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Sears v. Sellers

United States District Court, N.D. Georgia, Atlanta Division

May 23, 2018

ERIC SELLERS, Warden, Georgia Diagnostic and Classification Prison, [1] Respondent.

         Death Penalty Habeas Corpus 28 U.S.C. § 2254



         This matter is now before the Court for consideration of the merits of the claims in the petition. After careful consideration, this Court concludes that Petitioner has failed to demonstrate that he is entitled to relief.

         I. Background and Factual Summary

         A. State Court Proceedings

         On September 22, 1993, a jury sitting in Cobb County Superior Court convicted Petitioner Demarcus Ali Sears of armed robbery and kidnapping with bodily injury. On September 25, 1993, after a penalty phase hearing, the jury found four statutory aggravating circumstances and recommended that Petitioner be sentenced to death. The trial court imposed a death sentence for the kidnapping with bodily injury conviction and a life sentence for the armed robbery conviction.

         On July 18, 1996, the trial court denied Petitioner's motion for new trial. Petitioner appealed, and the Georgia Supreme Court affirmed Petitioner's convictions, but remanded the case as to Petitioner's death sentence to allow Petitioner to develop the record regarding his claim of jury misconduct. Sears v. State, 493 S.E.2d 180, 188 (1997). After the remand, the Georgia Supreme Court affirmed Petitioner's death sentence. Sears v. State, 514 S.E.2d 426, 437 (1999). The United States Supreme Court denied Petitioner's petition for a writ of certiorari on October 12, 1999.

         Petitioner next filed a petition for a writ of habeas corpus in Butts County Superior Court, which court denied the petition on January 9, 2008. The Georgia Supreme Court denied Petitioner's certificate of probable cause to appeal the denial of his habeas corpus petition on September 28, 2009. The United States Supreme Court, however, granted Petitioner's writ of certiorari, and upon review of Petitioner's claims, vacated and remanded, holding that the Butts County Superior Court failed to apply the proper prejudice inquiry in determining that trial counsel's facially inadequate mitigation investigation did not prejudice defendant. Sears v. Upton, 561 U.S. 945 (2010).

         After the remand, the Georgia Supreme Court vacated its order denying the certificate of probable cause, vacated the Butts County Superior Court's order, and remanded the case for further proceedings consistent with the United States Supreme Court's opinion. On August 16, 2011, the Butts County Superior Court again denied Petitioner's habeas corpus petition, concluding that Petitioner could not demonstrate prejudice with respect to trial counsel's performance during the penalty phase of the trial and otherwise adopting the Butts County court's prior order denying relief. The Georgia Supreme Court granted Petitioner's certificate of probable cause, and, in an opinion issued on November 18, 2013, affirmed the lower court. Sears v. Humphrey, 751 S.E.2d 365 (Ga. 2013). The United States Supreme Court denied certiorari review on May 19, 2014. Sears v. Chatman, 134 S.Ct. 2292 (2014). The instant action was originally filed in 2010 after the Georgia Supreme Court denied Petitioner's certificate of probable cause to appeal the denial of habeas corpus relief. After the United States Supreme Court granted certiorari review in that action, this Court stayed this action to allow Petitioner to exhaust his state court remedies.

         B. Factual Summary of Petitioner's Crimes

         According to the Georgia Supreme Court, the evidence presented at Petitioner's trial was sufficient for the jury to find that:

[O]n the afternoon of October 7, 1990, [Petitioner] and Phillip Williams were walking through Atlanta because their car had broken down. Wanting to return home to Ohio, where they lived, they walked to a Waffle House in Smyrna and tried to borrow money from several patrons in the restaurant. They told the patrons that their car had broken down and they needed money to go to Cincinnati. [Petitioner] carried a black briefcase that contained brass knuckles, knives and a set of old handcuffs that was missing a key. He opened the briefcase in the restaurant and tried to sell some of the items to a customer. After receiving directions and a couple of dollars for bus fare, [Petitioner] and Williams walked to a nearby Kroger food store. A police officer observed them loitering near the Kroger parking lot and briefly spoke with them before he left in response to a radio call. Subsequently, they decided to steal a car so they could drive back to Cincinnati.
They spotted the victim, Gloria Wilbur, when she parked her 1985 Buick and entered the Kroger. Around 8:00 p.m., Ms. Wilbur returned to her car and placed her groceries in the trunk. [Petitioner] approached her, struck her with the brass knuckles and forced her into the car. Williams then got behind the wheel and they drove north on I-75. [Petitioner] told Ms. Wilbur to keep quiet, pulled her into the back seat, and handcuffed her with her hands behind her back. When they stopped for gas and hamburgers, [Petitioner] wedged Ms. Wilbur down between the seats and covered her with book bags to prevent discovery. While they were driving through Tennessee, he raped her.
They crossed the border into Kentucky around 1:00 a.m. and stopped the car. Despite her pleas to remain in the car, [Petitioner] took the victim into the bushes along I-75 and stabbed her to death.
Ms. Wilbur's body was found, still handcuffed, almost a week later. Her abandoned Buick was discovered in a Cincinnati suburb. Bloodstains in the car matched the victim and pubic hair taken from the back seat matched [Petitioner].
Based on an identification by witnesses at the Waffle House and a tip from an Ohio informant, the police questioned Williams and [Petitioner]. Both men gave statements. [Petitioner] admitted that he had taken the Buick and kidnapped, raped and killed the victim. His statement matched Williams' statement, except that [Petitioner] claimed that it was Williams who had struck Ms. Wilbur with the brass knuckles and Williams claimed that it was [Petitioner]. Both men stated that only [Petitioner] had raped and stabbed her. [Petitioner] also consented to a search of his mother's house, where he lived, and was escorted by police to this residence. He took the police to his room and showed them the black briefcase and brass knuckles. Williams pled guilty in exchange for two life sentences and testified for the state at [Petitioner]'s trial.

Sears v. State, 493 S.E.2d at 182-83.

