Brandon Astor Jones v. GDCP Warden

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 20, 2014
• Docket: 11-14774
• Status: Published

Opinion

Case: 11-14774 Date Filed: 03/20/2014 Page: 1 of 51

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 11-14774 ________________________

D.C. Docket No. 1:09-cv-01228-CAP

BRANDON ASTOR JONES,

Petitioner - Appellant,

versus

GDCP WARDEN,

Respondent - Appellee.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(March 20, 2014)

As Amended April 24, 2014

Before MARCUS, WILSON and PRYOR, Circuit Judges.

MARCUS, Circuit Judge: Case: 11-14774 Date Filed: 03/20/2014 Page: 2 of 51

In 1979, Petitioner Brandon Astor Jones was convicted of malice murder in

Georgia state court. Jones and his co-defendant, Van Roosevelt Solomon, killed

Roger Tackett, the manager of a Tenneco convenience store, in the course of an

armed robbery and burglary. Jones was sentenced to death, but the United States

District Court for the Northern District of Georgia later granted Jones’s petition for

a writ of habeas corpus in part and vacated his sentence only. This appeal

concerns two errors that, Jones claims, infected his second penalty-phase trial,

which also resulted in a sentence of death. The Georgia state courts, both on direct

appeal and during collateral habeas proceedings, rejected all of Jones’s attacks on

his sentence, and the federal district court denied Jones’s second petition for a writ

of habeas corpus in its entirety.

After thorough review, we affirm. We conclude that the Georgia Supreme

Court’s rejection of Jones’s ineffective-assistance claims was not an unreasonable

application of clearly established Supreme Court law. See Strickland v.

Washington, 466 U.S. 668 (1984). Georgia’s high court had reasonable grounds for

concluding that Jones suffered no prejudice from his counsel’s failure to discover

mitigating background and mental health evidence, especially in light of the

substantial aggravating circumstances that would also have been revealed in the

investigation and presentation of this “new” mitigating evidence. Jones raises a

Fifth Amendment claim regarding the prosecutor’s comments during his closing

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argument too, but that claim is also unavailing. Therefore, we affirm the district

court’s denial of habeas relief.

I.

A.

The Georgia Supreme Court’s denial of Jones’s direct appeal, which

followed his second penalty-phase trial, summarized the essential facts of this case:

[T]he evidence showed that the victim, Roger Tackett, was the manager of a Tenneco convenience store. On June 16, 1979, he arrived at the store at 11:20 p.m. to close it for the night. After the other employees left, Tackett remained at the store to complete some paperwork. At approximately 1:45 a.m., Officer Kendall of the Cobb County police department drove a stranded motorist to the Tenneco parking lot so she could use a pay phone. Officer Kendall observed a car (Tackett’s) parked in front of the store with the driver’s-side door open; the lights were also still on inside the store. Since the Tenneco store was in his regular patrol area, Officer Kendall knew that it usually closed at midnight. Suspicious, he walked to the store and saw through the front window Brandon Jones stick his head out of the storeroom door at the back of the store, look around (apparently without seeing the officer), and then close the storeroom door. Officer Kendall entered through the unlocked front door and heard three shots, a pause, and then a fourth shot. He drew his weapon and after shouting “police, come on out” without a response, approached the storeroom door and opened it. Jones and his co-defendant, Van Roosevelt Solomon, were standing just inside the door. Officer Kendall ordered them into the main store area, where he searched them and handcuffed Jones. He placed Solomon in his patrol car since he only had one set of handcuffs, and called for assistance on the radio. He also informed both defendants of their rights under Miranda v. Arizona.

A private security officer, Alex Woolyard, heard Officer Kendall’s request for assistance on a police scanner and arrived first. He loaned Officer Kendall a set of handcuffs to restrain Solomon and 3 Case: 11-14774 Date Filed: 03/20/2014 Page: 4 of 51

watched the defendants while Officer Kendall investigated a van parked nearby. During this time, Woolyard spoke with Jones and determined that the car parked in front of the store did not belong to them; they had arrived in the van. Upon continued questioning by Woolyard, Jones stated that they had come to burglarize the store and found a man who was “bad hurt” in the back of the store. After handcuffing Jones to a metal pole, Woolyard and Officer Kendall entered the store and discovered that the storeroom door had locked when it shut as the defendants exited. They used a crowbar to break open the door and they found Tackett’s body lying face-down at one end of the narrow storeroom (Officer Kendall had not seen the victim when he first encountered the defendants in the storeroom since he did not enter the storeroom at that time). Tackett had been shot five times from behind, once in the jaw, once behind the left ear, once in the thumb, and twice in the right hip. The medical examiner determined that the fatal shot was the “loose contact” shot behind the left ear since that bullet penetrated the brain; this shot was probably the final shot and was fired while the victim was lying on the ground. Two .38 caliber revolvers were found in an open box next to where Officer Kendall had first encountered the defendants. A large Smith and Wesson contained two spent shells; a smaller Colt contained four spent shells. Four .38 caliber bullets were recovered at the scene or in the victim’s body; the ballistics expert determined that all were probably fired by the Colt. Crime scene photographs also show a possible bullet hole in a shelf on the wall, indicating a fifth shot may have been fired in the storeroom. An atomic absorption test conducted on swabs of the defendants’ hands indicated that both men had recently fired a gun or handled a recently fired gun. The store’s cash drawer was found moved from its original place inside the store and wrapped in a plastic bag. Inside the van, which belonged to Solomon, the police discovered burglary tools, holsters that fit the revolvers and .38 caliber bullets.

Jones v. State (Jones II), 539 S.E.2d 154, 157-58 (Ga. 2000).

B.

In 1979, both Jones and his co-defendant Solomon were indicted for malice

murder, convicted in separate jury trials, and sentenced to death. The Georgia 4 Case: 11-14774 Date Filed: 03/20/2014 Page: 5 of 51

Supreme Court affirmed Jones’s conviction and death sentence in 1982. Jones v.

State (Jones I), 293 S.E.2d 708 (Ga. 1982). Jones filed a state habeas corpus

petition, which the Superior Court of Butts County denied in 1982; the Georgia

Supreme Court affirmed that denial in 1984. The United States Supreme Court

denied Jones’s petition for a writ of certiorari. Jones v. Francis, 469 U.S. 873

(1984). Jones then petitioned for habeas relief in federal court. The United States

District Court for the Northern District of Georgia granted the petition in part and

ordered a new sentencing proceeding, on the ground that the state trial court had

improperly allowed the jury to bring a Bible into the deliberation room. See Jones

v. Kemp, 706 F. Supp. 1534, 1560 (N.D. Ga. 1989).

Jones’s second penalty-phase trial took place in the Superior Court of Cobb

County in September 1997. During closing argument, the prosecutor commented:

The thing that bothers me most about this case, and I hope it bothers you, is the complete lack of remorse. Have you seen any remorse in this case? I hope I’m wrong about it. I hope you saw some, because I didn’t. None of the defense witnesses who testified told you anything about Jones being remorseful. Again, I hope I’m wrong. No one has claimed through Jones’s lawyers or his writings that he has apologized to the Tackett family or sought their forgiveness. No one has claimed through Jones’s web site on the Internet that he’s apologized to the Tackett family or sought their forgiveness. Now, who has the power of forgiveness on this earth? Well, that belongs to Mr. Tackett, and in his absence, to Mrs. Tackett and her daughter, and there’s no evidence that they have been asked. I find that . . . unusual for eighteen years he’s had that opportunity. He’s got all kinds of pen pals who apparently would do anything for him. I’m sure if asked, they would have been dispatched to Florida. But there’s no indication or evidence that they were asked. So where is the remorse? 5 Case: 11-14774 Date Filed: 03/20/2014 Page: 6 of 51

Is not that the kind of conduct that deserves the death penalty?

The defense objected and requested a mistrial, arguing that the prosecutor’s closing

statement impermissibly commented on the defendant’s refusal to testify. The

state trial court denied the motion.

During deliberations, the jury informed the trial court that it had reached an

“impasse,” apparently because one juror was “opposed to the death penalty under

any circumstances.” See Jones II, 539 S.E.2d at 160. The judge then chose to give

a so-called Romine charge. 1 A Romine charge is the Georgia state-law equivalent

1 This was the charge:

You have now been deliberating upon this case for a considerable period of time. The Court deems it proper to advise you further in regards to the desirability of agreement, if possible.

The case has been exhaustively and carefully tried by both sides and has been submitted to you for your decision and verdict, if possible.

While the verdict must be the conclusion of each juror and not a mere acquiescence of the jurors in order to reach an agreement, it is still necessary for all of the jurors to examine the issues and questions submitted to them with candor and fairness and with proper regard and deference to the opinions of each other. A proper regard for the judgments of others will greatly aid us in forming our own judgment.

