[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JUNE 28, 2011 JOHN LEY No. 09-15723 CLERK ________________________
D. C. Docket No. 01-02893-CV-CAP
DANIEL GREENE,
Petitioner-Appellant,
versus
STEVEN UPTON, Warden, Georgia Diagnostic Prison,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Georgia _________________________
(June 28, 2011)
Before TJOFLAT, PRYOR and BLACK, Circuit Judges.
PRYOR, Circuit Judge:
Daniel Greene, a Georgia prisoner sentenced to death, raises two main issues about the denial of his petition for a writ of habeas corpus. First, Greene contends
that the prosecution exercised peremptory challenges against six black members of
the jury venire on the basis of race in violation of the Fourteenth Amendment, see
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), and that the
determination of the Supreme Court of Georgia with respect to this claim was
contrary to, or an unreasonable application of, clearly established federal law, or an
unreasonable determination of the facts. Second, Greene contends that several
arguments by the prosecutor amounted to misconduct that deprived him of a fair
trial, and that the decision of the Supreme Court of Georgia on that issue was
contrary to, or an unreasonable application of, clearly established federal law, or an
unreasonable determination of the facts. After a careful review of the record, we
conclude that Greene’s contentions lack merit. We conclude further that three
remaining claims raised by Greene also fail. We affirm.
I. BACKGROUND
On September 27, 1991, Daniel Greene committed a spree of murder and
mayhem that covered three counties of rural Georgia. Greene first made several
visits to the Suwanee Swifty, a convenience store located in Taylor County,
Georgia. Greene v. State, 266 Ga. 439, 444–45, 469 S.E.2d 129, 136–37 (1996)
[Greene I]. On his last visit, Greene pulled a knife on the store clerk, Virginia
2 Wise, grabbed her, and forced her to give him $142.55 from the cash register. Id. at
444, 469 S.E.2d at 136. Greene took Wise to a back room in the convenience store
where he stabbed her through her lung and liver and cut across three of her fingers.
Id. A customer, Bernard Walker, then entered the store and caused the automatic
doorbell to ring. Id. Greene left Wise in the back of the store, approached Walker
near the front counter, and stabbed Walker in the heart. Id. Greene dropped the
knife, left the store, and drove away. Id. Wise survived, but Walker died in the
parking lot. Id.
Greene drove to the home of an elderly couple, Willie and Donice
Montgomery, in rural Macon County, Georgia. Id. at 444, 469 S.E.2d at 137.
Greene knew the couple and had previously worked for them as a farm laborer. Id.
Greene burst into their home with another knife in hand and demanded their car
keys. Id. Willie gave car keys to Greene, and Greene stabbed both Willie and
Donice multiple times each in the head. Id. Willie and Donice survived.
Greene then drove to another convenience store, located in Houston County,
Georgia. Id. at 444, 469 S.E.2d at 137. Greene pulled a knife on the store attendant
and forced her to hand him money from the cash register. Id. Greene also
attempted to stab the attendant in the chest, but she bent down, and Greene stabbed
her in the back of her shoulder. Id. Greene drove away in the Montgomerys’ car.
3 Id. Authorities later arrested Greene at the home of an acquaintance. Id.
Greene confessed to the crimes in a videotaped interview and stated that he
had committed the crimes to obtain money for crack cocaine, but Greene later
testified that he had no recollection of committing the crimes or of giving a
confession. Id. Greene testified that an acquaintance gave him a cigarette earlier
that day that may have been laced with a mind-altering drug. Id. at 444–45, 469
S.E.2d at 137. Greene testified that he could remember only that he experienced a
severe headache in the convenience store where Wise worked. Id. at 444, 469
S.E.2d at 137.
This appeal concerns the crimes that Greene committed in Taylor County.
Greene was convicted in a separate trial for the crimes he committed in Macon and
Houston counties. Id. No issues about that trial are before us.
A grand jury indicted Greene for the crimes of malice murder, armed
robbery, and aggravated assault. Following a change of venue from Taylor County
to Clayton County, Georgia, Greene’s jury trial lasted from November 30 through
December 9, 1992.
The prosecutors exercised peremptory challenges against ten members of the
jury venire, six of whom were black. In response to Greene’s objections about the
peremptory challenges against the six black members of the jury venire, the
4 prosecutors offered race-neutral reasons for each contested challenge. According to
the prosecutors, Reginald Lemmons “was very hesitate [sic] on his answers to the
death penalty questions,” expressed a view that “cocaine makes you do stuff you
wouldn’t otherwise do,” had sympathy for a cousin with a cocaine problem, and
“there was significant body language, contact, smiling, and nodding and so forth,
and how you doing between [Greene] and [Lemmons].” Darius Duffie failed to
disclose on his juror questionnaire that he had been convicted of a criminal offense.
