from the United States District Court for the Middle District
ED CARNES, Chief Judge, TJOFLAT and HULL, Circuit Judges.
CARNES, Chief Judge.
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
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.
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.
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 §
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).
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).
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.
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. We add, or emphasize, just a
few points beyond what Judge Treadwell said in his order.
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
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
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.
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.
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.
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.
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.
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
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
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).
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.
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.
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.
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.
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
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
GEORGIA MACON DIVISION
EARL BUTTS, JR., Petitioner, vs.
Georgia Diagnostic and: Classification Prison, Respondent.
ACTION NO. 5:13-CV-194 (MTT)
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,  the Court determines that it must deny
BACKGROUND AND PROCEDURAL HISTORY
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,
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.
filed a motion for new trial, and a hearing was held on
August 13, 1999. (Doc. 10-11). 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 and Christopher Huskins to represent Butts
on direct appeal. (Doc. 8-5 at 83).
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).
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
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.
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).
STANDARD OF REVIEW
Exhaustion and procedural default
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).
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)
Claims that were adjudicated on the merits in the state
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).
'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]
Michael v. Crosby, 430 F.3d 1310, 1319 (11th Cir.
2005) (quoting Mitchell v. Esparza, 540 U.S. 12,
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).
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).
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.
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
The clearly established federal law
Strickland 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).
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.
Claims that trial and appellate counsel failed to
investigate, develop, and present mitigating evidence
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.
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. 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).
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,
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).
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 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).
state habeas court found that appellate counsel performed
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.
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
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.
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.
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
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).
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 ...