from the United States District Court for the Southern
District of Georgia D.C. Docket No. 5:05-cv-00057-JRH
WILLIAM PRYOR, JORDAN, and HULL, Circuit Judges.
WILLIAM PRYOR, Circuit Judge.
Raulerson Jr., a Georgia prisoner under three death sentences
for murdering two teenagers, one of whom he sodomized after
killing her, and for murdering a woman he robbed the next
day, appeals the denial of his petition for a writ of habeas
corpus, 28 U.S.C. § 2254. At trial, Raulerson's
counsel argued that he was "guilty but mentally
retarded" beyond a reasonable doubt and so ineligible
for the death penalty. The jury disagreed and sentenced
Raulerson to death. After unsuccessfully pursuing
postconviction relief in Georgia courts, Raulerson filed a
federal petition, which the district court denied. Raulerson
contends that his counsel were ineffective by failing to
investigate mitigating evidence and present it during the
penalty phase; that the Georgia requirement that a criminal
defendant prove his intellectual disability beyond a
reasonable doubt violates the Due Process Clause of the
Fourteenth Amendment; and that he is actually innocent of the
death penalty because he is intellectually disabled. Because
the Georgia superior court reasonably determined that the
first two claims fail and because Raulerson fails to
establish his intellectual disability, we affirm.
divide the background of this appeal in three parts. First,
we discuss the facts of Raulerson's crime. Next, we
describe Raulerson's trial and sentencing. Then, we
provide an overview of his state and federal habeas
two-day span, Billy Raulerson, Jr. killed three people in
Ware County, Georgia. On May 30, 1993, Raulerson parked his
car by a pickup truck occupied by two teenagers, Jason
Hampton and Charlye Dixon, on a lakeside lovers' lane.
Raulerson v. State, 491 S.E.2d 791, 795-96 (Ga.
1997). Raulerson stood on the bed of the truck and shot
Hampton several times. Id. at 796. As Dixon tried to
flee, he shot her. Id. He then "dragged
Hampton's body from the truck and shot him several more
times." Id. Raulerson went on to take two
fishing rods from the truck and put the rods and Dixon in his
car. Id. He drove to a wooded area several miles
away where he shot Dixon again and sodomized her.
tried to return to Dixon's body the next day, people were
at the site, so he "drove to a rural section of the
county looking for a house to burglarize." Id.
He stopped at a home that had no vehicle in the carport.
After no one responded to his knock at the door, Raulerson
broke into a shed and stole meat from the freezer.
Id. When he was loading the meat into his car, he
heard someone in the house. Id. Raulerson went
inside and encountered Gail Taylor, who was armed with a
knife. Id. A struggle ensued, and Raulerson shot
Taylor multiple times. Id. He then stole her purse
and left. Id. Later that day, the bodies of Hampton,
Dixon, and Taylor were discovered in separate locations.
Id. at 795.
months later, the police arrested Raulerson on unrelated
charges. He gave the police a blood sample, which matched the
semen recovered from Dixon's body. Id. When the
police questioned Raulerson about the murders, he confessed
to killing all three people. Id. The police searched
Raulerson's home and found the fishing rods taken from
Hampton's truck and a gun that matched the shell casings
recovered from the crime scenes. Id. A grand jury
charged Raulerson with the murders of Dixon, Hampton, and
Taylor; burglary; kidnapping; aggravated sodomy; necrophilia;
two counts of possession of a firearm during the commission
of a felony; and possession of a firearm by a convicted
felon. Id. at 795 n.1.