Each juror should listen to the arguments of other jurors. If the members of the jury differ in their view of the evidence or the mitigating or the aggravating circumstances, such differences of opinion should cause them or cause you all to scrutinize the evidence more closely and to reexamine the grounds of your opinion. It is your duty to decide the issues which have been submitted to you if you can conscientiously do so.

Do not hesitate to change an opinion if convinced it is wrong. However, you should never surrender honest convictions or opinions in order to be congenial or to reach a verdict solely because of the opinion of others.

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of a federal Allen charge, see Allen v. United States, 164 U.S. 492 (1896); Romine

v. State, 350 S.E.2d 446, 525-26 (Ga. 1986), where a trial judge urges a hung jury

to continue deliberating and to attempt to reach a verdict. Three hours later, the

jury returned a verdict: it found two statutory aggravating circumstances -- that

Jones committed the murder while engaged in the commission of armed robbery

and burglary, see Ga. Code Ann. § 17-10-30(b)(2), and that the murder was

“outrageously or wantonly vile, horrible, or inhuman in that it involved torture,

depravity of mind, or an aggravated battery to the victim,” see id. § 17-10-30(b)(7)

-- and sentenced Jones to death. See Jones II, 539 S.E.2d at 157.

Jones appealed to the Georgia Supreme Court. Among other points of error,

Jones raised his Fifth Amendment challenge to the State’s closing argument. The

Georgia Supreme Court rejected this argument because “it is not improper to argue

the defendant’s lack of remorse in the penalty phase, nor do such comments

amount to an improper reference to a defendant’s failure to testify.” Id. at 159.

According to the state’s high court, the prosecutor was not pointing at Jones’s

failure to testify but rather the fact that “[s]everal of Jones’s mitigation witnesses

The aim ever to be kept in view is the truth as it appears from the evidence, examined in the light of the instructions of the Court.

Now, in just a moment I’m going to send you back to the jury room so that you may again continue your deliberations for a reasonable period of time and examine your differences in a spirit of fairness and candor and try to arrive at a verdict in this case. 7 Case: 11-14774 Date Filed: 03/20/2014 Page: 8 of 51

testified about his numerous articles . . . and their frequent correspondence with

him, but . . . none had mentioned any expression of remorse by Jones.” Id.

C.

Jones then collaterally attacked his death sentence by filing a habeas petition

in the Superior Court for Butts County in 2003. In 2004, the state habeas court

held an extensive evidentiary hearing on Jones’s claims of ineffective assistance of

trial counsel, and developed an elaborate record of what Jones’s trial counsel had

and had not done in preparation for the penalty phase.

Through this record, we learned that Jones’s trial counsel, Clive Stafford

Smith, had hired an investigator, Bart Stapert, who started compiling evidence of

Jones’s childhood and background for potential use at sentencing. Stapert made

two trips to Chicago in 1993 and found witnesses who could testify about Jones; in

the same year, however, Smith relocated and ended his representation of Jones,

which also ended Stapert’s involvement in the case.

The case did not move forward for several years, until the state court

appointed two new lawyers, Ray Gary, Jr., and J. Michael Treadaway, to represent

Jones in March 1996. A third lawyer, Tony Axam, joined the team shortly before

the penalty phase retrial and was the one who actually conducted the retrial.

After Gary and Treadaway first met Jones, Jones sent his new attorneys a

letter, along with twenty-seven attachments (mostly Jones’s own publications or

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writings). These writings described how an older female cousin had sexually

abused Jones when he was five years old, and how Jones had suffered “extremely

violent beatings” from his uncle. The writings also detailed that when Jones fled

home, he became a member of a gang, which led to his incarceration at Sheridan, a

juvenile detention center where he was beaten. Both defense counsel Gary and

Treadaway testified that they had read Jones’s letter and remembered parts of the

personal history contained in the attached articles. They also testified, however,

that when they asked Jones about the writings, Jones said something to the effect

that, “I tell them what I think they want to hear.” Gary took this to mean that the

writings were “fiction” and “[not] true,” and Treadaway took it to mean that the

writings were “not to be relied upon.” In addition, both attorneys testified that they

would have inquired about abuse when asking general background questions, but

they could not remember Jones telling them, in person, that he had ever been

abused as a child.2

2 Specifically, Gary testified this way:

[The State]: . . . . What kind of questions did you ask Petitioner about his childhood?

[Gary]: We asked him, you know, like where he went to school, if he had been trouble. We asked him about his medical history and school history and discipline history, about his parents and how he was raised, whether or not there was any abuse.

Q: Do you recall what he said to you about that?

A: I don’t remember him saying that there was any.

Q: You don’t recall him saying there was any abuse by his parents? 9 Case: 11-14774 Date Filed: 03/20/2014 Page: 10 of 51

In December 1996, the defense team received a letter from Stapert, the

investigator hired by Jones’s previous attorney. Stapert’s letter said that he had

“spent a lot of time with [Jones] and developed a close relationship with him,” and

had “built good contacts with several of [Jones’s] friends and family members in

the Chicago area.” Stapert claimed to have “created a fairly detailed picture of

what evidence could and should be presented at trial,” and offered “to assist you in

your efforts or, at the least, share any insights and information I might have.”

However, it appears that none of Jones’s three lawyers contacted Stapert during

their investigation in preparation for Jones’s retrial.

Instead, Gary and Treadaway testified that they reviewed the boxes

containing Jones’s previous attorneys’ files, though Axam, who officially joined

the team shortly before the retrial, did not have time to review all of the material.

Included in the records was a 1963 report by U.S. Army psychiatrist Dr. Levon D.

Tashjian, which recommended, and ultimately led to, Jones’s discharge from the

army for psychological reasons. Dr. Tashjian observed that Jones “was markedly

A: No.

Q: Do you recall him saying there was any abuse from anyone else who reared him?

A: No, but that is what we were looking for, obviously.

Q: So you were asking about specific questions about that topic?

A: Yes. That’s what we were there for. That was the main thing we would be looking for is any mitigation for the penalty phase. 10 Case: 11-14774 Date Filed: 03/20/2014 Page: 11 of 51

depressed,” and he initially placed Jones on anti-depressant medications. Tashjian

concluded that there was no evidence “of a major thinking disorder such as specific

psychosis or psychoneurosis,” but that Jones suffered from “a severe character

disorder, characterized by extreme emotional instability and liability, by

immaturity in handling the demands of his environment, . . . and by his passive

way of running away from the stresses of his environment.” Tashjian believed that

Jones’s poor adjustment to the military was the consequence of his character

disorder and merely “a repetition of a demonstrable life-long pattern of defective

adjustment.” The doctor ultimately concluded that attempts at rehabilitation would

have been unavailing. He did note, however, that Jones “was and is mentally

responsible, both to distinguish right from wrong and to adhere to the right.”

While defense counsel Treadaway did not remember Tashjian’s report, Gary

testified that the report contained “90 percent aggravation and 10 percent

mitigation” and was “certainly not anything [he] would want to bring in front of a

Cobb County jury.” Gary admitted that the defense team never followed up or

investigated the report.

Treadaway also testified that he subpoenaed Jones’s prison records but that

he did not recall whether any mental health evaluations were included. In fact,

Jones’s prison medical records contained three mental health evaluations by prison

psychiatrists. The first, dated July 13, 1982, concluded that “this patient has no

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evidence of psychiatric illness.” The second, dated February 16, 1987, by

psychiatrist Dr. Marcelo de la Serna, likewise concluded that Jones “was not

suffering from any severe clinical symptomatology,” but also opined that Jones

“presented a picture of a deeply ingrained and pervasive personality disorder.” Dr.

de la Serna thus determined that while Jones was not suffering from an Axis I

clinical disorder (such as bipolar disorder or PTSD), he did suffer from an Axis II

personality disorder -- to wit, mixed personality disorder with “prominent

histrionic, paranoid, and passive-aggressive features.” 3 The final report, dated

December 1, 1987, concerned Jones’s reports of difficulty sleeping. The report

stated that Jones was given Benadryl and would continue to be monitored.

Both Gary and Treadaway testified that they could have secured the funds

for an investigator or a mental health expert from the state court. They did not

petition the court for such funds, however, because they believed that hiring a

mental health expert potentially would have hurt the defense. According to Gary,

the law at the time of Jones’s retrial would have permitted the State to interview

the mental health expert and even to call that expert as a State’s witness. Nor did

they hire an investigator to look into Jones’s childhood.

