FORD v. TATE (And Vice Versa)

307 Ga. 383

• Court: Supreme Court of Georgia
• Decided: October 31, 2019
• Docket: S19A0825, S19X0826
• Status: Published

Opinion

307 Ga. 383 FINAL COPY

S19A0825, S19X0826. FORD v. TATE; and vice versa.

BENHAM, Justice.

In 2005, Nicholas Cody Tate pleaded guilty to the murders of

Chrissie Williams and her three-year-old daughter, Katelyn

Williams, and to numerous related crimes. He waived his right to a

jury trial as to sentencing for the murders. At the conclusion of a

sentencing bench trial, the trial court found the existence of several

statutory aggravating circumstances and sentenced Tate to death

for each of the murders. This Court unanimously affirmed Tate’s

convictions and death sentences. See Tate v. State, 287 Ga. 364 (695

SE2d 591) (2010). On January 31, 2012, the same day that his

execution was scheduled to occur pursuant to an order signed by the

trial court, Tate filed through counsel a petition for a writ of habeas

corpus and a motion for a stay of execution. Tate’s scheduled

execution was stayed, and he amended his petition on May 16, 2013.

The habeas court conducted an evidentiary hearing on June 9-10, 2014, and, in an order filed on December 27, 2018, the court denied

relief with respect to Tate’s convictions but granted relief with

respect to his death sentences after finding that Tate received

ineffective assistance of counsel at the sentencing trial.

In Case No. S19A0825, the Warden appeals the habeas court’s

vacation of Tate’s death sentences, contending that the habeas court

committed reversible error in concluding that trial counsel were

prejudicially deficient in investigating and presenting mitigating

evidence at the sentencing trial and in denying the Warden the

opportunity to call Tate as a witness at the habeas evidentiary

hearing. In Case No. S19X0826, Tate cross-appeals, contending that

the habeas court committed reversible error in denying several

claims, including several instances of ineffective assistance of

counsel, the violation of his constitutional right to a speedy trial, the

State’s pursuit of contradictory theories, and post-conviction

counsel’s conflict of interest. In the Warden’s appeal, we reverse and

reinstate Tate’s death sentences. In Tate’s cross-appeal, we affirm.

2 1

I. Factual Background.

The evidence presented at Tate’s sentencing trial, including his

videotaped custodial interview, showed the following. On the

morning of December 11, 2001, 21-year-old Tate and two of his

brothers, 18-year-old Dustin Tate and 15-year-old Chad Tate, loaded

a number of weapons into Tate’s truck and left their mother’s home,

where they resided. They drove to a local sporting goods store with

a shopping list that included ammunition, duct tape, and extra-long

zip ties. Tate went inside, accompanied by Dustin Tate, and

purchased duct tape, a knife, and ammunition for various firearms,

including a Winchester rifle, a nine-millimeter pistol, a .357

1 The Warden has filed his appeal in this case as a direct appeal, which

is authorized by the Code because the habeas court ruled, in part, “in favor of the petitioner” by vacating Tate’s death sentences. OCGA § 9-14-52 (c). Where a habeas petitioner is denied relief and wishes to appeal, he or she generally must first seek authorization to “appeal” by filing an application for a certificate of probable cause to appeal. OCGA § 9-14-52 (a), (b). However, we have previously permitted habeas petitioners to pursue cross-appeals under OCGA § 5-6-38 (b) regarding the partial denial of their habeas petitions without first obtaining such a certificate of probable cause where, as here, the Warden is already appealing in the case. See, e.g., Humphrey v. Nance, 293 Ga. 189, 190 (744 SE2d 706) (2013) (“In Nance’s cross-appeal, this Court affirms.”). 3 Magnum revolver, and an AR15 semi-automatic rifle. The three

brothers then drove to the home of Barry Williams and his wife,

Chrissie Williams, whose sister was married to Tate’s oldest

brother, Curtis Tate. Tate had previously purchased

methamphetamine from Barry Williams, and he and his younger

brothers planned to burglarize the home, to steal drugs and money

from the home, and to use a stun gun to rape Chrissie Williams.

Although Tate was aware that the Williams couple had

temporarily lost custody of their children, he was not aware that

Chrissie Williams had the children with her during the day

pursuant to a reunification plan. Therefore, he expected Chrissie

Williams to be home alone. However, when the three brothers

arrived at the house, the Williamses’s three-year-old daughter,

Katelyn Williams, answered the door. Although the child recognized

Tate and called him “Big Nick,” her name for him, she was obviously

frightened by the three males, who entered the home armed, and

she began screaming and running throughout the house. Tate and

Chad Tate cut the telephone lines to the home, and Dustin Tate

4 found Chrissie Williams sleeping in a bedroom with her two-year-

old son in a crib beside her. When he shocked her with a stun gun,

she awoke screaming, and Dustin Tate forced her to move to the

bedroom across the hallway, intending to rape her there. At some

point, both Tate and Chad Tate assisted Dustin Tate either in taping

Chrissie Williams’s mouth and eyes with duct tape or in handcuffing

her hands to the bed’s headboard and taping her legs to its

footboard.

During an intense search for drugs and money, Tate

rummaged through Chrissie Williams’s purse, and he and Chad

Tate ransacked the home, including turning furniture over, ripping

the blinds off the windows, and removing heating vents. Tate

attempted to silence Katelyn Williams’s screams by taping her

mouth with duct tape. After she continued to scream and run

throughout the house, he placed her in the crib with her younger

brother and told her to “shut up.” When her brother started crying,

Tate took her out of the crib, and she ran from him. Tate angrily

ordered Chad Tate to “take her in the back bedroom” and quiet her.

5 Chad Tate complied with Tate’s order, and he strangled Katelyn

Williams with a telephone cord, rendering her unconscious. When

she revived and began crying again, Tate allowed Chad Tate to have

his knife. Chad Tate slit Katelyn Williams’s throat multiple times

and then pushed her off the bed and onto the floor, where she

eventually bled to death.

When Tate and Dustin Tate saw what Chad Tate had done,

Tate took Katelyn Williams’s younger brother out of the crib and “let

him go in the living room,” and “Dustin w[ent] ape” and insisted that

they had “to get out of [t]here.” He was so distressed that Tate

directed him to wait outside. Bound to the bed with her eyes and

mouth taped, Chrissie Williams became “hysterical,” and Tate

pointed his Smith and Wesson nine-millimeter pistol at her face and

threatened to beat her with it if she did not cease her attempts to

scream. Then Tate placed a cushion over Williams’s head and

shoved his pistol into it, firing one shot into the side of Williams’s

head and killing her. Tate and Chad Tate locked the door behind

them as they left the home, leaving Chrissie Williams’s toddler son

6 inside. The three brothers fled Georgia, kidnapped a woman and

stole her vehicle in Mississippi, and finally surrendered to

authorities in Oklahoma. At the sentencing trial, the children’s

aunt testified that Katelyn Williams was wearing footed zip-up

pajamas when she dropped Katelyn off at the home early on the

morning of the crimes. When the victims were discovered, Katelyn

Williams’s body was completely nude, and Tate admitted at his

guilty plea hearing that he removed her pajamas for his sexual

gratification.

II. Claims of Ineffective Assistance of Counsel.

determination that trial counsel were ineffective in the investigation

and presentation of mitigation evidence. In Case No. S19X0826,

Tate appeals the habeas court’s denial of his claims that trial

counsel were ineffective regarding Tate’s guilty plea, his interview

by an acquaintance of the trial judge, his waiver of a jury trial as to

sentencing for the murders, and the failure to present Chad Tate as

a witness or to submit into evidence at the sentencing trial Chad

7 Tate’s custodial interview and the plea colloquies of Chad Tate and

Dustin Tate.

A. Applicable Law.

To prevail on his ineffective assistance of counsel claim, Tate

must show both that counsel’s performance was deficient and that

the deficient performance prejudiced his defense. See Strickland v.

Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)

(1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985).

In determining whether counsel’s performance was deficient, the

relevant inquiry is “whether, in light of all the circumstances, the

identified acts or omissions were outside the wide range of

professionally competent assistance.” Strickland, 466 U. S. at 690

(III) (A). We must “indulge a strong presumption” that counsel’s

performance fell within “the wide range of reasonable professional

assistance” and that counsel’s decisions were made “in the exercise

of reasonable professional judgment.” Id. at 689, 690 (III) (A). The

reasonableness of counsel’s conduct is examined from counsel’s

perspective at the time of trial and under the particular

8 circumstances of the case. Id. at 689 (III) (A).

With respect to Strickland’s second prong, a petitioner must

affirmatively prove prejudice by “show[ing] that there is a

reasonable probability (i.e., a probability sufficient to undermine

confidence in the outcome) that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Smith, 253 Ga. at 783 (1) (citing Strickland, 466 U. S. at 694 (III)

(B)). To determine prejudice in the sentencing phase of a case

challenging a death sentence, “the question is whether there is a

reasonable probability that, absent the errors, the sentencer . . .

would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.” Strickland, 466

U. S. at 695 (III) (B).

“In reviewing a habeas court’s ruling on an ineffective

assistance claim, we accept the habeas court’s findings of fact unless

clearly erroneous and independently apply the law to those facts.”

Sears v. Humphrey, 294 Ga. 117, 119 (II) (A) (751 SE2d 365) (2013)

(citation and punctuation omitted). See Humphrey v. Morrow, 289

9 Ga. 864, 866 (II) (717 SE2d 168) (2011) (explaining that this Court

adopts the habeas court’s factual findings unless they are clearly

erroneous but applies the facts to the law de novo in determining

whether trial counsel performed deficiently and whether any

deficiency was prejudicial).

B. Pretrial and Trial Proceedings and Trial Counsel’s Actions.

We begin by reviewing the pretrial and trial proceedings and

the course of action that trial counsel in fact followed. See Franks

v. State, 278 Ga. 246, 250 (2) (A) (599 SE2d 134) (2004) (noting that,

in order to address an ineffective assistance of counsel claim

involving several alleged errors and omissions, the court properly

first reviews the actions that trial counsel took). See also Chandler

v. United States, 218 F3d 1305, 1320 (11th Cir. 2000). Then we

address the various claims involving ineffective assistance of

counsel raised on appeal by both the Warden and Tate, first

discussing the Warden’s contention in the direct appeal that the

habeas court erred in finding that trial counsel were ineffective in

investigating and presenting mitigation evidence in Tate’s

10 sentencing trial and then, in turn, addressing the contentions raised

in Tate’s cross-appeal alleging that the habeas court erred in

denying several ineffective assistance of counsel claims relating to

the guilty plea and the sentencing trial.

The relevant undisputed facts in the record and the factual

findings of the habeas court that are supported by the record show

the following. After Tate and his brothers surrendered to

authorities in Oklahoma on December 14, 2001, Tate waived his

rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16

LE2d 694) (1966), and was interviewed by a special agent from the

Georgia Bureau of Investigation (“GBI”) and a detective from the

Paulding County Sheriff’s Department before being returned to

Georgia. In this interview, Tate admitted that he and his brothers

went to the Williams home with the intent to steal drugs and rape

Chrissie Williams, that Dustin Tate used a stun gun on Chrissie

Williams, and that she was bound to the bed with handcuffs and

duct tape. He denied knowing who removed Katelyn Williams’s

clothing. However, he stated that Chad Tate “took her in the

11 bedroom and had his fun,” explaining that he meant by that

statement that Chad Tate sexually molested her, and he said that

he and his brothers had been molested “very bad[ly]” as children by

their older brother, Curtis Tate. He also stated that Chad Tate

strangled Katelyn Williams with a telephone cord and then slit her

throat. While he admitted that he shot Chrissie Williams through

the head while she lay bound to the bed, he claimed that the gun

misfired while he was pushing it into a cushion that he was holding

over her head in an attempt to get her to be quiet. Tate and his

brothers waived extradition and were returned to Paulding County

approximately a week after their arrests.

On February 20, 2002, Tate was indicted by a Paulding County

grand jury on two counts of malice murder, eight counts of felony

murder, five counts of aggravated assault, two counts of kidnapping,

four counts of burglary, one count of conspiracy to commit armed

robbery, two counts of cruelty to children in the first degree, two

counts of possession of a firearm during the commission of a felony,

two counts of false imprisonment, and one count of child

12 molestation. Two days later, the trial court entered an order

appointing Marc Cella to represent Tate.

In October 2002, Cella began plea negotiations with the State

in Tate’s case. In mid-November 2002, both Dustin Tate and Chad

Tate entered into plea agreements with the State in which they

received life sentences with a set term of years before which they

could not seek parole. According to Cella’s billing records, in

January 2003, Cella discussed the possible options for a plea with

Tate and his mother, and he obtained a draft plea agreement from

the district attorney that offered Tate a non-negotiated sentence

with a cap of a sentence of life without parole for the murder counts.2

On May 6, 2003, Cella met with Tate for three hours to discuss the

State’s offer with him. However, ten days later, Cella informed the

district attorney that there would be no deal.

Also in January 2003, the trial court entered a consent order

2 Trial counsel’s billing records were admitted without objection in the

habeas proceedings, and each of Tate’s trial attorneys affirmed his billing records in his habeas testimony.

13 directing Dr. Kevin Richards, a forensic psychologist at Northwest

Georgia Regional Hospital (“Northwest Georgia”), to conduct an

evaluation of Tate for the purpose of providing his opinion as to

Tate’s criminal responsibility and any mitigating factors regarding

his mental status at the time of the crimes and also his opinion as

to Tate’s competence to stand trial. The order directed that Dr.

Richards provide his written report only to the trial court and Cella.

Dr. Richards opined that, at the time of the crimes, Tate was not

delusional and recognized the difference between right and wrong

and that he was competent to stand trial, but, as further discussed

in our analysis below, his report contained a substantial amount of

potentially mitigating information.

On July 8, 2003, the State filed its notice of intent to seek the

death penalty against Tate. The record shows that Cella was well-

prepared to continue representing Tate. At that time, he had been

practicing law for over 20 years, had for most of that time

maintained a private practice that was largely devoted to criminal

defense, and had tried approximately ten death penalty cases to

14 verdict. The trial court designated Cella as lead counsel and

appointed Bradley Reed as his co-counsel. Before recently opening

his own private criminal defense practice, Reed had served as a

Chatham County prosecutor for approximately six years, during

which time he had tried several murder cases. Cella and Reed were

qualified under the Unified Appeal Procedure (“UAP”) to serve as

lead and co-counsel respectively. See UAP II (A) (stating the

minimum qualifications for any attorney appointed to serve as lead

or co-counsel in a death penalty case). Cella explained that, because

Tate’s case was Reed’s first death penalty case, he did not divide

responsibility for the guilt/innocence phase and the sentencing

phase between them, which was his usual practice; instead, the two

attorneys “worked side by side.” Trial counsel had a good working

relationship and discussed strategy with each other and with Tate.

The record supports the habeas court’s finding that “trial

counsel met with [Tate] numerous times,” during which they “had

discussions with [Tate] about the crime, the weight of the State’s

evidence against him, and how the guilty pleas of [Tate]’s brothers

15 impacted his case.” Trial counsel testified in the habeas proceedings

that the evidence against Tate was overwhelming, that “[e]verybody

pretty much knew what happened” as a result of both Tate’s and

Dustin Tate’s “full, complete statement[s] in Oklahoma,” and that

the fact that both of Tate’s co-defendant brothers had pleaded guilty

hurt their client’s case. Trial counsel also testified that Tate was

“not too eager” about having a guilt/innocence phase and did not

provide the names of any potential guilt/innocence phase witnesses.