The Trial and Sentencing
Wilson and Mark Hatfield represented Raulerson. Wilson, who
served as lead counsel, had tried several capital cases in
his 46 years as an attorney, although he had not done so in
20 years when he represented Raulerson. Hatfield, a new
attorney, assisted Wilson with the case.
trial, Raulerson's counsel conducted an investigation of
Raulerson's background. They hired five experts,
including a licensed clinical social worker, Audrey Sumner; a
psychologist, Dr. Daniel Grant; a psychiatrist, Dr. John
Savino; a neurologist, Dr. Michael Baker; and a
neuropsychologist, Dr. Manual Chaknis. The experts
interviewed Raulerson and his family and reviewed
Raulerson's medical, school, and criminal records. Among
other things, Raulerson's counsel learned that Raulerson
had a tumultuous childhood, abusive parents, substance-abuse
issues, and several emotional and intellectual problems.
the guilt phase of trial, Raulerson's counsel presented
the defense that Raulerson was "guilty but mentally
retarded." In Georgia, a criminal defendant who proves
beyond a reasonable doubt that he is intellectually disabled
is ineligible for the death penalty. See O.C.G.A.
§ 17-7-131(c)(3). In July 2017, Georgia amended section
17-7-131 to substitute the term "mentally retarded"
for "intellectual disability." See id.
§ 17-7-131; see also 2017 Ga. Laws 189 §
1. We will use the term "intellectual disability"
unless we are quoting directly from the record. See
Brumfield v. Cain, 135 S.Ct. 2269, 2274 n.1 (2015)
("While this Court formerly employed the phrase
'mentally retarded,' we now use the term
'intellectual disability' to describe the identical
phenomenon." (alteration adopted) (citation and internal
quotation marks omitted)). To prove intellectual disability,
Raulerson needed the jury to determine, beyond a reasonable
doubt, that he had "significantly subaverage general
intellectual functioning resulting in or associated with
impairments in adaptive behavior which manifested during the
developmental period." O.C.G.A. § 17-7-131.
support his claim of intellectual disability, Raulerson's
counsel presented the expert testimony of their psychologist,
Dr. Grant. He testified that he had spent about 15 hours with
Raulerson, administered about 25 different tests, interviewed
his parents, and reviewed extensive records. Although
Raulerson had received IQ scores of 78 and 83 as a child,
which are above the range of intellectual disability, Grant
testified that his tests determined Raulerson had an IQ
around 69 and was "functioning at about a 12-year
level." And he testified that Raulerson's deficits
onset before age 18 because Raulerson had abused drugs and
alcohol at a young age, suffered head injuries, and had
memory and attention problems. Grant concluded that Raulerson
was intellectually disabled.
Grant also testified about Raulerson's background. He
testified that Raulerson always had trouble in school and
never had any friends. He explained that Raulerson had
suffered multiple head injuries, including being hit by a car
at age three. And Grant described Raulerson's home life.
He testified that Raulerson's father was abusive; by age
ten, "he and his father would actually get in the yard
and fist-fight like two adults." Grant explained that
Raulerson's environment made him "predisposed"
for substance abuse. After Raulerson began using drugs and
alcohol around age ten, Grant testified that Raulerson spent
"his leisure time . . . drinking or using drugs"
and sitting outside his parents' house "just staring
out." Grant also discussed Raulerson's failed
marriage and his child. He explained that Raulerson had been
married at age 18 and had a tumultuous relationship with his
then-wife. When she was five months pregnant, Raulerson shot
himself in the chest.
state presented its own expert, Dr. Gerald Lower, who
disagreed with some of Dr. Grant's conclusions that led
to his diagnosis that Raulerson had an intellectual
disability. Dr. Lower's test also determined that
Raulerson had an IQ of 69, but he testified that he found
signs of malingering. Lower testified that he did not have
enough information to make a diagnosis about Raulerson's
adaptive functioning. When asked whether there was "any
convincing demonstration" that Raulerson had an
intellectual disability onset before age 18, he testified,
"Absolutely none whatever."
jury rejected that Raulerson was "guilty but mentally
retarded" beyond a reasonable doubt. It convicted him on
three counts of capital murder, in addition to burglary,
kidnapping, necrophilia, and two counts of possession of a
firearm during the commission of a felony.
penalty phase began the next morning. The state called six
witnesses and presented several victim-impact statements.
