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Lee v. Upton

United States District Court, S.D. Georgia

September 19, 2017

STEPHEN UPTON, Warden, Respondent.



         State capital prisoner James Allyson Lee petitions for habeas corpus. The petition is due to be DENIED for the following reasons.


         The Underlying Crime and Conviction[1]

Lee and an accomplice broke into a gun store in Toombs County[, Georgia] on May 25, 1994, and stole several guns, including a ten millimeter Glock pistol. Lee and his girlfriend then drove to Pierce County[, Georgia] planning to kill Lee's father and steal his Chevrolet Silverado pickup truck. After learning that his father was not home but that his father's live-in girlfriend, Sharon Chancey, was there, Lee had his girlfriend lure Chancey from the home in the early morning hours of May 26 by claiming that Lee was stranded nearby in his girlfriend's broken down Toyota automobile. When Chancey pulled up to the Toyota in the Silverado and got out, Lee shot her in the face and threw her in the back of the Silverado. After driving the Silverado to a secluded area in Charlton County, [Georgia, ] he dragged Chancey into the woods, removed two rings from her fingers, and shot her two more times when she grabbed his arm. After replacing the Silverado's license plate with the license plate from the Toyota, Lee and his girlfriend drove the Silverado to Florida. While traveling in the Silverado with two male friends at about 11:30 that night, Lee was stopped by law enforcement for a broken taillight.

Hall v. Lee, 684 S.E.2d 868, 871-72 (Ga. 2009). "[W]hen Lee was stopped . . ., he placed a cocked, loaded gun that he had stolen in his companion's lap and told the companion to get out and 'shoot the cop' while he 'cover[ed]' the companion with another stolen, loaded gun." Id. at 881. The companion did not do so.

[Lee] was arrested after a check revealed that the Silverado was stolen. The police recovered from the Silverado Chancey's purse and identification and the Glock pistol, which later was determined to be the murder weapon. Lee made several incriminating statements to police, including videotaped statements at the scenes of the shootings describing how the crimes occurred.

Id. at 872. Lee "was on probation at the time of the crimes for two counts of burglary and for theft by taking for stealing a truck . . . ." Id. at 880.

         Fifteen "months after the crimes while awaiting trial, Lee, acting alone, escaped from jail, stole a vehicle, and fled to Florida . . . ." Id. at 880-81. When he was recaptured, Lee "made several threatening statements to police, including that he still wanted to kill his father and that, if he were ever given the opportunity, he swore that he would kill the detective and the [Georgia Bureau of Investigation] agent assigned to his case." Id. at 881.

         A jury convicted Lee of malice murder, armed robbery, and possession of a firearm during the commission of a crime on June 4, 1997.[2] Lee v. State, 514 S.E.2d 1, 2 (Ga. 1999); see also Dkt. No. 11-14 at 46:22-25, 53. Lee was sentenced to death on June 6, 1997. Hall v. Lee, 684 S.E.2d at 871; see also Dkt. No. 12-3 at 85:10, 94. Lee moved for a new trial on July 3, 1997, and amended that motion on February 19, 1998. Lee v. State, 514 S.E.2d at 3 n.1. The motion was denied on April 15, 1998. Id. Lee's conviction was unanimously upheld by the Georgia Supreme Court on direct appeal. See generally id. The U.S. Supreme Court denied Lee's petition for a writ of certiorari on November 15, 1999, and denied rehearing on January 24, 2000. Lee v. Georgia, 528 U.S. 1006 (1999), reh'q den'd 528 U.S. 1145 (2000).

         Habeas History

         Lee filed a petition for a writ of habeas corpus in the Superior Court of Butts County on August 4, 2000. Dkt. No. 20-16 at 2. He amended it on April 16, 2001. Id.; The Superior Court held an evidentiary hearing on August 17, 2001. Id. It granted Lee's petition on March 12, 2009. See generally id. The Georgia Supreme Court unanimously reversed on November 2, 2009. Hall v. Lee, 684 S.E.2d 868.