         C. Proceedings in This Court

         On June 25, 2010, days before the United States Supreme Court granted certiorari in his state court habeas corpus action, Petitioner filed the instant Petition for Writ of Habeas Corpus. ([1]). On August 20, 2010, the Court stayed the action pending resolution of the state habeas proceedings. ([9]). The Court held the action in abeyance until May 29, 2014, when the Court ordered Respondent to file the underlying record documents and set a deadline for Petitioner to file an Amended Petition. ([13]). Petitioner filed a First Amended Petition on August 4, 2014, asserting sixteen claims for relief. ([28]). On April 8, 2016, the Court reviewed Respondent's procedural defenses and dismissed a portion of Petitioner's Claims I, V, VII, and XI and all of Petitioner's Claims IX, XIII, and XV. ([37]). On June 20, 2017, the Court denied Petitioner's motions for discovery and an evidentiary hearing. ([54]). The parties briefed Petitioner's remaining claims, which the Court now considers.

         II. Standard of Review Under 28 U.S.C. § 2254

         Pursuant to 28 U.S.C. § 2254, a federal court may issue a writ of habeas corpus on behalf of a person held in custody pursuant to a judgment of a state court if that person is held in violation of his rights under federal law. 28 U.S.C. § 2254(a). This power is limited, however, because a restriction applies to claims that have been “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). Under § 2254(d), a habeas corpus application “shall not be granted with respect to [such a] claim . . . unless the adjudication of the claim”

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         This standard is “difficult to meet, ” Harrington v. Richter, 562 U.S. 86, 102 (2011), and “highly deferential, ” demanding “that state-court decisions be given the benefit of the doubt, ” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation and internal quotation marks omitted), and requiring the petitioner to carry the burden of proof. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing Visciotti, 537 U.S. at 25). In Pinholster, the Supreme Court further held

that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that “resulted in” a decision that was contrary to, or “involved” an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court.

Id. at 181-82; see also Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (holding that state court decisions are measured against Supreme Court precedent at “the time the state court [rendered] its decision.”).

         In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court analyzed how federal courts should apply § 2254(d). To determine whether a particular state court decision is “contrary to” then-established law, this Court considers whether that decision “applies a rule that contradicts [such] law” and how the decision “confronts [the] set of facts” that were before the state court. Id. at 405, 406. If the state court decision “identifies the correct governing legal principle” this Court determines whether the decision “unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. This reasonableness determination is objective, and a federal court may not issue a writ of habeas corpus simply because it concludes in its independent judgment that the state court was incorrect. Id. at 410. In other words, it matters not that the state court's application of clearly established federal law was incorrect so long as that misapplication was objectively reasonable. Id. (“[A]n unreasonable application of federal law is different from an incorrect application of federal law.”). Habeas relief contrary to a state court holding is precluded “so long as fairminded jurists could disagree on the correctness of the state court's decision.” Harrington, 562 U.S. at 102 (internal quotation marks omitted); see Landers v. Warden, Atty. Gen. of Ala., 776 F.3d 1288, 1294 (11th Cir. 2015). In order to obtain habeas corpus relief in federal court, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

         Not all errors of constitutional magnitude warrant habeas relief, and “there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Chapman v. California, 386 U.S. 18, 22 (1967). A habeas petitioner is entitled to relief only if the error “had substantial and injurious effect or influence in determining the jury's verdict, ” resulting in “actual prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

         The Court's review of Petitioner's claims is further limited under § 2254(e)(1) by a presumption of correctness that applies to the factual findings made by state trial and appellate courts. Petitioner may rebut this presumption only by presenting clear and convincing evidence to the contrary.

         Finally, the Court notes that in Wilson v. Sellers, 138 S.Ct. 1188 (2018), the United States Supreme Court reversed the Eleventh Circuit's holding in Wilson v. Warden, Ga. Diagnostic Prison, 842 F.3d 1155 (11th Cir. 2016) that addressed how a state appellate court's summary treatment of a claim should be analyzed under § 2254(d). Rather than analyze the arguments or theories that could have supported the state court's summary decision as previously held by the Eleventh Circuit, federal courts should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rational and presume the that the unexplained decision adopted the same reasoning. See Wilson v. Sellers, 138 S.Ct. at 1192-97 (discussing the “look through” analysis). approach announced in Ylst v. Nunnemaker, 501 U.S. 797 (1991). The Court applies the “look through” approach in evaluating under § 2254(d) the Georgia Supreme Court's summary denial of Petitioner's application for certificate of probable cause to appeal the denial of habeas corpus relief.

         III. Discussion of Petitioner's Claims for Relief

         A. Claim I: Ineffective Assistance of Counsel

         1. Legal Standard

         Petitioner contends in Claim 1 that his trial counsel rendered ineffective assistance in several ways. Strickland v. Washington, 466 U.S. 668 (1984), provides the standard for evaluating claims of ineffective assistance of counsel. The analysis is two-pronged, and the Court may “dispose of the ineffectiveness claim on either of its two grounds.” Atkins v. Singletary, 965 F.2d 952, 959 (11th Cir. 1992); see Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an ineffectiveness claim . . . to address both components of the inquiry if the [petitioner] makes an insufficient showing on one.”).

         Petitioner must first “identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment” and show that “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. The court must be “highly deferential, ” and must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. “Given the strong presumption in favor of competence, the petitioner's burden of persuasion - though the presumption is not insurmountable - is a heavy one.” Fugate v. Head, 261 F.3d 1206, 1217 (11th Cir. 2001) (citation omitted). As the Eleventh Circuit has stated, “[t]he test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc). Rather, the inquiry is whether counsel's actions were “so patently unreasonable that no competent attorney would have chosen them.” Kelly v. United States, 820 F.2d 1173, 1176 (11th Cir. 1987). Courts must “allow lawyers broad discretion to represent their clients by pursuing their own strategy, ” White v. Singletary, 972 F.2d 1218, 1221 (11th Cir. 1992), and must give “great deference” to reasonable strategic decisions, Dingle v. Secretary for Department of Corrections, 480 F.3d 1092, 1099 (11th Cir. 2007). “When courts are examining the performance of an experienced trial counsel, the presumption that his conduct was reasonable is even stronger.” Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000).[2]

         To meet the second prong of the Strickland test, Petitioner must demonstrate that counsel's unreasonable acts or omissions prejudiced him. Strickland, 466 U.S. at 691-92. That is, Petitioner “must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome, ” id. at 694, requiring “a substantial, not just conceivable, likelihood of a different result.” Pinholster, 563 U.S. at 190 (quotation and citation omitted).

