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Heidler v. Gdcp Warden

United States District Court, S.D. Georgia, Statesboro Division

December 12, 2019

JERRY SCOTT HEIDLER, Petitioner,
v.
GDCP WARDEN, Respondent.

          ORDER

          HON. LISA GODBEY WOOD, JUDGE

         Petitioner Jerry Scott Heidler's Third Amended Petition for Writ of Habeas Corpus is before the Court. Dkt. No. 124. It has been fully briefed and is ripe for review. For the reasons below, Mr. Heidler's petition is DENIED.

         BACKGROUND

         I. Mr. Heidler's Crimes[1]

         The Georgia Supreme Court summarized Mr. Heidler's crimes as follows:

Danny and Kim Daniels lived in the town of Santa Claus in Toombs County[, Georgia] with their seven children, three of whom were foster children. Heidler's sister was in the Daniels' care as a foster child for 45 days in 1995, and it was then that he began to frequent the house and occasionally to stay there overnight. Months before the murders, Mr. Daniels noticed that Heidler, 20 years old at the time, was beginning to develop a relationship with his 16 year old daughter, Jessica. He had a conversation with Heidler, after which Heidler stopped visiting the Daniels' home.
At approximately 5:00 a.m. on December 4, 1997, the police in Bacon County [, Georgia] found three young girls on the street in their nightclothes. The girls said they had been kidnapped from the Daniels' house in Toombs County by a man they knew as Scott Taylor, who drove them to Bacon County in a white van. The police subsequently learned from DFCS [Division of Family and Child Services] that "Scott Taylor" was actually Heidler. The ten-year-old victim told the police that Heidler sexually assaulted her in the van while in Toombs County. This was corroborated by evidence of physical trauma to the child and by DNA testing. The eight-year-old victim told the police that she witnessed the sexual assault. From a photographic lineup, each of the three girls separately identified Heidler as the kidnapper.
Toombs County police officers went to the Daniels' house, where they found the bodies of the four victims. Bryant Daniels, eight years old, was found lying on his bed face-down, where he died from massive head trauma caused by a close-range shotgun blast. Both Mr. and Mrs. Daniels were found lying in their bed, each having been killed by multiple shotgun blasts. The body of Jessica Daniels also was found lying in the master bedroom, near a doorway that led into the hallway. She had been killed by a close-range shotgun blast to the back of her head. A Remington 1100 semi-automatic shotgun was missing from Mr. Daniels' gun cabinet, the door to which was open. Seven spent shotgun casings were found throughout the house. A firearms expert testified that the Remington 1100 shotgun holds six shotgun shells, so the shooter must have reloaded at least once. A neighbor heard, at 1:45 a.m., noises that could have been shots and the police determined that the assailant entered the house by using a ladder to climb through a bathroom window. A fingerprint lifted from this window matched Heidler's fingerprint. DNA taken from saliva on a cigarette butt found on the floor in the house matched Heidler's DNA.
After dropping the girls off in Bacon County, Heidler went to his mother's house where he slept and played video games with his brother. Heidler asked his brother if he had ever killed anyone, and his brother said no. Heidler then said that killing "gives you a rush, makes you want to go out and kill more people." After his arrest, Heidler confessed to the crimes. He told the police that he threw the shotgun into a river and the kidnapped girls confirmed this assertion.

Heidler v. State, 273 Ga. 54, 58-59 (2000).

         II. Mr. Heidler's Jury Trial

         After a jury trial in the Superior Court of Walton County, Georgia (the "trial court"), Mr. Heidler was convicted of four counts of malice murder, three counts of kidnapping, one count of kidnapping with bodily injury, one count of aggravated sodomy, one count of aggravated child molestation, one count of child molestation, and one count of burglary. Dkt. Nos. 12-7 at 108-16; 12-8 at 1-2. During the trial's sentencing phase, the jury found that aggravating circumstances existed and recommended the death penalty for each of the four malice murder counts. Dkt. No. 12-8 at 13-16. In September 1999, the trial court sentenced Mr. Heidler to death for each of those four counts. Id. at 18-25. The trial court also sentenced Mr. Heidler to two consecutive life terms for aggravated sodomy and kidnapping with bodily injury, thirty years (consecutive) for aggravated child molestation, and twenty years (consecutive) for each of the remaining counts. Id. at 26.