         Lee filed his federal habeas petition on February 5, 2010. Dkt. No. 1. He amended it on September 16, 2010. Dkt. No. 29. Lee filed his merits brief on March 16, 2015. Dkt. No. 80. The State filed its response in opposition on July 28, 2015. Dkt. No. 87. Lee replied on October 13, 2015. Dkt. No. 90. He filed a supplemental brief on October 22, 2015. Dkt. No. 92. The petition is now ripe for disposition.


         Because Lee's federal petition was filed after April 24, 1996, this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Payne v. Allen, 539 F.3d 1297, 1312 (11th Cir. 2008). Under AEDPA, state courts' determination of factual issues are "presumed to be correct" unless the petitioner rebuts them "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

         Their legal determinations can only be rejected if they "resulted in a decision that . . . involved an unreasonable application of [ ] clearly established Federal law, as. determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254 (d) . The first prong is only satisfied if the state court "unreasonably applies [the governing legal] principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 413 (2000). "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation marks and citation omitted).

         AEDPA deference does not apply to claims that the state habeas courts do not reach-these are reviewed de novo. Cone v. Bell, 556 U.S. 449, 472 (2009).


         Lee's petition must be denied. Lee alleges five errors: (1) ineffective assistance of counsel; (2) improper jury instructions; (3) a violation of Brady v. Maryland, 373 U.S. 83 (1963); (4) trial-court errors; and (5) violations of the Eighth and Fourteenth Amendments by imposition of the death sentence in this case. Dkt. Nos. 29, 44. This Court finds no basis for granting habeas relief.[3]


         Lee unsuccessfully raises three issues with the representation he received at trial and on direct appeal: failure to investigate into and adequately present mitigating evidence, failure to object to biblical references in the State's closing argument, and various other shortcomings.

         An ineffective-assistance claim cannot succeed unless the petitioner shows both (1) that his attorney's performance was objectively unreasonable, by a preponderance of the evidence, and (2) a reasonable probability that the outcome of his proceeding would have been different but for that deficient performance. Chandler v. United States, 218 F.3d 1305, 1312-13 (11th Cir. 2000) (en banc). The objective reasonableness of an attorney's performance is gauged by "prevailing professional norms." Strickland v. Washington, 4 66 U.S. 668, 688 (1984) . This inquiry is commonsensical and holistic, as "[n]o 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." Id. at 688-89. It is also "highly deferential, " with a "strong presumption" of reasonableness. Id. at 689. Performance is only unreasonable if "no competent counsel would have taken the action" at issue. Chandler, 218 F.3d at 1315.

         As for prejudice, the petitioner again bears a high burden. Sullivan v. DeLoach, 459 F.3d 1097, 1109 (11th Cir. 2006) . "It is not enough ... to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693. Rather, the petitioner has to show "that the decision reached would reasonably likely have been different absent the [counsel's] errors." Id. at 696. Under these standards and AEDPA deference, each of Lee's contentions fails.

         A. Lee's Mitigating-Evidence Contention Fails.

         Lee unsuccessfully argues that his trial counsel did not adequately research and present mitigating evidence. An application for a writ of habeas corpus will not be granted unless the adjudication of the claim involved an unreasonable application of clearly established federal law or 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). The Georgia Supreme Court addressed this issue on its merits. Hall v. Lee, 684 S.E.2d 868, 876 (Ga. 2009). This Court can only reject that Court's decision if it was so unreasonable an application of a U.S. Supreme Court holding that no fairminded jurist could agree with it. Hill v. Humphrey, 662 F.3d 1335, 1347 (11th Cir. 2011); see also Bobby v. Dixon, 565 U.S. 23, 32-33 (2011) (per curiam); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

         Here, the decision was within the wide realm of reasonability. The Georgia Supreme Court permissibly sidestepped the question of performance, holding that Lee had not shown prejudice. Hall v. Lee, 684 S.E.2d at 876; see also Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . ., that course should be followed."). It correctly identified the standard as being whether, but for counsel's errors, there was a reasonable probability that the" sentencer "'would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'" Lee, 684 S.E.2d at 876 (quoting Strickland, 466 U.S. at 695). It further noted its duty to "reweigh the evidence in aggravation against the totality of available mitigating evidence." Id. at 876-77 (quoting Wiggins v. Smith, 539 U.S. 510, 534 (2003)). It used the right framework.