Nevertheless, trial counsel testified that they reviewed the

voluminous discovery made available by the State, were prepared to

try the case, and had formulated what they considered viable

defenses, namely, to assert a defense of accident to the murder of

Chrissie Williams, to challenge the sufficiency of the evidence

regarding the child molestation count, and to argue that Tate did

not actually kill Katelyn Williams, although counsel recognized that

the State’s “party to a crime” theory “br[ought] [Tate] back in.”3

3 See OCGA § 16-2-20.

16 After the State filed notice of its intent to seek the death

penalty, trial counsel filed and litigated approximately 60 motions,

including unsuccessful challenges to the grand and traverse jury

array and a motion to exclude Tate’s custodial statement that was

also denied. In addition, counsel filed several ex parte motions, and,

as a result, they retained an independent ballistics expert, Kelly

Fite, and an investigator, Hal Johns.4 Because Tate claimed to have

shot Chrissie Williams when his gun misfired, counsel hired Fite, a

former firearms examiner with the GBI Crime Lab, to verify the

opinion of the State’s expert that the murder weapon was working

properly and to check the trigger pull. Following his review, Fite

agreed with the State expert’s conclusion that the murder weapon

was in proper working order. Investigator Johns gathered records,

served subpoenas, and did a limited amount of locating and

interviewing witnesses.

On March 30, 2004, trial counsel met with Tate again, this

4 The relevant remaining ex parte motions filed by counsel are further

discussed in our analysis below. 17 time to discuss presenting a plea offer from the defense to the State.

After speaking with the district attorney, trial counsel prepared a

proposed written plea agreement and met with Tate and his mother.

However, on April 8, 2004, after discussing dropping the child

molestation charge with the district attorney, trial counsel’s billing

records reflect that they spoke with Tate and his mother and noted

“no plea.” At the habeas evidentiary hearing, Reed recalled that

Tate rejected a possible plea agreement for a non-negotiated

sentence with a cap of life without parole because at that time Tate

was adamant that he did not molest Katelyn Williams and,

therefore, refused to plead guilty to child molestation, even if it

meant avoiding a death sentence.5

In fact, the record shows that Tate eventually became

convinced that the death penalty was the only appropriate

punishment for his crimes. Cella testified that, “[i]n the beginning

5 During his habeas testimony, Cella could not recall any serious plea

negotiations, but the record, including Cella’s own trial files and billing records, clearly supports the habeas court’s factual findings regarding their occurrence. 18 [Tate] was a lot more cooperative and work[ed] with [trial counsel]

toward a lighter sentence.” He said that, as time passed, however,

Tate began “manifesting” a much less cooperative attitude as a

result of religious beliefs that he had developed while incarcerated

awaiting trial. Cella explained as follows:

[Tate] was not illiterate, but he wasn’t a real skilled reader when he was arrested. He spent four years in jail, getting ready for trial, and in that time the only reading material that was readily available to him was the Bible, and he started reading the Bible and became a fairly intense biblical scholar. And he got the notion in his mind that he was forgiven because he asked to be forgiven and that he was going to heaven when he died. And he told me that was why he didn’t care about the sentencing phase and he wanted the death penalty.

Reed also described Tate’s change in attitude as an “evolving

process,” stating the following:

The focus and the intensity of it seemed to gradually evolve. [Tate] didn’t start out — the first time I met him he didn’t want the death penalty. That’s a situation that evolved over a four-year period, generally speaking.

Cella testified that, as soon as he noticed what he perceived as

Tate’s growing desire for the death penalty, he “tried over the time

period in question several different approaches to change what [he]

19 saw as momentum going in that direction.” Specifically, Cella

encouraged Tate to consider “how his death in the Georgia death

chamber might affect [his mother] and his brothers.” He also tried

to persuade Tate that his “mission” to obtain the death penalty was

“akin to suicide” and that the afterlife might not be pleasant for

someone who had committed multiple murders and suicide.

According to Cella, however, nothing he said made any impact on

Tate, and he continued “to get stronger in [his] desire [for the death

penalty] over time.”

After the trial court issued an order scheduling the trial to

begin on October 24, 2005, trial counsel arranged for Dr. Richards

to conduct a second evaluation of Tate, this time to determine

whether he was competent to enter a guilty plea. Cella testified

that, although he “knew it was a long shot that [Tate] would be

found incompetent because he believed that he was going to heaven,”

Tate’s “unyielding attitude” and “[his beliefs] w[ere] interfering with

his ability to work with [trial counsel] and assist [them] in defending

[him].” In his September 25, 2005 report, Dr. Richards concluded

20 that Tate was competent to enter a guilty plea, and he opined that

Tate did “not currently suffer from any significant mental illness,”

noting that, while Tate had exhibited psychotic symptoms in the

past, he “believ[ed that those] were primarily related to heavy drug

use.” He also found that Tate’s religious beliefs did not constitute a

“delusion” and that, based on those beliefs, Tate had made a

reasonable decision on his course of action with regard to the

charges against him.

Jury selection began the last week of October 2005, but on

November 15, 2005, after three weeks of voir dire, Tate pleaded

guilty to eight of the twenty-nine charges against him, including the

two counts of malice murder and the child molestation count. Before

entering his plea, Tate told the trial court that, contrary to his

custodial statement, he intentionally shot Chrissie Williams and

that he was “the one that took the little girl’s clothes off” and “took

her into the room with the intent on [sic] looking at her to get

sexually aroused.” Cella informed the trial court that Tate had

decided to waive his right to a jury trial and to request the trial court

21 to conduct a bench trial as to sentencing for the two murders. Trial

counsel had been unable to change Tate’s attitude about his case,

and, as Cella recounted in his habeas testimony, Tate “proceeded to

tell the judge the fact that he deserved the death penalty, he wanted

it, and he thought that’s what he should get, based on [his religious

beliefs].”

The sentencing bench trial began on November 28, 2005.

According to Cella, trial counsel’s investigation and preparation of

the mitigation case had started “at the very beginning,” as the “point

in controversy” in Tate’s case was why the crime occurred, a question

that trial counsel investigated “[e]xtensively” and “tried to

understand.” The sentencing trial transcript supports trial

counsel’s testimony that their mitigation strategy involved the

following: refuting the State’s assertion that Tate was the leader of

the group and thereby showing that he should not be the only one to

die for “this set of circumstances”; showing that, during their flight

after the murders, Tate intervened and protected the Mississippi

kidnapping and carjacking victim from his brothers, which may

22 have prevented her rape and murder, and that he was the one who

decided that the brothers would turn themselves and their “arsenal”

of weapons over to authorities, a decision that likely avoided a

“spectacular shootout”; pointing out that the death of the child had

been caused by a person who was himself too young to get the death

penalty; arguing that Tate, who at the time of the crimes “impressed

as an uneducated, borderline illiterate person . . . weigh[ing] over

400 pounds,” had become rehabilitated to the point that he was “a

completely different person, both physically and mentally,” by the

time of trial, and that his story “[wa]s . . . worth telling [and]

instructive”; and reminding the trial court that Tate was extremely

remorseful and had taken responsibility for his crimes.

Trial counsel testified that they also wanted to present

evidence of Tate’s “horrible family background,” which included his

repeated molestation as a child by his older brother Curtis, physical

abuse, a lack of parenting and education, and drug abuse. In the

habeas proceedings, trial counsel could recall little specific

information about what they did regarding investigating and

23 preparing for the sentencing trial, and their files contain relatively

few notes regarding this area. However, the record shows that trial

counsel filed affidavits of service with the court averring that the

following were personally served with a subpoena to appear at trial:

Oswald Tate, Tate’s father; Debora Tate, Tate’s mother; Tim

Hollingshead, Curtis Tate’s probation officer; Drew Lane, Curtis

Tate’s attorney in his molestation case; Major Sammy Goble, the

lead investigator in Tate’s case and the jail administrator at the time

of Tate’s sentencing trial; and Dr. Richards. In addition, trial

counsel filed affidavits of service averring that the defense served a

subpoena duces tecum for trial on the custodian of records at

Northwest Georgia and at East Paulding Middle School to produce

Tate’s medical records and school records, respectively. Trial

counsel also filed affidavits of service averring that the defense

served Dustin Tate and Chad Tate, each an “incarcerated prisoner,”

with a subpoena for Tate’s trial “by personally serving [the jail

administrator] with said subpoena.” Although both Dustin Tate

and Chad Tate had been moved to state facilities to serve their

24 sentences, they were produced for the sentencing trial pursuant to

the trial court’s order of production. Reed recalled that he attempted

to interview both Dustin Tate and Chad Tate in “anticipat[ion of

calling] them to testify.” However, only Chad Tate agreed to speak

with him.6 According to trial counsel, they were concerned that, “in

his remorse and guilt, [Tate] might speak out to the Court and

attempt to take more responsibility for the crimes than his

brothers.” Therefore, they hoped to present Dustin Tate and Chad

Tate to testify that their roles in the crimes were consistent with

their plea colloquies and custodial statements, specifically, that

Chad Tate had killed Katelyn Williams of his own volition and that

Tate had shot Chrissie Williams accidentally. Trial counsel also

testified that they wanted to present evidence regarding Tate’s

background, particularly the molestation by his brother Curtis and

6 The record shows that the defense investigator attempted to locate and

serve Kimberly Tate Earwood, Tate’s older sister, and Barry Williams, Chrissie Williams’s husband, but was unsuccessful. Trial counsel testified that they would have wanted Tate’s sister to testify as “a family member.” They could not recall their strategy in trying to locate Barry Williams but pointed out that he had sold methamphetamine to the Tates.

25 its effect on him, through the testimony of lay witnesses. As further

discussed in our analysis below, the record also shows that trial

counsel intended to present Dr. Richards to testify regarding how

Tate’s drug use and his relationship with Dustin Tate affected his

mental state at the time of the crimes.

At trial, the State presented 22 witnesses over four days,

emphasizing its theory that Tate had been the group’s leader. In

support of this theory, the State attempted to submit a videotape

obtained from Tate’s bedroom pursuant to a search with a warrant.

The State contended that, in addition to its relevance to show the

non-statutory aggravating circumstance of Tate’s use of drugs, the

videotape was relevant to show that “Tate [wa]s in charge” on the

morning of the crimes, as it depicted the three brothers interacting

with each other in a manner that demonstrated that Tate was the

leader among them. However, trial counsel’s motion to exclude the

videotape was successful, and it was not admitted.

Trial counsel were also able to elicit some mitigating testimony

from several of the State’s witnesses. On cross-examination, Angie

26 Rowzee, the Mississippi kidnapping victim, testified that Tate “was

never mean to [her],” never made any sexual advances to her, and

told her that he wanted to let her go back to her “perfect life.” To

support their argument that Tate was not “the leader of the gang

and everybody just did what he said,” counsel also obtained Rowzee’s

reaffirmation of her direct testimony that Tate told her that he had

to talk to his brothers before releasing her. Rowzee also testified on

cross-examination that she believed that Chad Tate and Dustin Tate

planned to kill her because they talked about tying her up and not

wanting to leave witnesses but that Tate talked them out of their

plans to harm her.

Trial counsel also elicited testimony that Tate was fully

cooperative with the agent from the Federal Bureau of Investigation

(“FBI”) who negotiated the brothers’ surrender to law enforcement

authorities, that he was “the one who volunteered [that] all the

weapons were located” in an Oklahoma hotel room where the

brothers had left them, and that he had told the agent that he did

not “want anything to do with guns after what happened back

27 there,” referring to the murders. During trial counsel’s cross-

examination of Major Goble, he testified that, in his present capacity

as the jail administrator, he got along well with Tate and had not

had “any problems at all” with him and that Tate had “asked [him]

about some [religious] literature from time to time.” Trial counsel

also admitted Tate’s videotaped custodial interview. After the

videotape was played, counsel elicited testimony from Major Goble

regarding numerous consistencies between Tate’s statements in his

custodial interview and the evidence that had been presented at the

sentencing trial and also between Tate’s statements and statements

by Chad Tate in his custodial interview, particularly Chad Tate’s

statements regarding how he had taken Tate’s knife to slit Katelyn

Williams’s throat.

However, after the State rested its case, trial counsel presented

only two witnesses in mitigation. A chaplain at the Paulding County

jail testified that he and Tate had met every Sunday for one hour

throughout Tate’s incarceration and that he had observed a

“remarkable change” in Tate’s grammar skills, was impressed with

28 Tate’s interest in improving his vocabulary, spelling, and religious

knowledge, and was “inspir[ed]” by “the things that [Tate had] done

as a young man to grow in some wisdom.” Tate’s father testified

that he “didn’t feel like that one [of his children wa]s any more guilty

than the other two,” and he asked the trial court to give Tate a

sentence like his other sons had received, life with the possibility of

parole.

During closing argument, trial counsel stated that they

disagreed with Tate’s belief that the death penalty was the

appropriate punishment, repeated Tate’s description to the trial

court during the plea hearing “that he was responding to what he

called an order from Dustin” and that he would do anything “that

pleased [Dustin],” reminded the court of Tate’s involvement with

drugs and his statement to the trial court at the guilty plea hearing

that he did not want to use drugs as an excuse, stated that Tate was

remorseful and had accepted responsibility, and pointed out that

Tate had no criminal history. Trial counsel also argued the

unplanned nature of the crimes, Tate’s surprise on finding the

29 children at the home, the kidnapping victim’s testimony indicating

that Tate protected her from his brothers, Tate’s peaceful surrender

to and cooperation with the authorities, and the fact that Tate’s

genuine rehabilitation could be useful in that “others in society

c[ould] learn and benefit from his story.” Counsel argued that Tate

had taken responsibility for his role in the crimes and that the

punishment should be “in proportion to the individual’s role,” that

there was no evidence that Tate murdered Katelyn Williams, that

all three co-defendant brothers said that Chad Tate killed her but

that he was not eligible for the death penalty because of his age, and

that both of Tate’s co-defendant brothers had accepted negotiated

pleas in exchange for life sentences. Counsel asked for mercy and

compassion and argued that a life sentence was appropriate. Trial

counsel submitted correspondence to Tate from his mother and

Dustin Tate and Curtis Tate’s certified conviction for the

molestation of Tate but did not refer to these exhibits in any way.

On December 19, 2005, the trial court reconvened to announce its

sentence and sentenced Tate to death for each of the murders.

30 C. Ineffective Assistance of Counsel Claim Regarding Tate’s Sentencing Trial.

The habeas court concluded that Tate’s trial counsel rendered

ineffective assistance at his sentencing trial in that they failed to

investigate and present mitigating evidence in several areas. The

Warden contends that the habeas court erred as a matter of law in

applying the principles of Strickland and its progeny to Tate’s case,

because the habeas court’s analysis ignored its own factual findings,

ignored testimony in both the trial and habeas proceedings that Tate

did not want mitigation evidence to be presented, and ignored well-

established law regarding those circumstances where a defendant

interferes with trial counsel’s efforts to present mitigating evidence.

The Warden is correct that there is a conflict between the

habeas court’s factual findings and its legal analysis. In particular,

in its order, the habeas court made the following findings of fact:

“The record shows that following trial counsel’s attempts to

negotiate a plea, [Tate] expressed a desire to plead guilty, did not

want trial counsel to present mitigation evidence, and wanted to

31 receive the death penalty.” (Emphasis supplied.) Despite those

factual findings, the habeas court applied Strickland and concluded

that trial counsel were ineffective in investigating and presenting

mitigating evidence, without also considering the United States

Supreme Court’s decision in Schriro v. Landrigan or related cases

involving a defendant who was opposed to the presentation of

mitigation evidence at trial. See Schriro v. Landrigan, 550 U. S.