         III. Mr. Heidler's Direct Appeal

         Mr. Heidler first filed a motion for new trial, which he later amended. Id. at 41-42, 55-56. Following a hearing, that motion was denied. Id. at 44-48; Dkt. No. 12-9 at 1-14. Then, Mr. Heidler appealed his case to the Supreme Court of Georgia. There, the Supreme Court of Georgia affirmed Mr. Heidler's death sentences, reversed Mr. Heidler's sentence for aggravated child molestation (finding that it merged into the aggravated sodomy count),' and affirmed the remainder of Mr. Heidler's sentences. Heidler v. State, 273 Ga. 54 (2000); Dkt. No. 15-18. Thereafter, the United States Supreme Court denied Mr. Heidler's petition for writ of certiorari. Heidler v. Georgia, 532 U.S. 1029 (2001), reh'g den'd, 533 U.S. 965 (2001); Dkt. Nos. 15-23; 16-2.

         IV. Mr. Heidler's State and Federal Habeas Proceedings

         In November 2001, Mr. Heidler filed a state habeas corpus petition in the Superior Court of Butts County, Georgia (the "state habeas court"). Dkt. No. 16-3. In April 2004, Mr. Heidler amended that petition. Dkt. No. 18-4. In January and May 2006, the state habeas court conducted evidentiary hearings. Dkt. No. 31-12 at 9. In August 2009, the state habeas court denied Mr. Heidler's amended petition. Dkt. Nos. 31-12; 31-13. The Supreme Court of Georgia summarily denied Mr. Heidler's application for a Certificate of Probable Cause to Appeal ("CPC") from the state habeas court's decision. Dkt. No. 31-18.

         In October 2011, Mr. Heidler commenced this action by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1. Mr. Heidler amended his petition in April 2012, dkt. no. 45, April 2014/ dkt. no. 70, and-for the third and final time -in April 2019, dkt. no. 124.

         LEGAL STANDARD

         Mr. Heidler's federal habeas corpus petition was filed after April 24, 1996; therefore, his case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See e.g. 28 U.S.C. § 2254; see also Payne v. Allen, 539 F.3d 1297, 1312 (11th Cir. 2008). AEDPA "greatly circumscribe[s]" this Court's review and makes it "highly deferential to the state courts." Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002). First, under AEDPA's deferential standard, state court factual determinations are "presumed to be correct" unless the petitioner rebuts them "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also id. § 2254(d)(2) (requiring federal courts to accept state court adjudications unless they "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").

         Second, state court legal determinations will be accepted unless they "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." 28 U.S.C. § 2254(d)(1). "[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 [it constituted] an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement" among jurists. Harrington v. Richter, 562 U.S. 86, 103 (2011) . In other words, "if some fairminded jurists could agree with the state court's decision, although others might disagree, federal habeas relief must be denied." Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011); see also Hill v. Humphrey, 662 F.3d 1335, 1347 (11th Cir. 2011) (en banc); Bobby v. Dixon, 565 U.S. 23, 32-33 (2011) (per curiam).

         Finally, when filing a 28 U.S.C. § 2254 habeas petition, "generalized allegations are insufficient." Hittson v. GDCP Warden, 759 F.3d 1210, 1265 (11th Cir. 2014). Instead, "petitioners must meet heightened pleading requirements." McFarland v. Scott, 512 U.S. 849, 856 (1994) . Specifically, petitioners are required to (1) "specify all the grounds for relief available to the petitioner" and (2) "state the facts supporting each ground." 28 U.S.C. § 2254, Rule 2(c).[2]

         DISCUSSION

         As an initial matter, when the state's highest court issues an unexplained, summary decision on appeal of a reasoned lower court decision, "the federal court should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1191 (2018).

