standards to which we long have referred as 'guides to determining what is reasonable.'" Id. (citations omitted). The specific standard to which the Court referred was a guideline providing that "investigations into mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence." Id. at 524, 123 S.Ct. at 2537 (quotation marks omitted). As a result of all the circumstances, the Supreme Court concluded that counsel's failure to conduct an adequate investigation constituted deficient performance. Id. at 534, 123 S.Ct. at 2541-42.

         The Wiggins decision did not hold that the guidelines and recommendations of the ABA or other organizations about how counsel should represent capital defendants establish prevailing professional norms. The Supreme Court in Wiggins did not purport to overrule what it had said in Strickland:

Prevailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant's cause.

Strickland, 466 U.S. 688-89, 104 S.Ct. at 2065 (citation omitted); see also Buck v. Davis, No. 15-8049, 580 U.S. ___, 2017 WL 685534, at *13 (Feb. 22, 2017) ("Strickland's first prong sets a high bar. A defense lawyer navigating a criminal proceeding faces any number of choices about how best to make a client's case. The lawyer has discharged his constitutional responsibility so long as his decisions fall within the 'wide range of professionally competent assistance.' It is only when the lawyer's errors were 'so serious that counsel was not functioning as the counsel guaranteed . . . by the Sixth Amendment' that Strickland's first prong is satisfied.") (citations and some quotation marks omitted) (alteration in original). The Supreme Court has explained that "[r]estatements of professional standards . . . can be useful as 'guides' to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place." Bobby v. Van Hook, 558 U.S. 4, 7, 130 S.Ct. 13, 16 (2009).

         The Wiggins case is different from this one. In that case counsel conducted almost no personal history investigation even though there was a local professional norm of commissioning a social history report and clear signs pointing to the need for a social history report. Wiggins, 539 U.S. at 524-25, 123 S.Ct. at 2536-37. In this case, by contrast, instead of ignoring signs indicating that Butts' personal history might be useful in mitigation, the defense team undertook an exhaustive investigation into his childhood and upbringing. They personally conducted that investigation and they did so, the record shows, at a time when mitigation experts were not routinely used in capital cases in the judicial circuit where this case was tried. Counsel for Butts performed reasonably under the prevailing professional norms of the time and place where the trial took place. See Bobby, 558 U.S. at 7, 130 S.Ct. at 16.

         Fourth, Butts faults trial counsel for their decision to pursue a residual doubt strategy at the sentencing stage. But we have held a number of times that residual doubt can be an effective strategy at the sentencing stage of a capital case. See Chandler, 218 F.3d at 1319-20; Terrell v. GDCP Warden, 744 F.3d 1255, 1269 (11th Cir. 2014); Johnson v. Upton, 615 F.3d 1318, 1338 (11th Cir. 2010); Ward v. Hall, 592 F.3d 1144, 1170 (11th Cir. 2010); Hammond v. Hall, 586 F.3d 1289, 1333-34 & n.18 (11th Cir. 2009); Hannon v. Sec'y, Dep't of Corr., 562 F.3d 1146, 1154-55 (11th Cir. 2009); Parker v. Sec'y for the Dep't of Corr., 331 F.3d 764, 787-88 (11th Cir. 2003). We cannot and will not second guess trial counsel's strategic decision to focus on residual doubt instead of mitigation evidence, especially where that decision was made after a thorough investigation into mitigating circumstances. As the Supreme Court stated in Strickland, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." 466 U.S. at 690, 104 S.Ct. at 2066.

         Finally, Butts contends that trial counsel left unrebutted evidence that the State presented at sentencing about Butts' membership in a gang, and that the failure to rebut that evidence was due to counsel's failure to investigate and present mitigating evidence about his upbringing. The factual premise of that contention is false; as we have already explained, counsel did investigate Butts' life story, including his upbringing.