465, 478 (III) (B) (2) (127 SCt 1933, 167 LE2d 836) (2007) (holding

that a defendant who “interferes with counsel’s efforts to present

mitigating evidence to a sentencing court” cannot show prejudice

under Strickland for counsel’s failure to conduct an adequate

investigation or to present such evidence); Allen v. Secretary,

Florida Dept. of Corrections, 611 F3d 740, 762 (IV) (11th Cir. 2010)

(explaining that “[t]he United States Supreme Court has told us in

no uncertain terms that if a competent defendant did instruct his

counsel not to offer any mitigating evidence, ‘counsel’s failure to

investigate further could not have been prejudicial under

Strickland’” (emphasis omitted) (quoting Landrigan, 550 U. S. at

32 475 (III) (A)).

As an initial matter, we reject Tate’s contention, first made at

oral argument and then more fully developed in a letter brief, that

the foregoing factual findings about Tate’s not wanting counsel to

present mitigating evidence but, instead, wanting a death sentence

are clearly erroneous because the citation to the record that

immediately follows them does not support them. It is well settled

that “[a] habeas court’s factual findings cannot be found to be clearly

erroneous if there is evidence in the record to support such findings.”

Smith v. Magnuson, 297 Ga. 210, 212 (1) (773 SE2d 205) (2015). See,

e.g., Upton v. Johnson, 282 Ga. 600, 602 (652 SE2d 516) (2007). For

the reasons discussed below, we concludethat the factual findings at

issue are supported by the record.

1. Tate’s Expressed Intentions Regarding the Presentation of Mitigation Evidence and His Desire for the Death Penalty.

The habeas court’s factual findings that Tate did not want trial

counsel to present mitigation evidence and that he wanted to receive

the death penalty are pivotal here. That is so because, in order for

33 Landrigan to be applicable to Tate’s case, the record must establish

that the defendant clearly and unequivocally expressed an intention

not to present any mitigating evidence or to limit the mitigation

evidence. See Landrigan, 550 U. S. at 478 (III) (B) (1)

(distinguishing Landrigan’s case in which the record established

that he informed his counsel not to present any mitigating evidence

from cases where “the defendant refused to assist in the

development of a mitigation case, but did not inform the court that

he did not want mitigating evidence presented”). See also, e.g.,

Morton v. Secretary, Florida Dept. of Corrections, 684 F3d 1157,

1172-1173 (III) (B) (11th Cir. 2012) (applying Landrigan where the

defendant limited the type of mitigating evidence that trial counsel

could present). Our review of the record convinces us that it clearly

supports the habeas court’s findings.

To begin with, in regard to mitigation evidence, Reed testified

in the habeas proceedings that, “[b]asically[, Tate] did not want to

really put anything up.” During the evidentiary hearing, the habeas

court questioned Reed about “[his] comment about [Tate] not

34 wanting to call mitigation witnesses” by asking Reed:

So, what type of response did you or co-counsel have to a client that was simply telling the judge to put him to death? Because if you don’t have any mitigation, what are we doing here?

Reed stated that he and Cella “were exasperated because [they]

felt like that [they] had a very strong mitigating case.” However,

“[t]he problem was that [Tate] took the position that he had

committed a crime worthy of death, according to . . . the Bible.” Reed

explained that trial counsel had conversations with Tate during

which they discussed his religious views and tried to persuade him

differently but that Tate’s beliefs dominated his thoughts about

presenting mitigating evidence and, in turn, “overtook [counsel’s]

efforts to mitigate.” At that point, the following colloquy between

the habeas court and Reed took place:

COURT: None of [the mitigating evidence that trial counsel wanted to present] could come out? WITNESS: Right. Because of the religious — COURT: And I presume that based on client confidence, you couldn’t even express that to the [trial c]ourt, either? You’re sort of stuck, right?

35 WITNESS: Our hands were tied, basically.7

Cella affirmed that Tate did not want counsel to even

investigate mitigation evidence, and he testified that “[Tate] wanted

to just go straight to death row.” He explained that Tate did not

want to have a trial but, instead, wanted to plead guilty to the death

penalty, stressing that Tate “didn’t want [trial counsel] to even try

to save his life.” In explaining why Tate “tolerated” what little

mitigation evidence that trial counsel did present, Cella stated: “I

told [Tate] I had to do it and that was what I was appointed for and

if I didn’t do it we were going to end up having to do this all over

again.”8 At the habeas evidentiary hearing, Cella testified that, “[a]t

the end,” Tate “[w]ouldn’t” work with him “[b]ecause he wanted the

death penalty” and “wanted [Cella] to negotiate the death sentence.”

Trial counsel’s testimony is supported by Tate’s own

7 But see, e.g., Landrigan, 550 U. S. at 469 (I) (setting forth the defendant’s colloquy with the sentencing court regarding his instructions to trial counsel that he did not wish to present mitigating evidence).

8 Tate argues that Cella’s testimony here shows that he would have “tolerated” the presentation of any additional mitigation evidence, but that argument is not consistent with a reading of trial counsel’s testimony as a whole. 36 statements in the trial proceedings. After informing the trial court

at his November 15, 2005 guilty plea hearing that he intentionally

killed Chrissie Williams, Tate stated: “I do realize that I have done

wrong, and I believe that the punishment should fit the crime, life

for life.” The trial court subsequently asked Tate about that

statement and whether he “[h]ad become an eye for an eye, tooth for

a tooth person.” Tate explained that, before his incarceration, he

could not read or write very well but that, within the last four years,

his skills in those areas had improved and that he “ha[d] read the

Bible several times.” As a result, he “believe[d] that if you

committed a crime worthy of death that [you] refuse not to die.”

Then he stated:

That’s how I am. I’m refusing not to die. I’m given [sic] the opportunity that I have taken from the family. I’ve taken two lives from the family — I have taken one life and I have been a party to taking another. And I believe that they should have the same opportunity.

The trial court stated that it had “a pretty good guess what

[sentence Tate was] looking for based upon a few statements [that

he had] made.” The trial court then discussed with Tate his decision

37 to waive a jury trial as to sentencing and expressed concern that

Tate’s choice to have an individual rather than twelve persons make

the sentencing determination might be the result of his belief that

“the twelve wo[uld]n’t make the decision that [he] want[ed].” Tate

assured the trial court that he considered the court fair and capable

and that he was comfortable with the possibility of receiving any of

the three possible sentencing options, explaining, “What I believe I

should get is one thing, and what I get is another.” The trial court

responded by opining that it should have stated that perhaps Tate

was concerned that a jury would not recommend the sentence that

he thought he should receive and not, as the court stated, the

sentence that he “want[ed].” However, Tate disagreed, stating: “No.

Let’s stick with want. We’ll stick with want.” Then he reiterated,

“Yes, sir. We’ll stick with want.” Thus, Tate clearly stated that,

although he recognized that the decision as to what sentence he

received was for the trial court and that he would accept that

decision, he wanted what he felt was the appropriate sentence for

his crimes, which was the death penalty.

38 In closing argument at the sentencing trial on December 2,

2005, trial counsel told the trial court that Tate “believe[d] the death

penalty [wa]s the appropriate punishment in this case.” At his

sentencing 17 days later, Tate confirmed that the trial court had just

sentenced him to death and then asked if a direct appeal in his case

was “automatic.” When the trial court answered in the affirmative,

Tate indicated that he wished to be appointed counsel for purposes

of the “automatic” appeal but stated that, if it were not “automatic,”

he would not want to appeal.

Finally, at a June 30, 2009 status conference on Tate’s motion

for new trial, Tate stated that he did “not wish to proceed with a

motion for new trial at all [and] ha[d] let this be known back when

[the trial court] sentenced [him] to death.” Tate told the trial court

that he did not “wish to die,” as it was against human nature to want

to die.9 However, Tate explained that, as he had told the court from

9 Tate argues that his statement to the trial court that he did not wish

to die refutes the habeas court’s factual finding that he wanted to receive the death penalty. However, when Tate’s statements regarding his sentence are viewed as a whole, they clearly convey that Tate wanted the death penalty

39 the beginning, he “fully and willingly submit[ted] to any sentence

that [the trial court] g[a]ve [him]” and that the death sentences that

the trial court had imposed were the appropriate punishment for his

“horrible, heinous, malicious, and . . . planned out act[s].” Tate also

told the trial court the following:

I wanted to file, to just plead guilty to what I’ve done, to allow the sentence to be carried out. And Mr. Cella, he has completely refused any and all things that I’ve asked to do. I wanted to forego — I wanted to just leave out any mitigating evidence and all. I had no problem with that. And I have only recently come across the actual law cases, you know, with my limited reading skills and limited knowledge in the law. I did not know that it was right that I could just forego all of this.

(Emphasis supplied.) Reed corroborated Tate’s assertion that he

told trial counsel at trial to leave out all mitigating evidence, both

at the time that Tate made the assertion at the status hearing on

the motion for new trial and twice in the habeas proceedings.10

because he felt that it was the appropriate sentence for his crimes and not because he wanted to die.

10 Tate argues that Reed’s statement at the 2009 status hearing was

made in the context of disputing and not agreeing with Tate’s claims. While Reed did try to explain Tate’s claims to the trial court, he did not dispute

40 Accordingly, in light of the evidence in the trial and habeas

records, we conclude that the habeas court’s factual findings that,

“following trial counsel’s attempts to negotiate a plea, [Tate]

expressed a desire to plead guilty, did not want trial counsel to

present mitigation evidence, and wanted to receive the death

penalty” are not clearly erroneous. See Johnson, 282 Ga. at 602

(“When there is evidence to support the habeas court’s factual

findings, those findings cannot be found to be clearly erroneous.”).

Accordingly, this Court must accept them.

Nevertheless, Tate argues that trial counsel’s testimony

shows that he was only opposed to trial counsel’s presenting

evidence regarding his molestation as a child by his older brother,

outright any of those claims. Specifically with regard to Tate’s claim about mitigating evidence, Reed stated: “[Tate]’s also said that — he told me and Mr. Cella at trial to leave out all mitigating evidence. But I had conversations with Mr. Tate subsequent to the trial, and he and I talked about other things different than — that he did express some concern about what did go on at trial.” (Emphasis supplied.) While the meaning of Reed’s statement is somewhat unclear, after being directed to it, Reed affirmed at both his deposition and at the habeas evidentiary hearing that Tate told him and Cella at trial to leave out all mitigating evidence.

41 Curtis Tate, and putting his mother on the stand as a witness and

that he was “ambivalent” about the presentation of any other

mitigation evidence and cooperated with trial counsel.11 To support

this argument, Tate relies in several instances on trial counsel’s

testimony describing Tate’s attitude early in his case before he had

a change of attitude or on counsel’s testimony before their memories

were refreshed as to what actually occurred in the trial proceedings.

As to trial counsel’s descriptions of Tate as “cooperative,” Reed

11 Even assuming arguendo that Tate were correct here, trial counsel

would have still been foreclosed from pursuing and presenting this mitigating evidence. Therefore, any evidence regarding Tate’s molestation by Curtis Tate or any testimony by Tate’s mother could not have been presented at the sentencing trial, nor could trial counsel have pursued any mitigation defense that relied on this evidence. Consequently, it would be error to consider in the prejudice analysis any direct evidence about Curtis Tate’s molestation of Tate and any direct evidence that would have come solely through the testimony of Tate’s mother, as discussed in subdivision (C) (4) (a) below. See Barrett v. State, 292 Ga. 160, 187 (3) (D) (733 SE2d 304) (2012) (assuming trial counsel were deficient in failing to present certain types of mitigating evidence but refusing to consider in the prejudice analysis the type of mitigating evidence that counsel discussed presenting with the defendant but that the defendant instructed counsel not to present); Gilreath v. Head, 234 F3d 547, 550 n.10 (11th Cir. 2000) (same). It would also be error to consider in the prejudice analysis any such evidence indirectly as the basis for expert mental health testimony regarding the underlying causes for Tate’s mental disorders and drug use and abuse, as discussed in subdivision (C) (4) (b) below. See Leonard v. State, 269 Ga. 867, 870 (506 SE2d 853) (1998) (stating that an expert may be examined about the hearsay upon which his opinion rests in order to allow the trier of fact to evaluate the opinion). 42 explained that, when he described Tate as “cooperative,” he meant

that Tate was “pleasant”; however, Tate’s religious views still

affected “the way that [trial counsel] presented evidence in the

penalty phase and [Tate] not letting [counsel] — not wanting

[counsel] to do certain things.” Cella testified that he would not

describe Tate as ever being uncooperative, because, “even though

[they] had disagreements, [they] were always able to discuss them

in a civil tone.” Cella then testified that the “only” disagreements

that he and Tate had concerned Tate’s wanting the death penalty.

Even if portions of trial counsel’s testimony appear somewhat at

odds with other testimony and evidence, it was for the habeas court

to resolve any conflicts. See Waye v. State, 239 Ga. 871, 876 (2) (238

SE2d 923) (1977) (“It is the job of the trial court to resolve any

conflicts in the evidence when serving as a trier of fact.”). As our

review of the evidence above shows, the record amply supports the

habeas court’s factual findings.

Tate also argues that Landrigan and related cases are

inapplicable, because, unlike the defendant in Landrigan, he never

43 stated on the record at trial that he had instructed trial counsel not

to present mitigation evidence and because he allowed trial counsel

to present some mitigation evidence and to argue for a sentence

other than death. See Landrigan, 550 U. S. at 476 (III) (A) (noting

that Landrigan “informed his counsel not to present any mitigating

evidence” in the plea colloquy before the trial judge and that he

“interrupted repeatedly when counsel tried to proffer anything that

could have been considered mitigating”). Thus, Tate argues that he

was merely “fatalistic” and that his case was one of “passive non-

cooperation.” See id. at 478 (III) (B) (1) (distinguishing Landrigan

from the defendant in Rompilla v. Beard, 545 U. S. 374, 381 (II) (A)

(125 SCt 2456, 162 LE2d 360) (2005), who “refused to assist in the

development of a mitigation case, but did not inform the court that

he did not want mitigating evidence presented”). However, at the

guilty plea hearing, Tate clearly explained the rationale behind his

desire for the death penalty, and Cella reminded the trial court in

closing argument at the sentencing trial that Tate wanted the death

penalty before he stated that he disagreed with his client that a

44 death sentence was the appropriate sentence and gave his reasons

why.

Moreover, trial counsel’s habeas testimony reflects that Tate’s

instructions to counsel regarding mitigation evidence were based on

his strong religious beliefs that led him to decide that the death

penalty was the only appropriate sentence for his crimes and that

he could not be dissuaded from that decision, despite trial counsel’s

best efforts. Furthermore, at the status hearing on his motion for

new trial, Tate indicated that Cella had misled him into believing

that counsel had to present some mitigating evidence, and Cella’s

habeas testimony corroborates that he did indeed tell Tate that he

had to present at least some mitigating evidence in order to avoid

reversal of his sentence on appeal. Also at that hearing, which

occurred three-and-a-half years after the sentencing trial, Tate

continued to adhere to the belief that the death penalty was the

appropriate sentence in his case. See Cummings v. Secretary for

Dept. of Corrections, 588 F3d 1331, 1366 (III) (D) (11th Cir. 2009)

(stating that the fact that the defendant made it clear that he

45 preferred a sentence of death indicated that he “would not have

consented to the presentation of mitigating evidence whose only

purpose was to convince the jury to recommend life instead of

death”). Tate also withdrew the motion for new trial raising the

general grounds filed by counsel, and he refused to cooperate with

counsel in filing a direct appeal to this Court. When his brother,

Dustin Tate, filed a next friend state habeas petition on Tate’s behalf

in response to the trial court’s order scheduling Tate’s execution in

2012, Tate successfully moved to dismiss it. Only on the day of his

scheduled execution did he file his own state habeas petition.