         Here, Mr. Heidler applied to the Georgia Supreme Court for a CDC after the state habeas court denied his Amended Petition for Writ of Habeas Corpus. Dkt. No. 31-15. The Georgia Supreme Court then summarily denied Mr. Heidler's CPC application. Dkt. No. 31-18. Therefore, this Court presumes that the Georgia Supreme Court's summary denial adopted the state habeas court's reasoning, Raulerson v. Warden, 928 F.3d 987, 996 (11th Cir. 2019). As such, this Court will "look through" the Georgia Supreme Court summary denial and focus on the reasonableness of the state habeas court's decision even though it was not the last state court decision on the merits. 28 U.S.C. § 2254(d).

         I. Mr. Heidler's Strickland Claims

         Mr. Heidler argues that he is entitled to de novo review of the claims set forth in Part IV.B of his Brief in Support, dkt. no. 127 at 75-117, because the state habeas court's decision relied upon unreasonable factual and legal determinations. Id. at 11. However, this Court finds the contrary to be true: the state habeas court's decision relied upon reasonable factual and legal determinations. Therefore, Mr. Heidler is not entitled to de novo review. Instead, this Court applies the following standard:

         To allege a successful ineffective assistance of counsel claim (a Strickland claim), a defendant must establish (1) that his trial counsel's "performance was deficient, and [(2)] that the deficiency prejudiced [his] defense." Wilson v. Warden, Georgia Diagnostic Prison, 898 F.3d 1314, 1322 (11th Cir. 2018) (second alteration in original) (quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003)). To satisfy the first prong-deficient performance- "a defendant must show that his counsel's conduct fell below an objective standard of reasonableness in light of prevailing professional norms at the time the representation took place." Johnson v. Upton, 615 F.3d 1318, 1330 (11th Cir. 2010)(quoting Bobby v. Van Hook, 558 U.S. 4, 7 (2009)) (internal citations omitted).

         However, judicial review of a defense attorney's performance is "highly deferential-and doubly deferential when it is conducted through the lens of federal habeas." Yarborough v. Gentry, 540 U.S. 1, 6 (2003). First, as a general principle, "[j]udicial scrutiny of counsel's performance must be highly deferential." Evans v. Sec'y, Dep't of Corr., 703 F.3d 1316, 1333 (11th Cir. 2013). Then, "[w]hen we layer the deferential lens of § 2254(d) atop that first level of deference, the . . . result is [a] doubly deferential review of counsel's performance." Id. (internal quotations omitted); Strickland v. Washington, 466 U.S. 668, 689 (1984).

         Comparatively, determining the second prong of the test- whether an attorney's deficient performance resulted in prejudice to the defendant-is, "in the end, a legal [question]." Evans, 703 F.3d at 1334. Answering this legal question requires no underlying deference (apart from AEDPA deference) . Id. A defendant has been prejudiced when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. As the Supreme Court noted in Harrington v. Richter, 562 U.S. 86 (2011):

This does not require a showing that counsel's actions more likely than not altered the outcome, but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters only in the rarest case. The likelihood of a different result must be substantial, not just conceivable.

Id. at 111-12 (internal quotation marks and citations omitted).

         For the reasons provided below, this Court denies all of Mr. Heidler's Strickland claims.

         A. Mr. Heidler's Strickland Claims Relating to Evidence regarding His Mental Health

         First, Mr. Heidler finds fault with Part III.D.2.d.2. of the state habeas court's decision. There, the state habeas court discussed Mr. Heidler's trial counsel's investigation of his background and found the following:

Palmer [one of Mr. Heidler's trial counsel] testified that they hired an investigator, Mr. Gillis, whom they used to track down Petitioner's friends in Alma and Baxley and a few family members. Unfortunately, Petitioner's friends were "criminals, thugs" and "dopers" that were currently in jail and were not helpful to Petitioner's case. . . . Palmer went on to testify that in her efforts to locate mitigating witnesses, "I drove up and down the dirt roads and went to the jails and went to the DFACS and went to the Juvenile Court and went up and down the street where he lived . . .I'm the one who went door to door and around the community and at the convenience store. I did all that."

Dkt. No. 31-12 at 38. Mr. Heidler also argues that according to Ms. Palmer's own billing records, she only spent one day driving "up and down dirt roads looking for witnesses," and that her one day spent searching for witnesses was only four days prior to the start of the evidentiary portion of the guilt-innocence phase of trial. Id. at 100. Second, Mr. Heidler argues that Mr. Gillis only worked on the case for one day for a total of 5.5 hours, and so the sate habeas court erroneously credited defense counsel with hiring him. Dkt. No. 127 at 99.