Raulerson's counsel presented no additional witnesses in
mitigation and instead relied on the testimony presented
during the guilt phase. During Wilson's closing argument,
he maintained that although the jury had found that Raulerson
was "not . . . legally retarded," Raulerson's
actions were of a "sick mind" and "not
entirely his fault." Wilson urged the jury to consider
Raulerson's background and not to impose the death
penalty. The court instructed the jury that it could rely on
all testimony received in both stages of the proceedings. The
jury returned a verdict of death for all three counts of
capital murder for which Raulerson was convicted and found
the existence of seven statutory aggravating circumstances
beyond a reasonable doubt.
appealed his convictions and sentences to the Supreme Court
of Georgia. He argued, among other things, that section
17-7-131(c)(3), which requires the accused to prove his
intellectual disability beyond a reasonable doubt, violated
his state right not to be executed if intellectually
disabled. In support, Raulerson cited Cooper v.
Oklahoma, 517 U.S. 348 (1996), which held that an
Oklahoma requirement that the accused prove his incompetence
to be tried by clear and convincing evidence violated the Due
Process Clause. The Supreme Court of Georgia rejected his
challenge to section 17-7-131(c)(3), and it affirmed
Raulerson's convictions and sentences. See
Raulerson, 491 S.E.2d at 801 (citing Burgess v.
State, 450 S.E.2d 680 (Ga. 1994)). The Supreme Court of
the United States denied Raulerson's petition for a writ
of certiorari. See Raulerson v. Georgia, 523 U.S.
The State and Federal Habeas Proceedings
his direct appeal, Raulerson filed a petition for a writ of
habeas corpus in a Georgia superior court. He alleged that
his counsel rendered ineffective assistance at the penalty
phase of his trial by failing to investigate and present
mitigating evidence about his mental health. In the light of
Atkins v. Virginia, 536 U.S. 304 (2002), he also
argued that Georgia's burden of proof to establish
intellectual disability violated his federal right
not to be executed if intellectually disabled. That is, he
argued that section 17-7-131(c)(3) violates the Due Process
Clause of the Fourteenth Amendment by failing to protect his
right under the Eighth Amendment not to be executed if
intellectually disabled. And Raulerson asserted that he is
intellectually disabled and cannot be executed under the
superior court held an evidentiary hearing on these issues.
Raulerson presented over 30 affidavits from family, friends,
teachers, and mental-health professionals stating that they
would have provided testimony on Raulerson's behalf if
they had been asked. The affidavits provided details about
Raulerson's substance abuse, physical abuse, troubled
childhood, and his relationship with his daughter. Raulerson
also presented an affidavit and testimony from Dr. Lower, the
state's expert at his trial. Lower explained that, after
reviewing additional records and testimony, he "would
have testified that Mr. Raulerson's I.Q. . . . and his
deficits in adaptive functioning apparent prior to age 18
support a diagnosis of Mental Retardation." But Dr.
Lower still questioned whether Raulerson's intellectual
disability onset before age 18. So even with the additional
information, he could not diagnose Raulerson as
superior court denied Raulerson's petition. It denied
Raulerson's claim of ineffective assistance of counsel on
the merits. It ruled that his due-process claim was barred by
res judicata. And relying on precedent from the Supreme Court
of Georgia, it also explained that Raulerson's
due-process claim failed because Georgia's burden of
proof to establish intellectual disability was not
unconstitutional under Atkins. The superior court
also determined that Raulerson's claim that he is
intellectually disabled and so ineligible for the death
penalty was barred by res judicata because the jury had
rejected that claim. And it determined that Raulerson
"failed to present evidence to satisfy the extremely
stringent miscarriage of justice standard" because the
evidence presented at trial and in habeas proceedings did not
"warrant eradication [of] the jury's verdict."
Supreme Court of Georgia summarily denied Raulerson's
application for a certificate of probable cause to appeal.
Raulerson then filed a federal petition for a writ of habeas
corpus in the district court. Following an evidentiary
hearing, the district court denied Raulerson's petition.