However, at the habeas evidentiary hearing, he filed a pro se

pleading entitled “Motion to Withdraw Filings and Termination of

Appeals Notice.”12 He also told the habeas court that his habeas

petition had no merit and that he intended to have nothing more to

do with habeas counsel, and he asked to be excused from the

12 Although Tate also indicated in his motion that he wished to abandon

further legal representation, there is no indication in the record whether he persisted in his desire to dismiss counsel. Moreover, neither the habeas court’s denial of Tate’s pro se motion nor the matter of his representation has been raised in his cross-appeal. 46 hearing. While Tate’s instructions to trial counsel may not have

been “as strident, public, or obstructive as those in Landrigan, the

record here evidences something more resolute than a mere

instruction not to present mitigation evidence.” Loden v. McCarty,

778 F3d 484, 500 (IV) (A) (5th Cir. 2015).

All of the foregoing certainly support a conclusion that Tate’s

decision regarding the presentation of mitigating evidence was a

considered one and that his instructions to counsel regarding

mitigating evidence were fixed and unyielding at the time of trial.

Therefore, we reject Tate’s argument here. See Loden, 778 F3d at

500 (IV) (A) (“Landrigan states only that the defendant’s actions in

that case were sufficient to preclude a showing of prejudice; it does

not speak to what actions are necessary to bar such a showing.”

(emphasis in original) (citing Landrigan, 550 U. S. at 475-477 (III)

(A))). See also Landrigan, 550 U. S. at 477 (III) (A) (“In the

constellation of refusals to have mitigating evidence presented . . .

this case is surely a bright star. No other case could illuminate the

state of the client’s mind and the nature of counsel’s dilemma quite

47 as brightly as this one.” (citation and punctuation omitted));

Newland v. Hall, 527 F3d 1162, 1205 (V) (A) (5) (11th Cir. 2008)

(concluding that, while the defendant’s conduct was not as extreme

as the conduct of the defendant in Landrigan, the court still followed

Landrigan by “drawing a distinction between a defendant’s passive

non-cooperation and his active instruction to counsel not to engage

in certain conduct”).

Nevertheless, despite our conclusion that the habeas court’s

factual findings that Tate did not want trial counsel to present

mitigation evidence and that he wanted to receive the death penalty

are not clearly erroneous, we are convinced that a proper analysis of

Tate’s case requires more than simply applying those factual

findings to the legal principle in Landrigan that “a defendant who

refuse[s] to allow the presentation of any mitigating evidence

[can]not establish Strickland prejudice based on his counsel’s failure

to investigate [and present] further possible mitigating evidence.”

Landrigan, 550 U. S. at 478 (III) (B) (1); see id. at 477 (III) (A).

Although the Landrigan Court stated that the Supreme Court

48 “ha[d] never imposed an ‘informed and knowing’ requirement upon

a defendant’s decision not to introduce evidence,” the Court

nonetheless assumed “that an ‘informed and knowing’ requirement

exist[ed] in [Landrigan’s] case” and concluded that Landrigan could

not benefit from it for multiple reasons. Id. at 479-480 (III) (B) (2).

Significantly, Landrigan involved the highly deferential review of

state court proceedings under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”).13 Thus, the issue in Landrigan was

whether the Supreme Court had previously held that a defendant’s

decision not to present mitigating evidence must be knowing and

voluntary, not whether it would so hold if that question were

presented to it.

A survey of case law shows that, both before and after

13 Under the AEDPA, reversal of a state court’s adjudication is permitted

only if that adjudication (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 USCA § 2254 (d).

49 Landrigan, many courts have applied some sort of “informed and

knowing” requirement, either expressly or implicitly, when

evaluating the effect of a defendant’s refusal to allow the

presentation of mitigating evidence. See Brawner v. Epps, 439 Fed.

Appx. 396, 404 (I) (D) (5th Cir. 2011) (noting that the Supreme Court

“declined to establish a standard to evaluate a defendant’s waiver of

the presentation of mitigating evidence in Landrigan” but reviewing

the defendant’s “statements to confirm that he was competent and

that his wishes were consistent, knowing, and voluntary”); Blystone

v. Horn, 664 F3d 397, 423-426 (IV) (B) (2) (3d Cir. 2011) (concluding

that the state court unreasonably concluded that the facts

demonstrated that the defendant made a “‘knowing, intelligent, and

voluntary[ ]’ waiver of his right to present any mitigating evidence

at sentencing” and holding that Landrigan was distinguishable);

Coleman v. Mitchell, 268 F3d 417, 447-448 (VII) (6th Cir. 2001)

(stating that trial counsel may not have been ineffective, “[i]f the

record [had] indicated a clear, informed assertion by [the defendant]

that he did not wish his counsel to present any mitigation evidence

50 in [his] behalf”); Emerson v. Gramley, 91 F3d 898, 906-907 (7th Cir.

1996) (holding that a defendant’s waiver of the right to present

mitigating evidence was not consistent with effective assistance of

counsel, where the defendant was not informed about the

possibilities of mitigating evidence and where he was not warned of

the consequences of the decision). Cf. Allen, 611 F3d at 763-764 (IV)

(noting in reviewing a state court decision under the AEDPA that

Landrigan foreclosed the argument that a defendant’s waiver of a

mitigation case should be deemed invalid because, due to lack of

investigation, counsel failed to inform the defendant of the evidence

that he was giving up, but nonetheless explaining why the

defendant’s waiver was knowing and intelligent).

Exactly what an informed and knowing requirement entails in

the context of a defendant’s refusal to allow the presentation of

mitigation evidence varies among jurisdictions. However, we can

glean from Landrigan and cases applying it certain factors that, if

an informed and knowing waiver of mitigating evidence were

constitutionally required, would be considered. Those factors

51 include whether the record reflects that the defendant understood

that he had the right to present mitigating evidence and whether he

understood the general nature of the mitigating evidence available

to him and the consequences of failing to present such evidence. See

Landrigan, 550 U. S. at 479-480 (III) (B) (2) (noting that Landrigan’s

counsel “had carefully explained to Landrigan the importance of

mitigating evidence,” especially in a death penalty case, and had

explained that counsel had a duty to disclose mitigating factors to

the court for consideration in sentencing); Krawczuk v. Secretary,

Florida Dept. of Corrections, 873 F3d 1273, 1296 (VII) (D) (11th Cir.

2017) (pointing out that trial counsel had advised the defendant of

the importance of mitigation evidence and that the defendant

possessed a report containing details of possible mitigating

evidence); Allen, 611 F3d at 761, 764-765 (IV) (stating that the

defendant’s statements and the trial court’s inquiry indicated his

understanding of the consequences of waiving mitigation).

However, as the Eleventh Circuit Court of Appeals has pointed

out, “no Supreme Court authority post-Landrigan indicat[es] that a

52 competent capital defendant’s decision not to present any mitigating

evidence may be informed or knowing only if trial counsel first

thoroughly or evenly adequately investigates the mitigating

evidence and tells her client about it.” Krawczuk, 873 F3d at 1300

(VII) (F) (rejecting the defendant’s argument that his waiver of the

opportunity to present mitigation evidence was not sufficiently

informed and knowing because his attorney conducted only a limited

pre-waiver investigation of mitigating evidence). Nor does our own

case law support a requirement that trial counsel must fully

investigate and discuss all the specifics of potential mitigation with

the defendant in order for the defendant to be sufficiently informed

for the purpose of making a knowing decision not to present

mitigating evidence. See Mize v. State, 269 Ga. 646, 656 (12) (501

SE2d 219) (1998) (rejecting Mize’s claim that the trial court erred in

allowing him to prevent the introduction of mitigating evidence at

his death penalty trial, stating that “Mize’s lawyers, despite Mize’s

resistance, conducted some investigation of Mize’s background and

informed Mize about pursuing a mitigation defense[, b]ut the final

53 decision about the defense belonged to Mize” (emphasis supplied)).

Finally, although the issue was not explicitly addressed in

Landrigan, courts have also said that counsel may not defer to a

defendant’s instructions to forego or severely limit mitigating

evidence when there is evidence that the defendant is not competent

to make such a decision. See, e.g., Allen, 611 F3d at 764-765 (IV);

Cummings, 588 F3d at 1361 (III) (C). This Court has also said that

a defendant must be competent in order to make such a decision,

and we have stated that such a decision must be “informed.” See

Mize, 269 Ga. at 656 (12) (holding that allowing a capital defendant

to preclude his lawyers from presenting mitigation evidence was not

error, where the record showed that his lawyers conducted some

investigation of his background and informed him about pursuing a

mitigation defense and where the record also showed that the

defendant was competent and understood his decision); Morrison v.

State, 258 Ga. 683, 686 (3) (373 SE2d 506) (1988) (explaining that,

while “the defendant, and not his attorney, makes the ultimate

decision about . . . whether or not to present . . . mitigation

54 [evidence],” that decision must be made by an informed and

competent defendant in order to be valid). However, we have never

explained the extent to which a defendant must understand the

nature of the mitigating evidence available to him in order for his

decision not to present mitigation evidence to be valid.

Nevertheless, this case does not require us to decide that issue

because, as the following discussion shows, Tate clearly understood

the general nature of the mitigating evidence available to him before

his sentencing trial. Therefore, any standard that this Court might

adopt is easily satisfied here.

We now review the record in Tate’s case in subdivisions (C) (4)

(a), (b), and (c) below, assuming that a decision not to present

mitigation evidence must be an informed and knowing decision

under the general factors discussed above, i.e., the defendant

understood that he had the right to present mitigating evidence and

understood the consequences of failing to present such evidence and

the general nature of the mitigating evidence available to him.

Upon doing so we conclude that, even in light of Tate’s habeas

55 evidence, Tate was competent and made an informed and knowing

decision not to present mitigating evidence at his sentencing trial.

Therefore, as we conclude in subdivision (C) (5), even assuming trial

counsel’s purported deficiencies with regard to investigating and

presenting mitigating evidence, Tate cannot establish Strickland

prejudice as a result. See Landrigan, 550 U. S. at 477 (III) (A), 478

(III) (B) (1). Accordingly, his ineffective assistance of counsel claim

must fail. See Strickland, 466 U. S. at 697 (IV) (noting that an

appellate court need not address counsel’s performance if the claim

can be rejected based on a lack of prejudice); Lajara v. State, 263

Ga. 438, 440-441 (3) (435 SE2d 600) (1993) (same).

2. Tate’s Competency.

As further discussed below, Tate was evaluated twice during

his trial proceedings, the last time two months before his sentencing

trial, and he was found competent both times.14

14 The habeas court rejected Tate’s claim that trial counsel were ineffective in providing Dr. Richards with background information and details regarding the alleged source of Tate’s religious views for the purpose of evaluating Tate. As discussed in subdivision (D) below, we find no merit to Tate’s claim on cross-appeal that the habeas court erred in rejecting this claim. 56 3. Tate’s Understanding of the Meaning of Mitigation Evidence and His Right to Present Such Evidence.

Tate’s own statements at the guilty plea hearing and at the

status hearing on his motion for new trial demonstrate that he

understood that he had a right to present mitigation evidence. See

Landrigan, 550 U. S. at 479 (III) (B) (2) (stating that the Supreme

Court had “never required a specific colloquy to ensure that a

defendant knowingly and intelligently refused to present mitigating

evidence”). Those statements also clearly reflect Tate’s

understanding that the purpose of such evidence is to convince the

sentencer to impose a sentence other than death. See id. (citing the

defendant’s statement to the sentencing court that, if the court

wanted to give him the death penalty, to “just bring it right on” and

that he was “ready for it” as evidence that he “clearly understood the

consequences of” not presenting mitigating evidence). At the status

hearing on the motion for new trial, Tate also stated that “the

mitigating evidence [presented at the sentencing trial] did not have

no bearings [sic] on the case anyway, because the decision was still

57 capital punishment,” further confirming Tate’s understanding of the

purpose of mitigation evidence. That Tate had such an

understanding is corroborated by trial counsel’s habeas testimony

that “[their] hands were tied” with regard to presenting mitigation

evidence, because at the time of the sentencing trial Tate had

adopted “the mantra” that he “ha[d] committed a sin worthy of death

and he wanted to die.”

4. Tate’s Understanding of the Availability of Possible Mitigation Strategies.

In evaluating Tate’s understanding of the availability of

possible mitigation strategies, we review the new evidence that the

habeas court faulted trial counsel for not presenting at the

sentencing trial regarding (1) Tate’s abusive upbringing and his

family’s mental health history, (2) his psychiatric background and

mental disorders through expert testimony, and (3) his drug

dependency and drug use leading up to the crimes. 15 We also review

15 Although we need not and do not decide whether trial counsel were

deficient in investigating mitigating evidence, see Lajara, 263 Ga. at 440-441 (3), trial counsel’s actions are relevant to the extent that they show Tate’s understanding of the availability of possible mitigation strategies. 58 what the record shows regarding Tate’s general understanding

about such evidence, keeping in mind that trial counsel were not

required to complete a full investigation before explaining Tate’s

options to him in order for him to be sufficiently advised to make an

informed and knowing decision.

a. Mitigating Evidence of Abusive Upbringing and Family Mental Health History.

The habeas court faulted trial counsel for failing to present

evidence that “[Tate]’s childhood was characterized by poverty,

neglect, incest, and physical, sexual, and emotional abuse.” The

habeas court described extensively the new habeas evidence

regarding Tate’s childhood, including the following. When Tate was

young, his father worked on an oil rig and was often absent for long

periods of time. When he was home, he beat Tate and his siblings

regularly with belts, extension cords, and his fists. Tate’s mother

flew into sudden rages, whipped Tate for wetting the bed, hit Tate

and his siblings with her fists, whipped them with belts, routinely

yelled at them, called them profane names, berated them, and forced

59 them to kneel and hold their ankles, sometimes while nose to nose.

Tate’s parents also fought violently with each other. In 1987, eight-

year-old Tate moved with his family from Louisiana to Georgia, and

approximately a year later his mother reported to counselors at

Three Rivers Behavioral Health (“Three Rivers”) that his older

brother Curtis had been molesting Tate and his younger siblings.

Tate later reported to a social worker that he had been anally raped

for a year. According to the Three Rivers records, the Tate children

expressed “anger, fear, shame and embarrassment” over the

molestation. Tate asked for help in controlling his anger and

reported that he had stopped attending school, and he was retained

in the second grade. The following year, 17-year-old Curtis Tate was

released from a juvenile detention center and again molested Tate

and raped his sister, Kim Tate. In 1990, Curtis Tate pleaded guilty

to incest and child molestation charges.

In 1991, 11-year-old Tate and his family moved back to

Louisiana. Tate’s father and sister soon returned to Georgia while

the rest of the family remained in Louisiana, where Tate’s mother’s

60 boyfriend lived with them. He not only physically abused Tate’s

mother but also abused Tate and his brothers by force-feeding them,

holding them at gunpoint, and forcing them to kneel for 24 to 36

hours at a time on frozen rice scattered on the floor with only bread

to eat and water to drink. Tate performed poorly in school and came

back to Georgia to live with his father in 1992. He attended school

in Paulding County for a few weeks but stopped when he was bullied

for having been sexually molested. Following a fistfight with his

father in October 1992, the Department of Family and Children

Services (“DFCS”) received a complaint of child abuse or neglect.