3 The Diagnostic and Statistical Manual of Mental Disorders (“DSM”) organizes psychiatric diagnoses into several dimensions or axes: Axis I pertains to all psychological diagnostic categories except mental retardation and personality disorders, and Axis II pertains to mental retardation and personality disorders. See, e.g., Am. Psychiatric Ass’n, DSM (3d ed. 1980). 12 Case: 11-14774 Date Filed: 03/20/2014 Page: 13 of 51

Instead, Gary and Treadaway focused on three other avenues of mitigation,

which they investigated and which Axam eventually presented to the jury. First,

counsel believed that the evidence of the crime itself left open the possibility that

Solomon, Jones’s co-defendant, had killed the victim, and that Jones was not the

shooter. The attorneys hired a forensic expert, Dr. Norton, to examine the facts

and testify at the retrial that based on the angles of the bullet holes, Jones could not

have been the shooter. Second, Gary and Treadaway attempted to blunt the State’s

introduction of the petitioner’s prior Illinois assault conviction as an aggravating

circumstance. To that end, they hired an investigator to go to Chicago and find a

witness who would testify that the assault victim was actually the aggressor, and

the witness testified at trial. Finally, Gary and Treadaway sought to demonstrate

that Jones had forged valuable relationships with pen pals while he was in prison,

and that Jones’s death would hurt his family. Thus, they interviewed several

family members and Jones’s pen pals, some of whom eventually testified on

Jones’s behalf.

At some point during the second trial, either Jones himself or his supporters

apparently told Axam about the abuse and neglect that Jones suffered as a child.

Axam therefore prepared a proposed jury instruction that listed three specific

mitigating factors that the jury could find about Jones’s difficult childhood. Axam

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had no witnesses or evidence to attest to these mitigating circumstances, however,

so the trial court declined to give the proposed instruction.

Beyond this account by Jones’s trial attorneys of the circumstances

surrounding the sentencing retrial, the record from the state habeas hearing

contains three other broad categories of relevant evidence: (1) additional

background mitigation evidence regarding Jones’s childhood; (2) background

aggravating evidence regarding Jones’s mistreatment of his family and other

misconduct; and (3) mental health mitigation evidence. In particular, Jones offered

eight affidavits from friends and family members who knew Jones while he was

growing up, as well as affidavits and depositions from four mental health experts.

For its part, the State offered the contents of the file compiled by the investigator,

Bart Stapert, for Jones’s prior counsel, Clive Stafford Smith (the “Stapert file”).

The State also introduced Jones’s prison record, military record, and arrest record.

Together, the evidence presented to the state habeas court reveals an

unhappy and abusive childhood. Jones’s mother, Jessie Carter, evinced signs of

mental instability, his father played no role in his upbringing, and his family was

poor. Jones gave Carter “fits” because he was “not a quiet baby,” and when Jones

was a toddler, Carter gave him to her aunt and uncle, Lois and Reverend James

McGee, who then raised him. McGee, Jones’s uncle, regularly beat Jones and his

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cousin, Lois Crenshaw. A neighbor and friend of Jones, Odell Duncan, recalled

that Jones’s “arms and face were always covered in bruises.”

Jones repeatedly ran away from the McGees’ farm until, at the age of

twelve, he moved back in with his mother and her new husband, Julius Lewis, in

Chicago. Carter was ill-equipped to raise a child, and her marriage was a violent

one. During this time, Jones developed an extensive juvenile record “for stealing

cars and the like” and began using aliases. At around thirteen years old, he was

placed -- under the name “Estes Lewis” -- in the State Industrial School for Boys in

St. Charles for robbing a milkman. As a fifteen year old, Jones was sent to

Sheridan, a state juvenile institution that resembled a prison, for eighteen months.

Jones told the investigator, Stapert, that he went to Sheridan for “an incident

related to the murder of a youth at a gang party”; Jones’s father, however, claimed

that Jones had raped a girl who lived down the street from his grandmother. While

Jones was at Sheridan, the guards and administration were abusive to the children

in their custody and were, in the words of one affiant, “vicious racists.” In 1960,

the year after Jones was released, the Illinois legislature investigated allegations of

brutality at Sheridan. In 1973, following a consent judgment entered in a lawsuit

by Sheridan residents, the facility ceased operating as a juvenile institution

entirely.

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His life as an adult did not improve much. Jones entered the army at

nineteen, but he was discharged for “unsuitability” a little more than a year later.

Jones’s military records included a statement from his company commander,

Charles Pardee, which criticized Jones’s army performance. Specifically, it

provided that Jones had “contributed nothing” to the army, that he had “absented

himself” from the army on numerous occasions, and that he had “no regard for the

military or its regulations,” “cannot accept responsibility,” and “in general is very

bad for the morale of this unit.”

The sworn affidavit of Ruby McDougle, Jones’s first wife, explains that

Jones was “not a good husband” and was “too unstable.” His daughters, Lisa and

Veronica, told Stapert that Jones had physically abused their mother, Ruby, while

they were growing up, and that he was not around very much. His second wife,

Yvonne Crosswell, revealed to Stapert that Jones had beaten her at least once a

week, even when she was pregnant. She said that he once kidnapped their

children, and she eventually left him because he beat the children.

Several relatives and friends also reported, in affidavits and conversations

with investigators, that Jones had often been in jail. Yvonne said that whenever

Jones was arrested, he would bail out and avoid recapture by relying on different

aliases. In fact, Jones told Stapert’s investigators that his aliases included Willie

Hooper, Astor Jones, Brandon Jones, Estes Lewis, Hambert Lewis, Wilbur May,

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Jimmy McGee, Estes McGee and James McKay, and that his priors could “appear

in Chicago area; Denver; Jefferson County, Mo.; Los Angeles; Washington, DC;

and Gary, Indiana.” Jones confirmed to those investigators that he “sometimes

would get charged with something, make bond, change his name and never show

up again.” Besides his strong arm robbery conviction discussed at sentencing,

Jones was also convicted of contributing to the delinquency of a minor. His prison

records also describe over two dozen infractions for which Jones was disciplined

while incarcerated: among other infractions, Jones fashioned weapons by melting

razor blades onto ink pens, threw hot water and baby oil at a guard, and broke a

prison window by repeatedly hurling a typewriter at the glass.

Further, Yvonne, friend Orteal Tyler, and daughter Lisa revealed to

investigators that Jones made a living “hustling” as a pimp. Jones himself

admitted to those investigators that he ran “tourist houses” in Washington, D.C.,

and Chicago, which were actually fronts for brothels where drugs and prostitution

were intertwined. Orteal didn’t remember Jones ever holding down a steady job;

instead, he made his money by pimping.

As for his mental health evidence, Jones presented to the state habeas court

affidavits or deposition testimony from four psychiatric experts. Jones’s experts

diagnosed him with PTSD, bipolar disorder, and decreased brain functioning.

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Dr. Marlyne Israelian, a clinical psychologist specializing in psychotherapy

and neuropsychological evaluation, performed a series of neuropsychological tests

on Jones. Dr. Israelian opined, based on the test results and affidavits from his

friends and family, that Jones exhibited a lifelong pattern of behavior consistent

with childhood-onset bipolar disorder. Israelian also stated that Jones’s results

were consistent with a diagnosis of PTSD, and that Jones’s history of physical,

sexual, and emotional trauma and exposure to the chemical perchloroethylene

contributed to deficient brain functioning. Unlike Dr. de la Serna, who had

examined Jones in prison in 1987 and considered him alert and intelligent,

Israelian found that Jones suffered from cognitive deficits. She opined that these

deficits -- particularly his poor judgment, lack of impulse control, and inability to

process new information -- contributed to his participation in the murder.

Dr. Elaine Walker, a clinical psychologist specializing in mental disorders,

reviewed the same materials as Israelian. She canvassed the environmental risk

factors in Jones’s history -- particularly the abuse he suffered as a child, and his

exposure to chemicals such as perchloroethylene through his work as a dry cleaner

-- and concluded that Jones met the clinical criteria for a life-time diagnosis of

bipolar disorder and PTSD. Dr. Pablo Stewart, a psychiatrist, conducted a clinical

interview with Jones and reviewed the documentary evidence, along with the

reports submitted by Walker and Israelian. Dr. Stewart too diagnosed Jones with

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PTSD, Bipolar I Disorder, and related cognitive impairments. Furthermore,

Stewart concluded that Jones’s mental impairments significantly contributed to the

offense for which he was convicted. Finally, Dr. Tashjian, the army psychiatrist

who evaluated Jones in 1963, explained that his 1963 findings were consistent with

the contemporary diagnoses of PTSD and bipolar disorder.

D.

In 2006, the state habeas court denied all of Jones’s claims for relief in an

order adopted verbatim from the State’s proposed order. Citing to Strickland, 466

U.S. 668, the state court determined both that Jones’s attorneys performed

effectively in their investigation of mitigating evidence, and that the failure to

uncover evidence of Jones’s childhood abuse and mental health problems caused

Jones no prejudice.

As for performance, the state court credited Gary and Treadaway’s

testimony that they specifically had asked Jones about abuse. The court also found

that, when Gary and Treadaway asked Jones about his autobiographical articles

containing allegations of physical and sexual abuse, Jones replied that he was

simply telling the readers what they wanted to hear. Concerning Dr. Tashjian’s

1963 report, the state court credited Gary and Treadaway’s testimony that they

believed the report’s diagnosis would be more aggravating than mitigating.