Irene Walton failed to follow the instructions of the trial court to return to court and
thought she had to come to court only if she felt up to it, and the prosecutors
suggested that Walton’s failure to follow instructions might relate to kidney
problems that she had discussed. Angela Pope was a single mother, was hesitant
about the death penalty, and stated that she had a family member accused of a
crime. Stanley Milligan expressed conscientious opposition to the death penalty
and stated that he was from a tough neighborhood. Kimberly Sullivan, a single
mother of two children, was concerned about child care and expressed opposition to
capital punishment, and the prosecutors had already attempted to challenge her for
cause based on her opposition to capital punishment.
The trial court considered Greene’s objections and the prosecutors’ proffered
reasons for challenging each of these members of the jury venire and determined
5 that the prosecutors had provided reasons for each challenge that were racially
neutral. The trial court also excused five members of the jury venire for cause
based on their opposition to the death penalty, see Greene I, 266 Ga. at 440, 469
S.E.2d at 134, and denied a motion by Greene to disqualify a member of the jury
venire based on her purported bias in favor of the death penalty, see id. at 442, 469
S.E.2d at 135.
The prosecution made several statements during the closing arguments of the
guilt phase of the trial that are pertinent to Greene’s argument about prosecutorial
misconduct. The prosecutor referred to an emotional outburst by the decedent
victim’s mother that had occurred earlier in the proceedings. He stated, “[the
decedent victim’s] poor mother sat here through this whole thing and that’s the one
time she lost it and I apologize for that. I think she’s been here and watched with
the dignity of any citizen, any mother[] . . . .” Greene objected and moved for a
mistrial, and the trial court denied the motion for a mistrial and gave a curative
instruction: “Ladies and Gentlemen of the Jury, put that incident out of your mind.
Mr. Pullen [the prosecutor], don’t go into that any further.” The prosecutor also
asked the jurors to place themselves in Wise’s position, stating, “Can you imagine
the terror in [Wise’s] mind? What is she going to do? Look at him. What would
you do? Or you, or you, or any of you? Look at him. And he’s got a knife.”
6 Greene did not object to those statements. The prosecutor also referred to the
sentencing phase of the trial to explain an argument of defense counsel:
Now, I want you to go back. You heard a theory from this lawyer over here that poor old Dan was just trying to leave and somehow or other Bernard ran into the knife. I want you to sit back and I want you to think of where else you’ve heard that other than right here from the lawyer. Where did it come from? Why are we doing this fussing anyway? He said go ahead, in essence, go ahead and convict him of aggravated assault, go ahead and convict him of armed robbery. Why are we fussing about this part of it? Because this is the case that gets us to the next phase of the trial.
Greene objected, and the trial court sustained the objection, concluding, “I don’t
believe that’s appropriate because at this phase of the trial we are dealing only with
the guilt or innocence. So don’t go into the next phase of the trial.” The prosecutor
continued: “Let me just say this. The only crime that’s charged that carries the
death penalty is murder.” Greene again objected, and the trial court sustained the
objection and stated, “Punishment, punishment is not a part of this portion of the
trial, Mr. Pullen.” Later, in its instructions to the jurors, the trial court again
explained that the jurors were only to consider whether Greene was guilty or
innocent during that portion of the trial: “Now, ladies and gentlemen, you are only
concerned with the guilt or innocence of the Defendant. You are not to concern
yourselves with punishment. So do not discuss punishment. You are only to
consider and concern yourselves with the guilt or innocence of this Defendant.”
7 The prosecutor made other comments during the sentencing phase of the trial
that are also pertinent to Greene’s argument about prosecutorial misconduct. The
prosecutor asked Greene’s sister, a witness for the defense, “[i]f [Greene] for some
way got out and did the same thing . . . you’d still be arguing for his life, wouldn’t
you?” Greene objected and moved for a mistrial. The trial court denied the motion
for a mistrial and instructed the jury to disregard the question. The prosecutor also
made Biblical references during the sentencing phase of Greene’s trial and
commented that Greene might be able to obtain a weapon while in prison, stating,
“[t]here’s dope in those penitentiaries no matter how hard we try to keep it out and
there’s knives. They call them shanks. Now, do you want to put him in a penal
environment where he can get a hold of those items?” Greene did not object to the
Biblical references or the comment about “shanks.”
The jury returned a verdict of guilty on all three counts, and the trial court
entered a sentence of death for the conviction of malice murder; a consecutive life
sentence for the conviction of armed robbery; and a consecutive sentence of 20
years of imprisonment for the conviction of aggravated assault. The jury found that
Greene committed the murder while engaged in the commission of an armed
robbery, one of the statutory aggravating circumstances.
