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Raulerson v. Warden

United States Court of Appeals, Eleventh Circuit

June 28, 2019

BILLY DANIEL RAULERSON, JR., Petitioner-Appellant,
v.
WARDEN, Respondent-Appellee.

          Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 5:05-cv-00057-JRH

          Before WILLIAM PRYOR, JORDAN, and HULL, Circuit Judges.

          WILLIAM PRYOR, Circuit Judge.

         Billy 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.

         I. BACKGROUND

         We 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 proceedings.

         A. The Crime

         In a 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. Id.

         When he 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.

         Several 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.

         B. The Trial and Sentencing

         Leon 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.

         Before 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.

         During 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.

         To 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.

         Dr. 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.

         The 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."

         The 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.

         The 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.

         Raulerson 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. 1127 (1998).

         C. The State and Federal Habeas Proceedings

         After 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 Eighth Amendment.

         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 intellectually disabled.

         The 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."

         The 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.

         II. STANDARDS OF REVIEW

         We 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).

         III. DISCUSSION

         Raulerson 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.

         As an 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.

         A. 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.

         To 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 marks omitted).

         Raulerson 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.

         Counsel 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.

         To 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.

         The 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 suffered prejudice.

         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." Id.

         The 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.

         After 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.

         Raulerson 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.

         As the 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 ...


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