         To apply those standards, the Court began by observing that Lee's trial counsel presented mitigating evidence that Lee's childhood was characterized by "instability, poverty, violence, abandonment, and alcohol and drug use." Hall v. Lee, 684 S.E.2d at 877. Some of the evidence mentioned neglect and abuse. Id. at 877-78. There was also expert evidence that Lee had attention deficit hyperactivity disorder ("ADHD"), which made him "impulsive, " "overly active, " and less able to "regulat[e] and control" his emotions and behavior. Id. at 878-79. That condition "was aggravated by [Lee's] feelings of anger, frustration, resentment, and abandonment" toward his father. Id. at 879. The expert testified that Lee could thrive in a structured environment, such as a prison. Id. at 878.

         The Court then assessed the aggravating evidence. The State had a strong case against Lee, given his "incriminating statements to his companions and to the police." Id. at 880. The jury specifically found statutory aggravators: "Lee committed the murder while engaged in the commission of armed robbery and kidnapping with bodily injury"; "he committed the murder for himself or another for the purpose of receiving money or any other thing of monetary value"; and "the offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved an aggravated battery to the victim before death." Id. at 880 n.7. There was also serious non-statutory aggravating evidence. Most disturbingly, when Lee was stopped after the murder, he gave his companion a stolen gun and "told the companion to get out and 'shoot the cop' while [Lee] 'cover[ed]'" him "with another stolen, loaded gun." Id. at 881. At the time of the crime, Lee was on probation for two burglary counts and stealing a truck. Id. at 880. Before trial, Lee "escaped from jail, stole a vehicle, and fled to Florida, " then threatened to kill his father and law-enforcement officials working his case. Id. at 880-81. Once, Lee "had violated his probation and had stolen a car and viciously beaten a man because he 'wanted to see blood, a lot of blood.'" Id.

         The Georgia Supreme Court reweighed the trial evidence together with the habeas evidence. Seeking habeas, Lee had brought forward an affiant testifying that Lee's mother would regularly physically assault him, evidence of four instances where she did so, evidence of her drug-related dysfunction, evidence that this impacted his development by causing him to behave like a dog, and more specific evidence of his childhood poverty. Id. at 879-80. Lee also supplemented his mental-health evidence with a new diagnosis of post-traumatic stress disorder ("PTSD"), based on his childhood. Id. at 881.[4] Still, the Court held that there was "no reasonable probability that Lee would have received a different sentence.'' Id. at 881; see also id. at 882.

         This Court cannot find that this holding was so unreasonable an application of U.S. Supreme Court precedent that no fairminded jurist could agree with it. The relevant U.S. Supreme Court precedent establishes only general rules, like the need to deny relief unless there is a reasonable probability that the sentence would have turned out differently and the need to reweigh all of the trial and habeas evidence. This means state courts must use "a substantial element of judgment." Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). AEDPA respects this by affording them even "more leeway" than usual. Id.; see also Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (deeming ineffective-assistance claim "doubly deferential"). What is more, this Court's focus is not on the Georgia Supreme Court's opinion-it is on "whether the decision . . . was an unreasonable application" of U.S. Supreme Court holdings. Bishop v. Warden, GDCP, 726 F.3d 1243, 1255 (11th Cir. 2013); see also Gissendaner v. Seaboldt, 735 F.3d 1311, 1329 (11th Cir. 2013) ("AEDPA focuses on the result . . ., not on the reasoning that led to that result, and nothing in the statute requires a state court to accompany its decision with any explanation, let alone an adequate one." (quotation marks and citation omitted)); cf. Wright v. Sec'y for Dep't of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002) ("Requiring state courts to put forward rationales for their decisions so that federal courts can examine their thinking smacks of a 'grading papers' approach that is outmoded in the post-AEDPA era." (citation omitted)).