         Importantly, Mr. Heidler has not shown that either of these factual findings by the state habeas court are incorrect or unreasonable through clear or convincing evidence. See 28 U.S.C. § 2254(e) (1). After a review of record, it appears that the state habeas court simply summarized and quoted Ms. Palmer's testimony. Moreover, it is unclear how the state habeas court was incorrect when it credited the defense counsel with hiring Mr. Gillis when they did, in fact, hire him. For example, Mr. Heidler does not argue that the state habeas court credited such hiring to an unreasonable degree, merely that it credited defense counsel at all.

         Further, Ms. Palmer's testimony at the state habeas evidentiary hearing belies Mr. Heidler's reliance on Palmer's billing records as conclusive proof of the extent of her investigatory efforts. There, she testified that she thought "she did a lot more work" than the billing records document. Dkt. No. 19-4 at 40-41. Even though Palmer also testified that she "tried" to document witness interviews in her billing records, that does not show that the state habeas court erroneously relied on Palmer's testimony regarding the extent of her efforts. Finally, even if Palmer did only search for witnesses on that one day, the state habeas court did not make an unreasonable determination of fact by quoting her testimony that she searched for witnesses. Accordingly, this first contention fails.

         Second, Mr. Heidler contends that the state habeas court erroneously believed Mr. Heidler's defense counsel, Michael Garrett, when he testified that "his notes indicate he spoke with Mr. George Dykes . . . regarding Petitioner's need for mental health treatment." Dkt. No. 31-12 at 43. Mr. Heidler argues that "[t]he record does not establish that Mr. Garrett had any contact with Mr. Dykes and [that] Mr. Garrett's testimony referring to Mr. Dykes as a female corroborates his recollection that he did not speak with Mr. Dykes." Dkt. No. 127 at 101.

         Mr. Heidler fails to prove these claims by clear and convincing evidence. For example, Mr. Heidler did not show that Mr. Garrett did not testify that his notes indicated that he spoke with Mr. Dykes, nor did he show that Mr. Garrett did not, in fact, speak with Mr. Dykes. Finally, Mr. Heidler did not show that the state habeas court unreasonably credited Mr. Garrett's testimony regarding his interpretation of his own notes. Accordingly, this argument also fails.

         Third, Mr. Heidler argues that the record does not support the state habeas court's determination that Palmer "requested and received records from the Detention Center as late as June 1999, three months before the trial." Id. at 101-102 (quoting dkt. no. 31-12 at 4. Mr. Heidler asserts that the state habeas court relied on a letter dated June 15, 1999, from Palmer to Garret that states, "Enclosed please find a copy of the record I have obtained from the jail in Toombs County." Dkt. No. 30-8 at 44 (emphasis added). Notably, the letter's subject line reads: "Re: State vs. Jerry Scott Heidler, Toombs County Detention Center Records." Id. This letter shows that the state habeas court's finding that Palmer received at least one record from the Toombs County Detention Center (i.e., the jail) in June 1999 is supported by the record. The fact that the letter uses the singular "record" instead of the plural "records" does not show that the state habeas court's finding that "records" were received in June 1999 was unreasonable (nor does it show that the ultimate decision was based on this determination of fact).[3] Accordingly, this argument, like the others before it, fails.

         Fourth, Mr. Heidler argues that the state habeas court's finding that "'the trial attorney files clearly prove that trial counsel did obtain [the Toombs County Detention Center] documents' was critical to the court's conclusion that counsel did not perform deficiently in failing to provide these records to the mental health experts . . . [but such finding] has no meaningful record support." Dkt. No. 127 at 102 (quoting Dkt. No. 31-12 at 56) (alteration by Mr. Heidler). This argument lacks merit. The state habeas court cites to numerous locations in the record to support its finding that "the trial attorney files clearly prove that trial counsel did obtain these documents and, once again, trial counsel testified that all records regarding Petitioner were turned over to the mental health experts." Dkt. No. 31-12 at 56. In short, Mr. Heidler's conclusory argument is insufficient to meet his burden to successfully allege this claim. Accordingly, it fails.