After another fight with his father, 13-year-old Tate was committed

to Northwest Georgia for 30 days for psychological evaluation.16

Several months after his release, Tate was sexually molested by his

paternal aunt’s husband. From adolescence until the time of the

16 According to the evaluation, Tate was “referred for psychological evaluation by court order signed by Judge Tonny Beavers of Paulding County Juvenile Court,” who was also the trial judge who accepted Tate’s guilty plea and presided over Tate’s sentencing trial. The evaluation stated that “[Tate] came to the attention of the court because of truancy, terroristic threats, and use of fighting words” and indicated that the terroristic threats and fighting words were directed at Tate’s father. 61 three brothers’ arrests, the Tate siblings also engaged in incestuous

acts with each other.

While the habeas court found the above evidence of Tate’s

abusive upbringing compelling, the record shows that trial counsel

were aware of the vast majority of this evidence and discussed

presenting it as mitigating evidence with Tate. Trial counsel’s

billing records show that they met with Tate many times, and

counsel testified that, as relevant here, they discussed with Tate his

limited education, prior criminal history, sexual abuse, and physical

abuse, particularly by his father. Reed testified that Tate was not

“always forthcoming,” particularly concerning “the home in which

he was brought up . . . because it was very difficult for him to talk

about.” Nevertheless, trial counsel learned about Curtis Tate’s

sexual abuse of Tate as a child from multiple sources, including

Tate’s videotaped custodial interview, medical records that they

obtained, and Tate himself. Indeed, counsel thought that it would

be strongly mitigating evidence and that “[e]verything else pale[d]

in comparison.”

62 At the habeas evidentiary hearing, Reed testified that he and

Cella had initially considered a mitigation strategy that included

“[Tate]’s childhood background, lack of education, no parenting, . . .

rampant [drug use], . . . child abuse[, and h]is own brother[’s]

molest[ation] of him.” He also stated that trial counsel discussed

calling Curtis Tate and Tate’s mother to testify about Curtis’s

molestation of Tate and calling Dr. Richards to testify “primarily

[about] the mental aspects and the sexual abuse aspects of the case.”

Reed explained, however, that Tate “was adamant that [trial

counsel] were not going to call [his mother and Curtis]” and that he

did not want that evidence presented. Reed also testified that, while

his memory was not as vivid with regard to Dustin Tate and Chad

Tate, Tate did not want them to testify for different reasons and

thought that he did not want them “to go back through testifying or

taking the stand.”

Cella testified similarly, stating the following:

The most vivid memory I have is discussing with [Tate] the impact of the evidence of his older brother Curtis going to prison for a violent sexual attack on [Tate]

63 when he was a young child. We had a long discussion about how helpful that was and how important for the decision maker — whether it be a judge or a jury to have that information. He was absolutely firm in his order to me that we not go into that. . . . [M]y best recollection is that this was . . . more driven by his desire to receive the death penalty than by embarrassment. . . . I just know that he was extremely firm in telling me there were going to be problems [between him and me] if I tried to bring that up in his trial, so I didn’t do that.

Cella also testified that Tate “[a]bsolutely” instructed him not to

even investigate “[t]hat particular aspect” of his background. Trial

counsel testified that, while Tate did allow the introduction of Curtis

Tate’s certified molestation conviction at trial, counsel made no

reference to the fact that Tate had been molested by his brother in

closing argument because Tate “did not want [counsel] to go into

that.” Cella testified that counsel did not “present anywhere near

as much evidence about [the molestation] as [they] would have” if

they had not been instructed by Tate to forego it.

Furthermore, counsel had two psychological evaluations

conducted on Tate and gathered documents, including Tate’s school

records and records from his treatments at Northwest Georgia in

64 1993 and 1998. Trial counsel were aware from Dr. Richards’s 2003

evaluation that Tate had a learning disability and had left school

after the sixth grade and that he reported that he had been the

victim “of physical and sexual abuse at the hands of multiple

perpetrators,” including his brother Curtis. Dr. Richards testified

in the habeas proceedings that Tate in fact told him that his

mother’s boyfriend abused him by putting a gun to his head, beating

him with a belt, and making him stay on his knees for 24 to 36 hours

at a time. The 1993 Northwest Georgia records, which trial counsel

obtained and provided to Dr. Richards and on which Dr. Richards

partially relied in conducting his 2005 evaluation, contained the

information that “DFCS ha[d] been involved in [sic] this family for

several years, because of possible physical abuse by the father as

well as the sexual abuse by the brother.” According to Cella’s billing

records, he met with Tate to discuss the contents of both of these

reports. Trial counsel also testified that they talked to Tate about

sexual and physical abuse in his family and that Tate did not want

to present this type of evidence both because of his religious view

65 that he had committed a sin worthy of death and because of his

desire not to put his family through reliving those events.

The habeas court also noted the following evidence presented

in the habeas court regarding the mental history of Tate’s family.

Tate’s mother suffered from depression, anxiety disorders, and Post

Traumatic Stress Disorder (“PTSD”), was medicated most of her

adult life on prescription drugs such as Xanax and Oxycontin, and

received psychological treatment at Three Rivers from 1988 until

2001, except for two years when she lived out of state. According to

the testimony of her counselor, Tate’s mother had mood swings and

suicidal thoughts, “was constantly preoccupied with her own issues

and seldom seemed concerned for the well-being of her children,”

“chose to stay in abusive relationships,” and reported that her ex-

husband and at least one boyfriend were abusive to her and her

children and that her brother and mother received mental health

services. Aware that Tate had been sexually abused by Curtis, the

counselor encouraged Tate’s mother to bring him to counseling with

her, but Tate never attended. The maternal and paternal sides of

66 Tate’s family also had extensive histories of mental disorders,

including anxiety, depression, drug dependency, bipolar disorder,

and schizophrenia. In particular, Tate’s maternal uncle was

diagnosed with schizophrenia, was ruled incompetent to stand trial

on a bad check charge, sexually molested Curtis Tate, and raped

Tate’s sister, for which he was charged with incest, and he died after

overdosing on prescription medication.17

Regarding this evidence, at the very least, trial counsel were

generally aware of the history of mental illness in Tate’s family from

the 1993 Northwest Georgia records. Specifically, the 1993 records

contained a psychosocial assessment of Tate that stated that

17 Because this evidence “concern[ed] things that affected [Tate]’s family

members, . . . rather than things that would have directly affected [Tate],” it would not have been significantly mitigating on its own. Whatley v. Terry, 284 Ga. 555, 566 (V) (B) (668 SE2d 651) (2008). See Hall v. Lee, 286 Ga. 79, 90-91 (II) (B) (4) (b) (684 SE2d 868) (2009) (stating that evidence about the “‘addiction, dysfunction, and brutality’” of a habeas petitioner’s family that did not directly affect the petitioner would not have been significantly mitigating). The principal value of this testimony lies in its support of Tate’s habeas experts’ mental health testimony that Tate was genetically predisposed to psychiatric disorders such as drug dependency, depression, anxiety, and symptoms of paranoia. As the discussion in the following subdivision shows, Tate also clearly understood the availability of a mitigation strategy based upon his psychiatric background and mental disorders through expert testimony. 67 “[s]everal” of Tate’s paternal uncles and his maternal great-

grandmother and grandmother had been diagnosed “manic-

depressive” and that Tate’s paternal uncle committed suicide. Trial

counsel testified that they discussed Tate’s family mental health

history with him. Therefore, the record shows that Tate clearly

understood the availability of a mitigation strategy based upon his

abusive upbringing and his family’s mental health history.

b. Mitigating Expert Evidence Regarding Tate’s Psychiatric Background and Mental Disorders.

The habeas court faulted trial counsel for not presenting

“mitigating evidence of [Tate]’s psychiatric history and mental

illness” through expert mental health testimony like the following

testimony that Tate presented in the habeas court. Dr. Frederic

Sautter, a psychologist specializing in trauma, and Dr. Bushan

Agharkar, a forensic psychiatrist, reviewed the records and the

“biopsychosocial assessment” of the mitigation specialist retained by

habeas counsel that was based, among other things, on interviews

with Tate’s family members and records regarding Tate, including

68 court records and testimony in Tate’s trial proceedings.18 Based on

their review, both experts opined that Tate exhibited symptoms

consistent with Complex PTSD, an especially severe form of PTSD

that may be present in a victim who has been exposed to chronic or

repeated trauma in the past, particularly in childhood and

adolescence.19 Dr. Sautter testified that Complex PTSD “has a

powerful and pervasive impact on the traumatized person’s ability

to control [his] thoughts, emotions, and behaviors in situations that

make [him] threatened or ashamed.” Both experts recommended

that neuropsychological testing be performed on Tate, which was

conducted by Dr. Robert Shaffer. As the habeas court found, based

on that testing, Dr. Shaffer concluded that Tate suffers from

significant brain damage of the sort that “would [cause him to] have

18 Dr. Agharkar also interviewed Tate.

19 Both experts cited Tate’s traumatic childhood of physical and sexual

abuse, particularly his repeated sexual abuse by his brother Curtis, as significant to this diagnosis. Another of Tate’s habeas experts, Dr. Bekh Bradley, a psychologist, testified that, although Complex PTSD is not listed in the Diagnostic and Statistical Manual of Mental Disorders, “[i]t was an available syndrome or set of symptoms” at the time of Tate’s sentencing trial in 2005. 69 trouble conforming [his] behavior appropriately where a situation

changed in an unanticipated manner.”

Dr. Pablo Stewart also evaluated Tate in order to assess his

drug and alcohol history and its impact on his mental state and

functioning in light of his trauma history. He opined that Tate’s

family history predisposed him to drug dependence, that Tate did in

fact suffer from “chronic drug dependence,” and that Tate’s drug use

was a reaction to the “extraordinary amount of incest, physical

abuse, and psychological and emotional abuse” that he had

experienced throughout his childhood. According to Dr. Stewart,

“[Tate’s] drug usage began wholly as an effort to self medicate for

the serious depression, extreme anxiety, and feelings of shame” that

resulted from his traumatic upbringing and sexual abuse. Dr.

Stewart explained that Tate’s “underlying organic brain deficits

made him particularly vulnerable to the damaging effects of the

relentless abuse he experienced and left him with few resources to

cope with those effects.” However, he pointed out that Tate’s drug

usage “could ultimately only exacerbate both [Tate’s] underlying

70 cognitive impairments and his mental health symptoms.”

Specifically with regard to Tate’s report that he had been using

various drugs leading up to and at the time of the offenses, Dr.

Stewart opined that this drug use “diminished Mr. Tate’s ability to

control his impulses, to think clearly, and to cope with a chaotic and

downward spiraling situation, especially after his brother Chad

killed the child,” and that it was “unlikely that the situation would

have occurred without the substance abuse.”

While the habeas court found the expert mental health

testimony convincing, given that Tate wanted no mitigation

evidence presented and wanted the death penalty, the question here

is what the record reflects regarding Tate’s general understanding

of the availability of such evidence as possible mitigating evidence.

So viewed, the record shows that the trial court’s order in 2003

included a direction to Dr. Richards to evaluate Tate for “any

mitigating factors regarding [his] mental status” at the time of the

crimes. As the habeas court found, Tate told Dr. Richards about his

mental health history, the rapes by his brother, and his abuse by his

71 mother’s boyfriend and his father. The habeas court also correctly

pointed out that in his 2003 report, Dr. Richards opined that drugs

and alcohol had “likely impaired [Tate’s] judgment” at the time of

the crimes, that Tate suffered from an anxiety disorder, and that

Tate had “an unusual psychological relationship” with his brother.

The habeas court found that, according to Dr. Richards, as a result

of this relationship, “[Tate] felt his brother was in control, including

the period leading up to and the day of the crime[s], and . . . this

dynamic contributed to his participation in the crime[s].” Dr.

Richards concluded that Tate suffered from “diagnosable mental

conditions at the time of the alleged offense[s],” which “would

certainly have influenced his behavior greatly and affected his

judgment significantly at and around the time of the alleged

offenses.”

The record also reflects that trial counsel subsequently filed an

ex parte motion for funds to retain the services of an independent

psychologist and psychiatrist and that, at the ex parte hearing on

that motion, Cella informed the trial court that, although Dr.

72 Richards was employed by the State, he was “somebody that [Cella]

ha[d] worked with in the past and ha[d] a lot of respect for, and [that]

his report provided information that [trial counsel] fe[lt wa]s going

to be helpful to [the defense] in the sentencing trial.” As the habeas

court noted in its order, Cella explained to the trial court that, for

mitigation purposes, counsel were particularly interested in the

information in Dr. Richards’s report regarding “the combination of

drugs and alcohol abuse, along with this pathological relationship

that [Tate] had with his brother, and those two forces affecting his

judgment.” Cella asked the trial court to reserve ruling on this

motion until he could “talk to Dr. Richards and find out how

qualified he [wa]s to support that conclusion that he drew” regarding

“how substance abuse affects one’s brain and, therefore, one’s

judgment.”20 In addition, Cella testified in the habeas proceedings

20 The habeas court found that, “[o]ver the next twelve months [following

the trial court’s grant of Cella’s June 29, 2004 request to reserve ruling on the motion for funds to retain the services of a psychologist and a psychiatrist], counsel’s billing records d[id] not reflect any work on the case, other than speaking with [Tate] twice in December of 2004, until August of 2005.” The trial court orally granted Cella’s request to reserve its ruling on this motion at

73 that, while he did not have “any particular memory of any individual

conversations that [he and Tate] had after th[e 2003] evaluation,”

he was “sure” that such conversations took place. Cella’s testimony

is supported by his billing records showing that he reviewed Dr.

Richards’s 2003 report and had multiple telephone conferences with

him about his findings and then spent almost three hours discussing

the hearing and asked Cella to prepare the proposed order, and the printed date on the order is June 29, 2004. Cella’s billing records indicate that he began work on this issue before the trial court actually filed the signed order on July 23, 2004. Specifically, Cella’s billing records show that, from July 1, 2004, to July 31, 2005, he billed almost 40 hours, including a July 2, 2004 telephone conference with Dr. Richards and a three-and-three-quarters-hour conference with Tate on July 9, 2004. Among other matters, Cella also billed for a telephone conference with Tate on August 15, 2004, five hours spent “[c]onferenc[ing] w[ith the] client, co-counsel, [and] view[ing] evidence [at the] jail” on August 17, 2004, a half-hour telephone conference with Tate and co- counsel on December 7, 2004, and a three-and-one-half-hour conference with Tate and co-counsel on the following day. Reed’s billing records show that, during that same time period, he billed over 80 hours. Regardless of when the habeas court began its twelve-month count, its factual finding here is not supported by the evidence. However, there is a gap in billing for both attorneys between mid-December 2004 and mid-July 2005. As noted by the habeas court, in early 2005, both a new trial judge and a new district attorney came on the case. On July 5, 2005, the newly assigned trial judge entered an order scheduling Tate’s trial for October 24, 2005. On August 23, 2005, the trial court entered an order prepared by Cella ordering Tate’s second evaluation by Dr. Richards. Moreover, while Reed testified that he thought that all of his work on the case was reflected in his billing records, Cella testified that his billing records represented the minimum number of hours that he worked on Tate’s case, because he was “just not a real good record keeper, as far as [his] time.” 74 with Tate the report and its “impact on defense issues.”

As previously discussed, when trial counsel were unable “to

talk [Tate] out of his plan to seek the death penalty,” they arranged

for Dr. Richards to conduct a second evaluation of Tate to determine

whether he was competent to enter a guilty plea. At that time,

according to Dr. Richards’s habeas testimony, trial counsel provided

him with Tate’s 1993 and 1998 Northwest Georgia records, and

Cella’s billing records reflect that he attended Dr. Richards’s

interview of Tate on August 24, 2005. As relevant to Tate’s mental

health, the 1993 Northwest Georgia records of Tate’s admission at

age 13 years included a psychological evaluation of Tate. The

evaluator did not make a definitive diagnosis of Tate but stated that

major depression and an adjustment disorder should be ruled out.