         U.S. Supreme Court and Eleventh Circuit holdings favoring petitioners do not unambiguously foreclose the decision at which the Georgia Supreme Court arrived. Each was either followed by that Court or is distinguishable:

         • The Court in fact applied Strickland's test. Hall v. Lee, 684 S.E.2d at 872-73 & n.1, 876-77.

         • Sears v. Upton, 561 U.S. 945 (2010) (per curiam), was not an AEDPA case. See Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1243-44 (11th Cir. 2016) (Jordan, J., dissenting), cert, granted, 137 S.Ct. 1203 (2017). It is also distinguishable because the trial mitigation evidence there was entirely different from, and contradicted by, the habeas evidence. There, "[c]ounsel's mitigation theory . . . was calculated to portray the adverse impact of [the petitioner's] execution on his family and loved ones." Sears, 561 U.S. at 947. In particular, counsel "presented evidence describing [the petitioner's] childhood as stable, loving, and essentially without incident." Id. The jury never heard that the petitioner's parents were physically and verbally abusive, they divorced when he was young, a cousin sexually abused him, and his brother-a convicted drug abuser and dealer-introduced him to a criminal lifestyle. Id. at 948, 950. Nor was it told about the petitioner's severe cognitive defects, which "appear[ed] to be [caused by] significant frontal lobe brain damage" and teenage substance abuse. Id. at 945-4 6.

         Here, by contrast, the mitigation evidence at trial was both of the same species as and compatible with what was uncovered in greater detail during the state habeas proceedings: trial counsel readily told the jury that Lee's upbringing was unstable. See Dkt. No. 12-3 at 33:23-34:7 ("We brought in his mother. The mother, when [Lee] was born, was a 19-year-old welfare mother. She had her own problems, she had a lot of them. She attempted to raise [Lee] the best way she could. I think she tried and failed when it came to giving him a nurturing, enriching home. She failed to give him any kind of discipline or any kind of structure at an early age, but she tried the best she could, and I'm not here to belittle his mama, but it wasn't the most ideal environment . . . ." (emphases added)).

         • AEDPA deference did not apply to the prejudice analysis in Johnson v. Secretary, Department of Corrections, 643 F.3d 907, 930 (11th Cir. 2011). That case is further distinguishable for reasons like those presented by Sears. The Eleventh Circuit found prejudice despite more than de minimis mitigating evidence, but it did so in light of contradictions between the trial and habeas evidence-not just the lack of detail present here. Trial counsel there brought forward evidence that the petitioner's parents were "cold and uncaring, something in. the nature of the 'American Gothic' couple." Id. at 936. In fact, they were raging alcoholics-so much so that the petitioner was put into an orphanage when his father went on a three-month drinking binge in another state, the petitioner's mother attacked his father with a butcher's knife, and the petitioner was singled out for particularly severe beatings. Id. at 936-37. The jury never heard anything about the petitioner's mother's repeated suicide attempts-one of them discovered by the petitioner when he was a child. Id. It did not know anything about how the petitioner later found his mother, dead of an overdose, clutching a photograph of his dead brother, who died of an overdose. Id. at 937. The jury also heard that the petitioner's grandparents '"were caring and nurturing people, " whereas habeas evidence showed them to have inflicted horrifying physical, emotional, and psychological abuse on the petitioner. Id. Here, by contrast, the jury heard that Lee's mother was addicted to drugs, and that parental domestic violence, abuse, and neglect were present in Lee's childhood. It was only deprived of some (undeniably disturbing) details.