         Fifth, Mr. Heidler contends that the state habeas court was "unreasonable" in blaming any deficiencies in trial counsel's investigation into Mr. Heidler's past "on Mr. Heidler." Dkt. No. 127 at 102. In support of this contention, Mr. Heidler highlights the state habeas court's finding that Mr. Garrett "testified that when he met with [Mr. Heidler] he 'couldn't communicate with him at all' and gathered very little information from [Mr. Heidler] due to [Mr. Heidler's] unwillingness to cooperate." Dkt. No. 31-12 at 36. Mr. Heidler argues that the state habeas court's use of the word "unwillingness" shows that the state habeas court found (a) that Mr. Garrett blamed Mr. Heidler for being unwilling to cooperate and (b) that Mr. Garrett believed "Heidler was being obstructive on purpose." Dkt. No. 127 at 103.

         The state habeas court pointing out that Mr. Heidler was unwilling to cooperate does not mean that it "blam[ed] any deficiencies on the investigation on Mr. Heidler." Id. at 102. Here, the context in which the state habeas court uses the word "unwillingness" illustrates that the court used the term to characterize Mr. Garrett's testimony: that he was unable to gather information from Mr. Heidler because of Mr. Heidler's unwillingness to cooperate. Thus, a fair reading of the state habeas court's decision shows that it did not identify or blame any deficiencies in trial counsel's performance on Mr. Heidler's lack of cooperation and forthrightness. Rather, the record reflects that the state habeas court thoroughly detailed Mr. Heidler's trial counsel's efforts to investigate mitigating evidence despite Mr. Heidler's lack of assistance (whether willful or not). Such a determination is reasonable, and Mr. Heidler fails to show otherwise by clear and convincing evidence. Accordingly, this claim fails.

         Sixth, Mr. Heidler argues that the state habeas court made several unreasonable errors in its "rejection of Dr. Faulk's testimony and its dismissal of the Pineland records." Id. at 105. Mr. Heidler alleges that in so doing, the state habeas court "wholly discounted important pieces of evidence" presented before it. Id. at 104. However, the state habeas court determined that the records Mr. Heidler now claims are "important pieces of evidence" were, in fact, cumulative evidence that trial counsel did not need to present to the jury. Dkt. No. 31-12 at 59 ("Trial counsel [was] not ineffective for not presenting cumulative evidence."). Such a conclusion is reasonable, and Mr. Heidler has not presented clear and convincing evidence to the contrary. See Reaves v. Sec'y, Fla. Dep't of Corr., 872 F.3d 1137, 1157 (11th Cir. 2017) (holding that "counsel's failure to present cumulative evidence is not ineffective assistance."). Accordingly, this claim fails.

         Finally, Mr. Heidler argues that the state habeas court erroneously found that Mr. Heidler hearing a baby crying was the only indication in the record of Mr. Heidler hallucinating, when in fact the record also states that Mr. Heidler "[a] lieges that he's been having flashback of the Meath, '" dkt. no. 127 at 105 (quoting dkt. no. 21-17 at 34). The state habeas court's finding that an alleged flashback is not a report of a hallucination is not unreasonable. Additionally, even if it were unreasonable for the state habeas court to find that Mr. Heidler's self-reported flashback was not a report of a hallucination, the court's bottom line ruling on Mr. Heidler's ineffective assistance of counsel claims was not based on this determination of fact. 28 U.S.C. § 2254(d)(2). Since Mr. Heidler has not shown that this factual finding was unreasonable or that the state habeas court based its decision on this factual finding, this claim fails.

         This Court now turns to the remainder of claims set forth in part IV.B of Mr. Heidler's brief. Here, Mr. Heidler argues that because of his "trial counsel's deficient performance, the expert opinions in both the guilt and sentencing phases of trial were. profoundly misleading and inaccurate." Dkt. No. 127 at 76. Mr. Heidler argues that his trial counsel were deficient in three respects:

(1) they "failed to obtain relevant documents that would have shown that Mr. Heidler in fact suffered from a psychosis-inducing thought disorder and not merely a personality disorder," id.;
(2) they failed to contact witnesses that witnessed Mr. Heidler's psychotic behavior, id. at 92-94; and
(3) they "failed to take an active role in highlighting and curating the extensive records reflecting Mr. Heidler's many years of debilitating mental illness to focus the experts' attention on the more relevant portions of the records they provided to the experts” id. at 76.