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As for the prejudice prong of Strickland, the state court discounted Jones’s

autobiographical allegations of sexual and physical abuse. The state court also

found that the mental health experts’ diagnoses of Jones were “the product of

unsupported evidence and errant analysis.” The state court noted that Dr. Stewart

“completely disregarded” the diagnoses of the psychiatrists who had evaluated

Jones in prison, and that the facts upon which Dr. Stewart relied were “fraught

with speculation, error, clear bias, and do not present an accurate report of

Petitioner’s life.”

The state court also observed that Dr. Israelian had concluded that Jones’s

exposure to perchloroethylene had contributed to his mental deficiencies -- even

though the record provided little basis for one to discern the extent of his exposure

or even how long Jones had worked as a dry cleaner. The state court further

determined that Jones’s statement, given to police on the night of the crime,

strongly suggested that Jones was not an inactive or unwitting participant in the

murder -- which directly contradicted Dr. Israelian’s opinion that Jones’s disorders

made him vulnerable to manipulation by co-defendant Solomon.

Finally, the state court determined that Dr. Tashjian’s findings, based only

on his evaluation in 1963 and not on any new information about Jones, were the

product of “blatant speculation” and that Dr. Tashjian was “reaching to find any

corollary between his 1963 report and Petitioner’s current diagnosis.” The court

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did not address Dr. Walker’s affidavit separately, but it nevertheless reached the

overarching conclusion that Jones had not been prejudiced because “the foundation

upon which Petitioner’s alleged mental health experts rely is patently biased and

incorrect.” The state habeas court therefore denied Jones’s Strickland claim.

E.

In September 2008, the Georgia Supreme Court denied Jones’s application

for a certificate of probable cause to appeal. In 2009, Jones filed a federal habeas

corpus petition pursuant to 28 U.S.C. § 2254. On August 10, 2011, the United

States District Court for the Northern District of Georgia denied the petition in its

entirety. The district court rejected Jones’s ineffectiveness claim, concluding that

the state court had reasonably applied Strickland when it held that Jones had not

been prejudiced by counsel’s failure to investigate or offer the additional

mitigating evidence. The district court also rejected Jones’s Fifth Amendment

claim because it read the prosecutor’s comments not as an impermissible allusion

to Jones’s failure to testify but rather as a permissible “observation that despite the

numerous mitigation witnesses the petitioner presented to speak to his good

character, none provided any testimony that the petitioner expressed remorse.”

The district court granted Jones a COA on those two claims: (1) whether counsel

provided ineffective assistance during Jones’s sentencing retrial; and (2) whether

21 Case: 11-14774 Date Filed: 03/20/2014 Page: 22 of 51

the State’s closing argument violated Jones’s Fifth Amendment privilege against

self-incrimination. We denied Jones’s motion to expand his COA.

II.

We review de novo the district court’s denial of habeas relief pursuant to 28

U.S.C. § 2254. Wellons v. Warden, 695 F.3d 1202, 1206 (11th Cir. 2012). The

district court’s legal conclusions, and its resolution of mixed questions of law and

fact, also receive de novo review. Id.

Since Jones’s habeas petition was filed after April 24, 1996, the effective

date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. No. 104-132, 110 Stat. 1214, these provisions govern his challenge:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Under § 2254(d)(1)’s “contrary to” clause, we grant relief only “if the state

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

question of law or if the state court decides a case differently than [the Supreme 22 Case: 11-14774 Date Filed: 03/20/2014 Page: 23 of 51

Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529

U.S. 362, 413 (2000). Under § 2254(d)(1)’s “unreasonable application” clause, we

grant relief only “if the state court identifies the correct governing legal principle

from [the Supreme] Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.” Id. We may overturn factual findings by the state

habeas court only when a petitioner produces “clear and convincing evidence” that

those findings are erroneous. 28 U.S.C. § 2254(e)(1). The Supreme Court has

stressed that “[a]s a condition for obtaining habeas corpus from a federal court, a

state prisoner must show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).

The Georgia Supreme Court’s denial of the application for a certificate of

probable cause to appeal was the final state-court determination of Jones’s

Strickland claim. “[T]he highest state court decision reaching the merits of a

habeas petitioner’s claim is the relevant state court decision.” Newland v. Hall, 527

F.3d 1162, 1199 (11th Cir. 2008). Like in Newland, here “the rejection of

petitioner’s application for a certificate of probable cause to appeal was, implicitly,

a determination that none of petitioner’s claims had arguable merit.” Id. Though

the Georgia Supreme Court did not give reasons for its decision, “[w]here a state

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court’s decision is unaccompanied by an explanation, the habeas petitioner’s

burden still must be met by showing there was no reasonable basis for the state

court to deny relief.” Harrington, 131 S. Ct. at 784.

Jones argues that we should not apply AEDPA deference because the state

habeas court’s order was adopted verbatim from the State’s proposed order. We

are unpersuaded. To begin with, we look to the Georgia Supreme Court’s action as

the final state merits determination. Moreover, even if the state superior court

decision had been the final merits determination, AEDPA mandates deferential

review of any claim that a state court “adjudicated on the merits,” 28 U.S.C. §

2254(d), and does not impose any specific requirements on how a state court

should announce its decision. Jones does not and cannot deny that his claims were

adjudicated on the merits; the state court’s order undeniably rejected Jones’s

Strickland claim on the merits, not on any procedural ground. Indeed, the superior

court’s order extensively analyzed his Strickland claim over the course of ninety

pages. Considering that a summary disposition of a Strickland claim qualifies as

an adjudication on the merits, see Ferrell v. Hall, 640 F.3d 1199, 1224 (11th Cir.

2011); Wright v. Sec’y, Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002), we

can discern no basis for saying that a state court’s fuller explanation of its

reasons -- albeit reasons drafted for the court by the State -- would not be entitled

to AEDPA deference.

24 Case: 11-14774 Date Filed: 03/20/2014 Page: 25 of 51

We have considered and rejected similar arguments in the past. In Rhode v.

Hall, for example, a habeas petitioner challenging his death sentence argued that

the state court’s habeas decision was not entitled to deference. See 582 F.3d 1273,

1281 (11th Cir. 2009). Like Jones, Rhode “complain[ed] that the state habeas

court adopted verbatim the State’s proposed order,” and that the order “uncritically

incorporate[d]” the State’s evidence and “mischaracterizations of the evidentiary

record.” Id. Thus, by Rhode’s lights, the order was not “a fair and impartial

assessment of the facts and law,” and its findings should have been rejected as

unreasonable determinations of fact pursuant to § 2254(d)(2) and (e)(1). Id. A

panel of this Court in Rhode rejected that claim, noting that “the record clearly

reflects that both Rhode and the State had the opportunity to present the state

habeas court with their version of the facts,” and concluding that, “[d]espite the

fact that the state habeas court adopted the State’s facts verbatim, these findings of

fact are still entitled to deference from this court.” Id. at 1282.

Jones cites as primary support for his position Jefferson v. Upton, 560 U.S.

284 (2010). In Jefferson, the Supreme Court applied the pre-AEDPA version of

§ 2254 and held that a state court had denied a death-penalty petitioner a full, fair,

and adequate hearing, where: (1) the state court had adopted factual findings

drafted exclusively by the State’s attorneys pursuant to an ex parte request from the

state-court judge; (2) the state court had failed to notify the petitioner of the request

25 Case: 11-14774 Date Filed: 03/20/2014 Page: 26 of 51

made to opposing counsel; and (3) the proposed findings recounted evidence from

a nonexistent witness. See 560 U.S. at 292. Jefferson offers no guidance here,

however, because it is both legally and factually distinguishable.

First, Jefferson never could have held, nor did it presume to hold, that this

kind of adopted order is not entitled to AEDPA deference. Jefferson addressed a

claim arising under the pre-AEDPA version of § 2254; the Jefferson Court was

therefore operating under a different statute than the one controlling this case.

Moreover, even absent that legal distinction, the facts of this case are critically

different from Jefferson. There, the state court adopted a proposed order that it had

obtained ex parte from the State, without notice to Jefferson. Here, notably, the

state court requested that both Jones and the State prepare proposed orders. The

court conducted an evidentiary hearing in August and September 2004, at which

Jones was represented ably by his habeas counsel, who presented several witnesses

and 125 exhibits spanning about 5,000 pages. The state court then took a year and

a half to consider the party’s submissions and only issued its order denying habeas

relief in March 2006. In stark contrast to Jefferson, the circumstances here

demonstrate that Jones received a full and fair hearing on all of his habeas claims.

III.