STANDARDS OF REVIEW
review de novo the denial of a petition for a writ
of habeas corpus. Morrow v. Warden, 886 F.3d 1138,
1146 (11th Cir. 2018). The Antiterrorism and Effective Death
Penalty Act, which governs Raulerson's petition, provides
"[a] general framework of substantial deference [for]
our review of every issue that the state courts have
decided." Diaz v. Sec'y for the Dep't of
Corr., 402 F.3d 1136, 1141 (11th Cir. 2005). Under that
Act, a federal court shall not grant habeas relief on any
claim "adjudicated on the merits" in state court
unless, as relevant here, the state court's decision
denying relief was either "contrary to, or involved an
unreasonable application of, clearly established [f]ederal
law, as determined by the Supreme Court of the United
States." 28 U.S.C. § 2254(d)(1). The phrase
"clearly established federal law" refers only
"to the holdings, as opposed to the dicta, of [the
Supreme] Court's decisions as of the time of the relevant
state-court decision." Yarborough v. Alvarado,
541 U.S. 652, 660-61 (2004) (quoting Terry Williams v.
Taylor, 529 U.S. 362, 412 (2000)). The decision of a
state court is "contrary to" clearly established
federal law when the state court "applied a rule in
contradiction to governing Supreme Court case law" or
"arrived at a result divergent from Supreme Court
precedent despite materially indistinguishable facts."
Dill v. Allen, 488 F.3d 1344, 1353 (11th Cir. 2007).
And a state court's application of federal law is
unreasonable "only if no 'fairminded jurist'
could agree with the state court's determination or
conclusion." Holsey v. Warden, Ga. Diagnostic
Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) (quoting
Harrington v. Richter, 562 U.S. 86, 101 (2011));
see also Harrington, 562 U.S. at 101 ("[A]n
unreasonable application of federal law is different
from an incorrect application of federal
law."). Section 2254(d)(1) sets "a difficult to
meet and highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions
be given the benefit of the doubt." Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (citation and
internal quotation marks omitted).
raises three issues for our review. First, he argues that the
superior court unreasonably determined that his attorneys
were not deficient for failing to investigate mitigating
evidence and to present it during the penalty phase and that
he suffered no prejudice. Second, he argues that the superior
court unreasonably applied clearly established law when it
ruled that the Georgia requirement that he prove his
intellectual disability beyond a reasonable doubt did not
violate the Due Process Clause of the Fourteenth Amendment.
Third, he argues that he is intellectually disabled and so
actually innocent of the death penalty.
initial matter, our discussion focuses on the reasonableness
of the superior court's decision even though it is not
the last state-court "adjudicat[ion] on the
merits," 28 U.S.C. § 2254(d). The Supreme Court of
Georgia's summary denial of Raulerson's application
for a certificate of probable cause to appeal was the last
state-court adjudication on the merits. Hittson v. GDCP
Warden, 759 F.3d 1210, 1231-32 (11th Cir. 2014). But we
"presume" that the summary denial adopted the
superior court's reasoning unless the state
"rebut[s] the presumption by showing that the [summary
denial] relied or most likely did rely on different
grounds," which the state has not tried to do in this
appeal. Wilson v. Sellers, 138 S.Ct. 1188, 1192
(2018). So we "'look through' the unexplained
decision" of the Supreme Court of Georgia to review the
superior court's decision as if it were the last
state-court adjudication on the merits. See id.
The Superior Court Reasonably Determined that Trial Counsel
Were Not Ineffective for Failing to Investigate Mitigating
Evidence and to Present It During the Penalty Phase.
obtain relief on his claim of ineffective assistance of
counsel, Raulerson must establish two elements.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
First, he must prove that "his counsel's performance
was deficient, which means that it 'fell below an
objective standard of reasonableness' and was
'outside the wide range of professionally competent
assistance.'" Johnson v. Sec'y, Dep't
of Corr., 643 F.3d 907, 928 (11th Cir. 2011)
(quoting Strickland, 466 U.S. at 688, 690). When
considering whether counsel's performance was deficient,
we "review counsel's actions in a 'highly
deferential' manner" and apply "a strong
presumption . . . of reasonable professional
assistance." Id. (quoting Strickland,
466 U.S. at 689). Second, Raulerson must establish prejudice,
which means that "but for his counsel's deficient
performance, there is a reasonable probability that the
result of the proceeding would have been different."