         Mr. Heidler claims that as a result of these deficiencies, his mental health expert at trial, Dr. Maish, and the three mental health experts retained by the trial court-Dr. D'Alesandro, Dr. If ill, and Dr. Kuglar-did not diagnose Mr. Heidler with a thought disorder but misdiagnosed him as having one or more personality disorders.[4]

         Regarding the investigation of records, Mr. Heidler primarily argues that his trial counsel were deficient by failing to obtain records from Pineland Community Mental Health Center regarding Mr. Heidler's treatment there while he awaited trial. He also argues that his trial counsel did not obtain a complete set of medical records from Toombs County Detention Center. Mr. Heidler further argues that they did not speak with Nurse George Dykes from the Toombs County Detention Center--who treated Mr. Heidler and recommended on several occasions that Mr. Heidler be given mental health treatment-or Dr. David Faulk-who evaluated Mr. Heidler at Pineland and prescribed him with Haldol, an ant i-psychotic medication.

         Regarding his claim that trial counsel failed to contact witnesses, Mr. Heidler argues that his trial counsel failed to locate and interview "numerous" individuals that witnessed Mr. Heidler experience auditory and visual hallucinations and could have testified to the same. Mr. Heidler identifies two such individuals, both of whom interacted with Mr. Heidler on a single occasion when he was twelve.

         Finally, regarding the curation of the voluminous records, Mr. Heidler argues that "[n]umerous documents reflected the severity of Mr. Heidler's mental illness, long before he was arrested and charged with the murders." Dkt. No. 127 at 94. Mr. Heidler highlights several records and the information they allegedly contain before arguing that "it does not appear that [his trail counsel] were aware of the information contained" therein. Id. at 95. Mr. Heidler concludes his arguments on this point by claiming his trial counsel were deficient because they failed to provide the mental health experts with "a roadmap of what to review." Id. at 96.

         The record tells a different story. The state habeas court concluded that "trial counsel's investigation was not deficient as they conducted an exhaustive investigation of Petitioner's background by interviewing family members, teachers, friends, DFACS caseworkers, and Petitioner's juvenile probation officer." Dkt. No. 31-12 at 65-66. The court reasoned that the record made "clear that trial counsel gathered voluminous documents from the various schools, including the psycho-educational centers Petitioner attended, the numerous mental health centers records, DFACS records, Petitioner's Toombs County Detention Center records and medical records." Id. at 66. In its Order, the state habeas court thoroughly described the record evidence above to support its decision and findings. See id. at 35-66.

         Moreover, the state habeas court's thorough discussion of Mr. Heidler's trial counsel's investigatory efforts show that the state habeas court's decision was not unreasonable, and Mr. Heidler fails to show otherwise by clear and convincing evidence. Merely identifying documents and witnesses that could have supported Mr. Heidler's case is insufficient to show that his trial counsel's investigation was deficient or that the state habeas court's decision regarding the same was unreasonable. See Reaves, 872 F.3d at 1157 ("[T]he fact that other witnesses could have been called or other testimony elicited usually proves at most the wholly unremarkable fact that with the luxury of time and the opportunity to focus resources on specific parts of a made record, postconviction counsel will inevitably identify shortcomings in the performance of prior counsel.").

         Of note, Mr. Heidler supports his argument that trial counsel did not sufficiently curate the records they provided to the mental health experts by relying on cases that are not "clearly established Federal law" under AEDPA, i.e. they are not United States Supreme Court holdings. See Carey v. Musladin, 549 U.S. 70, 74 (2006) (reaffirming that the "clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision") (internal quotations and citations omitted); see also Williams v. Taylor, 529 U.S. 362, 412 (2000). For this additional reason, Mr. Heidler has not shown that the state habeas court's adjudication of this claim violated 28 U.S.C. § 2254(d)(1), 28 U.S.C. § 2254(d)(2), or both. Accordingly, this last claim, like the others before it, fails.