         In addition, Butts did not preserve this particular claim by properly presenting it in the district court. He made only a passing reference to it (in his memorandum in support of his habeas petition), which is why it escaped the district court's attention. Passing references are not enough to present and preserve an issue. See Landers v. Warden, 776 F.3d 1288, 1296 (11th Cir. 2015) ("[T]he petitioner has waived this claim . . . . he failed to present this claim before the district court."); Gennusa v. Canova, 748 F.3d 1103, 1116 (11th Cir. 2014) (holding that a "single, passing reference" to an argument "unaccompanied by any discussion or elaboration" is insufficient to preserve an issue); Dupree v. Warden, 715 F.3d 1295, 1299 (11th Cir. 2013) ("A habeas petitioner must present a claim in clear and simple language such that the district court may not misunderstand it."). But even if Butts had presented and preserved this part of his claim in the district court, we would hold that it lacks merit.

         We agree with the district court that Butts has not established that the Georgia trial court unreasonably rejected his claim that trial counsel failed to investigate, develop, and present mitigating evidence at sentencing, or that Butts was prejudiced by appellate counsel's failure to investigate and adequately present that claim during the unified appeal procedure.[3]




         ROBERT EARL BUTTS, JR., Petitioner, vs.

         WARDEN, Georgia Diagnostic and: Classification Prison, Respondent.

         CIVIL ACTION NO. 5:13-CV-194 (MTT)


         ROBERT EARL BUTTS, JR. was sentenced to death for the murder of Donovan Corey Parks. He petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Although he alleges numerous errors on the part of the state courts that considered his claims, he raises four principal contentions: (1) trial counsel were ineffective for failing to investigate and present mitigating evidence during the penalty phase of his trial, and appellate counsel handled this issue ineffectively on appeal; (2) trial counsel were ineffective when they failed to rebut or object to evidence of gang activity; (3) the trial court failed to give a "mere presence" instruction to the jury; and (4) the prosecutor's argument that Butts was the triggerman was inconsistent with his argument in Butts's co-defendant's trial, who was also sentenced to death. After considering these claims, and other alleged constitutional errors, [1] the Court determines that it must deny habeas relief.


         A. Facts

         The Georgia Supreme Court summarized the facts of this case in Butts's direct appeal:

[O]n the night of March 28, 1996, Butts and Marion Wilson, Jr., drove in Butts's automobile to a local Wal-Mart store and began searching for a victim. Butts entered the store wearing a coat, under which he likely concealed the murder weapon. A witness observed Butts and Wilson standing behind Donovan Corey Parks in a checkout line. The cashier for that checkout line also remembered Butts being in her line. The store's receipts showed that Butts purchased a pack of chewing gum immediately after Parks made his purchase of pet supplies.
A witness overheard Butts asking Parks for a ride. After Parks moved items in his automobile to make room for Butts and Wilson, Butts sat in the front passenger seat and Wilson sat in the back seat behind Parks. According to a witness to whom Butts confessed, Butts revealed the shotgun a short distance away, and Parks was ordered to stop the automobile. Wilson dragged Parks out of the automobile by his tie and ordered him to lie facedown on the pavement. Butts then fired one fatal shot to the back of Parks's head with the shotgun. Witnesses nearby heard the shot, believing it to be a backfiring vehicle.
After murdering Parks, Butts and Wilson drove to a service station in Gray, Georgia, where they refueled Parks's automobile and where Wilson was filmed by the service station's security camera. Butts and Wilson then drove to Atlanta in an unsuccessful attempt to exchange Parks's automobile for money at a "chop shop." The pair purchased two cans of gasoline, drove to a remote location in Macon, Georgia, and set fire to Parks's automobile. They then walked to a nearby public phone, where Butts called his uncle and arranged a ride for himself and Wilson back to the Wal-Mart to retrieve Butts's automobile.
Investigators had recorded the license plate numbers of the vehicles parked in the Wal-Mart parking lot on the night of the murder, and Butts's automobile was among them. A shotgun loaded with an uncommon type of ammunition was found under Wilson's bed during a search, and a witness testified that Butts had given the weapon to Wilson to hold temporarily. Two of Butts's former jail mates testified that he had admitted to being the triggerman in the murder.