         The Court's review of the Georgia Supreme Court' rejection of Petitioner's claim of ineffective assistance of counsel is “doubly deferential.” Id. at 190 (quotation and citation omitted). The Court takes a “highly deferential look at counsel's performance [under] Strickland . . . through the deferential lens of § 2254(d).” Id.

         2. Ineffective Assistance of Counsel During the Penalty Phase of the Trial

         a. Background

         Petitioner first claims that his trial counsel rendered ineffective assistance by failing to adequately investigate and present mitigation evidence during the penalty phase of his trial. According to Petitioner, trial counsel failed to uncover evidence relating to Petitioner's social history, family background, sexual abuse that he suffered as a child, his mental deficits, and his abuse of drugs. Petitioner claims that, if trial counsel had discovered and properly presented this evidence, a reasonable probability exists that the outcome of the penalty phase of his trial would have been different.

         As found by the Georgia Supreme Court, trial counsel's effort to prepare for the penalty phase of Petitioner's trial included first traveling to Kentucky and Ohio for a week to investigate Petitioner's case and to speak with potential witnesses. Sears v. Humphrey, 751 S.E.2d at 372. While on that trip, trial counsel met Petitioner's mother, and she directed trial counsel to individuals who could appear to testify for Petitioner during the penalty phase. Id. at 372-73 Trial counsel interviewed “approximately a dozen potential mitigation witnesses” and “explored pertinent areas of mitigation.” Id. In addition to members of Petitioner's immediate family, “trial counsel talked with a variety of people, including neighbors, long-time family friends, [Petitioner's] former high school counselor, a woman for whom he had babysat, and a young woman who had attended school with him.” Id. at 374.

         Trial counsel asked Petitioner's mother to obtain his school records, but trial counsel never received them. Id. at 375; see also ([21.12 at 28]). Trial counsel was, however, able to learn about Petitioner's schooling from Petitioner's parents and the school guidance counselor they talked to. For a variety of reasons that will be discussed at greater length below, trial counsel also opted not to have a mental health evaluation performed on Petitioner. Id.

         Trial counsel's mitigation defense “involved showing that Petitioner came from a respected, well-liked family; that, despite some problems at school, Petitioner was also well-liked, had never been in any serious trouble, had no history of violence, and was considered polite and well-mannered by teachers, friends, and neighbors; that [codefendant] Williams' influence, Petitioner's own youth and immaturity, and the fact that he was stranded over 400 miles away from home all contributed to his commission of uncharacteristically violent crimes; that he cooperated with police; and that sentencing him to death would devastate his parents, his family, and their friends, who were well-regarded members of his community.” Id. at 377.

         During the penalty phase of the trial, counsel presented the testimony of people who knew Petitioner well, including Petitioner's mother, adults who knew Petitioner when he was growing up, and Petitioner's friends. The witnesses testified that Petitioner was generally friendly and well behaved, that he got along well with his family, and that it was a shock to learn that Petitioner had committed the crimes for which he was convicted. See id. at 378-80. They all also pleaded with the jury to spare Petitioner's life because his death would cause so much pain to his family. Id.

In his closing argument, [trial counsel] asked the jurors to consider the following mitigating factors: (1) [Petitioner's] youth and immaturity at the time of the crimes; (2) his non-violent history; (3) the fact that [Petitioner] was asking for the same “harsh sentence” as Williams, who had pled guilty to the same indictment on which Petitioner was being tried and who counsel argued was a drug dealer, a thief, and “the detail man in this case”; (4) the fact that [Petitioner] would also “be tried, convicted, and punished in Kentucky, . . . where the murder occurred” and where the prosecution was also seeking the death penalty; (5) the fact that Williams initially lied to the police, whereas “Petitioner was candid from the start” and cooperated with police by accompanying them to his parents' home and directing them to the physical evidence; (6) the character of Petitioner's family and the impact sentencing Petitioner to death would have on its members; and (7) a pretrial letter from defense counsel to the district attorney confirming Petitioner's offer to plead guilty to the charges in exchange for two consecutive life sentences, which the defense entered into evidence as authorized by the law at that time.

Id. at 380.

         The Butts County Superior Court, in its first order denying habeas relief [21.12], found that trial counsel's performance during the penalty phase of Petitioner's trial was inadequate because counsel's investigation to uncover mitigating evidence was not thorough. (Id. at 27). The court concluded, however, that Petitioner had failed to show prejudice, noting that Petitioner “failed to establish that there is a reasonable likelihood that the outcome of his trial would have been different if his counsel had done more investigation.” ([21.12] at 29-30). The state habeas corpus court noted that trial counsel presented a reasonable theory of mitigation and that it was impossible to determine “what effect a different mitigation theory would have had” on the jurors. (Id. at 30).

         After the Georgia Supreme Court summarily denied review, the United States Supreme Court identified two errors in the Superior Court's Strickland analysis: (1) “the court curtailed a more probing prejudice inquiry because it placed undue reliance on the assumed reasonableness of counsel's mitigation theory;” and (2) “the court failed to apply the proper prejudice inquiry” under Strickland which “would have taken into account the newly uncovered evidence of [Petitioner's] significant mental and psychological impairments [introduced in the state habeas corpus proceeding] along with the mitigation evidence introduced during [Petitioner's] penalty phase trial.” Sears v. Upton, 561 U.S. at 953-56.

         On remand, the Butts County Superior Court assigned a new judge to review the case. In denying relief the second time, the Superior Court expressly declined to address the question of whether trial counsel had been ineffective in failing to perform an adequate investigation in preparation for the penalty phase. ([21.36] at 7). The court, however, made “findings of fact regarding trial counsel's performance . . . in order to adequately address and analyze the prejudice components of Petitioner's ineffective assistance of counsel claim.” (Id. at 8). The court considered the evidence uncovered by trial counsel, evaluated trial counsel's strategy in presenting that evidence and declining a mental health examination, and compared that evidence to the new evidence in evaluating prejudice. (Id. at 7-20). The court found that “even if the evidence presented at the state habeas hearing were presented before the jury, the evidence was not significant enough to reasonably suggest that Petitioner's sentence would have been different.” ([21.36] at 20). After reviewing all of the case law cited by Petitioner, as well as additional affidavits, the court concluded that Petitioner was not prejudiced by trial counsel's performance during the penalty phase of the trial because “after weighing the total evidence, of aggravating and mitigating nature, presented at trial and in these proceedings, there is no reasonable likelihood of a different outcome” and denied Petitioner's claim. (Id. at 27).