The Supreme Court of Georgia affirmed Greene’s convictions. Greene I, 266
8 Ga. 439, 469 S.E.2d 129. To address Greene’s Batson claims, the Supreme Court
of Georgia conducted “a thorough review of the voir dire of each of the six
prospective jurors” and determined that there was “a valid racially-neutral basis for
the employment of a peremptory strike” against each:
[Lemmons] expressed sympathy for cocaine users who engage in uncharacteristic criminal activity, [Duffie] failed to disclose a criminal conviction, [Walton] failed to report for jury duty the first day and reported a kidney problem which would interfere with her service, [Pope] was a single mother with no family in town to assist with child care, [Milligan] expressed reservations about the death penalty, and [Sullivan] was a single mother with doubtful child care arrangements who expressed hesitation about the death penalty.
Id. at 442, 469 S.E.2d at 135.
The Supreme Court of Georgia determined that Greene was not prejudiced by
comments made by the prosecutor during the guilt phase of Greene’s trial.
The trial court had given a curative instruction about the prosecutor’s comments on
the emotional outburst by the decedent victim’s mother, and the Supreme Court of
Georgia determined that there was “no reasonable probability that . . . [those]
comments changed the result of trial.” Id. at 445, 469 S.E.2d at 137. The Supreme
Court of Georgia also determined that, although “[i]t was improper for the
prosecutor to ask the jurors rhetorically what they would have done in Wise’s
situation,” that “error was harmless given the overwhelming evidence of Greene’s
guilt.” Id. at 446–47, 469 S.E.2d at 138. The Supreme Court of Georgia
9 determined further that “[t]he prosecutor made two references to the sentencing
phase of the trial and, after each reference, the trial court admonished the prosecutor
that punishment was not an appropriate topic for the guilt-innocence phase,” and
such “admonitions were sufficient to address any confusion in the minds of the
jurors.” Id. at 447, 469 S.E.2d at 139.
The Supreme Court of Georgia likewise rejected Greene’s contentions about
comments that the prosecutor made during the sentencing phase of Greene’s trial.
The court determined that, “[o]n one occasion, the prosecutor made a comment
which could reasonably be construed as referring to the possibility of Greene’s
escape rather than to his parole. In response to Greene’s motion for a mistrial, the
trial court nevertheless gave curative instructions and we find no error.” Id. at 448,
469 S.E.2d at 139. The Supreme Court of Georgia determined further that “on no
other occasion did the prosecutor mention the word ‘parole,’” but even if he had,
“Greene’s failure to make a motion for a mistrial . . . resulted in a waiver” of that
objection. Id. at 448, 469 S.E.2d at 139. The Supreme Court of Georgia also
determined that the prosecutor’s Biblical references, to which Greene failed to
object, were not improper, and the court determined in the alternative that “‘there is
no reasonable probability that [the prosecutor’s Biblical references], even if
improper, changed the result of the trial.’” Id. at 450, 469 S.E.2d at 140–41
10 (quoting Crowe v. State, 265 Ga. 582, 593, 458 S.E.2d 799, 811 (1995)). The
Supreme Court of Georgia likewise rejected Greene’s contention that the
prosecutor’s comment about “shanks” was prejudicial because, “[c]ontrary to
Greene’s contention, the prosecutor limited his argument to reasonable inferences
from the evidence and to matters within common knowledge.” Id. at 450, 469
S.E.2d at 141.
The Supreme Court of Georgia also rejected Greene’s contention that the trial
court erred when it excused five members of the jury venire for cause based on their
opposition to the death penalty. The court cited Wainwright v. Witt, 469 U.S. 412,
105 S. Ct. 844 (1985), as “the controlling authority as to the death-penalty
qualification of prospective jurors,” Greene I, 266 Ga. at 440, 469 S.E.2d at 134,
applied the standard of review from Witt, and determined that the trial court did not
err when it dismissed five members of the jury venire after it “undertook an
exhaustive and conscientious effort to determine whether their views on the death
penalty would prevent or substantially impair the performance of their duties in
accordance with their instructions and oaths,” id. at 441, 469 S.E.2d at 134. The
Supreme Court of the United States granted a writ of certiorari and reversed the
decision of the Supreme Court of Georgia because it had incorrectly considered
Witt as the controlling authority for the standard of review to be applied by state
11 appellate courts reviewing the rulings of state trial courts on jury selection. Greene
v. Georgia, 519 U.S. 145, 117 S. Ct. 578 (1996). The Supreme Court held that “the
Supreme Court of Georgia is free to adopt the rule laid down in Witt . . . , but it
need not do so.” Id. at 147, 117 S. Ct. at 579. On remand, the Supreme Court of
Georgia stated that it had previously adopted Witt as controlling authority in
Georgia, and it again affirmed Greene’s convictions. Greene v. State, 268 Ga. 47,
485 S.E.2d 741 (1997) [Greene II]. The Supreme Court of the United States later
denied Greene’s petition for a writ of certiorari. Greene v. Georgia, 522 U.S. 1000,