Butts v. State, 273 Ga. 760, 761-62, 546 S.E.2d 472, 477-78 (2001).

         B. Procedural history

         On November 20, 1998, a jury found Butts guilty of malice murder, armed robbery, hijacking a motor vehicle, possession of a firearm during the commission of a crime, and possession of a sawed-off shotgun. Id. at 761 n.1, 546 S.E.2d at 477 n.1. On November 21, 1998, the jury found beyond a reasonable doubt that the murder was committed during the commission of the capital felony of armed robbery and he was sentenced to death. Id.

         Butts filed a motion for new trial, and a hearing was held on August 13, 1999. (Doc. 10-11).[2] On August 18, 1999, the Court denied the motion. (Doc. 8-5 at 81). Butts filed a notice of appeal on August 20, 1999. (Doc. 8-1 at 6). Also on August 20, 1999, the Court relieved trial counsel, Robert Westin and Cassandra Montford-Ford, of their representation and appointed Guy Notte[3] and Christopher Huskins to represent Butts on direct appeal. (Doc. 8-5 at 83).

         Because Butts raised claims of ineffective assistance of trial counsel, the Georgia Supreme Court, on February 25, 2000, remanded the case to the trial court for an evidentiary hearing on these claims. (Docs. 10-13 at 37-49; 10-15). The trial court held that hearing on August 22, 2000 and on October 4, 2000 denied Butts's motion for new trial. (Docs. 10-16; 10-17 at 14).

         Butts filed a notice of appeal, and on April 30, 2001, the Georgia Supreme Court affirmed his conviction and sentence. (Doc. 10-17 at 2); Butts, 273 Ga. at 761, 546 S.E.2d at 477. The United States Supreme Court denied his petition for certiorari on January 7, 2002 and denied his motion for rehearing on March 4, 2002. Butts v. Georgia, 534 U.S. 1086 (2002); Butts v. Georgia, 535 U.S. 922 (2002).

         Butts filed a Petition for Writ of Habeas Corpus in the Superior Court of Butts County, Georgia on August 30, 2002. (Doc. 11-4). After conducting an evidentiary hearing, the state habeas court denied relief in an order filed April 11, 2011. (Docs. 13-1 to 16-5; 16-23). Butts filed a notice of appeal and an application for certificate of probable cause to appeal ("CPC application") with the Georgia Supreme Court. (Docs. 16-24; 16-25). In an order dated January 22, 2013, the court summarily denied his CPC application. (Doc. 16-28).

         On May 31, 2013, Butts 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 Butts's motion for discovery and an evidentiary hearing. (Docs. 6, 22). Both parties have now briefed exhaustion, procedural default, and the merits of Butts's various claims. (Docs. 24, 27, 29, 32, 33).


         A. Exhaustion and procedural default

         Procedural default bars federal habeas review 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. Michigan v. Long, 463 U.S. 1032, 1040-42 (1983) (explaining that an adequate and independent finding of procedural default will generally bar review of the federal claim); 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 bears the burden of 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); Marek v. Singletary, 62 F.3d 1295, 1301-02 (11th Cir. 1995)). 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 establishes prejudice by showing that there is a reasonable probability that the result of the proceeding would have been different. Id. Regarding what is necessary to establish the narrowly-drawn fundamental miscarriage of justice exception, 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 [that] 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 omitted).

         B. Claims that were adjudicated on the merits in the state courts

         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides the standard of review. This Court may not grant habeas relief with respect to any claim that has been 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, 562 U.S. 86, 100 (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 factual finding is not unreasonable simply because the federal habeas court might have made a different finding had it been the first court to interpret the record. Burt v. Titlow, 134 S.Ct. 10, 15 (2013) (citing Wood v. Allen, 558 U.S. 290, 301 (2010)). Also, a state court's factual determination is "presumed to be correct, " and this presumption can only be rebutted by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).


         A. Claim One: Butts was deprived of his right to the effective assistance of counsel at all stages of his pretrial, trial, motion for new trial, and direct appeal proceedings.