Jones argues that the Georgia state courts unreasonably applied Strickland

when they concluded that his trial counsel’s investigation of mitigating evidence

26 Case: 11-14774 Date Filed: 03/20/2014 Page: 27 of 51

was not deficient and, second, that there was no reasonable probability that the

additional mitigating evidence discovered by Jones’s habeas counsel would have

altered the outcome of his trial. To prevail under Strickland and AEDPA, Jones

first has to demonstrate that every fairminded jurist would conclude that counsel’s

performance was so deficient that it “fell below an objective standard of

reasonableness,” 466 U.S. at 688. The Strickland inquiry is “highly deferential”

and evaluates “all the circumstances . . . . from counsel’s perspective at the time.”

Id. at 688-89.

Then, to meet his burden on Strickland’s second prong under AEDPA, Jones

also has to show that every fair-minded jurist would conclude “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. Jones need not show that

counsel’s conduct more likely than not altered the outcome of his penalty

proceeding; “[a] reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id.; see Brownlee v. Haley, 306 F.3d 1043, 1069

(11th Cir. 2002); Mincey v. Head, 206 F.3d 1106, 1143 (11th Cir. 2000). When, as

here, the claim concerns the failure to present mitigating evidence, “we reweigh

the evidence in aggravation against the totality of available mitigating evidence” to

determine whether the petitioner suffered prejudice. Wiggins v. Smith, 539 U.S.

510, 534 (2003). “[W]hat matters is not merely the number of aggravating or

27 Case: 11-14774 Date Filed: 03/20/2014 Page: 28 of 51

mitigating factors, but their weight.” Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d

1217, 1240-41 (11th Cir. 2010). In addition, since this case arises in Georgia,

where the death penalty requires a unanimous jury verdict, prejudice exists where

every fairminded jurist would perceive “a reasonable probability that at least one

juror would have struck a different balance.” Wiggins, 539 U.S. at 537. Notably, a

court “may decline to reach the performance prong of the ineffective assistance test

if convinced that the prejudice prong cannot be satisfied.” Waters v. Thomas, 46

F.3d 1506, 1510 (11th Cir. 1995) (citing Strickland, 466 U.S. at 697).

As an initial matter, we assume without deciding, for purposes of this

appeal, that the Georgia Supreme Court lacked a reasonable basis for finding that

Jones’s counsel performed adequately in preparing for and presenting mitigating

evidence at the penalty phase of trial. We ground this assumption on the fact that

counsel became aware of several avenues of potential mitigating evidence to

pursue -- through, for example, the defendant’s own personal essays, a letter from

previous counsel’s investigator, and a mental health evaluation found in the

defendant’s military records -- yet counsel failed to follow up on any of these red

flags. On the other hand, however, evidence in the state record shows that Jones

told his attorneys that some of the stories in his writings were fabricated, and that

Jones never told his attorneys about his childhood abuse, even though they had

28 Case: 11-14774 Date Filed: 03/20/2014 Page: 29 of 51

questioned him about it. On this mixed record, we need not resolve the question of

whether the performance of Jones’s counsel was deficient, let alone whether the

Georgia’s high court had a reasonable basis for deciding otherwise. As we

determine below, the Georgia Supreme Court had a reasonable basis for

concluding Jones did not suffer prejudice. See Windom v. Sec’y, Dep’t of Corr.,

578 F.3d 1227, 1248 (11th Cir. 2009) (“We need not determine whether counsel’s

limited investigation into Windom’s background and mental health constituted

deficient performance under the first prong of Strickland because we conclude that,

even assuming counsel performed deficiently, Windom was not prejudiced

thereby.”); Hall v. Head, 310 F.3d 683, 699 (11th Cir. 2002) (“[A]lthough there is

evidence in the record to support the district court’s finding of deficient

performance, we need not and do not ‘reach the performance prong of the

ineffective assistance test [because we are] convinced that the prejudice prong

cannot be satisfied.’” (quoting Strickland, 466 U.S. at 693)).

We turn then to prejudice and weigh the totality of the aggravating evidence

against the totality of the mitigating evidence, both what was presented at Jones’s

trial and what was discovered for his state habeas proceeding. Bottoson v. Moore,

234 F.3d 526, 534 (11th Cir. 2000). On the totality of this evidence, we conclude

that the Georgia Supreme Court’s determination that Jones did not raise a

29 Case: 11-14774 Date Filed: 03/20/2014 Page: 30 of 51

reasonable probability of a different result is neither contrary to nor an

unreasonable application of federal law clearly established by the Supreme Court.

To begin with, we do not dispute that some of Jones’s proffered mitigating

evidence, both about his childhood and his mental health, could have been helpful

to his arguments at sentencing. Indeed, evidence of Jones’s psychiatric problems

may have bolstered the argument that Solomon, not Jones, was the driving force

behind the decision to rob the store. Further, the details regarding Jones’s

childhood with his abusive uncle and sexually abusive cousin and at a deplorable

juvenile detention center may have supported the argument that Jones was not fully

culpable for his actions, and may have cast him in a more sympathetic light.

However, Jones’s reliance on this “new” mitigating evidence suffers from

several substantial flaws. First, by introducing this evidence, Jones’s counsel

would have opened the door to a vast array of aggravating evidence that likely

would have overwhelmed the balance of mitigating evidence in this case. See

Wong v. Belmontes, 558 U.S. 15, 26 (2009) (concluding that petitioner could not

show prejudice since the proposed mitigating evidence would have opened the

door to strong aggravating evidence); Evans v. Sec’y, Dep’t of Corr., 703 F.3d

1316, 1327 (11th Cir. 2013) (en banc) (same); Puiatti v. Sec’y, Fla. Dep’t of Corr.,

732 F.3d 1255, 1289 (11th Cir. 2013) (same); Pooler v. Sec’y, Fla. Dep’t of Corr.,

702 F.3d 1252, 1275 (11th Cir. 2012) (same); Reed v. Sec’y, Fla. Dep’t of Corr.,

30 Case: 11-14774 Date Filed: 03/20/2014 Page: 31 of 51

593 F.3d 1217, 1246 (11th Cir. 2010) (same); Windom, 578 F.3d at 1251 (same);

Wood v. Allen, 542 F.3d 1281, 1311-12 (11th Cir. 2008) (same); Gaskin v. Sec’y,

Dep’t of Corr., 494 F.3d 997, 1004 (11th Cir. 2007) (same); Robinson v. Moore,

300 F.3d 1320, 1350 (11th Cir. 2002) (same). Second, the mitigating mental

health evidence was subject to serious attack and meaningful contradiction.

Some of the most damaging evidence in the full habeas record came from

Jones’s family and friends. His daughters, Lisa and Veronica, revealed that Jones

had beaten their mother, Ruby, who admitted that Jones was “not a good husband,”

and “too unstable.” His second wife, Yvonne, went even further in describing him

as violent: she said Jones once beat a man with a hammer because he commented

on Yvonne’s outfit; Jones beat Yvonne at least once a week, even when she was

pregnant, once with a 2x4 board until she passed out in the bath tub; Jones beat her

children; Jones would make the children stand in the corner for hours and beat

them if they moved; and Jones had the children watch while he beat her.

His military record likewise failed to cast him in a positive light. He was

discharged from the army after about a year, and his company commander

expressly said that Jones had “contributed nothing” to the army, that he had

“absented himself” from the army on numerous occasions, and that he had “no

regard for the military or its regulations,” “cannot accept responsibility,” and “in

general is very bad for the morale of this unit.” Plainly, this evidence would have

31 Case: 11-14774 Date Filed: 03/20/2014 Page: 32 of 51

undercut any plea for mercy that Jones would have sought to make on a fuller

habeas record.

Nor would the portrait of Jones as being submissive to Solomon have been

left untouched. Aside from the details about the physical abuse he unleashed on

his family, much of the testimony would have painted Jones as a seasoned criminal

who knew how to work the system. Yvonne, friend Orteal, and daughter Lisa

disclosed Jones’s career as a pimp, and Jones himself admitted that he ran “tourist

houses” in D.C. and Chicago where “drugs and prostitution were intertwined.”

Yvonne also explained that whenever Jones was arrested, he would bail out and

disappear under one of the nine different aliases found in the habeas record.

The habeas record also includes damning evidence of the numerous and

serious prison infractions Jones has committed since he has been on death row.

One report detailed that Jones had hurled a typewriter repeatedly at a window until

both the window and the typewriter had been broken. Another said that Jones had

injured a prison guard by throwing hot water and baby oil on the guard’s face and

shoulder. In yet another, a guard found Jones in possession of two ink pens with

razor blades melted onto them as weapons. There are also many reports detailing

other instances of insubordination, including times he cursed at or threatened the

guards or spat in their faces, as well as times he failed to follow instructions or

possessed contraband.