         The Georgia Supreme Court affirmed the Superior Court, providing an equally in-depth analysis. But the Georgia Supreme Court specifically addressed trial counsel's investigation and concluded that “trial counsel conducted a reasonable investigation for mitigating evidence.” Sears v. Humphrey, 751 S.E.2d at 376. The Georgia Supreme Court further agreed with the Superior Court that, even if trial counsel had been deficient in the investigation for the penalty phase, Petitioner had failed to demonstrate prejudice under Strickland. Id. at 377.

         Having carefully reviewed the Georgia Supreme Court's opinion in light of the record and Petitioner's arguments, this Court concludes that the state court's decision was not “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, ” nor did it result “in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

         b. Claim that the State Courts Violated the Supreme Court's Mandate

         Petitioner argues that the Georgia Supreme Court's holding is not entitled to § 2254(d) deference and should be reviewed de novo, because the U.S. Supreme Court resolved the adequacy of counsel's performance “conclusively, ” and the issue “was not within the purview of the Georgia Supreme Court to revisit.” ([60] at 59). The Georgia Supreme Court reasoned that it had authority to address the adequacy of trial counsel's investigation and doing so did not violate the Supreme Court's manDated:

As an initial matter, we address [Petitioner's] claim that the habeas court violated the Supreme Court's mandate in several ways. First, [Petitioner] contends that the habeas court violated the mandate by addressing trial counsel's performance in its 2011 Order. The habeas court concluded in the 2008 Order that [Petitioner] had demonstrated that his counsel's sentencing phase investigation was constitutionally deficient based upon its finding that “counsel's investigation into mitigation evidence [was] limited to one day or less, talking to witnesses selected by Petitioner's mother.” The habeas court concluded nevertheless that, “[b]ecause counsel put forth a reasonable theory with supporting evidence, ” [Petitioner] had failed to prove prejudice. Because the Supreme Court concluded that the habeas court erred in its “analysis regarding whether counsel's facially inadequate mitigation investigation prejudiced [Petitioner], ” Sears v. Upton, 130 S.Ct. at 3264, [Petitioner] claims that the habeas court violated the mandate issued by the Supreme Court by re-examining trial counsel's performance when that issue was not before the habeas court on remand. See Briggs v. Penn. R. Co., 334 U.S. 304, 306 (1948) (holding that “an inferior court has no power or authority to deviate from the mandate issued by an appellate court”); In re Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895) (“When a case has been once decided by th[e Supreme C]ourt on appeal, and remanded to [a lower c]ourt, whatever was before th[e Supreme C]ourt, and disposed of by its decree, is considered as finally settled.”).
However, we do not read the language of Sears v. Upton as establishing that the Supreme Court “disposed of” either prong of [Petitioner's] ineffective assistance claim. See In re Sanford Fork & Tool Co., 160 U.S. at 256 (stating that “[t]he opinion delivered by th[e Supreme C]ourt, at the time of rendering its decree, may be consulted to ascertain what was intended by its mandate”). Rather, we read the remanding opinion as showing that the Supreme Court only assumed for the purposes of its discussion the correctness of the 2008 Order's conclusion that trial counsel conducted a “‘constitutionally inadequate'” investigation. Sears v. Upton, 130 S.Ct. at 3261 (stating that the evidence that [Petitioner] presented in his habeas proceeding “was not brought to light” at the time of his trial “because - in the words of the state [habeas] court - Petitioner's counsel conducted a penalty phase investigation that was ‘on its face . . . constitutionally inadequate'”) (quoting [Petitioner's] App. to Pet. for Cert. 27B (emphasis supplied)); id. at 3264 (stating that “[i]n [the habeas court's] view, the cursory nature of counsel's investigation into mitigation evidence . . . was ‘on its face . . . constitutionally inadequate' ”) (quoting [Petitioner's] App. to Pet. for Cert. 27B (emphasis supplied)).
Our reading of the Supreme Court's opinion is sound. First, the Supreme Court did not explicitly engage with any evidence in the record regarding trial counsel's performance. Compare, e.g., Wiggins v. Smith, 539 U.S. 510, 523-34 (2003); Williams v. Taylor, 529 U.S. 362, 395-96 (2000); Strickland, 466 U.S. at 699. Second, the Supreme Court never stated that it agreed with the habeas court that the assistance rendered by [Petitioner's] trial counsel was constitutionally deficient. Compare Kimmelman v. Morrison, 477 U.S. 365 (1986) (stating that the Court “agree[d] with the District Court and the Court of Appeals that the assistance rendered [to the defendant] by his trial counsel was constitutionally deficient”). Therefore, we conclude that neither prong of [Petitioner's] ineffective assistance of counsel claim was finally disposed of by the Supreme Court.

Sears v. Humphrey, 751 S.E.2d at 369-70 (footnotes omitted, some alterations in original).

         The Court agrees with the state court that nothing in the United States Supreme Court's opinion prevented the state courts from revisiting the question of trial counsel's performance. At a minimum, fairminded jurists “could disagree on the correctness of the state court's decision, ” Harrington, 562 U.S. at 102 (internal quotation marks omitted), and habeas relief on this basis is therefore precluded. That the United States Supreme Court denied certiorari and declined to address whether the state court violated its mandate provides additional evidence that fairminded jurists could find that the Georgia Supreme Court had authority to address the adequacy of trial counsel's investigation. Whether the state court actually had this authority is not at issue. Rather, under the rubric of § 2254(d), this Court is concerned only with whether Petitioner has met his burden of demonstrating that the state court's conclusion that trial counsel's performance was constitutionally adequate was objectively unreasonable either in comparison to constitutional law as described by the Supreme Court or in light of the facts as determined by the Georgia Supreme Court. The Supreme Court did not evaluate the state court's initial determination that trial counsel's investigation was deficient, much less “conclusively” dispose of the issue as Petitioner contends.