Id. (quoting Strickland, 466 U.S. at 694).
Because Strickland provides a "most
deferential" standard for assessing the performance of
counsel, "[w]hen [we] combine [it] with the extra
layer of deference that § 2254 provides, the result is
double deference." Id. at 910- 11. So "the
question becomes whether there is any reasonable argument
that counsel satisfied Strickland's deferential
standard." Id. (citation and internal quotation
first argues that his trial counsel were ineffective by
failing to investigate mitigating evidence about his troubled
childhood, his love for his child, and his mental illness.
During the state habeas proceedings, Raulerson presented
affidavits from over 30 family members, teachers,
acquaintances, and mental-health professionals that he
contends his counsel should have interviewed. Raulerson
argues that these witnesses could have presented a more
sympathetic portrait of him.
representing a capital defendant must conduct an adequate
background investigation, but it need not be exhaustive.
See Berryman v. Morton, 100 F.3d 1089, 1101 (3d Cir.
1996) ("The right to counsel does not require that a
criminal defense attorney leave no stone unturned and no
witness unpursued."). When our review is governed by
section 2254, "the question is not just if counsel's
investigative decisions were reasonable, but whether
fairminded jurists could [reasonably] disagree."
Johnson, 643 F.3d at 932.
determine whether "trial counsel should have done
something more" in their investigation, "we first
look at what the lawyer[s] did in fact." Grayson v.
Thompson, 257 F.3d 1194, 1219 (11th Cir. 2001) (citation
and internal quotation marks omitted omitted).
Raulerson's counsel hired five experts to assist in their
investigation: a licensed clinical social worker, a
psychologist, a psychiatrist, a neurologist, and a
neuropsychologist. The social worker, Audrey Sumner,
interviewed Raulerson, his mother, his father, and two
uncles. Her report crafted an extensive social history of
Raulerson's life that described the physical and verbal
abuse he suffered at the hands of both of his parents, his
struggles with depression and substance abuse, his suicide
attempt, and various incidents displaying his rage. The
psychologist, Dr. Grant, also met with Raulerson, for at
least fifteen hours, and interviewed his parents. And Dr.
Grant examined extensive medical, school, and criminal
records. Dr. Grant's report included background
information about Raulerson and diagnoses of intellectual
disability and several mental illnesses. The psychiatrist,
Dr. Savino, met with Raulerson on at least eight separate
occasions and reviewed Raulerson's records. Dr. Savino
diagnosed Raulerson as mentally ill and intellectually
disabled, and he suggested that Raulerson might have organic
brain damage. To investigate potential brain damage,
Raulerson's counsel hired Drs. Baker and Chaknis, a
neurologist and neuropsychologist respectively. Several of
the experts also reviewed Raulerson's case together. In
addition to the work of these five experts, Raulerson's
counsel performed their own interviews of Raulerson's
mother, father, brother, and an uncle. Counsel also had
Raulerson write out his life history.
superior court reasonably concluded that trial counsel
conducted an adequate investigation. Raulerson's counsel
gleaned a portrait of his life from the expert reports,
family interviews, and medical, school, and criminal records.
Although Raulerson has presented additional affidavits from
extended family members, teachers, and acquaintances that
counsel could have interviewed, that more investigation
could have been performed does not mean his
counsel's investigation was inadequate. Grayson,
257 F.3d at 1225 ("[C]ounsel is not required to
investigate and present all mitigating evidence in
order to be reasonable." (emphasis added)). From their
investigation, counsel learned much of the information
contained in the affidavits, including details on
Raulerson's troubled childhood, abusive parents,
difficulties in school, and intellectual deficiencies. And
because Raulerson has pointed to no "known evidence
[that] would lead a reasonable attorney to investigate
further," Wiggins v. Smith, 539 U.S. 510, 527
(2003), he has provided no argument that his counsel acted
unreasonably when they decided to end the investigation when
they did. Because the superior court reasonably determined
that Raulerson's counsel conducted an adequate
investigation, we need not consider whether Raulerson
next argues that his counsel were ineffective because they
decided not to present additional mitigating evidence during
his penalty phase, but again, the superior court reasonably
rejected this claim. "No absolute duty exists to
introduce mitigating or character evidence."