         For the above reasons, Mr. Heidler's Strickland claims relating to evidence regarding his mental health are denied.

         B. Strickland Claims regarding Trial Counsel's Mental Health Defenses at Trial

         In his Brief in Support, dkt. no. 127, Mr. Heidler claims that his trial counsel were deficient because they failed to narrow down their mental health defenses at trial "to focus the issue of Mr. Heidler's mental health on the sole question that was at issue during the guilt phase of the trial-whether Mr. Heidler was guilty but mentally ill." Id. at 119. This claim fails for two reasons. First, Mr. Heidler did not raise it in his Third Amended Petition, dkt. no. 124. Second, it is procedurally defaulted. Regarding the first reason, Rule 2(c) of the Rules Governing Section 2254 Cases requires the operative petition, here the Third Amended Petition, to: "(1) specify all grounds for relief available to the petitioner; [and] (2) state the facts supporting each ground." 28 U.S.C. § 2254, Rule 2(c) . Mr. Heidler has done neither with respect to this claim.

         Regarding the second reason-procedural default-Mr. Heidler never raised this specific claim before the state habeas court or in his application to the Georgia Supreme Court for a CPC. As a result, this claim was not "adjudicated on the merits in the State court proceedings" within the meaning of 28 U.S.C. § 2254(d). Thus, it is procedurally defaulted. See, e.g., Hittson, 759 F.3d at 1232 n.23 (finding that "[b]ecause Georgia prisoners are required to apply for a CPC before they have exhausted their state remedies" several of the petitioner's claims not included in the petitioner's CPC application were procedurally defaulted).

         Moreover, the State has not expressly waived this defense. Heidler's argument, that the State "expressly and affirmatively stated that the claims [Mr. Heidler] now asserts are unexhausted were in fact reviewable," dkt. no. 130 at 7, is conclusory and unsupported by the record. As the record shows, Heidler first raised this claim in his Brief in Support, dkt. no. 127, which precluded the State from arguing that the claim was unexhausted until now. Additionally, Mr. Heidler has neither shown nor attempted to show cause for the default or any resulting prejudice (or that a miscarriage of justice would occur) . For the above reasons, Mr. Heidler's Strickland claims regarding his trial counsel's mental health defenses at trial fail and are denied.

         C. Trial Counsel's Investigation and Presentation of Mitigating Evidence

         Mr. Heidler's next Strickland claim argues that the state habeas court unreasonably found that his trial counsel were not deficient in their investigation or presentation of mitigating evidence. Mr. Heidler claims that "the state habeas court had an overly inflated view7' of trial counsel's work. Dkt. No. 127 at 141. This Court has already rejected that argument. The state habeas court determined that trial counsel did indeed hire an investigator, Frank Gillis, who found witnesses and conducted interviews. Additionally, according to her testimony, Ms. Palmer's billing records did not reflect the true extent of her investigatory attempts to discover mitigating evidence. Neither of these factual findings by the state habeas court were unreasonable nor has Mr. Heidler shown by clear and convincing evidence that such testimony and evidence, or any reliance upon it, was erroneous.

         Next, Mr. Heidler claims that "the state habeas court's reading of the evidence that the defense did present at trial has little correspondence to the actual testimony jurors heard." Id. Mr. Heidler specifically finds fault with the state habeas court's factual determination that Mr. Heidler's trial counsel presented evidence at sentencing that Mr. Heidler suffered from abuse, neglect, and mental illness. Mr. Heidler contends that, in fact, "very little was shown about Mr. Heidler's challenging childhood." Id. Heidler also argues that the state habeas court unreasonably found that Heidler's trial counsel presented witness testimony about his "troubled childhood of neglect and abuse," dkt. no. 127 at 141 (quoting Dkt. no. 31-12 at 50), when, according to Heidler, his trial counsel merely presented testimony of allegations of abuse since the members of Heidler's family who testified denied that any abuse occurred.