         Even if the Georgia Supreme Court improperly considered the performance prong of the Strickland test, Petitioner has failed to demonstrate entitlement to relief with respect to the prejudice prong, as explained below. Either way, Petitioner's Strickland claim fails.

         c. Trial Counsel's Decision to Forego a Mental Health Evaluation

         Petitioner next argues that the Georgia Supreme Court unreasonably determined that trial counsel's decision to forego hiring a mental health expert did not amount to ineffective assistance. Petitioner criticizes the Georgia Supreme Court's finding that trial counsel had no indication that he had a significant or noticeable mental disorder, see Sears v. Humphrey, 751 S.E.2d at 376, as having no record support.

         Petitioner contends trial counsel had ample indication that he suffered from some mental abnormality. Petitioner argues that trial counsel signed an affidavit characterizing Petitioner's behavior as “odd, ” “bizarre, ” “disturbed, ” “out of touch with reality, ” and “erratic, ” and noting that his significant impulsiveness indicated that “he could have some psychological imbalance.” ([60] at 60). Petitioner maintains that it was obvious that trial counsel should have had Petitioner evaluated, that such an evaluation would have revealed mitigation evidence, and that this new evidence would have a reasonable probability of changing the outcome of the penalty phase of Petitioner's trial.

         The record reveals significant countervailing factors that led trial counsel to forego a mental health examination. Trial counsel initially filed a motion for funds to hire a mental health expert, but after they returned from their trip to Ohio and Kentucky, counsel withdrew the motion for a variety of reasons. Key among those reasons was the evidentiary rule established in Sabel v. State, 282 S.E.2d 61 (Ga. 1981), which was then the law of Georgia. Under Sabel, if trial counsel had hired a mental health expert, they would have had to turn that expert's report over to the prosecution, and the prosecution would be permitted to call that expert to the stand even if the defense opted not to. Id. As a result, even if the expert's evaluation revealed something that trial counsel wanted desperately to keep the jury from learning - for example, a diagnosis of psychopathy - prosecutors would have access to that information and would be free to tell the jury about it as well as point out that trial counsel was trying to hide this information from the jury. Trial counsel also harbored concerns that Petitioner might divulge incriminating information to the examiner during a psychological examination, and that information might be reflected in the report that prosecutors would see. (See [20.32] at 47).[3]

         Finally, at that time, when faced with requests for a mental health examination, Superior Court judges in Cobb County had the practice of appointing a mental health expert employed by the state, and to trial counsel, “it appeared that probably we were going to get a whitewash, for want of a better word, from that type of expert.” (Id. at 27-28).

         As found by the Georgia Supreme Court:

Trial counsel testified that, in deciding to withdraw the motion [for an expert mental health evaluation], they considered the fact that the trial judge who was assigned to the case routinely appointed a Georgia Regional Hospital doctor when indigent defendants sought expert psychological assistance. Based on their own experience and discussions with other attorneys who were experienced in obtaining mental health evaluations for their indigent clients in Cobb County, trial counsel did not think that a mental health evaluation by a state doctor was likely to yield anything helpful to [Petitioner]. In addition, given [Petitioner's] inclination to present himself as a “tough guy, ” counsel were concerned that, even if he received the warnings required by Estelle v. Smith, 451 U.S. 454 (1981), and Miranda v. Arizona, 384 U.S. 436 (1966), [Petitioner] might make damaging statements that could be recounted by a court-appointed psychiatrist at trial. Thus, counsel stated that, because of the law at the time, they feared that an evaluation would almost certainly benefit the prosecution.

Sears v. Humphrey, 751 S.E.2d at 375.

         The Georgia Supreme Court acknowledged trial counsel's affidavit statements and deposition testimony concerning Petitioner's “bizarre” speech and demeanor, but the state court noted that trial counsel also “testified that they never had any trouble communicating with [Petitioner].” Id. at 375-76. Trial counsel further testified that they never “saw any behavior by [Petitioner] indicating any type of mental deficiency that could be used in mitigation and that, if they had, they would have had [Petitioner] evaluated despite the fact that the rule in Sabel was in effect at the time of [Petitioner's] trial.” Id.

         The Georgia Supreme Court also noted:

Counsel discussed their options with [Petitioner], “advis[ing] him that it was problematic whether the appointment of a mental health expert would be advantageous or necessary to the defense.” Both attorneys testified that, after consulting with counsel, it was [Petitioner's] choice not to be evaluated. See Strickland, 466 U.S. at 691 (stating that it is proper for counsel to base their actions on “informed strategic choices made by the defendant”).


         The record establishes that trial counsel carefully considered the decision not to have Petitioner undergo a mental health evaluation. The Georgia Supreme Court based its conclusion that trial counsel was not ineffective for failing to secure such an evaluation on a broad range of evidence. It was based, in part, on trial counsel's considered opinion that a mental health evaluation would not reveal helpful mitigating evidence. It was further based on trial counsel's reasonable strategic decision that the possible benefits of a having Petitioner evaluated were far outweighed by the potential costs, especially given the possibility that Petitioner may disclose something harmful, the disclosure requirements imposed in Sabel, and the small likelihood that the court-appointed mental health expert would render a helpful opinion. Even trial counsel's affidavit, so heavily relied upon by Petitioner, highlights trial counsel's struggle in wrestling with the decision to withdraw their motion for an evaluation and that they had a reasonable strategic basis for doing so. After considering the Sable ruling and Cobb County's practice concerning the appointment of psychological experts for indigent criminal defendants, they “determined that we could not have [Petitioner] examined pretrial without facing an untenable risk of doing more harm than good.” ([19.11] at 97). Further:

As an alternative to seeking a mental health evaluation which was likely to be harmful overall to our client, under Georgia law at the time, we developed an alternate strategy for the sentencing phase of trial. It was our hope that the Sears family, neighborhood friends and other lay witnesses could portray [Petitioner] as a previously nonviolent teenager who committed a terrible crime which was out of character for him, thereby avoiding the ultimate punishment.

([20.32] at 108-09).

         Such reasoning is the essence of strategic thinking under Strickland. The Court thus concludes that the Georgia Supreme Court did not error in holding that trial counsel's decision to forego a mental health evaluation for Petitioner did not render counsel's assistance ineffective.