118 S. Ct. 568 (1997).
On May 29, 1998, Greene filed his first state petition for a writ of habeas
corpus in the Superior Court of Butts County, Georgia. Greene amended his state
petition three times, and the state court held an evidentiary hearing on Greene’s
claims for habeas relief. The hearing included consideration of a claim of improper
communications between the jurors and a bailiff. The state court determined that
Greene had procedurally defaulted several claims, including his contention about
improper communications between the jurors and a bailiff and a contention that the
state withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194 (1963). The state court denied Greene’s amended petition. The
Supreme Court of Georgia denied Greene’s application for a certificate of probable
12 cause and denied Greene’s motion for reconsideration. Greene filed a second state
petition for a writ of habeas corpus, which the state court denied as successive and
without merit. The Supreme Court of Georgia denied Greene’s application for a
certificate of probable cause to appeal the denial of the second petition. The
Supreme Court of the United States later denied Greene’s petition for a writ of
certiorari. Greene v. Head, 537 U.S. 956, 123 S. Ct. 428 (2002). Greene filed a
third state petition, which the state court also denied as successive and without
merit. The Supreme Court of Georgia denied Greene’s application for a certificate
of probable cause to appeal the denial of Greene’s third state habeas petition.
Greene filed a federal petition for a writ of habeas corpus on October 29,
2001. Greene moved for leave to depose all surviving jurors and alternate jurors
who served at his trial to establish, among other claims, cause and prejudice to
excuse the procedural default of his claim of improper communications between the
jurors and a bailiff. The district court ruled that Greene already “had the
opportunity to consult with surviving jurors during his state proceedings,” which
included testimony from two jurors and the submission of four juror affidavits, and
denied Greene’s discovery request. Greene later moved for an evidentiary hearing
about the issues of procedural default and attached to his motion multiple
declarations that had not been considered by the state court. The district court
13 granted the state leave to refile a motion about the issues of procedural default,
instructed the state to organize the motion on a claim-by-claim basis, and dismissed
as moot Greene’s motion for an evidentiary hearing.
The district court ruled that Greene had procedurally defaulted several
claims, including the alleged Brady violation and Greene’s contention about
improper communications between jurors and a bailiff, and allowed Greene to
“make a written proffer of evidence to support his claim of cause and prejudice.”
The district court later determined that Greene had failed to establish sufficient
cause and prejudice to overcome the procedural bar of his defaulted claims. The
district court then denied the remainder of Greene’s federal habeas petition,
including three of Greene’s claims that are now before this Court: that the state used
peremptory challenges to exclude jurors based on their race, that the prosecutor
made prejudicial comments, and that the trial court incorrectly excused certain
jurors for cause based on their views of the death penalty.
Greene petitioned the district court for a certificate of appealability, which
the district court granted in part and denied in part. The district court granted a
certificate of appealability on Greene’s claims of racial discrimination in jury
selection, prosecutorial misconduct, violation of Brady obligations, and excusal of
jurors for cause in violation of Witt. Greene filed a motion with this Court to
14 expand the certificate of appealability, and we granted Greene’s motion to expand
the certificate “on the narrow issue whether there is sufficient cause and prejudice
to overcome the procedural default of Greene’s claim that communications between
a bailiff and jurors violated Greene’s right, under the Sixth and Fourteenth
Amendments, to a fair penalty phase and reliable sentence.” We denied Greene’s
motion to expand the certificate of appealability as to all other issues.
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act governs this appeal and
limits our review of the decisions of the state courts. 28 U.S.C. § 2254(d). We may
grant habeas relief only if a determination of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” id. § 2254(d)(1), or if the
determination of the state court “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding,” id. §
2254(d)(2). “[A] state court acts contrary to clearly established federal law if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court [of the United States] and nevertheless arrives at a result different
from [its] precedent.’” Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1333 (11th
Cir. 2009) (first and third alterations in original) (quoting Williams v. Taylor, 529
15 U.S. 362, 406, 120 S. Ct. 1495, 1519–20 (2000)). The decision of a state court
involves an unreasonable application of clearly established federal law “if the state
court identifies the correct governing legal rule . . . but unreasonably applies it to
the facts of the particular state prisoner’s case,” Williams, 529 U.S. at 407, 120 S.
Ct. at 1520, or when it “unreasonably extends, or unreasonably declines to extend, a
legal principle from Supreme Court case law to a new context,” Putman v. Head,
268 F.3d 1223, 1241 (11th Cir. 2001). “[A] federal habeas court may not issue the
writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be unreasonable.” Williams, 529
U.S. at 411, 120 S. Ct. at 1522. “The question whether a state court errs in
determining the facts is a different question from whether it errs in applying the
law.” Rice v. Collins, 546 U.S. 333, 342, 126 S. Ct. 969, 976 (2006). “Our review
of findings of fact by the state court is even more deferential than under a clearly
erroneous standard of review.” Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir.
2005).