         These arguments are not enough to satisfy Mr. Heidler's burden, at this stage, under AEDPA. He fails to show that this factual finding by the state habeas court was unreasonable. Moreover, even if he did show that these factual findings were unreasonable, Mr. Heidler does not show that the state habeas court based its decision on these findings. First, testimony stating that there were allegations of abuse is circumstantial evidence of abuse. Thus, the trial court's finding that witnesses testified about abuse is not unreasonable. Second, the state habeas court listed numerous pieces of mitigating evidence that Mr. Heidler's trial counsel presented in its decision that Mr. Heidler's trial counsel were not deficient in their investigation or presentation of mitigating evidence. Thus, even if the state habeas court did slightly mischaracterize the evidence of allegations of abuse as evidence of abuse, the record does not show that the state habeas court's ultimate decision was based on this finding of fact (as it must under 28 U.S.C. § 2254(d)(2)). Accordingly, these arguments fall short and fail.

         Third, Mr. Heidler argues that the state habeas court's finding that his "[t]rial counsel cannot be held responsible for [his] family's reticence in revealing shameful family secrets," dkt. no. 31-12 at 62, was unreasonably wrong because "trial counsel are responsible for the failure to conduct an adequate investigation," dkt. no. 127 at 142. In other words, Mr. Heidler argues that his trial counsel performed deficiently because they did not timely investigate mitigating evidence and they did not adequately interview Mr. Heidler's family members. See id. at 143.

         Mr. Heidler does not meet his burden with this argument. While the record does contain evidence showing that Ms. Palmer only interviewed mitigation witnesses four days prior to the start of the guilt-innocence phase of trial, the record also shows that Mr. Heidler's "counsel [began] work on obtaining mental health-related documents early in the representation." Dkt. No. 127 at 143 n. 57. Obtaining those documents "early in the representation," necessarily involved speaking with Mr. Heidler's family early in the investigation. Ms. Palmer testified that she talked with Mr. Heidler's family members, who told her that "Mr. Heidler has been in and out of foster care," which then prompted her to speak with DFACS, from whom she obtained records. Dkt. No. 19-3 at 63. Thus, the record shows that Ms. Palmer spoke with Mr. Heidler's family members, located witnesses, and found records within a timely manner.

         Moreover, Mr. Heidler has not shown that the state habeas court's decision on this matter was unreasonable. Instead, Mr. Heidler's arguments are colored by the "distorting effects of hindsight." Strickland, 466 U.S. at 689. Such arguments are not enough to meet his burden under AEDPA. As this argument fails.

         Mr. Heidler's remaining arguments on this claim focus on the second prong of a Strickland claim: prejudice. Since this Court finds that Heidler falls well short of his burden of proof under AEDPA with respect to first prong of a Strickland claim (deficiency), we do not need to reach an analysis involving the second prong.

         For the above reasons, Mr. Heidler's overall claim that the state habeas court unreasonably found that his trial counsel were effective in their investigation of mitigating evidence fails. It is denied.

         D. Mr. Heidler's Escape from Toombs County Detention Center

         This Court has already rejected this claim when it denied Mr. Heidler's motion for an evidentiary hearing. See Dkt. No. 97. There, this Court determined that Mr. Heidler's ineffective assistance of counsel claim "stemming from a conflict of interest" lacked merit. Id. at 29. This Court also found that "there is no need to consider post-conviction counsel's ineffectiveness . . . because post-conviction counsel could not be deemed ineffective for failing to raise a claim that the Court has determined lacks any merit." Id. at 29-30. Although Mr. Heidler requests that this Court revise that order, dkt. no. 130 at 31, this Court has no reason to do so. Mr. Heidler's claim is still without merit. Accordingly, this claim is denied.

         E. Trial Counsel's Voir Dire

         Mr. Heidler's next Strickland claim argues that his trial counsel were deficient by "conduct[ing] an anemic voir dire . . . that ignored critical and specific issues." Dkt. No. 127 at 165. Mr. Heidler identifies the following ways that his trial counsel were allegedly deficient, they:

(1) "asked virtually no case-specific questions of venirepersons beyond a general inquiry into their willingness to listen to the testimony of a psychiatrist or psychologist," id. at 166;
(2) failed "to determine which venirepersons held harmful (and potentially disqualifying) views, and which held helpful views, on issues germane to ...

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