         Petitioner mischaracterizes the Georgia Supreme Court decision in stating that the court “ruled that unless counsel is able to observe a ‘significant and noticeable disorder, ' counsel is absolved of the duty to explore their client's mental health.” ([60] at 64). The Georgia Supreme Court actually said that it agreed with the Butts County Superior Court “that ‘without any indication that Petitioner was suffering from any significant, noticeable disorder, ' trial counsel made a reasonable strategic decision not to have him evaluated by a mental health expert under the circumstances facing counsel at the time.” Sears v. Humphrey, 751 S.E.2d at 377 (quoting [21-36 at 11]) (emphasis supplied). The Georgia Supreme Court explained at length that, while some evidence existed that Petitioner had some mental dysfunction, trial counsel reasonably declined a mental health evaluation given the significant countervailing factors trial counsel faced at the time (i.e. the Sabel disclosure rule and the likely opinion of a court-appointed expert). This Court agrees.

         d. The Georgia Supreme Court's' Conclusion that Trial Counsel Conducted a Reasonable Investigation

         In his final brief, Petitioner dedicates significant argument to his contention that the Georgia Supreme Court unreasonably determined that trial counsel conducted a reasonable investigation in preparation for the penalty phase of the trial. According to Petitioner, trial counsel spent only a single afternoon of their trip to Ohio interviewing mitigation witnesses and never followed up on the information that they learned. ([60] at 80-88). It was on this basis that the Butts County Superior Court originally determined that trial counsel's performance was deficient. ([21.12] at 27).

         Petitioner further contends that many of the Georgia Supreme Court's findings regarding trial counsel's investigation are not supported by the record. For example, the state court found that trial counsel talked to Petitioner “about recording evidence from him regarding his background, family history, [and] social history, ” and that trial counsel collected names of potential mitigation witnesses from Petitioner. Sears v. Humphrey, 751 S.E.2d at 372. Petitioner contends that because trial counsel's files contain no evidence regarding background or a list of witnesses provided by Petitioner, the state court's finding has no support. ([60] at 84). However, in his deposition, trial counsel testified that he told Petitioner that he needed to provide trial counsel with evidence on his background, his family history, and his social history. ([20.32] at 77). Trial counsel further testified that Petitioner had provided names of mitigation witnesses to talk to. ([20.35] at 35-36). Petitioner does not refute this testimony. That trial counsel's files lack additional evidence supporting this testimony does not render the state court's finding incorrect, and the record supports the state court's finding.

         Petitioner next argues that none of the mitigation witnesses that trial counsel interviewed in Ohio were selected by trial counsel “as part of a specific effort to uncover evidence of [Petitioner]'s background or mental impairment.” ([60] at 75). Rather, Petitioner contends, trial counsel relied entirely on Petitioner's mother to identify which witnesses should be interviewed, and, as a result, the witnesses “were not chosen by a professional with an understanding of what constituted relevant, admissible evidence.” (Id. at 76).

         Petitioner mischaracterizes the evidence. While Petitioner's mother gathered the witnesses to her home that day, the people that she chose were based on counsel's description of the types of people trial counsel wanted to interview. ([20-32] at 57). Trial counsel, who did not know Petitioner or his family and did not live in Ohio, acted reasonably in describing to Petitioner's mother the types of people he needed to talk to and allowing her to arrange a meeting with those people.

         This case is distinguishable from Ferrell v. Hall, 640 F.3d 1199 (11th Cir. 2011), cited by Petitioner. ([60] at 76). In Ferrell, the Eleventh Circuit concluded that the Georgia Supreme Court was unreasonable in concluding that trial counsel had not been deficient in investigating Petitioner's background and mental health. Ferrell's jury never heard that:

Ferrell suffers 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, Ferrell exhibits 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 Ferrell's father was physically abusive to his children, especially to Ferrell, 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 Ferrell's mother suffered from clinical depression, suicidal ideations, rage blackouts, and urges to physically injure her children.

Id. at 1203.

         The evidence presented in Ferrell's state habeas corpus proceeding included evidence that Ferrell suffered from daily seizures, and that “the actions of an individual with Ferrell's types of impairment “are not entirely volitional, ” because “[d]uring a complex partial seizure a person is overtaken by a powerful emotion, usually anger or fear, by hallucinatory voices or visions, or by a vivid flashback, ” and “[s]eizures also alter the behavior which takes place between or after the seizures, or interictally, resulting in lack of awareness, dullness, and confusion as neurofibers in the brain readjust.” Id. at 1213. Ferrell's original trial counsel, who represented Ferrell briefly, testified that Ferrell's mental health problems were “overt and fairly apparent to anyone who cared to look closely.” Id. at 1227-28. The investigator who was charged with collecting mitigating information regarding Ferrell, “admitted that in preparation for trial, she had only asked statutory character evidence questions of the potential witnesses, and only followed up with them if they said anything positive about Ferrell.” Id. at 1216.

         Ferrell's trial counsel had obtained a mental health evaluation, but it was limited to “whether Ferrell was retarded and whether he suffered from any problems that would affect the waivers of Miranda rights he had signed for the police, ” and there was no diagnosis of any of Ferrell's significant mental health deficits. Id. at 1211. Ferrell's jury also never heard any of the available humanizing evidence, such as Ferrell's “kind personality, strong work ethic, and other personal characteristics.” Id. at 1220.

         Unlike Ferrell, trial counsel in this case had a reasonable basis to forego a mental health evaluation, and as will be discussed below, the mental health evidence that Petitioner presented at the state habeas corpus proceeding is not compelling. Moreover, while trial counsel may have interviewed mitigation witnesses for a single day, their questioning of those eleven witnesses was extensive - comprising some fifty-two pages of single-spaced transcript - and provided trial counsel with sufficient information to make the reasonable strategic decision to present the mitigation theory they ultimately used. ([19.17] at 12-64).