A different standard of review governs determinations that a claim is
procedurally defaulted. “[W]hether a particular claim is subject to the doctrine of
procedural default[] . . . is a mixed question of fact and law, which we review de
16 novo.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). Greene “must
establish cause and actual prejudice to excuse [a procedural] default.” Ward v.
Hall, 592 F.3d 1144, 1176 (11th Cir.), cert. denied, – U.S. –, 131 S. Ct. 647 (2010).
Where a state court finds insufficient evidence to establish cause and prejudice to
overcome a procedural bar, “we must presume the state court’s factual findings to
be correct unless the petitioner rebuts that presumption by clear and convincing
evidence.” Id. at 1177. “Clear and convincing evidence entails proof that a claim
is ‘highly probable,’ a standard requiring more than a preponderance of the
evidence but less than proof beyond a reasonable doubt.” Id. (quoting United States
v. Owens, 854 F.2d 432, 436 n.8 (11th Cir. 1998)).
III. DISCUSSION
Greene seeks habeas relief on several grounds, two of which he addressed at
oral argument. Greene argued that the state used peremptory challenges to exclude
black members of the jury venire in contravention of the Fourteenth Amendment,
see Batson, 476 U.S. 79, 106 S. Ct. 1712, and that the determinations of the state
courts about this claim were contrary to, or an unreasonable application of, clearly
established Supreme Court precedent, or an unreasonable determination of the facts.
Greene also argued that the determinations of the state courts with respect to his
claim of prosecutorial misconduct were contrary to, or an unreasonable application
17 of, clearly established Supreme Court precedent, or an unreasonable determination
of the facts.
We divide our discussion of this appeal in three parts. First, we address
Greene’s Batson claim. Second, we address Greene’s claim of prosecutorial
misconduct. Third, we address Greene’s other claims for habeas relief.
A. The Adjudication of Greene’s Batson Claim by the Supreme Court of Georgia Was Not Contrary to, or an Unreasonable Application of, Clearly Established Federal Law, and Was Not an Unreasonable Determination of the Facts.
Greene contends that the state used peremptory challenges to remove black
members of the jury venire on the basis of their race. We review the decision of the
Supreme Court of Georgia “because it is the ‘last reasoned decision’ of the state
courts on this issue.” McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1261 n.12
(11th Cir. 2009). Greene seeks relief on this Batson claim under both sections
2254(d)(1) and (d)(2). We address each in turn.
Greene contends, under section 2254(d)(1), that the Supreme Court of
Georgia applied Batson unreasonably, but that contention fails. Greene relies on
our decision in McGahee, 560 F.3d 1252, to argue that the Supreme Court of
Georgia applied Batson unreasonably because it did not explicitly discuss each
reason offered by the state in support of the peremptory challenges, but McGahee
does not stand for that proposition. We determined in McGahee instead that the
18 Alabama Court of Criminal Appeals had failed to consider all relevant
circumstances because it failed to discuss “an explicitly racial reason” that the state
had proffered in support of a peremptory challenge against a black member of the
jury venire and other “particularly suspicious explanation[s].” 560 F.3d at
1264–66. We also stated in McGahee that the court could have “implicitly
review[ed] . . . other reasons” offered by the prosecutor, but it did not. Id. at 1264.
Unlike McGahee, nothing in Greene’s record reveals that the prosecutor provided
an explicitly racial reason to exercise a peremptory challenge against a juror, and
the decision of the Supreme Court of Georgia states that the court considered all
relevant circumstances during its “thorough review,” Greene I, 266 Ga. at 442, 469
Greene contends further that both the trial court and the Supreme Court of
Georgia misapplied Batson because neither made specific fact findings about
purposeful discrimination, but the determination “on the ultimate question of
discriminatory intent [itself] represents a finding of fact of the sort accorded great
deference on appeal,” Hernandez v. New York, 500 U.S. 352, 364, 111 S. Ct. 1859,
1868 (1991). Batson does not require elaborate factual findings. See Miller-El v.
Cockrell, 537 U.S. 322, 328–29, 123 S. Ct. 1029, 1035 (2003); see also Hightower
v. Terry, 459 F.3d 1067, 1072 n. 9 (11th Cir. 2006) (“We may therefore make ‘the
19 common sense judgment’—in light of defense counsel’s failure to rebut the
prosecutor’s explanations and the trial court’s ultimate ruling—that the trial court
implicitly found the prosecutor’s race-neutral explanations to be credible, thereby
completing step three of the Batson inquiry.”). The determination of the Supreme
Court of Georgia with respect to Greene’s Batson claim was not contrary to, or an
unreasonable application of, clearly established federal law.
Greene also contends that the Supreme Court of Georgia made “an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” 28 U.S.C. § 2254(d)(2), but the record supports the Batson
determinations of the Supreme Court of Georgia. See Parker v. Allen, 565 F.3d
1258, 1271–72 (11th Cir. 2009). Greene alleges a Batson violation with respect to
six black members of the jury venire. We address each in turn.