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The image of Jones found in the habeas record stands in stark contrast to the

one counsel actually portrayed at sentencing. There, counsel relied on residual

doubt, by using the evidence of the crime itself to suggest that Jones had not been

the shooter and calling a witness from Jones’s prior assault conviction to testify

that the victim, and not Jones, had actually been the aggressor. Defense counsel

also introduced the testimony of family and pen pals to demonstrate that Jones’s

death would devastate his family and that Jones had reached out and touched the

lives of others while incarcerated. Put simply, they sought to humanize him -- an

effort that would have collided with a largely unforgiving record.

To the extent Jones now argues that the State could not have introduced any

of the “new” aggravating evidence because it did not do so, we are unpersuaded.

As Jones acknowledges, his counsel did not delve into his background, character,

or mental health in the sentencing retrial. Presenting this kind of evidence would

have sharply changed the landscape of the case, for both Jones and the State. The

Supreme Court has clearly said that “the reviewing court must consider all the

evidence -- the good and the bad -- when evaluating prejudice.” Wong, 558 U.S. at

26 (emphasis added). And the permissible scope of the State’s aggravating

evidence depends in part on the kinds of mitigation the defense introduces. See

Wiggins, 539 U.S. at 537 (noting that had Wiggins’s counsel introduced the

“powerful mitigating narrative” developed in the habeas proceeding, “Wiggins

33 Case: 11-14774 Date Filed: 03/20/2014 Page: 34 of 51

does not have a record of violent conduct that could have been introduced by the

State to offset” it) (emphasis added)); see also Puiatti, 732 F.3d at 1290

(recognizing that the Strickland calculus includes “the aggravating circumstances

actually found, or that would be found on remand” (emphasis added)).

Here, had Jones’s counsel attempted to offer a more detailed presentation

about his childhood and life history, it seems to us that there is “not just a

reasonable probability, but a virtual certainty that [Jones’s] ‘good’ mitigation

evidence would have led to the introduction of ‘bad’ evidence,” too. Reed, 593

F.3d at 1246. Indeed, some of the very witnesses he proffered at the state habeas

proceeding are also the source of some of the aggravating material we’ve described

-- including his daughter Veronica, his friend Taylor, and his first wife, Ruby, all

of whom the State could have used to paint Jones as a violent, manipulative

criminal. What’s more, further probing into Jones’s background and mental health

could have opened the door to a strong rebuttal by the State based not only on

additional character witnesses, but also on Jones’s extensive and damning record

from prison and the military. See Cummings v. Sec’y for Dep’t of Corr., 588 F.3d

1331, 1368-69 (11th Cir. 2009); see also Wong, 558 U.S. at 25 (recognizing that

“heavyhanded,” “more-evidence-is-better” attempt to portray defendant in positive

light can invite strong negative evidence in rebuttal). Thus, the likelihood that the

presentation of additional mitigating evidence would have dredged up substantial,

34 Case: 11-14774 Date Filed: 03/20/2014 Page: 35 of 51

additional aggravating evidence that would not have tipped the scales in Jones’s

favor gave the Georgia Supreme Court a reasonable basis for denying relief.

We are also unpersuaded by Jones’s argument that his trial counsel’s failure

to investigate and present mental health mitigation evidence undermined

confidence in the outcome of the trial. Jones’s habeas mental health experts claim

that Jones suffers from PTSD, bipolar disorder, and brain dysfunction, and that

these disorders affected his behavior on the night of the murder. But doubts about

testimony drawn from Jones’s four mental health experts -- Dr. Israelian, Dr.

Stewart, Dr. Tashjian, and Dr. Walker -- also amounted to a reasonable basis for

rejecting Jones’s claim.

The reasons offered by the state superior court for disbelieving much of the

experts’ testimony illuminate some of the problems associated with the petitioner’s

mental health evidence. For starters, the state court gave two reasons for

discounting Dr. Israelian’s diagnosis that Jones suffered from PTSD, bipolar

disorder, and decreased right-hemispheric brain functioning. First, the state court

found that there was insufficient evidence to support her opinion that Jones’s work

as a dry cleaner, and his exposure to the neurotoxic chemical perchloroethylene,

contributed to his neuropsychological maladies. It thus found that “Dr. Israelian

has proclaimed a professional opinion well outside her area of expertise and based

on unsupported factual findings, rendering her entire opinion questionable.”

35 Case: 11-14774 Date Filed: 03/20/2014 Page: 36 of 51

Specifically, Israelian’s report provided that “[i]t appears that the deficits

associated with Mr. Jones’s Bipolar disorder, which manifested very early, were

exacerbated by years of psychological, physical and sexual abuse, in addition to

exposure to neurotoxic dry cleaning agents.” However, Israelian admitted that she

did not have any information about the length or intensity of his exposure while

employed at a dry cleaners. Indeed, the record is barren on these points.

The state court was also unpersuaded by Israelian’s explanation of the

connection between Jones’s mental health issues and his participation in the crime,

since Jones’s own statements, taken directly after the crime by law enforcement

officers, undermined her view of him as an unwitting participant in the homicide or

merely a tool of co-defendant Solomon. On this issue, the state court found that

“Dr. Israelian’s diagnoses and conclusions regarding Petitioner’s culpability of the

crime are lacking in credibility.” As his statement to the police revealed, Jones

knew that he and Solomon were entering the convenience store with the intent to

commit burglary or armed robbery; he was armed with a crowbar; he admitted that

he and Solomon had cased the store for a period of time; and he instructed

Solomon where to hide the vehicle during the commission of the crime. 4 Israelian

4 Relevant portions of Jones’s statement to the police include these:

D [Police officer questioning Jones directly after the murder]: Alright, tell me what were you doing inside that store?

36 Case: 11-14774 Date Filed: 03/20/2014 Page: 37 of 51

M [Jones]: I wasn’t, we wasn’t gonna have to burglarize. We were thinking about burglarizing it until we got in there and saw the place was empty.

***

M: When I saw the place was open like it was when he [Solomon] come back see, I just just told him, I said park the truck. I was talking about if he parked the truck in front of the place. If we saw, we saw a police officer go by, probably shoot if he was going the other way. I thought about you know, if the truck was parked in front of the place, never be able to explain this here. So, first we was gonna park over by some bulldozers over there. And then that was too far away and we had to start across the street then somebody went by. And anyway, I looked up in there and there was a little driveway right up into that little forest there. And that way we would be able to you know, load up with the beer and everything and take it straight out to the side of the place there, you know, come out the front that way without having to go out to the street.

D: What did you think about the door being open and the car being parked in front?

M: Tell you the truth, I thought about [g]oing, is I got a little scared and what I was wanting to do, I was just gonna punch the cash register, stash the money and run...

M: ...We had been looking at the place quite a while you see.

D: ...I’m saying why did you decide that was the store to go into rather than the store down the road? Why that store?

M: It was the only one. Some people had just come out of there. They didn’t, wait a minute. I didn’t see the people go in there. When we come by there the people were coming out of there. Coming out of there. The gal had kinda blonde, not blonde but real real light hair.

D: Alright. What did they do?

M: They was coming out. That time we was passed the place. And coming back the second time that’s when I jumped with the crowbar. I figured that the you know, the store, I figured they had closed the place up or something. That’s when I jumped out with the crowbar. You know when I saw the place was open it scared me a little bit.

37 Case: 11-14774 Date Filed: 03/20/2014 Page: 38 of 51

was questioned at her deposition about whether Jones had admitted in his post-

arrest statement that he told Solomon where to park, and she said, “Based on what

I just read, it would appear that way; but based on the entire transcript and his

entire interview, there is a great deal of disorder and chaos.” She also steadfastly

maintained that Jones’s plan on the night of the murder was to buy marijuana.

Relying largely on these two matters -- which went to the etiology of

Israelian’s diagnosis, and her account of the crime -- the state court found

incredible Israelian’s testimony. It also discounted the opinions of Jones’s

remaining three habeas experts, who reached opinions consistent with Dr.

Israelian’s. It is relatively easy, under Georgia law, for a factfinder to disregard an

expert’s opinion. See Reynolds Const. Co. v. Reynolds, 459 S.E.2d 612, 614 (Ga.

App. 1995) (“‘[Expert] testimony is not conclusive or controlling and is submitted

for whatever the [factfinder] considers it to be worth.” (alterations in original)

(quoting Wilson v. Prof’l Ins. Corp., 261 S.E.2d 450, 451 (Ga. App. 1979));

Wilson, 261 S.E.2d at 451 (“The opinion of an expert witness is not conclusive

[D]: Did you think they had forgot to open, close and lock the doors?

M: Yea. I run back you know, over there by the bulldozers. As I was going by the bulldozer I saw the little cubby hole up in there and I told him he could park up in there and we wouldn’t have to go across the street[.]

D: You told Van driving? Was he driving or were you driving?