The evaluator also reported that Tate made statements “suggestive

of grandiosity and paranoia, possibly delusional,” and that he might

show “distorted thinking patterns [and] poor judgement [sic] and

decision-making” when dealing with “ambiguous or emotionally

charged situations.” The records from Tate’s 1998 involuntary

75 admission to Northwest Georgia show that he was discharged after

staying one night following his overdose on pain pills. According to

the discharge summary, 18-year-old Tate tested positive for

marijuana but “d[id] not report any abuse of alcohol or drugs,” and

the evaluator wrote that Tate “tend[ed] to minimize and deny the

extent of his marijuana use.” However, the evaluator found that

Tate had “good insight into his problems and good judgment” and

had “no hallucinations, delusions or other symptoms of psychotic

illness.” His discharge diagnoses were cannabis abuse and a

sprained ankle, and his prognosis was “[g]uarded, based upon [his]

abstinence from substance abuse.” In his 2005 report, Dr. Richards

concluded that Tate did “not currently suffer from any significant

mental illness.” While he noted that Tate had exhibited psychotic

symptoms in the past, he “believ[ed] these were primarily related to

heavy drug use.”

Again, billing records show that Cella had multiple telephone

conferences with Dr. Richards regarding this report and discussed

its findings with Tate. Moreover, while Cella initially testified that

76 he did not do anything with the 2003 report because it was not

“particularly helpful,” after having his memory refreshed by reading

a copy of the transcript of the motions hearing and his billing

records, Cella testified that he recalled having conversations with

Dr. Richards about his possible testimony based on the report. Dr.

Richards likewise testified that trial counsel discussed with him

“possible testimony in the penalty phase centered on the issues of

Mr. Tate’s pathological relationship with Dustin and his drug use[,

b]ecause [his] understanding of the theory of the case at the time

was that the defense was going to primarily, at least in part, be that

Dustin was really the person driving . . . the entire incident and

talking about what the impact of [Tate’s] drug use might have been.”

Furthermore, Cella’s billing records indicate that on November

2, 2005, he billed three-and-a-half hours for time spent working on

“[p]sychological [i]ssues” in preparation for the sentencing trial, and,

as the habeas court noted in its order, Cella indicated to the trial

court at Tate’s guilty plea hearing that the defense would be

presenting evidence of the relationship between Tate and Dustin

77 Tate at the sentencing trial. Cella confirmed in his habeas

testimony that, at least at the time of the guilty plea hearing, he

intended to present Dr. Richards’s testimony, and the record reflects

that trial counsel prepared a witness subpoena for Dr. Richards and

that their investigator personally served him with that subpoena on

November 10, 2015, five days before Tate entered his guilty plea.

While Cella could not recall why Dr. Richards was not called as a

witness at Tate’s sentencing trial, he testified that he did recall that

Tate did not want mental health evidence presented. Reed testified

that, although he could not “recall specifically,” he did “know that

there was some fear” that Dr. Richards’s testimony would violate the

limitations that Tate had put on trial counsel regarding mitigation.

Trial counsel’s testimony indicates that counsel discussed

presenting this evidence with Tate.

Accordingly, based on all of the foregoing, we conclude that

Tate understood the availability of a mitigation strategy involving

his psychiatric background and mental disorders through expert

mental health testimony.

78 c. Mitigating Evidence of Drug Dependency and Drug Use Leading Up to the Crimes.

evidence of Tate’s history of drug use and abuse, including the

information that Tate began using marijuana and alcohol at

approximately age 12 years and that between ages 14 and 15 years

he became “a regular drinker” and began to use drugs that

eventually included methamphetamine and a variety of prescription

“downers” and “painkillers” that he obtained from his mother and

his sister. The habeas court also noted the information in Dr.

Richards’s 2003 evaluation that Tate stated that he began using

drugs because of his sexual abuse and that he constantly “stayed on

dope” prior to his arrest. In addition, the habeas court pointed out

the allegedly new habeas evidence in Tate’s 1998 records from

WellStar Paulding Hospital where he was treated for his pain pill

overdose prior to his involuntary admission to Northwest Georgia,

which “show[ed] two suicide attempts over [a period of] two weeks

from overdosing.” Finally, the habeas court noted the habeas

79 testimony describing Tate’s “overwhelming anxiety,” extreme fear of

being in public, “increasing use of drugs,” acts of self-mutilation, and

rising stress “closer to the time of the crimes as [Tate] had pressure

from his family to pay bills and keep [his father’s logging] business

going, combined with his drug use.”

However, the record reflects that trial counsel were well aware

of the vast majority of this information and discussed the possibility

of using his drug history as mitigation evidence with Tate. Tate

disclosed in his custodial interview that one of his objectives in

burglarizing the Williams home was to steal drugs from his drug

dealer and that he had used drugs shortly before and after the

crimes. In addition, trial counsel learned that Tate had abused

drugs and alcohol from a young age through conversations with

Tate, the Northwest Georgia records, and the evaluations conducted

on Tate. Specifically, Dr. Richards’s 2003 report stated that Tate

reported “that he was using alcohol by age eleven” and that “he

began using marijuana at age ten and ha[d] used cocaine, crank,

speed, ice, heroin and Ecstasy.” Tate also reported that “he used

80 whatever he could get every day,” that he had in the past supported

his habit by selling drugs, and that he “was drinking ‘all night’ the

night before [the crimes,] and . . . had been using ice, marijuana and

crank at the time of the alleged offense[s].”

As to the information that the habeas court cited regarding

Tate’s two suicide attempts in a two-week period in 1998, Dr.

Richards stated in his 2003 report that Tate had reported that “he

ha[d] tried to kill himself three or four times by taking drug

overdoses, putting a gun in his mouth, which then misfired, and

cutting his wrists superficially.” However, Dr. Richards reported

that Tate “denied any current suicidal ideation, plan or intent.”

With respect to the habeas testimony that Tate suffered from

“overwhelming anxiety” and a fear of being in public, in his 2003

evaluation Dr. Richards opined that Tate “appear[ed] to suffer from

an anxiety disorder . . . akin to an agoraphobic disorder, where he

ha[d] difficulties with large crowds and large spaces.” As discussed

above, Cella’s billing records show that he discussed Dr. Richards’s

2003 report with Tate, and trial counsel also testified that they

81 discussed with Tate his history of alcohol and drug abuse and

considered using it as mitigation evidence.

The record also shows that trial counsel sought funds for a

pharmacologist to develop information showing how Tate’s

extensive drug abuse at a young age affected him. However,

according to Cella’s testimony, Tate was not “real happy about

pursuing” this avenue of potential mitigation, and Reed testified

that, because of Tate’s belief that he had “committed a sin worthy of

death,” counsel had “no other option” but to refrain from presenting

evidence involving his history of drug and alcohol use at the

sentencing trial.21 Moreover, Tate told the trial court at his guilty

plea hearing that he believed that his drug use at the time of the

21 Cella also testified that he was ordinarily “a bit ambivalent about”

presenting evidence of a defendant’s drug use, because “half the population finds this mitigating; the other half finds it aggravating” and that, thus, he considered it “an area that’s fraught with peril.” However, as discussed in subdivision (b) regarding mental health testimony above, both the trial and habeas record show that trial counsel considered using evidence of how Tate’s drug use affected his judgment at the time of the crimes. See Cooper v. Secretary, Dept. of Corrections, 646 F3d 1328, 1355 (III) (A) (2) n.20 (11th Cir. 2011) (acknowledging that evidence of alcoholism and drug abuse can be “‘a two-edged sword’” but crediting “evidence of alcohol abuse beginning at age 11 as mitigation, as it was used as a way to escape [the defendant’s] horrible background”). 82 crimes had been used to explain his actions but that he did not think

that it had any bearing on his judgment and that he did not want to

use his drug abuse as a “crutch.” In closing argument at the

sentencing trial, Cella told the trial court that, before he proceeded

to tell the court why he disagreed with Tate that a death sentence

was the appropriate punishment in his case, he had “promised

[Tate] that [he] would remind the court about some things that

[Tate] said at his guilty plea,” including Tate’s “‘refus[al] to use

drugs as a crutch or an excuse.’” All things considered, we conclude

that Tate had an understanding of the availability of a mitigation

strategy based upon his history of drug dependency and drug use

leading up to the crimes.

5. Conclusion.

Based on all of the foregoing, we conclude that Tate was

competent and made an informed and knowing decision when he

instructed trial counsel not to present mitigating evidence at his

sentencing trial. Therefore, even assuming that trial counsel were

deficient in investigating mitigating evidence, he cannot establish

83 that, but for trial counsel’s alleged deficiencies in that regard, a

reasonable probability exists that the outcome of his sentencing trial

would have been different. Accordingly, he has failed to establish

Strickland prejudice. See Krawczuk, 873 F3d at 1295-1296 (VII) (C),

(D) (holding that the defendant could not establish Strickland

prejudice, where the defendant’s rejections of his counsel’s attempts

to present mitigation evidence “were not taken in ignorance” in that

counsel had advised him of the importance of mitigation evidence,

including discussing with him a psychiatric report containing

details of his “abusive childhood, military psychiatric report, and

past encounters with the law”). See also Brawner, 439 Fed. Appx.

at 407-408 (I) (D) (considering the fact that a competent defendant’s

“wishes [to receive the death penalty] remained the same for over

three years, throughout pre-trial, direct appeal, and state habeas

proceedings,” in finding that his decision to forego the presentation

of mitigation evidence at his death penalty trial was knowing and

voluntary). Compare Blystone, 664 F3d at 426 (IV) (B) (2) (holding

that the state court unreasonably determined that the defendant

84 waived all mitigating evidence and thus could not show Strickland

prejudice, where the record did not reflect that he “understood that

any form of evidence other than lay witness testimony could have

been offered in mitigation” and did not show “that [trial counsel]

ever discussed with [the defendant] the possibility of considering”

other types of available mitigation, including expert mental health

evidence).

D. Ineffective Assistance of Counsel Claim Regarding Tate’s Guilty Plea.

In his cross-appeal, Tate contends that the habeas court erred

in denying his claim that trial counsel were ineffective in allowing

him to plead guilty, because he was not competent to enter a guilty

plea. As discussed above, prior to entering his plea, Tate was twice

evaluated and found to be competent by Dr. Richards. Nevertheless,

Tate argues that trial counsel did not provide Dr. Richards with all

of the relevant documents necessary to make such a determination.

To support this claim, Tate relies on Dr. Richards’s habeas

testimony indicating that his 2005 evaluation finding Tate

85 competent to plead guilty may have been compromised because at

that time he did not know whether or the extent to which Tate’s

decision to plead guilty was influenced by the writings of an

allegedly “pro death penalty individual” and did not have Tate’s

most recent mental health records or complete information about his

childhood abuse.

The habeas court found that, “[a]lthough trial counsel did not

provide Dr. Richards with as much background information as

habeas counsel, Dr. Richards was still aware of much of that

information,” including some of the childhood abuse and Tate’s

several suicide attempts. This finding is supported in the record. In

fact, Dr. Richards testified that Tate not only told him about Curtis’s

molestation of him but also about being sexually abused by an aunt

and a cousin and about being physically abused by his mother’s

boyfriend. The habeas court also found that Tate told Dr. Richards

about his most recent mental health treatment, which is supported

in the record. Dr. Richards also testified that if he felt that he

needed additional documents or needed to talk to family members

86 in order to complete an evaluation, he would typically ask the

attorney for assistance. The habeas court found that “[t]he record

does not indicate that Dr. Richards requested any additional

documents” in Tate’s case and that “Cella testified that if Dr.

Richards had requested any additional documentation, trial counsel

would have provided it.” The habeas court’s findings are supported

in the record, and, based on those findings, the habeas court properly

concluded that trial counsel’s performance in this regard was

reasonable. See Head v. Carr, 273 Ga. 613, 631 (4) (C) (7) (544 SE2d

409) (2001) (holding that it is “not reasonable to put the onus on trial

counsel to know what additional information would have triggered

[an expert] to order [further] testing”).

We also agree with the habeas court that Tate failed to show

that he was prejudiced. For the 2005 evaluation in which trial

counsel sought to have Tate evaluated for competence to enter a

guilty plea, Dr. Richards relied on the documents from the 2003

evaluation, which had included Tate’s videotaped custodial

interview, the autopsy reports for both victims, post-arrest

87 correspondence from Dustin Tate to Tate, a meeting and multiple

phone calls with Cella, and two interviews with Tate, during which

Tate told Dr. Richards about his several suicide attempts, mental

health treatment that he had received, and childhood abuse. In

addition to those sources of information, in 2005 Dr. Richards also

considered Tate’s ten-page manuscript explaining his rationale for

possibly entering a guilty plea, his Northwest Georgia records, and

an August 2005 interview with Tate.

With regard to Tate’s competence to stand trial, Dr. Richards

concluded that Tate “understands the nature and object of the

proceedings pending against him [and] his condition with regard to

the proceedings and [that] he could assist an attorney in mounting

a defense.” As to his competence to enter a guilty plea, Dr. Richards

concluded that “there [wa]s nothing psychologically or cognitively

that would impair Mr. Tate in his ability to enter a knowing,

intelligent and voluntary plea to the charges pending against him”

and that there were no “psychotic symptoms that impair[ed] his

contact with reality or his ability to evaluate situations realistically

88 and come to conclusions.” Specifically with regard to whether Tate’s

religious views affected his competence to enter a guilty plea, Dr.

Richards found that “[Tate’s] beliefs d[id] not constitute a delusion

and, while strident, [we]re not outside the realm of what is

acceptable, particularly within his religious peer group,” and that

“[he] appear[ed] to have made a reasonable decision based upon his

beliefs as to what his course of action should be with regard to the

offense[s that] he [wa]s alleged to have committed.”

Dr. Richards testified in the habeas proceedings that, had he

been provided the new information showing the extent and

pervasiveness of Tate’s childhood abuse, Tate’s complete mental

health history, and the information that Tate read the writings of a

“pro death penalty individual,” “it very likely would have affected

[his] 2005 conclusion that Mr. Tate was competent to plead guilty to

capital murder without a negotiated plea for a life sentence.” He

explained that, due to this lack of information, he never considered

a diagnosis of PTSD or Complex PTSD, and, “[h]ypothetically, [he]

might have been more comfortable if [Tate] had had a negotiated

89 plea as opposed to opening himself up to the death penalty.”

However, he refused to state what his conclusion would have been

had he been provided the new information, because he had not

conducted an evaluation of Tate with the new information.

Nevertheless, he testified that “the question [of competency] is the

same regardless of what the potential penalty is” and that,

therefore, “the issues are not different in a death penalty case.” He

also acknowledged that in 2005 Tate understood the charges against

him, the three possible sentencing options, and the fact that the

decision as to his sentence would be for the judge or jury based on

the evidence presented in the sentencing trial. Moreover, Cella

testified that he never questioned Tate’s competence to plead guilty.

He explained that he knew that “it was a long shot that [Tate] would

be found incompetent” and was only “grasping at straws” when he

requested the 2005 competency evaluation, because Tate “wouldn’t”

— as opposed to “couldn’t” — work with counsel once he decided to

plead guilty and “wanted the death penalty.”

As Tate failed to present any other evidence supporting this

90 claim, he failed to show a reasonable probability that, but for trial

counsel’s alleged deficiencies, he would have been found

incompetent to enter a guilty plea in 2005, and the habeas court

properly denied relief on this claim. See Perkins v. Hall, 288 Ga.