The determination by the Supreme Court of Georgia about Reginald
Lemmons’s sympathy for drug users is reasonable. The transcript of Lemmons’s
voir dire confirms that Lemmons stated that cocaine makes you “do stuff that you
would normally not do,” and that he had a cousin with a cocaine problem whom he
loved despite his belief that the cousin had broken into his house because of his
problem. Several of the white members of the jury venire and alternate jurors, as
Greene contends, knew people or had relatives who had taken drugs, and although
20 Juror Holloway stated that the behavior of people on drugs can be “outrageous,”
none of the white members of the jury venire expressed sympathy for drug users.
The record also supports as reasonable the determination of the Supreme
Court of Georgia that the prosecutors exercised a peremptory challenge against
Darius Duffie for reasons that were racially neutral. The voir dire transcript
confirms what the prosecution alleged and the Supreme Court of Georgia found:
Duffie failed to disclose a prior conviction on his juror questionnaire.
The record also supports the determination that the reasons offered for
challenging Irene Walton were racially neutral. Walton did not follow the
instructions of the trial court because she failed to return to court for jury selection.
Greene contends that two white members of the jury venire also failed to appear on
the first day of jury selection, but there is nothing in the record to suggest that those
jurors disobeyed instructions. In fact, the record supports the opposite conclusion
with respect to one of these jurors, Juror Middlebrooks, because it establishes that
Middlebrooks had been told that she did not need to appear until the third day. The
record also establishes that, during voir dire, Walton stated that she had a kidney
problem that might impair her service as a juror. Greene argues that the state failed
to challenge two white members of the jury venire who were on medication for
health issues, but there is nothing in the record to suggest that the medication or
21 health issues of those jurors would have had any effect on their jury service.
The record supports as reasonable the determination of the Supreme Court of
Georgia that the prosecutors exercised a peremptory challenge against Angela Pope
for reasons that were racially neutral. The transcript of voir dire establishes that she
stated she was “a single parent” who “really wouldn’t have anyone to take care of
[her] child.” Pope stated that she had a roommate that might be able to watch her
child, but the roommate was often on call at the hospital where she worked. Greene
contends that Juror Martin, who was white, was similarly situated because she had
two children and her husband worked out of town. But Martin was not a single
mother, and Martin suggested that she would be able to arrange child care. Pope
and Martin were not similarly situated.
The record supports as reasonable the determination by the Supreme Court of
Georgia about the peremptory challenge of Stanley Milligan. The voir dire
transcript confirms that Milligan stated that he was opposed to the death penalty.
Milligan stated that he would require more proof in a case where the death penalty
was involved based on his opposition to that form of punishment.
The record supports as reasonable the determination of the Supreme Court of
Georgia that the prosecutors exercised a peremptory challenge against Kimberly
Sullivan for reasons that were racially neutral. The transcript of voir dire confirms
22 that Sullivan responded that she was conscientiously opposed to capital punishment,
and that she later stated, “I don’t think that another life should be taken because
somebody was killed. I mean, that’s just my personal belief.” Sullivan also
expressed some concern about child care arrangements.
B. The Adjudication of Greene’s Claims of Prosecutorial Misconduct by the Supreme Court of Georgia Was Not Contrary to, or an Unreasonable Application of, Clearly Established Federal Law, and Was Not an Unreasonable Determination of the Facts.
Greene contends that the prosecutor engaged in misconduct when he made
several prejudicial statements in closing argument at the end of the guilt and
sentencing phases of Greene’s trial: “(1) commenting on the possibility Mr. Greene
would be released from prison if sentenced to life; (2) drawing attention to the
emotional outburst from the [decedent] victim’s mother which the jury had
previously been instructed to disregard; (3) asking the jury to place themselves in
the place of the victims; (4) referring to Biblical passages as a justification for the
death sentence; (5) arguing the issue of sentence during the guilt phase of the trial;
and (6) arguing facts not in evidence, namely that Mr. Greene would be able to
obtain knives (the murder weapon) while in prison.”
Greene contends that the determination of the Supreme Court of Georgia with
respect to these statements was contrary to, or an unreasonable application of,
clearly established federal law because the court did not explicitly cite controlling
23 federal precedent, but that argument fails. This Court, sitting en banc, has recently
clarified that a “decision receives AEDPA deference even if the state court fails to
cite—or is not even aware of—relevant Supreme Court precedent.” Childers v.
Floyd, No. 08-15590, slip. op. at 26 (11th Cir. 2011) (en banc) (citing Early v.
Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002)). “[U]nless the state court clearly
states that its decision was based on a state procedural rule, we will presume that the
state court has rendered an adjudication on the merits when the petitioner’s claim ‘is
the same claim rejected’ by the state court.” Id. at 27–28 (quoting Early, 537 U.S.
at 8, 123 S. Ct. at 364). We owe deference to the determination of the Supreme
Court of Georgia under section 2254(d).