M: He was driving. I think I better shut up. I see I’m in a first class mess here. 38 Case: 11-14774 Date Filed: 03/20/2014 Page: 39 of 51

upon the [factfinder]. Such testimony is intended to aid them in coming to a correct

conclusion upon the subject; but the [factfinder] is not bound by such opinion, and

can disregard it. The [factfinder] may deal with such testimony as [it] see[s] fit,

giving credence to it or not, and [it] may do so without rhyme or reason.” (internal

quotation marks and citations omitted). What’s more, we’ve accepted a state

court’s findings that an expert is not credible when that expert fails to seek out and

consider “all possible evidence.” Callahan v. Campbell, 427 F.3d 897, 936 n.27

(11th Cir. 2005). At all events, the record supports a conclusion that the experts’

opinions appear to ignore -- at least on their face -- the admissions contained in

Jones’s police statement, and even more significantly, are strongly undercut by

other evidence in the habeas record.

Thus, for example, Israelian opined that Jones’s deficits had “a direct

bearing on his involvement in, and culpability for, the murder of Mr. Tackett” and

caused the events to “spiral[] out of control on the night of Mr. Tackett’s murder.”

She said that Jones’s “poor judgment and lack of impulse control involved him in a

criminal excursion with a man he had only just met,” and that with the “new

feedback” of Solomon’s ill intentions and “the presence of an employee at a

business he believed would be empty . . . , Mr. Jones had substantial difficulty

quickly processing the new information, shifting his cognitive set accordingly,

redirecting his focus and devising a new strategy.” She emphasized at the

39 Case: 11-14774 Date Filed: 03/20/2014 Page: 40 of 51

deposition that Jones has “deficits in goal-directed behavior, . . . doesn’t perceive

new information, doesn’t process new information, doesn’t incorporate, doesn’t

change plan according to new information.”

However, the Georgia Supreme Court had reasonable grounds for doubting

the notion that Jones was unable to process new information. As we’ve discussed,

Jones’s post-arrest statement alone suggests that on the night of the murder, Jones

was able to direct Solomon to park the car in a place that would make it easier and

quicker to abscond with the stolen goods. Further, the habeas record contains other

evidence that squarely contradicts Israelian’s account of Jones’s cognitive

deficiencies. In 1987, for example, a prison psychologist expressly noted that

Jones appeared alert and intelligent. The habeas record also establishes Jones’s

tendency to use aliases whenever he was arrested, to skip out on bail, and to

regularly change locations and jobs. He also became a prolific writer while in

prison, and developed a group of pen pals who testified on his behalf at trial.

The state Supreme Court also had a reasonable basis for doubting the

opinion that Jones lacked the ability to control his impulses. As the post-arrest

statement indicates, he and Solomon had the presence of mind to wait for the store

to empty out before they went in, and, again, he came prepared with a crowbar.

The habeas record further reveals that Jones had the control and wherewithal to

own and operate brothels, fronting as “tourist houses” that provided prostitution

40 Case: 11-14774 Date Filed: 03/20/2014 Page: 41 of 51

and drugs in two different cities. In addition, his prison record detailed that he had

carried out a plan to make weapons by melting down razor blades.

The state record also contains reports of the prison psychologists that

highlight concerns about the diagnoses of Jones’s habeas experts. In 1982, Jones

saw psychiatrist Dr. Mark Hutto because Jones felt he was being treated poorly by

the prison guards. Dr. Hutto gathered a social history from Jones and concluded,

“[a]side from the patient being a rather obnoxious and demanding personality who

has no feeling for the inaccuracy and inefficiencies in a bureaucratic system, this

patient has no evidence of psychiatric illness . . . [;] there is no evidence that this

patient’s demands are motivated by psychotic processes and he is not at this time

in need of psychiatric treatment.” Jones was evaluated again in 1987, by

psychologist Dr. Marcelo de la Serna, because Jones wanted to establish a

“therapeutic” relationship. After speaking with Jones, Dr. de la Serna found that

Jones “was alert, highly verbal, [and] intelligent,” “was not satisfied with any of

the answers provided by the examiner, and in a highly skillful manner . . . would

phrase questions so as to elicit excessive attention to his present concerns.” Dr. de

la Serna also noted that Jones “seems to possess an irascible temperament, an edgy

irritability, and a fractious and retaliatory disposition.” Dr. de la Serna opined,

however, that Jones “was not suffering from any severe clinical symptomology,”

such as a mood or anxiety disorder, but rather “presented a picture of a deeply

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ingrained and pervasive . . . [m]ixed personality disorder, with prominent

histrionic, paranoid, and passive-aggressive features.” Later in 1987, Jones met

with psychiatrist Dr. Cassandra Newkirk about sleeping problems. Dr. Newkirk

reiterated that previous evaluators had deemed Jones “very manipulative” and to

have a mixed personality disorder. She did not otherwise diagnose him.

None of the prison doctors diagnosed Jones with any of the disorders found

by Jones’s habeas experts. While we recognize that the evaluations from the

prison doctors did not appear to be based on neuropsychological testing or a full

record of Jones’s life history, we cannot deny that they were performed closer in

time to the murder, long before Jones had developed the habeas record. Nor can

we engage in a battle of the experts at this stage of the case. We can conclude,

however, that based on the full habeas record, including the reports filed by the

prison psychologists, that the Georgia Supreme Court reasonably could have

discounted, at least in some measure, the strength of Jones’s mental health

experts.5 Nevertheless, Jones advances several reasons why some of the

aggravating evidence developed in the habeas proceeding would not be admissible

at a new sentencing trial. We remain unpersuaded.

5 This is not a case like Porter v. McCollum, 558 U.S. 30 (2009), where the state postconviction trial court utterly disregarded Porter’s mental health evidence in its discussion of nonstatutory mitigating evidence. Id. at 43 n.7. Here, the state habeas court clearly considered Jones’s mental health evidence, identified real problems with this evidence, and concluded that it would not have changed the outcome of Jones’s trial. 42 Case: 11-14774 Date Filed: 03/20/2014 Page: 43 of 51

At the outset, we observe that the state superior court considered all of the

aggravating evidence in its Strickland analysis, implicitly finding that this evidence

would be admissible under Georgia law. In addition, it expressly found that

“Petitioner’s misconduct in prison . . . and his many prior criminal acts would be

sufficiently reliable sources of information . . . for the State to rely upon in

questioning Petitioner’s character witnesses.” Because state courts are the ultimate

expositors of state law, we are bound by state-court determinations on state-law

questions. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the

province of a federal habeas court to reexamine state-court determinations on state-

law questions.”); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (observing that

federal courts are bound by state-court constructions of state law “except in

extreme circumstances” (citation omitted)); Cargill v. Turpin, 120 F.3d 1366, 1381

(11th Cir. 1997) (“We are not at liberty to challenge [a] state court determination

of state law.”). Put another way, “[a] state’s interpretation of its own laws or rules

provides no basis for federal habeas corpus relief, since no question of a

constitutional nature is involved.” McCullough v. Singletary, 967 F.2d 530, 535

(11th Cir. 1992).

Thus, to the extent that Jones raises attorney work-product privilege or other

state-law challenges to the introduction of this evidence, we need not address these

claims further. But even if we did, “a habeas petitioner alleging that his counsel

43 Case: 11-14774 Date Filed: 03/20/2014 Page: 44 of 51

made unreasonable strategic decisions waives any claim of privilege over the

contents of communications with counsel relevant to assessing the reasonableness

of those decisions in the circumstances.” Johnson v. Alabama, 256 F.3d 1156,

1179 (11th Cir. 2001). This principle applies in Georgia, where a party may waive

work-product protection by providing documents to an adversary. See McKesson

Corp. v. Green, 610 S.E.2d 54, 56 (Ga. 2005) (“[A corporation] waived work-

product protection when it provided the audit documents to the SEC.”); see also

Wellstar Health Sys., Inc. v. Jordan, 743 S.E.2d 375, 380 (Ga. 2013) (“A party

may waive work product protection.”). Applying the federal work-product rule,

the Supreme Court has concluded that a defendant,

by electing to present the [defense] investigator as a witness, waived the privilege with respect to matters covered in his testimony. Respondent can no more advance the work-product doctrine to sustain a unilateral testimonial use of work-product materials than he could elect to testify in his own behalf and thereafter assert his Fifth Amendment privilege to resist cross-examination on matters reasonably related to those brought out in direct examination.

United States v. Nobles, 422 U.S. 225, 239-40 (1975) (footnote omitted). Here, by

bringing this habeas action first in state court, and then again in federal district

court, Jones has waived any current or future privilege or work-product protection

over the Stapert file. We do not see how the petitioner could use the contents of

the Stapert file offensively to establish a Strickland violation and then turn around

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and block the contents of the very same file to the extent it contained -- as it did --

many aggravating circumstances too.

As for any federal constitutional hearsay claim Jones raises, we’ve recently

rejected a similar argument in a death penalty habeas case. In Muhammad v.

Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1073 (11th Cir. 2013), we relied on

Williams v. New York, 337 U.S. 241 (1949), to hold that “hearsay is admissible at

capital sentencing hearings.” We noted that while “a defendant does not have a

right to confront hearsay declarants at a capital sentencing hearing, . . . he does

have a right to rebut information relevant to his character and record that is

admitted against him at the sentencing hearing.” Id. at 1074. We explained that

“[a]lthough the law of capital sentencing has changed in some respects since

Williams, the Supreme Court of the United States has never questioned [its]

precise holding.” Id. at 1074 (internal quotation marks and citation omitted).

Because a state habeas court’s interpretation of the federal Constitution is

constrained only by clearly established Supreme Court law (i.e., Williams), we

cannot find unreasonable the state court’s determination that the contents of the

Stapert file was admissible hearsay. 6 This is especially true since Jones has given

6 As the Supreme Court has said, the phrase “‘clearly established Federal law’ . . . refers to the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. at 412. As a result, any relevant case law we’ve developed -- including, e.g., our decision in Proffitt v. Wainwright, 685 F.2d 1227, 1254 (11th Cir. 1982), that a capital defendant “ha[s] a constitutional right to cross-examine” a mental health expert at sentencing “before the doctor’s report c[an] be used in determining 45 Case: 11-14774 Date Filed: 03/20/2014 Page: 46 of 51

us no reason to believe that he was denied access to the witness interviews, prison

disciplinary and mental health reports, or military records in the Stapert file; that

he would not have the opportunity to cross-examine Stapert or even family and

friends who were interviewed by Stapert (many of whom Jones himself relies on in

this proceeding); or that he could not call his own witnesses.

Jones also says that the aggravating information found in the Stapert file and

other records is not sufficiently reliable to be admissible. We’ve said that in

considering whether to admit prior bad act evidence at capital sentencing, “the

relevant inquiry for information at sentencing is whether it is reliable.” Tucker v.

Kemp, 762 F.2d 1480, 1487 (11th Cir. 1985) (en banc), vacated, 474 U.S. 1001

(1985), reinstated, 802 F.2d 1293 (11th Cir. 1986), cert. denied, 480 U.S. 911

(1987). Although we haven’t defined “reliable” in this context, we know that prior

convictions are admissible. See Zant v. Stephens, 462 U.S. 862, 873 (1983); Zant

v. Stephens, 297 S.E.2d 1, 2-4 (Ga. 1982). We’ve also found that a defendant’s

commission of a prior, unadjudicated crime of forcible rape (unlike statutory rape)

would be admissible during capital sentencing based on a rape victim’s testimony.

sentence” -- does not apply to the state court decision here. Indeed, “[a] circuit court may . . . look to circuit precedent to ascertain whether it has already held that the particular point in issue is clearly established by Supreme Court precedent. However, circuit precedent may not be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme Court] has not announced.” Downs v. Sec’y, Fla. Dep’t of Corr., 738 F.3d 240, 256-57 (11th Cir. 2013) (alteration in original) (internal quotation marks and citation omitted). 46 Case: 11-14774 Date Filed: 03/20/2014 Page: 47 of 51

Devier v. Zant, 3 F.3d 1445, 1464-65 (11th Cir. 1993). Thus, we have no basis to

find unreasonable the conclusion that Jones’s prior convictions for strong arm

robbery and contributing to the delinquency of a minor, his repeated physical abuse

of his family (through testimony from these very people), and his prior criminal

conduct and use of aliases (again also drawn from the testimony of family

members and friends) would be sufficiently reliable sources of information for the

state to rely upon in rebutting Jones’s character evidence.

Nor can we find unreasonable a determination that his military records,

which document at length his misconduct while in the army, and his prison

records, which document his serious misconduct while on death row, would also

be admissible. See Pooler, 702 F.3d at 1276 (considering in aggravation military

records showing that “Pooler was frequently disciplined for offenses, mostly

absences without leave, and was found guilty in a court-martial for using

disrespectful language to a superior officer and for refusing to obey orders and

suffered a reduction in rank”); Cummings, 588 F.3d at 1369 (considering as

aggravation “the evidence from Cummings’s North Carolina prison file of

Cummings’s repeated involvement in violent incidents while in prison”).

But even if we could say it was unreasonable for a state court to conclude

that this evidence was admissible substantively -- and on this record we cannot -- it

is undeniable that a party may impeach an expert witness with materials the expert

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relied upon in reaching his opinion, or with materials that draw his very opinion

into question. See Orkin Exterminating Co. v. McIntosh, 452 S.E.2d 159, 165 (Ga.

Ct. App. 1994) (“[W]hether [an expert’s opinion] is based upon hearsay goes to the

weight and credibility of the testimony, not its admissibility.”); Ga. Code Ann. §

17-16-4(b)(2) (“The defendant shall . . . permit the prosecuting attorney . . . to

inspect and copy or photograph a report of any physical or mental examinations

and of scientific tests or experiments, including a summary of the basis for the

expert opinion rendered in the report, or copies thereof, if the defendant intends to

introduce in evidence in the defense’s case-in-chief or rebuttal the results of the

physical or mental examination or scientific test or experiment.”); id. § 24-7-705

(eff. Jan. 1, 2013) (“An expert may testify in terms of opinion or inference and

give reasons therefor without first testifying to the underlying facts or data, unless

the court requires otherwise. An expert may in any event be required to disclose

the underlying facts or data on cross-examination.”).

Jones’s habeas experts reviewed and referenced, among other things, his

military record, his prison psychiatric reports, and his family’s statements, and the

experts opined at length about the consequences of Jones’s childhood. Thus,

during sentencing, the state would have been entitled to confront and cross-

examine the petitioner’s mental health experts as to the military and prison

documents, both because those documents formed a basis of the experts’ reports

48 Case: 11-14774 Date Filed: 03/20/2014 Page: 49 of 51

and because they cast real doubt on the experts’ diagnoses. The state would also

have been able to use the prior bad act evidence to impeach Jones’s experts about

his inability to plan, process information, and control his impulses: Jones was

sufficiently competent to run houses of prostitution, to fashion makeshift weapons

in prison, to use numerous aliases, and to change his name whenever he was

arrested to avoid apprehension. In fact, Jones has failed to point us to any

particular aggravating circumstances that could not have been used for

impeachment purposes. Nor has Jones cast any real doubt on the reliability of the

prison records, the accounting given by his daughter, his second wife or his friend

Orteal, or his own admissions to investigators about his prior bad acts.

In short, we are left with a state habeas record that contains some mitigating

background evidence from the retrial, new mitigating background evidence

accompanied by a host of new and quite substantial aggravating evidence, and new

mental health evidence that carried little weight for the state habeas court. Having

thoroughly considered the totality of this evidence, the new and the old, the good

and the bad, we cannot say that the Georgia Supreme Court lacked a reasonable

basis for finding no Strickland prejudice.

IV.

Jones also says that the prosecutor’s closing argument violated his Fifth

Amendment privilege against self-incrimination. See Griffin v. California, 380

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U.S. 609 (1965). We reject this argument because the Georgia Supreme Court had

a reasonable basis for concluding that the prosecutor’s closing argument was not a

commentary on Jones’s failure to testify at trial.

A prosecutor’s statement violates the defendant’s right to remain silent if

“the statement was manifestly intended to be a comment on the defendant’s failure

to testify” or “the statement was of such a character that a jury would naturally and

necessarily take it to be a comment on the failure of the accused to testify.” United

States v. Knowles, 66 F.3d 1146, 1162-63 (11th Cir. 1995) (internal quotation

marks omitted). In this case, neither was the prosecutor’s closing argument

manifestly intended to comment on Jones’s failure to testify, nor would the jury

necessarily and naturally have taken his remarks to be a comment on Jones’s

failure to testify. The prosecutor asked the jury, “Have you seen any remorse in

this case?” That statement did not directly criticize Jones’s refusal to testify to his

remorse. At most, the prosecutor drew the jury’s attention to the lack of remorse

that Jones had expressed to his pen pals and confidants. Indeed, the prosecutor

expressly pointed out, “None of the defense witnesses who testified told you

anything about Jones being remorseful.” Thus, the most natural reading of the

prosecutor’s rhetorical question -- “Is not that the kind of conduct that deserves the

death penalty?” -- is that the “conduct” in question was Jones’s failure to express

remorse to his pen pals and to the victim’s family. Cf. Isaacs v. Head, 300 F.3d

50 Case: 11-14774 Date Filed: 03/20/2014 Page: 51 of 51

1232, 1267-72 (11th Cir. 2002). Quite simply, Jones has not shown that the

Georgia Supreme Court unreasonably applied Griffin or any other Supreme Court

precedent in concluding that the prosecutor’s argument did not violate Jones’s

Fifth Amendment privilege against self-incrimination.

Accordingly, we affirm the district court’s denial of Jones’s § 2254 petition.

AFFIRMED.