         Butts makes several ineffective assistance claims: (1) trial and appellate counsel failed to investigate, develop, and present mitigating evidence; (2) trial and appellate counsel were ineffective in their handling of evidence of gang activity; and (3) trial counsel failed to argue in the sentencing phase that a sentence of death was disproportionate and, therefore, precluded by Enmund v. Florida, 458 U.S. 782 (1982).[4]

         1. The clearly established federal law

         Strickland[5] 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; Wong v. Belmontes, 558 U.S. 15, 16 (2009). To establish deficient performance, Butts 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, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689). "To overcome that presumption, [Butts] 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, Butts 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 [Butts's counsel] had pursued the different path-not just the mitigation evidence [Butts's counsel] could have presented, but also the [aggravating evidence] that almost certainly would have come in with it." Wong, 558 U.S. at 20 (citing Strickland, 466 U.S. at 695-96, 700); 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)). Butts 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 (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, 562 U.S. at 105.

         2. Claims that trial and appellate counsel failed to investigate, develop, and present mitigating evidence

         Butts argues that trial counsel's most glaring deficiency was their failure to investigate his family life and background so they could develop and present mitigating evidence during the sentencing phase of his trial. (Doc. No. 24 at 47). He also alleges that appellate counsel's failure to raise adequately trial counsel's defective performance and resulting prejudice constituted ineffective assistance during his motion for new trial and direct appeal.

         Multiple state courts have addressed these ineffective assistance claims. Thus, "it is useful at the outset to explain which state-court decisions we look to for purposes of AEDPA review." Hittson v. GDCP Warden, 759 F.3d 1210, 1231 (11th Cir. 2014). Looking first at trial counsel, Butts argued on direct appeal that trial counsel were ineffective for not presenting mitigating testimony and pleas for mercy from family members. (Docs. 10-22 at 9-10, 41; 24 at 47). The Georgia Supreme Court rejected this claim on the merits and the state habeas court found the claim was res judicata. Butts, 273 Ga. at 769-70, 546 S.E.2d at 483; (Doc. 16-23 at 5). The state habeas court's conclusion that this claim was res judicata does not bar federal habeas review.[6] Cone v. Bell, 556 U.S. 449, 465-67 (2009); Owens v. Sec'y for Dep't of Corr., 568 F.3d 894, 915 n.23 (11th Cir. 2009).

         The state habeas court found the following trial counsel ineffective assistance claims were procedurally defaulted because they were not raised on direct appeal, and Butts failed to establish cause and prejudice or a miscarriage of justice to excuse the default: trial counsel's failure to secure a neuropsychologist and have neuropsychological and neurological testing performed; trial counsel's failure "to conduct an adequate pretrial investigation into [Butts's] family life and background to uncover and present to the jury evidence in mitigation of punishment"; and trial counsel's failure "to present a picture of [Butts's] background and fail[ure] to call any witness who could present the jury with testimony of [Butts] as a unique human being." (Doc. 16-23 at 8, 14).

         This Court cannot review claims the state habeas court found to be procedurally defaulted unless Butts establishes cause for, and actual prejudice from, the default or establishes that failure to review the claim would result in a fundamental miscarriage of justice. Lucas v. Warden, 771 F.3d 785, 801 (11th Cir. 2014). Butts argues that inadequate assistance of counsel on direct appeal establishes cause to overcome the default. (Doc. 24 at 49).