         In questioning those witnesses, trial counsel asked (1) whether Petitioner had ever done anything that might indicate that he might commit this type of crime; (2) whether he took drugs or drank alcohol; (3) whether he carried knives or other weapons; (4) what his relationship was like with his parents and his siblings; (5) whether they felt that he needed psychiatric treatment or whether they felt something was wrong with him; (6) whether he hated white people or was a violent person; (7) whether Petitioner was mentally deficient. ([19-17] at 12-64). The eleven witnesses were all individuals who knew Petitioner well. They included family friends who were Petitioner's parent's age, as well as his peers. At least three of them worked as mental health nurses. One, a psychiatric nurse, indicated that she thought he needed to see a psychiatrist because he wouldn't interact with other children his age but would stand off by himself with a blank look on his face. (Id. at 13-16). Trial counsel also talked to Petitioner's high school guidance counselor about Petitioner's schooling. She told trial counsel that Petitioner had trouble in school staying on task and that his behavior was distractive to other students rather than violent, and that Petitioner had been placed in the Severe Behavioral Handicap Unit. (Id. at 19). Other witnesses interviewed by trial counsel stated that Petitioner got along well with his parents and that he had a good family life. (E.g., [20.33] at 70). It is thus clear that trial counsel in this case performed a much more thorough investigation than trial counsel in the Ferrell case, and that their investigation was sufficient for them to make informed choices regarding trial strategy during the penalty phase of the trail.

         Petitioner next argues that trial counsel's failure to obtain Petitioner's school records rendered their investigation deficient. Trial counsel, however, was aware of Petitioner's problems in school. According to the Georgia Supreme Court, trial counsel's file “contained the names and addresses of the schools [Petitioner] attended and notes summarizing [Petitioner's] school history, including that he transferred to a different high school after ‘encounter[ing] behavior problems, ' that he had ‘numerous suspensions' at both schools, that he left school and moved out of his parents' home in October of 1990, and that he returned home a couple of weeks later.” Sears v. Humphrey, 751 S.E.2d at 375 (quoting exhibits). Given that trial counsel knew about Petitioner's troubles in school, their strategic decision not to dig deeper into Petitioner's school records was sufficiently informed to meet the constitutional standard.

         Although trial counsel never testified that they chose not to obtain Petitioner's school records for strategic reasons, this Court must “presume, in accordance with the general presumption of attorney competence, that counsel's actions are strategic. In the absence of any evidence to overcome the presumption, no constitutional error is shown.” Stanley v. Zant, 697 F.2d 955, 970 (11th Cir. 1983) (“We decline to infer from such silence an absence of strategy.”).[4] Petitioner has presented no evidence to overcome this presumption, and this Court concludes that counsel's conduct was not “so egregious as to raise an inference that it could not reasonably be part of any legitimate strategy.” Id. at 969. As discussed in the next subsection, trial counsel developed a reasonable theory for the penalty phase, and it was thus reasonable for trial counsel to determine that Petitioner's school records were not pertinent to that theory.

         Based on the record, the Court concludes that “fairminded jurists could disagree on the correctness” of the Georgia Supreme Court's conclusion that trial counsel carried out a reasonable investigation into mitigation evidence, and relief on this claim is precluded under § 2254(d). Harrington, 562 U.S. at 101.

         e. Trial Counsel's Mitigation Theory was Reasonable

         The Georgia Supreme Court also concluded that “trial counsel developed a reasonable mitigation strategy that included showing the good character of [Petitioner] and his family and the impact that a death sentence would have on his family.” Sears v. Humphrey, 751 S.E.2d at 377. Petitioner contends that trial counsel's investigation was so inadequate that trial counsel did not have sufficient information to reasonably decide to pursue their theory of mitigation. However, the Court concludes that the Georgia Supreme Court's finding that the investigation was reasonable is entitled to deference under § 2254(d). The Court further concludes that, given the information known to counsel, it cannot be said that no reasonable attorney would have pursued trial counsel's theory of mitigation, and the Georgia Supreme Court's conclusion regarding trial counsel's theory is likewise entitled to § 2254(d) deference.

         The Court concludes that Petitioner has failed to demonstrate that the Georgia Supreme Court's conclusion that trial counsel's performance was adequate is not entitled to deference under § 2254(c).

         f. Prejudice

         i. Evidence Presented in the State Habeas Corpus Proceeding

         In its order affirming the denial of state habeas corpus relief, the Georgia Supreme Court provided an in depth description of the evidence that Petitioner introduced in the state habeas corpus proceeding. See Sears v. Humphrey, 751 S.E.2d at 380-88. That evidence concerned Petitioner's brain damage, “debilitating psychiatric symptoms, ” difficult childhood, drug use, and childhood sexual abuse.[5] Petitioner contends that if this evidence had been presented to the jury, the outcome of Petitioner's trial would have been different.

         The Court turns first to the evidence of Petitioner's neurological and psychological deficiencies that he introduced at the state habeas corpus hearing. Dr. Tony Strickland, a neuropsychologist, examined Petitioner and concluded that Petitioner has significant frontal lobe abnormalities caused by head injuries and adolescent drug use. The abnormalities resulted in deficits in Petitioner's ability to control his reactions and behaviors, and to plan. ([18.27] at 6). According to Dr. Strickland, Petitioner's “biggest challenge is one of impulsivity, poor planning, poor judgment and a compromise in autonomy.” ([18.25] at 43). Dr. Strickland testified that Petitioner had “a marginal capacity for reflection and decision-making, particularly when faced with distracting stimuli. His ability to organize his choices, assign them relative weight and select among them in a deliberate way is grossly impaired. He instead reacts to problems impulsively and becomes disorganized and confused.” ([18.27] at 8).

         Dr. Richard G. Dudley, Jr., a psychiatrist, also examined Petitioner. Dr. Dudley concluded that his “assessment established a picture of [Petitioner] as severely compromised in his capacity for sound decision-making and reasoned behavior.” ([18-28] at 31). Specifically, Dr. Dudley concluded that Petitioner “exhibits extreme impulsivity, drastically impaired executive functioning, inappropriate affect, mood disturbance and grandiose thinking that is so severe that his contact with reality is at times tenuous.” (Id.). According to Dr. Dudley, Petitioner is “substantially disabled under the best of circumstances, ” and that with the addition of stress, his “functioning rapidly decompensates even further and purposeful behavior all but ceases.” (Id. at 59). Dr. Dudley stated that in his “professional opinion . . . [Petitioner]'s specific psychiatric, emotional and cognitive disturbances directly lead [sic] to the events of that weekend careening beyond his control.” (Id. at 62-63).