Greene also argues that the determination of the Supreme Court of Georgia as
to each alleged instance of prosecutorial misconduct was contrary to, or an
unreasonable application of, clearly established federal law, or an unreasonable
determination of the facts. Greene’s contentions lack merit. We discuss each
alleged instance of misconduct in turn.
1. Possibility of Parole
The Supreme Court of Georgia made a reasonable determination about
Greene’s contention that he was prejudiced by comments about the possibility of
his parole. Greene objected to one such comment, and the trial court gave a
24 curative instruction, which the Supreme Court of Georgia was entitled to presume
the jury followed. The comment did not “‘so infect[] the trial with unfairness as to
make the resulting [sentence] a denial of due process,’” Darden v. Wainwright, 477
U.S. 168, 181, 106 S. Ct. 2464, 2471 (1986) (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643, 94 S. Ct. 1868, 1871 (1974)), as the Supreme Court of Georgia
reasonably concluded, Greene I, 266 Ga. at 448, 469 S.E.2d at 139.
Greene contends that the prosecutor made other statements that suggested
Greene might receive parole, but Greene failed to object to those statements before
the trial court. The Supreme Court of Georgia ruled that Greene waived his
objection. Id. “Under Georgia law, failure to object at trial to prosecutorial
misconduct has long constituted a waiver, or procedural default, of such claims later
in the litigation.” Davis v. Zant, 36 F.3d 1538, 1545 (11th Cir. 1994) (citing
Earnest v. State, 262 Ga. 494, 422 S.E.2d 188 (1992); Aycock v. State, 188 Ga.
550, 4 S.E.2d 221 (1939)). During state habeas proceedings, Greene argued that
ineffective assistance of counsel established sufficient cause to overcome the
procedural bar for these claims, but the state habeas court determined that, even if
Greene established cause, “[he] has not shown that the identified instances of
alleged prosecutorial misconduct were of sufficient importance that they prejudiced
his defense with regard to the verdict of guilty and sentence of death such that the
25 otherwise valid procedural bar should be excused.” That decision was reasonable.
2. Emotional Outburst by the Decedent Victim’s Mother
The determination of the Supreme Court of Georgia about the prosecutor’s
reference to an emotional outburst by the decedent victim’s mother was not
contrary to, or an unreasonable application of, clearly established federal law. The
Supreme Court of Georgia decided that there was “no reasonable probability that
the prosecutor’s comments [about the emotional outburst] changed the result of
trial.” Greene I, 266 Ga. at 445, 469 S.E.2d at 137; see also Darden, 477 U.S. at
181, 106 S. Ct. at 2471. That decision was reasonable, particularly in the face of
overwhelming evidence of Greene’s guilt, which included a videotaped confession.
3. Placing Jurors in a Victim’s Position
Greene fails to cite any clearly established precedent from the Supreme Court
of the United States that the Supreme Court of Georgia contravened or applied
unreasonably when it determined that Greene was not prejudiced by the
prosecutor’s comments that placed jurors in a victim’s position. The Supreme
Court of Georgia evaluated whether “[t]he weight of the evidence against petitioner
. . . reduced the likelihood that the jury’s decision was influenced by [improper]
argument,” Darden, 477 U.S. at 182, 106 S. Ct. at 2472, and concluded that “the
overwhelming evidence of Greene’s guilt,” including his videotaped confession,
26 rendered the error harmless, Greene I, 266 Ga. at 447, 469 S.E.2d at 138. The
record supports this decision as reasonable.
4. Biblical References
Greene also complains about the prosecutor’s references to the Bible during
closing argument at the sentencing phase. On direct appeal, the Supreme Court of
Georgia explained that the prosecutor’s references, to which Greene failed to object,
were not improper:
Greene points to nothing in the prosecutor’s argument which urged the imposition of the death sentence based upon his religious belief or urged that the teachings of a particular religion mandated the imposition of that sentence against him. Rather, the argument challenged by Greene consists entirely of references to principles of divine law related to the penological justifications for the death penalty, including the concept of retribution and whether, considering the enormity of his crime, Greene should be extended mercy. It is just this type of argument that was found to be authorized in Hill[ v. State, 263 Ga. 37, 427 S.E.2d 770 (1993)] and Crowe[ v. State, 265 Ga. 582, 458 S.E.2d 799 (1995)].
Greene I, 266 Ga. at 450, 469 S.E.2d at 141. In the alternative, the Supreme Court
of Georgia held that “‘there is no reasonable probability that [the prosecutor’s
Biblical references], even if improper, changed the result of the trial.’” Id. (quoting
Crowe, 265 Ga. at 593, 458 S.E.2d at 811).