         An ineffective assistance of appellate counsel claim may, "if both exhausted and not procedurally defaulted, … constitute cause" to excuse procedural default. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (citing Hill v. Jones, 81 F.3d 1015, 1031 (11th Cir. 1996)). Butts's ineffective assistance of appellate counsel claims[7] meet this criteria. The state habeas court addressed these claims on the merits and, thereafter, Butts raised his ineffective assistance of appellate counsel claims in his CPC application, which the Georgia Supreme Court summarily denied. (Docs. 16-23 at 17; 16-25 at 2, 30-43; 16-28). This denial is the final state court determination of Butts's ineffective assistance of appellate counsel claims and, under recent Eleventh Circuit precedent, the only question for this Court is whether there was any reasonable basis for the Georgia Supreme Court to deny relief. Hittson, 759 F.3d at 1232-33 (explaining that post-Richter, Ylst v. Nunnemaker, 501 U.S. 797 (1991), no longer applies and federal courts reviewing under § 2254(d) are not required to "look through" the Georgia Supreme Court's summary denials of CPC applications to the reasons given in the "'last reasoned decision' by the state court.") (quoting Ylst, 501 U.S. at 804); Lucas, 771 F.3d at 792 (reasoning of the state habeas court is irrelevant and petitioner must show there was no reasonable basis for the Georgia Supreme Court to deny relief).[8]

         The state habeas court found that appellate counsel performed deficiently:

The Court finds that appellate counsel's failure to conduct an independent mitigation investigation constitutes deficient performance especially in light of the fact that appellate counsel alleged that trial counsel was ineffective in failing to present mitigating evidence. In raising such a claim, a reasonably competent attorney would have looked beyond trial counsel's investigation to determine whether trial counsel's performance was reasonable.

         (Doc. 16-23 at 17). Respondent does not contest this finding, and this Court agrees that appellate counsel's complete failure to conduct any mitigation investigation amounted to deficient performance.[9]

         However, the state habeas court concluded no prejudice resulted from appellate counsel's deficient performance. (Doc. 16-23 at 17-18). The court found "that the best evidence of what appellate counsel would have discovered in an independent mitigation investigation [was] the evidence presented in the instant proceeding by present counsel." (Doc. 16-23 at 17-18). The court determined that, had that evidence been presented, there was "no reasonable probability that the result of the Motion for New Trial or the direct appeal would have been different." (Doc. 16-23 at 18). The question is whether this ruling is contrary to Strickland, or unreasonable either legally or factually.

         To answer this question, this Court, like the state courts, must analyze trial counsel's actions. This effectively means that the procedural default of most of Butts's ineffective assistance of trial counsel claims has little practical effect on this Court's analysis. It is necessary to review these ineffective assistance of trial counsel claims because they are central to (1) Butts's claim that appellate counsel were ineffective when they failed to raise trial counsel's ineffectiveness and (2) his argument that he has established cause and prejudice necessary to entitle him to judicial review of these procedurally defaulted claims.

         When a petitioner alleges that appellate counsel were ineffective for failing to raise ineffectiveness of trial counsel claims, the Eleventh Circuit has recognized that, "the state court could not effectively review appellate counsel's performance in challenging trial counsel's effectiveness in mitigation without re-examining trial counsel's performance as well." Ferrell v. Hall, 640 F.3d 1199, 1224-25 (11th Cir. 2011); DeYoung v. Schofield, 609 F.3d 1260, 1283 n.22 (11th Cir. 2010) (reasoning that "[r]ather than wade through [the] complexities" of whether ineffective assistance of appellate counsel excused procedural default of trial counsel ineffectiveness claims, the court would "discuss the merits of [petitioner's] trial counsel claims, as that alone resolves the case").

In other words, whether appellate counsel failed to properly challenge trial counsel's mitigation inquiry focuses on essentially the same corpus of evidence and the same legal questions underlying trial counsel's effectiveness-which strategies did trial counsel pursue, were those strategies reasonable under the circumstances, and what kinds of penalty phase evidence was developed, or could reasonably have been developed.

Ferrell, 640 F.3d at 1225. The state habeas court recognized this and explained that, although Butts's "ineffective assistance of trial counsel claims are procedurally barred or procedurally defaulted, the [c]ourt considers the conduct of trial counsel as part of its analysis of [Butts's] ineffective assistance of appellate counsel." (Doc. 16-23 at 5 n.2, 14).

         Thus, in the context of considering whether the state habeas court reasonably concluded no prejudice resulted from appellate counsel's deficient performance when litigating the ineffectiveness of trial ...

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