         • Porter v. McCollum, 558 U.S. 30 (2009) (per curiam), can be distinguished as featuring only de minimis mitigating evidence at trial. The jury there "heard almost nothing that would humanize [the petitioner] or allow them to accurately gauge his moral culpability, " although he was a war hero who struggled to readjust to life at home, with childhood abuse and a brain abnormality. Id. at 41. Besides, Porter lacked the sort of aggravating evidence present here, including Lee's attempt to have a police officer shot, death threats against law enforcement, and escape from jail.

         • Rompilla v. Beard, 545 U.S. 374 (2005), did not apply AEDPA to the question of prejudice. Id. at 390. It is also distinguishable because the jury there heard only minimal mitigating evidence: "[F]ive of [the petitioner's] family members argued in effect for residual doubt, and beseeched the jury for mercy, saying they believed [the petitioner] was innocent and a good man." Id. at 378. Left unpresented was the petitioner's extensive history of childhood physical abuse, which included being regularly beaten and "locked . . . in a small wire mesh dog pen that was filthy and excrement filled." Id. at 392. There was also no hint of the petitioner's diagnosis of organic brain damage. Id.

         • Williams v. Taylor, 529 U.S. 362 (2000), did not apply AEDPA deference to the issue of prejudice because the state supreme court unreasonably applied the law in rejecting what it called "undue 'emphasis on mere outcome determination.'" Id. at 397 (emphasis omitted); see also Cullen v. Pinholster, 563 U.S. 170, 202 (2011) (distinguishing Williams). Besides, Williams featured minimal mitigation: the jury heard that the petitioner was "a 'nice boy' and not a violent person, " and that in a robbery, "he had removed the bullets from a gun so as not to injure anyone." Id. at 369. But the petitioner had been so severely abandoned as a child that his parents were imprisoned for criminal neglect, he had been placed in an abusive foster home, he had a borderline intellectual disability, and he was a model prisoner. Id. at 396.

         • Ferrell v. Hall, 640 F.3d 1199 (11th Cir. 2011), did not apply AEDPA to prejudice. Id. at 1226. It is also distinguishable because the evidence the counsel presented in mitigation was de minimis. The jury there heard five of the petitioner's family members testify for a total of 26 minutes that they did not believe he was guilty, he deserved mercy, and he "had committed himself to Christ before the murders." Id. at 1206. The counsel there failed to discover that the petitioner suffered from extensive mental health problems and diseases including organic brain damage to the frontal lobe, bipolar disorder, and temporal lobe epilepsy. Id. at 1203. They also failed to discover that the petitioner had attempted suicide as a child, that his conduct was not entirely volitional, or that his father physically abused him. Id.

Neither the jury nor the sentencing judge was ever told, because defense counsel never discovered that [the petitioner] suffer[ed] from extensive, disabling mental health problems and diseases including organic brain damage to the frontal lobe, bipolar disorder, and temporal lobe epilepsy. Nor did they learn that the defendant had attempted suicide at age eleven, or that because of these mental health issues, [he] exhibit[ed] increased impulsivity and decreased sound judgment; that his conduct was not entirely volitional; or that his judgment and mental flexibility were significantly impaired by organic brain damage. Nor, finally were they ever told that [his] father was physically abusive to his children, especially to [the petitioner], waking them in the middle of the night to beat them (sometimes after stripping them naked) with razor strops, fan belts, and old used belts; that the family was repeatedly evicted from their homes and hungry, and lived in fear of those to whom the father owed gambling debts; or that [the petitioner's] mother suffered from clinical depression, suicidal ideations, rage blackouts, and urges to physically injure her children.

Id. at 1203.

         • Wiggins v. Smith, 539 U.S. 510 (2003), is distinguishable because of de minimis trial evidence, too. The petitioner's jury knew only that he "had no prior convictions." Id. at 537. He had suffered physical abuse, poverty, sexual molestation, several rapes, and homelessness. Id. at 535. Additionally, unlike ...

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