The determination of the Supreme Court of Georgia was not contrary to, or
an unreasonable application of, clearly established federal law. Greene fails to cite
27 any Supreme Court decisions that involve the propriety of Biblical references
during closing argument. Instead, Greene cites Darden, 477 U.S. 168, 106 S. Ct.
2464; Donnelly, 416 U.S. 637, 94 S. Ct. 1868; and Berger v. United States, 295
U.S. 78, 55 S. Ct. 629 (1935), but under those decisions “[t]he relevant question is
whether the prosecutors’ comments ‘so infected the trial with unfairness as to make
the resulting conviction a denial of due process.’” Darden, 477 U.S. at 181, 106 S.
Ct. at 2471 (quoting Donnelly, 416 U.S. at 643, 94 S. Ct. at 1871). The decision of
the Supreme Court of Georgia was reasonable in the light of that standard.
5. Interjecting Punishment During Guilt Phase
Greene contends that the determination of the Supreme Court of Georgia
about the prosecutor’s interjection of punishment during the guilt phase of trial was
unreasonable, but his argument fails. The trial court clearly instructed the jury to
consider only guilt or innocence, not punishment, during the guilt phase of his trial,
and the Supreme Court of Georgia determined that “the court’s admonitions were
sufficient to address any confusion in the minds of the jurors.” Greene I, 266 Ga. at
447, 469 S.E.2d at 139. These instructions support as reasonable the decision of the
Supreme Court of Georgia.
6. Arguing Facts Not in Evidence
Greene contends that the prosecutor argued facts not in evidence when he
28 suggested that Greene may pose a threat to other prisoners because he might obtain
a “shank” in prison. But the Supreme Court of Georgia reasonably determined that
the prosecutor limited his argument to sensible inferences and matters within
common knowledge. Id. at 450, 469 S.E.2d at 141. Additionally, even if the
comments were improper, Greene fails to establish that they “‘so infected the trial
with unfairness as to make the resulting conviction a denial of due process.’”
Darden, 477 U.S. at 181, 106 S. Ct. at 2471 (quoting Donnelly, 416 U.S. at 643, 94
S. Ct. at 1871).
7. Consideration of the Cumulative Effect of Prejudicial Statements
Greene contends that the determination of the Supreme Court of Georgia did
not comport with clearly established Supreme Court precedent because it “analyzed
each allegation of impropriety individually and failed to consider the cumulative
effect on the penalty phase of the trial,” but Greene’s argument fails. Greene raised
a claim on direct appeal about the cumulative effect of the prosecutor’s allegedly
prejudicial statements, and the Supreme Court of Georgia rejected it. “When a
federal claim has been presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the claim on the merits in
the absence of any indication or state-law procedural principles to the contrary.”
Harrington v. Richter, – U.S. –, 131 S. Ct. 770, 784–85 (2011); see also Childers,
29 No. 08-15590, slip op. at 28–29 (“[U]nless the state court clearly states that its
decision was based on a state procedural rule, we will presume that the state court
has rendered an adjudication on the merits when the petitioner’s claim ‘is the same
claim rejected’ by the state court.”) (quoting Early, 537 U.S. at 8, 123 S. Ct. at 364).
Although Greene contends that the Supreme Court of Georgia failed even to
consider his claim of cumulative prejudicial effect, we must presume otherwise.
Greene also fails to explain how the decision of the Supreme Court of Georgia
about no cumulative error is contrary to, or an unreasonable application of, clearly
established federal law.
C. Greene’s Other Claims Fail.
We have reviewed Greene’s three other claims for relief, and we conclude
that they too lack merit. First, Greene raises a claim under Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194 (1963), but he procedurally defaulted that claim and failed
to establish cause and prejudice to overcome the procedural bar. Second, Greene is
also procedurally barred from raising his claim of improper juror communications
with a bailiff. Greene sought to introduce new declarations to bolster his
contention, but the district court did not expand the record to include these
declarations because Greene already had developed a factual record for this claim
during state collateral review. “Although state prisoners may sometimes submit
30 new evidence in federal court, AEDPA’s statutory scheme is designed to strongly
discourage them from doing so.” Cullen v. Pinholster, 563 U.S. –, 131 S. Ct. 1388,
1401 (2011). The state court held an evidentiary hearing about the alleged
improper communication, considered live testimony and affidavits, and reasonably
found “that Greene has not alleged any facts to show adequate cause why any claim
of trial court errors now raised could not have been raised and litigated on direct
appeal.” Third, Greene argues that the trial court misapplied federal law or made an
unreasonable determination of the facts when it dismissed five members of the jury
venire for cause based on their views on capital punishment. We have reviewed the
voir dire transcripts for these members of the jury venire and conclude that the
determination of the Supreme Court of Georgia was not contrary to, or an
unreasonable application of, clearly established federal law, or an unreasonable
determination of the facts.
IV. CONCLUSION
The denial of Greene’s petition for a writ of habeas corpus is AFFIRMED.