Chandler v. United States, 218 F.3d 1305, 1319 (11th
Cir. 2000) (en banc) (collecting cases). And we have held, in
a capital case, that counsel's performance was not
deficient when he chose to rely on the mitigating evidence
presented in the guilt phase instead of presenting additional
evidence during the penalty phase. Waters v. Thomas,
46 F.3d 1506, 1512 (11th Cir. 1995) (en banc). We explained
that "[w]hich witnesses, if any, to call, and when to
call them, is the epitome of a strategic decision, and it is
one that we will seldom, if ever, second guess."
superior court reasonably determined that Raulerson's
counsel were not deficient when they presented no additional
mitigating evidence during the penalty phase. As counsel in
Waters had done, Raulerson's counsel chose to
rely on the mitigating evidence presented in the guilt phase
instead of presenting it again in the penalty phase. See
id. at 1512-13. During the guilt phase, his counsel
presented mitigating evidence that included descriptions of
Raulerson's intellectual deficiencies and life history.
Dr. Grant testified about Raulerson's trouble in school,
his emotional and intellectual problems, his marriage, his
relationship with his child, and his tumultuous home life,
including his abusive father.
the jury returned a guilty verdict, Raulerson's counsel
chose to rely on this evidence for the penalty
phase. Raulerson's counsel presented a closing
argument urging the jury to consider Raulerson's
background and spare him. Counsel reminded the jury to
"[g]o back and look at the circumstances of Billy
Raulerson's life, the way he was raised, this
dysfunctional family, parents that fought like animals with
each other; an alcoholic father who taught him to mind with
blows of his fists to his head . . . . What chance did he
have? Isn't he a victim, too?" And the court
instructed the jury that it could rely on all testimony
received in both stages of the proceedings. The superior
court reasonably chose not to second guess counsel's
strategic decision to rely on the mitigating evidence
presented in the guilt phase, so neither can we.
presents a plethora of additional character evidence that he
contends his counsel should have presented, but
"[c]onsidering the realities of the courtroom, more is
not always better." Chandler, 218 F.3d at 1319;
see also Waters, 46 F.3d at 1512 ("There is
much wisdom for trial lawyers in the adage about leaving well
enough alone."). "The type of
'more-evidence-is-better' approach advocated by
[Raulerson] might seem appealing-after all, what is there to
lose?" Wong v. Belmontes, 558 U.S. 15, 25
(2009). But there can be a lot to lose. Id. By
presenting a "heavyhanded case" of mitigation
evidence, counsel "would have invited the strongest
possible evidence in rebuttal." Id. A lawyer
can reasonably "fear that character evidence might, in
fact, be counterproductive." Chandler, 218 F.3d
at 1321. Particularly right before the jury decides a
defendant's penalty, counsel can reasonably limit the
mitigating evidence he presents to avoid exposure "to a
new string of [g]overnment witnesses who could testify to
Petitioner's bad acts." Id. at 1323.
superior court highlighted, a reasonable lawyer could fear
that additional evidence of Raulerson's character during
the penalty phase would be counterproductive, which is
exactly what Raulerson's counsel explained had motivated
their decision to not present additional mitigating evidence.
Hatfield testified that they decided not to call Grant or
Savino back to the stand for fear of "opening the flood
gates" for "bad stuff." And they decided not
to call Raulerson's family members to testify out of
concern that "they would be able to offer other negative
information that might have hurt" Raulerson's case.
Hatfield was concerned about testimony that Raulerson was an
aggressor because "those sorts of things don't play
well in front of a jury." Counsel knew from their
investigation that Raulerson had frequently picked fights,
bullied other children, and had abused his younger brother,
mother, and ...