         Regarding Petitioner's childhood, Petitioner introduced evidence at the state habeas corpus hearing regarding the dysfunction in his immediate family. According to this evidence, Petitioner's parents argued frequently, and these disagreements occasionally became physical. Petitioner portrays his parents' physical fights as frequent, but he mentions only two instances where the children witnessed a physical altercation. On one occasion, Petitioner's father dragged Petitioner's mother by the hair. ([19.9] at 31). On the other occasion, Petitioner's parents were engaged in an argument when Petitioner's father “just snapped.” He “came at” Petitioner's mother, and she screamed at Petitioner's brother to bring her a knife which the brother did. (Id. at 58). Petitioner's evidence further indicates that his parents often demeaned each other and that his mother cheated on his father.

         As to Petitioner's treatment by his parents, Petitioner's mother is portrayed as being distant and uninterested in her children, especially Petitioner. When she felt that the children were bothering her, she would beat and verbally abuse them. ([18.28] at 51). Some witnesses noted that Petitioner's mother openly favored Petitioner's brother. (Id. at 53).

         Petitioner's father, who was wheelchair-bound as the result of an accident[6]while he was in the Army, was more engaged, but according to Petitioner's evidence, his attention to him was negative. He beat the children and used disciplinary practices that were borrowed from his military service. After Petitioner and his brother broke a window, their father made them dig a hole in the back yard that was big enough to bury the window. (Id. at 48). Petitioner's father was also particularly critical of Petitioner, and when Petitioner failed to meet his unrealistic expectations, he would openly criticize him. (Id. at 49-50).

         Petitioner also introduced evidence that he was sexually abused by an older cousin. According to Petitioner's brother, the cousin liked to take the younger children into a closet and try to rub their genitals or grind his genitals on them. ([18.28] at 45). Petitioner's brother never saw the cousin molest Petitioner, but he claimed that he saw the cousin take Petitioner into the closet. (Id. at 46). Petitioner himself has never claimed that he was sexually abused, but one witness testified that while he was smoking “weed” with Petitioner, Petitioner told him that “someone” had “molested” him and his brother when they were young but did not provide any further details. Sears v. Humphrey, 751 S.E.2d at 385.

         ii. The Georgia Supreme Court's Prejudice Analysis

         In weighing the mitigation evidence that Petitioner presented in the state habeas corpus proceeding, the Georgia Supreme Court first pointed out that it agreed with the Butts County Superior Court's conclusion that much of the evidence that Petitioner presented was unreliable. The affidavits Petitioner submitted “‘contained a great deal of hearsay and speculation testimony, which would have not been allowed before the jury, '” Id. at 380 (quoting the state habeas corpus court), and the affidavit testimony on which the mental health experts relied was weak. Id.

         Regarding Petitioner's social history and family background testimony, the Georgia Supreme Court found that much of that evidence would not have been admissible or relevant. Id. at 381. Of the admissible evidence, the court concluded that much of it was inconsistent. For example, Petitioner's evidence of maltreatment by his parents was countered by other evidence that indicated that “both parents were involved with their children and attempted to provide the best for them, ” and that Petitioner's father, in particular, worked hard to make Petitioner a better person. Id. at 384.

         The state court further concluded that Petitioner's evidence of his dysfunctional family pales in comparison to the type of dysfunction evidence the omission of which the United States Supreme Court has found prejudicial.

“In any event, all of the family dysfunction testimony, even taken together and credited as true, is weak and a far cry from the horrific childhood circumstances that have been held sufficient to satisfy the prejudice prong in a capital case.” DeYoung v. Schofield, 609 F.3d 1260, 1291 (11th Cir. 2010) (finding that the defendant was not prejudiced by the omission of mitigating evidence that included testimony that his father was “hyperrational, judgmental, authoritarian, obsessive, and emotionally distant” and that his parents “showed [him] little affection”). Compare Rompilla v. Beard, 545 U.S. 374, 391-92 (2005) (stating that omitted mitigating evidence included evidence that the petitioner's parents were alcoholics; that his father frequently beat his mother, bragged about his infidelity, beat the petitioner, and locked him in an excrement-filled dog pen; and that the petitioner slept in an unheated attic and went to school in rags); Wiggins, 539 U.S. at 534-35 (noting omitted mitigating evidence, inter alia, of “severe privation and abuse in the first six years of . . . life” and “physical torment, sexual molestation, and repeated rape during . . . subsequent years in foster care”); Williams, 529 U.S. at 395 (finding that omitted mitigating evidence of defendant's “nightmarish childhood” included his parents' imprisonment for criminal neglect of him and his siblings, his severe and frequent beatings by his father, and his commitment to an abusive foster home). Thus, we conclude that trial counsel's failure to present [Petitioner's] new evidence about his allegedly damaging home environment did not result in prejudice sufficient to support the success of his overall ineffective assistance of trial counsel claim.

Id. at 384-85.

         With respect to Petitioner's evidence that he was sexually abused, the Georgia Supreme Court noted that the only evidence that Petitioner himself ever claimed that he was abused was the hearsay affidavit testimony of another witness.

         The remaining evidence was all based on the claims made by Petitioner's brother, Demetrius. With regard to that evidence, the Georgia Supreme Court concluded:

[T]his evidence would have carried little weight with the jury for several reasons. Regarding Demetrius' testimony, we conclude that the jury would not have found it very persuasive, considering its equivocal nature, Demetrius' obvious interest in his brother's case, and, . . . the fact that he was subject to impeachment based on his prior felony convictions. As to [another witness]'s hearsay affidavit testimony, he testified that he had only known [Petitioner] for a relatively short period of time when he and [Petitioner] began to get “high” together on “weed” every morning and that it was during one of their conversations while they were “hanging out” that [Petitioner] told him only that “someone” had “molested” him and Demetrius when they were young without providing any further details. Thus, [Petitioner] failed to show that this testimony is anything other than unreliable hearsay. See Gissendaner v. State, 532 S.E.2d 677 (Ga. 2000) (holding that the rules of evidence are not suspended in the sentencing phase but that they may, under proper circumstances, yield to the need to present reliable mitigating evidence). Most significantly, [Petitioner] did not report that he had ever been sexually abused to either of the habeas mental health experts who examined him, and, as Dr. Strickland noted in his report and affirmed through his affidavit, [Petitioner] denied any sexual ...

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