810, 823 (III) (C) (708 SE2d 335) (2011) (stating that “the issue of [a

defendant]’s competence to stand trial was much narrower than the

extremely broad issue of mitigating evidence in the sentencing

phase,” where such evidence implicated a number of mental health

concerns, including childhood abuse, substance abuse from a young

age, and issues regarding the defendant’s self-control); Colwell v.

State, 273 Ga. 634, 636 (2) (544 SE2d 120) (2001) (holding that a

defendant was not improperly found competent to stand trial, where

the defendant actively sought the death penalty, “likely suffered

from a mental disease[,] and was plagued by a desire to die,” because

he “clearly understood the nature and object of his proceedings and

. . . possessed the intellectual and communication skills necessary to

participate in his own case in the manner that seemed best to him”).

See also Godinez v. Moran, 509 U. S. 389, 396-399 (II) (A), (B) (113

91 SCt 2680, 125 LE2d 321) (1993) (holding that the standard for

competence to stand trial and competence to plead guilty are the

same, i.e., whether the defendant has “‘sufficient present ability to

consult with his lawyer with a reasonable degree of rational

understanding’” and a “‘rational as well as factual understanding of

the proceedings against him’” (quoting Dusky v. United States, 362

U. S. 402, 402 (80 SCt 788, 4 LE2d 824) (1960)).

E. Ineffective Assistance of Counsel Claim Regarding Tate’s Interview by the Trial Judge’s Acquaintance.

Tate contends that trial counsel were ineffective in that they

allowed Tate to be privately interviewed by an acquaintance of the

trial judge prior to Tate’s entering a guilty plea. The habeas court’s

factual findings with regard to this claim are based upon trial

counsel’s habeas testimony and show the following. At some point

during the trial proceedings, Mike Perry introduced himself to Cella

as “a friend of [the trial judge].” Cella recalled that Perry was from

England and was “either thinking about or actually in the process

of” writing a book about the death penalty. Perry asked Cella about

92 speaking to Tate, and Cella responded that “[he] didn’t know if [his]

client would be willing to do that or not but [he] would ask him.”

When Cella asked Tate about speaking to Perry, Tate agreed to do

so. Cella could only recall that “at some point” Tate and Perry had

“a conversation . . . in a room by themselves.” Cella did not know

what the conversation entailed or whether Perry actually published

a book. Reed testified similarly, although he was unaware of the

conversation until Tate told him that he had talked to Perry, and he

recalled that the conversation occurred before Tate’s guilty plea.

The habeas court concluded that trial counsel’s performance in

permitting Tate to be interviewed outside their presence by a

“friend” of the judge conducting his bench trial was unreasonable

and, thus, constituted deficient performance.

Pretermitting whether that conclusion was correct, the habeas

court did not err in concluding that Tate had failed to show

prejudice. Tate contends that, under the circumstances here, where

the trial judge “surely” knew that his acquaintance was writing a

book about the death penalty and sentenced Tate to death soon after

93 the interview, the trial judge’s impartiality and ability to consider

only the evidence presented could reasonably be questioned.

Therefore, Tate argues, trial counsel’s alleged error in allowing the

interview with Perry was structural error not requiring proof of

prejudice. See Johnson v. United States, 520 U. S. 461, 468-469 (II)

(C) (117 SCt 1544, 137 LE2d 718) (1997) (noting that the Supreme

Court has held that the “lack of an impartial trial judge” is

structural error (citation omitted)). However, Tate did not introduce

any evidence regarding whether Perry had an opinion about the

death penalty, any evidence regarding what Tate and Perry

discussed, any evidence that Perry relayed any information about

the interview to the trial judge, or any evidence regarding the extent

of the relationship that existed between Perry and the trial judge.

Because Tate offered only speculation that the trial judge was biased

or that his impartiality could reasonably be questioned, he has not

shown a structural error. See Barnett v. State, 300 Ga. 551, 554-555

(2) (796 SE2d 653) (2017) (explaining that the “constitutional

guarantee of due process is not concerned with mere appearances of

94 partiality” but with “actual bias” (citations and punctuation omitted;

emphasis supplied)). Moreover, “as speculation is insufficient to

satisfy the prejudice prong of Strickland,” Tate has failed to carry

his burden with respect to this alleged instance of ineffective

assistance of counsel, and the habeas court did not err in rejecting

this claim. See Hulett v. State, 296 Ga. 49, 69 (5) (c) (ii) (766 SE2d

1) (2014) (citation and punctuation omitted).

F. Ineffective Assistance of Counsel Claim Regarding Tate’s Waiver of a Jury Trial as to Sentencing.

Tate also contends that the habeas court erred in denying his

claim that trial counsel were ineffective in persuading him to waive

his right to a jury trial as to sentencing for the murder convictions.

Whether to waive a jury trial is a strategic decision to be made by an accused after consultation with counsel. Strategic decisions of counsel (in this case, whether to advise [Tate] to waive a jury trial) are to be judged by whether the decision was . . . reasonable on the basis of the facts of the particular case, viewed as of the time of counsel’s conduct.

Head v. Thomason, 276 Ga. 434, 439 (4) (578 SE2d 426) (2003)

(citation and punctuation omitted).

95 In denying Tate’s claim here, the habeas court relied on Cella’s

testimony that the decision to waive Tate’s right to a jury trial as to

sentencing was made after the trial court had summoned

approximately 250 prospective jurors and the parties had spent

approximately three weeks attempting to qualify jurors to serve on

the case.22 Cella testified that, after hearing the trial court read the

charges in the indictment against Tate to them, many of the

prospective jurors stated that they could not consider a life sentence

and that, “[b]y the time [counsel] got done questioning [the

jurors], . . . [they] didn’t have half the number of jurors qualified that

[they] needed to have to try the case.” Cella explained that, when it

appeared that the trial court would need to continue the case for

weeks in order to summon more jurors and that the parties still

might not be able to qualify a sufficient number of jurors, he talked

with Tate about possibly waiving his right to a jury trial as to

22 Cella testified that Tate “never wanted to have a trial” but, instead,

wanted to plead guilty and accept a death sentence. Cella explained that he told Tate that “that wasn’t allowed” and that “he had to have [a jury trial].” According to Cella, Tate “accepted that.” 96 sentencing for the murders. In an attempt to “outsmart[ ]” Tate,

who “disagree[d with counsel] about what his goal should be,” Cella

suggested to Tate that he was more likely to get the sentence that

he wanted in a bench trial by telling Tate that Cella only needed to

get one juror “on [his] side” and that he considered himself to be

“pretty good in front of a jury.”

Cella testified that he spoke with individuals who knew the

trial judge and “who had seen him presiding and seen the decisions

that he had made over the course of his career” and that “every

single person [he] talked to that knew the judge, including the

people in the DA’s office, told [him] that they didn’t believe [the trial

judge] would give the death penalty” and that the judge was not

“gung-ho . . . in favor of the death penalty.” In addition, Reed

testified that he had personal experience with the trial judge, found

him to be exceptionally “fair” and “open-minded,” thought that he

was “already leaning towards a life sentence,” and was also aware

of courthouse discussions that he would not impose the death

penalty in Tate’s case. Finally, Tate himself told the trial judge at

97 the plea hearing that he had been in his court as a juvenile and that

he had found the trial judge to be a “very fair person” and thought

that he “would give the appropriate sentence.”

Accordingly, in light of the above, the habeas court did not err

in holding that trial counsel’s advice to Tate with respect to waiving

his right to a jury trial as to sentencing did not constitute ineffective

assistance of counsel.23 See Thomason, 276 Ga. at 439 (4) (holding

that trial counsel’s conduct in advising his client to waive a jury trial

in the client’s death penalty case was not ineffective assistance,

where trial counsel’s strategic reasons to favor a bench trial included

a belief that the judge would think the defendant’s crimes were less

worthy of death than a jury would).

G. Ineffective Assistance of Counsel Claim Regarding the Failure to Present Certain Evidence.

Tate contends that trial counsel rendered ineffective assistance

in not presenting Chad Tate to testify at the sentencing trial that he

had killed Katelyn Williams of his own volition and not at Tate’s

23 That is not to say that we endorse counsel’s effort to “outsmart” his client in the

hope of defeating his client’s goal. 98 direction. Relatedly, Tate contends that trial counsel were

ineffective in not introducing into evidence the transcripts of Chad

Tate’s custodial interview and the plea colloquies of both Chad Tate

and Dustin Tate, which he contends would have “confirmed” that

Chad Tate killed the child and were also relevant to Tate’s

culpability in other ways. Trial counsel’s decisions regarding what

evidence to present or to forego in defending a client charged with a

crime are matters of strategy and tactics. See McKay v. State, 292

Ga. 886, 888 (2) (742 SE2d 714) (2013). “Reasonable trial strategy

does not constitute deficient performance.” Id.

With respect to presenting Chad Tate’s testimony, as

previously discussed, trial counsel testified that they had initially

hoped to present Chad Tate and Dustin Tate to testify that their

roles in the crimes were consistent with their plea colloquies and

custodial statements, including that Chad Tate had killed Katelyn

Williams of his own volition. The record also shows that Reed spoke

with Chad Tate in anticipation of putting him on the stand.

However, Reed testified that he recalled that Tate did not want

99 “Chad or Dustin to go back through testifying or taking the stand.”

Furthermore, a review of the transcripts of the sentencing trial and

Chad Tate’s plea colloquy shows that a reasonable attorney could

have considered it sound trial strategy not to present Chad Tate as

a witness or to introduce his custodial interview or his or Dustin

Tate’s plea colloquies. Chad Tate’s custodial interview and his and

Dustin Tate’s plea colloquies included inconsistent statements about

some of the details of Katelyn Williams’s murder, statements that

could be considered contrary to trial counsel’s strategy to refute the

State’s argument that Tate was the leader of the group, and

statements that were in some other way not favorable to Tate.

Moreover, as the prosecutor pointed out in his closing

argument, trial counsel through their cross-examination of Major

Goble “were allowed to get out everything they wanted [the trial

court] to hear about Chad,” specifically, the portions of Chad Tate’s

custodial interview that were both favorable to Tate and consistent

with other evidence, thereby indicating that Chad Tate was telling

the truth when he said that he slit Katelyn Williams’s throat. The

100 prosecutor argued that trial counsel were “very clever in doing that,”

as “nobody knows from the evidence” who actually killed Katelyn

Williams. The prosecutor also correctly noted the following: trial

counsel objected when, “on redirect[, the State] tried to get . . . in[ ]

the other portion[s] of what Chad said” that were not favorable to

Tate; trial counsel objected when the State offered Chad Tate’s

custodial interview as an exhibit and the trial court sustained the

objection; the State could not call Chad Tate as a witness under his

plea agreement; and Chad Tate had been produced and was

available to testify. Because Tate failed to show that trial counsel’s

decision not to present the evidence in question was unreasonable,

counsel’s performance was not deficient, and the habeas court did

not err in denying him relief on this claim. See Smith v. State, 283

Ga. 237, 239-240 (2) (b), (c) (657 SE2d 523) (2008) (stating that

counsel’s reasonable decisions regarding defense strategy do not

constitute deficient performance).

H. Combined Effect of Trial Counsel’s Alleged Deficiencies.

Considering the combined effect of the alleged deficiencies that

101 we have assumed in the discussion above, we conclude that those

alleged deficiencies would not in reasonable probability have

changed the outcome of Tate’s guilty plea hearing or sentencing

trial. See Schofield v. Holsey, 281 Ga. 809, 811-812 n.1 (642 SE2d

56) (2007) (holding that the combined effect of trial counsel’s

deficiencies should be considered).

III. Remaining Claims.

A. Violation of the Right to a Speedy Trial Claim.

In his cross-appeal, Tate contends that the habeas court erred

in denying his claim that his right to a speedy trial under the state

and federal constitutions was violated. The habeas court correctly

found that, at least as an initial matter, this claim was procedurally

defaulted, because Tate failed to raise it at trial and on direct appeal.

See OCGA § 9-14-48 (d); Black v. Hardin, 255 Ga. 239, 240 (4) (336

SE2d 754) (1985). Therefore, to obtain relief on this claim in his

habeas corpus proceedings, Tate must satisfy the cause and

prejudice test. See id. Tate alleges that his counsel’s ineffectiveness

in failing to make a speedy trial demand in the trial proceedings or

102 to raise the claim on direct appeal excuses the procedural default of

this claim. See Perkins, 288 Ga. at 822 (III) (C) (explaining that “[a]

common method of satisfying the cause and prejudice test is to show

that trial and direct appeal counsel rendered ineffective

assistance”).

With regard to the first prong of Strickland, “[w]hether to file

a demand for speedy trial is usually a matter of trial tactics and

strategy, as a delay in bringing the case to trial may work to a

defendant’s advantage.” Smith v. State, 297 Ga. 214, 217 (5) (a) (773

SE2d 209) (2015) (citation and punctuation omitted). Furthermore,

“[a]s with other tactical or strategic decisions, trial counsel’s decision

to file, or not, a demand for speedy trial should not be evaluated in

hindsight.” Jones v. State, 296 Ga. 561, 569 (6) (769 SE2d 307)

(2015). The habeas court found that trial counsel acted reasonably

in not filing a speedy trial demand “as they were trying to convince

[Tate] that he did not want the death penalty.” With no citation to

the record, Tate argues that it “is unrefuted that [Tate] did not want

the death penalty from 2002 until 2005” and that “[i]t was only after

103 the inordinate, unconstitutional delay that he began to evoke [sic]

religious reasons for pleading guilty.” However, as previously

discussed, the habeas court credited trial counsel’s testimony that

Tate’s desire for the death penalty was an “evolving process” and

that counsel thoroughly discussed Tate’s views with him, tried

several approaches to persuade him differently, and eventually

obtained a second competency evaluation of him when they were

unable to change his mind. Moreover, Tate’s certified medical

records from his treatment at Three Rivers approximately two

months after his arrest that he submitted as evidence in his habeas

proceedings reflect that he reported to the evaluator that he was

“consider[ing] asking for [the] death penalty.” Thus, the record

supports the habeas court’s finding that “[Tate]’s desire to receive

the death penalty developed over the course of trial counsel’s

representation.”

In any event, regardless of exactly when his decision to plead

guilty and ask for the death penalty became fixed, Tate made no

affirmative showing that the failure of his trial counsel to seek a

104 speedy trial was not a reasonable trial strategy under the

circumstances existing at the time of counsel’s representation. See

Jones, 296 Ga. at 569 (6). Tate never questioned trial counsel about

their reasons for not filing a demand, and the record shows that a

reasonable attorney could have considered it strategically

advantageous not to file such a demand. Trial counsel engaged in

serious plea negotiations with the State that, if successful, would

have resulted in Tate’s receiving a sentence less than death, and

Reed testified that “[t]he State wanted to offer a life sentence, so

there was no rush at that point.” Trial counsel’s billing records show

that, after plea negotiations ended with no deal in April 2004 when

Tate refused to plead guilty to the child molestation charge and until

the trial court issued its July 5, 2005 order scheduling the trial to

begin on October 24, 2005, trial counsel completed a great deal of

work in preparation for trial, including, among other things,

litigating ex parte motions, retaining and working with their

firearms expert, reviewing the State’s discovery and evidence,

meeting with Tate multiple times, consulting with co-counsel and

105 with Dr. Richards, reviewing documents, and meeting with the

district attorney and the trial judge. Accordingly, Tate failed to

carry his burden of showing that trial counsel were deficient in this

regard. Therefore, his ineffective assistance of counsel claim with

respect to the failure to file a speedy trial demand fails. See Barker

v. Barrow, 290 Ga. 711, 712 (723 SE2d 905) (2012) (“The failure to

satisfy either prong of the Strickland test will defeat an ineffective

assistance of counsel claim.”). Consequently, Tate’s claim that his

constitutional right to a speedy trial was violated remains

procedurally defaulted, and the habeas court properly denied him

relief on this ground.

B. State’s Pursuit of Contradictory Theories Claim.

Tate alleges that the habeas court erred in rejecting his claim

that the State pursued inconsistent theories of culpability in

violation of the due process clauses of the state and federal

Constitutions. Tate contends that the State first construed the

evidence at Chad Tate’s guilty plea colloquy to infer that Chad Tate

murdered Katelyn Williams and that the State subsequently argued

106 at Tate’s sentencing trial that Tate murdered the child. The habeas

court correctly found that, at least as an initial matter, this claim

was procedurally defaulted, because Tate failed to raise it at trial

and on direct appeal. See OCGA § 9-14-48 (d); Hardin, 255 Ga. at

240 (4). The habeas court summarily concluded that Tate “had

failed to establish cause and actual prejudice, or a miscarriage of

justice,[24] sufficient to excuse his procedural default of th[is] claim[

],” without explicitly addressing Tate’s argument that trial counsel’s

ineffectiveness in failing to object to the State’s arguments at trial

and to raise the issue on appeal constitutes sufficient cause and

prejudice to overcome the procedural default of this claim. See

Perkins, 288 Ga. at 822 (III) (C). Nevertheless, the prejudice

necessary to satisfy Strickland prejudice, the prejudice required to

satisfy the cause and prejudice test, and the analysis of the merits

24 Tate has not argued that the miscarriage of justice exception applies

to this claim. See Perkins, 288 Ga. at 824 (III) (D) (explaining that Georgia’s “statutory miscarriage of justice exception has always been interpreted as a very narrow exception tied to evidence of actual innocence” (citation and punctuation omitted)); Valenzuela v. Newsome, 253 Ga. 793, 796 (4) (325 SE2d 370) (1985).

107 of any underlying constitutional claim are all equivalent. See

Whatley v. Terry, 284 Ga. 555, 560 (2) (668 SE2d 651) (2008); Head

v. Ferrell, 274 Ga. 399, 402 (III) (554 SE2d 155) (2001). Therefore,

even assuming that Tate had a due process right to prevent the

prosecution from pursuing inconsistent theories to prosecute him

and his co-defendant brothers,25 Tate’s underlying inconsistent

theories claim has no merit as a matter of law, as the discussion

below demonstrates. Thus, Tate cannot show that he was prejudiced

by any alleged deficiencies of counsel with regard to this claim, and,

therefore, he cannot show that trial counsel were ineffective in not

raising this claim. Consequently, he cannot overcome his procedural

default of this claim, and it remains procedurally defaulted.

Specifically, a review of the trial record shows that the State

never adopted as its theory Chad Tate’s version of how Katelyn

25 See Battle v. State, 305 Ga. 268, 274 (2) (b) (824 SE2d 335) (2019)

(stating that the Eleventh Circuit has cast doubt on whether a due process right to prevent the prosecution from using inconsistent theories to prosecute co-defendants exists, citing United States v. Hill, 643 F3d 807, 834 (II) (C) (11th Cir. 2011), but assuming that such a right exists for purposes of addressing the defendant’s claim).

108 Williams’s murder occurred but, instead, proceeded under the

theory that the evidence did not conclusively show who actually

performed the physical act of taking Katelyn Williams’s life. During

Chad Tate’s plea colloquy, the prosecutor proffered that, consistent

with Chad Tate’s custodial interview, the evidence would show that

Chad Tate strangled Katelyn Williams with a telephone cord until

he thought that she was dead and that he had then returned to Tate,

who was searching the home for drugs, when he heard the child start

crying again. The prosecutor then stated: “[S]o [Chad Tate] borrows

— he asks — or takes — the knife . . . back into the bedroom where

Katelyn is coming to and is reviving, turns her over onto her face,

puts a pillow over her, according to his version, and cuts her from

ear to ear.” (Emphasis supplied.) Later the prosecutor stated:

[B]y the way, [Tate] . . . said actually on the [videotape of his custodial interview], I gave that child every chance to shut up, but she wouldn’t shut up. His version is that Chad comes out after choking [sic] with the telephone cord and asks for his knife, whereupon he reaches and hands him the knife. Chad says he simply got the knife out of his sheath — out of his holster.

(Emphasis supplied.) See King v. Hawkins, 266 Ga. 655, 656 (469

109 SE2d 30) (1996) (“A trial court need not make itself aware of

evidence establishing the pleader’s guilt beyond a reasonable doubt

in order to satisfy itself subjectively that the pleader knows both

what he has done and that those acts constitute the crime with

which he is charged.”).

After Chad Tate and Dustin Tate entered their pleas, trial

counsel filed and argued a pretrial motion for an order to preclude

the prosecution from changing theories regarding who murdered

Katelyn Williams. The State argued that it could not respond “until

the evidence comes out in this case,” and the trial court denied the

motion. At Tate’s plea colloquy, the prosecutor stated in setting

forth a factual basis for Tate’s guilty plea that, after Chad Tate’s

attempt to strangle Katelyn Williams failed, “[b]y Chad’s

statement,” Chad Tate took Tate’s knife and cut her throat, killing

her. However, the prosecutor pointed out that “there’s evidence that

may suggest this is not necessarily what happened.” See Hawkins,

266 Ga. at 656. At Tate’s sentencing trial, the State presented

testimony that the evidence indicated that more than one person

110 was involved in the crimes and that, while “just one person” acting

alone could have murdered Katelyn Williams, the physical evidence

did not indicate who actually performed the act. The State also

elicited testimony from Major Goble, the lead investigator on the

case who took Chad Tate’s custodial statement prior to his guilty

plea, that Chad Tate’s “version” of events was “inconsistent” with

the evidence in certain specific respects. Therefore, the State never

decisively adopted as its theory Chad Tate’s version of how Katelyn

Williams’s murder occurred.

Near the beginning of his closing argument in Tate’s

sentencing trial, the prosecutor stated:

Now, there’s a possibility. I’m not saying it’s not true, [sic] I don’t know. Only Nick Tate knows. Only Chad Tate knows. Only Dustin Tate knows what actually happened in that house. But I can tell you that Nick Tate may, when he entered his plea told you exactly what happened, one hundred percent truthful, or he may have been lying to protect himself.

Then the prosecutor pointed out that at his plea colloquy Tate

had admitted to the child molestation charge, which he had

originally denied and which “mean[t] nothing” in terms of what

111 sentence Tate would actually serve. The prosecutor also reminded

the trial court that Tate had originally stated in his custodial

interview and had consistently maintained that he had accidentally

shot Chrissie Williams when the gun misfired, even to the extent of

developing an “elaborate story” that the same gun had later misfired

in a hotel room during their flight. The prosecutor also reminded

the trial court that at his plea hearing Tate had “chang[ed] that

story” and confessed to intentionally shooting Chrissie Williams in

the head, but only after learning through discovery that the State’s

expert would testify that the gun that killed Chrissie Williams

“[could] not fire without intentionally pulling the trigger” and that

it took “eleven and a half pounds of pressure . . . to pull that trigger.”

Then the prosecutor argued to the trial court: “I believe [Tate]

admitted to those charges because it gives him credibility before you

so that when he says ‘I didn’t have anything to do with Katelyn’s

killing,’ that gives him believability and credibility.”

The prosecutor then argued from the evidence presented in the

sentencing trial that Tate was “in charge” from “day one” and that

112 he may not have been telling the truth about who slit Katelyn

Williams’s throat. Specifically, the prosecutor noted the following:

Tate was the one who on the morning of the incident used his credit

card to purchase items used in the crimes, including the knife used

to kill Katelyn Williams; according to his own statement at his plea

colloquy, Tate shot Chrissie Williams after Dustin Tate told him

that he could not do it; Chad Tate strangled Katelyn Williams after

Tate ordered him to shut her up; Katelyn Williams’s blood was only

on Tate’s weapon; the Mississippi kidnapping victim testified that it

was Tate who “stuck the gun in her ribs,” “got into the passenger’s

seat[,] and told her to drive”; Tate stated in his custodial interview

that “[he] decided [they] need[ed] to turn [them]selves in”; and,

indeed, Tate was the one who negotiated with the FBI for the three

brothers’ surrender to authorities. The prosecutor also argued that

Chad Tate had no need to obtain Tate’s knife, because he already

had a knife with him, and he reminded the trial court that the

kidnapping victim testified that Tate had told her that “[he] h[ad]

already killed a mother and a daughter.”

113 As Tate points out, the prosecutor did incorrectly argue that

“there’s only blood on [Tate]’s jeans.” However, he later corrected

his misstatement and apologized to the trial court, explaining that

“[t]here were actually two pair of jeans that had some of Katelyn’s

blood on them.” Consistent with the evidence, he then argued that

“[Tate’s jeans] had enough blood to actually have a physical stain on

them” and that the State’s expert had “pointed to a couple of places

down along the leg . . . which, again, is very consistent with him

being in Katelyn’s room when she was murdered.” Then the

prosecutor asserted that it was impossible to know “[w]hich Nick

Tate was telling the truth,” the one interviewed shortly after he was

taken into custody or the one who appeared before the trial court at

his plea colloquy. The prosecutor contended: “At [the] very

minimum, Judge, [15-year-old Chad Tate] was nothing more than

another of Nick Tate’s weapons . . . doing his bidding, ‘go in there

and shut that kid up like I told you to.’”

Aside from his one misstatement to the trial court, which he

corrected, the prosecutor’s arguments were based on reasonable

114 inferences from the evidence. “Counsel certainly are permitted to

argue reasonable inferences from the evidence presented at trial.”

Gissendaner v. State, 272 Ga. 704, 712 (9) (532 SE2d 677) (2000).

See Daniel v. State, 301 Ga. 783, 787 (III) (804 SE2d 61) (2017)

(stating that counsel are “certainly permitted to hypothesize about

what may have occurred”); Wyatt v. State, 267 Ga. 860, 864 (2) (a)

(485 SE2d 470) (1997) (stating that “the prosecutor has wide

latitude to argue inferences from the evidence”). Given the

uncertainty of the evidence as to who actually killed Katelyn

Williams and the fact that Tate had changed his story regarding

Chrissie Williams’s murder and Katelyn Williams’s molestation, the

prosecutor did not violate Tate’s right to due process by arguing the

possibility that he also lied about not being the one who actually

committed Katelyn Williams’s murder. Cf. Parker v. Singletary, 974

F2d 1562, 1578 (III) (11th Cir. 1992) (finding no due process

violation in the State’s failure to disclose that it inconsistently

argued at the trial of the defendant and two of his co-defendants that

the accused on trial was the triggerman, where the State did not use

115 evidence it discredited in the co-defendants’ trial to show that the

defendant was the triggerman and where, “[d]ue to the lack of

evidence [as to which defendant actually committed the murder], the

only inconsistency was in the state’s alternative arguments”).

Relatedly, Tate claims that the prosecutor’s use of false

“evidence” during closing argument violated United States v. Bagley,

473 U. S. 667 (105 SCt 3375, 87 LE2d 481) (1985), Giglio v. United

States, 405 U. S. 150 (92 SCt 763, 31 LE2d 104) (1972), and Napue

v. Illinois, 360 U. S. 264 (79 SCt 1173, 3 LE2d 1217) (1959). The

habeas court found that counsel did not object at trial to the State’s

presenting “a false, prejudicial argument” regarding who murdered

Katelyn Williams, that the issue would have been found to have

been waived if it had been raised on direct appeal because of the lack

of objection, and that it was therefore defaulted in the habeas

proceedings.

However, as this Court has previously explained, although

contentions regarding allegedly improper arguments are waived on

direct appeal with regard to the defendant’s guilt where no

116 objections were raised to those arguments in the trial court, under

the review required by OCGA § 17-10-35 (c) (1) in death penalty

cases, “even if improper arguments have not been timely objected to

at trial, reversal is required if there was a reasonable probability

that the improper arguments changed the jury’s exercise of

discretion in choosing between life imprisonment or death,” which

is the same standard as required to prove Strickland prejudice in an

ineffective assistance claim regarding the sentencing phase of a

death penalty trial. Hicks v. State, 256 Ga. 715, 730 (23) (352 SE2d

762) (1987) (citation and punctuation omitted); Ford v. State, 255

Ga. 81, 90 (8) (i) (335 SE2d 567) (1985) (“[W]here the prosecutor

argues improperly and no objection is interposed, whether reversal

is required depends upon an evaluation of prejudice that is

undertaken in an essentially identical manner whether the

improper arguments are considered directly or in the context of an

ineffectiveness claim.”), vacated on other grounds by Ford v.

Georgia, 479 U. S. 1075 (107 SCt 1268, 94 LE2d 129) (1987).

Nevertheless, the habeas court was correct in further finding

117 that Tate had failed to establish ineffective assistance of counsel to

overcome his procedural default of this claim. See Perkins, 288 Ga.

at 822 (III) (C). As discussed above, the prosecutor corrected his one

misstatement about Katelyn Williams’s blood only being on Tate’s

pants, and the remainder of his argument was based on reasonable

inferences from the evidence. Therefore, because the prosecutor’s

arguments were not improper, trial counsel were not ineffective in

not objecting. See Yancey v. State, 292 Ga. 812, 818-819 (4) (740

SE2d 628) (2013) (“As a matter of law, a failure to interpose a

meritless objection does not amount to unreasonable performance.”).

For that same reason, had trial counsel raised the claim on direct

appeal, it would have provided Tate no relief under the review

mandated by OCGA § 17-10-35 (c) (1). See Ford, 255 Ga. at 90 (8)

(i) (explaining that only if improprieties are discovered in the state’s

argument does this Court then determine whether those

improprieties “were so egregious as to require a new trial”).

C. Conflict of Interest Claim.

Tate contends that the habeas court erred in rejecting his claim

118 that his post-conviction counsel labored under a conflict of interest

due to their failure to establish a relationship with him and to timely

attend to his case.26 However, a criminal defendant has no absolute

right under the Sixth Amendment to the appointment of another

attorney as a matter of right whenever he expresses his

dissatisfaction with his present attorney; “rather, the choice of

appointed counsel is a matter of the trial court’s discretion.” Hulett,

296 Ga. at 56 (3). See Morris v. Slappy, 461 U. S. 1, 14 (IV) (103 SCt

1610, 75 LE2d 610) (1983) (rejecting “the novel idea that the Sixth

Amendment guarantees an accused a ‘meaningful attorney-client

relationship’”); Smith v. State, 273 Ga. 356, 358 (2) (541 SE2d 362)

(2001) (stating that the Sixth Amendment “guarantee[s] effective

assistance of counsel, not . . . preferred counsel or counsel with whom

a ‘meaningful relationship’ can be established” (citation and

26 Because conflict of interest claims are one type of actual ineffective

assistance of counsel claim, see Strickland, 466 U. S. at 692 (III) (B), and one of Tate’s trial attorneys remained as post-conviction co-counsel, Tate could not have raised this claim on direct appeal. See Hood v. State, 282 Ga. 462, 463 (651 SE2d 88) (2007) (“[A] claim of ineffective assistance of trial counsel cannot be pursued unless trial counsel is no longer representing the convicted defendant.”). Therefore, the habeas court properly did not find this claim procedurally defaulted. 119 punctuation omitted)). A trial court abuses its discretion in denying

a defendant’s request regarding the appointment of counsel “only

when the defendant’s choice ‘is supported by objective

considerations favoring the appointment of the preferred counsel,

and there are no countervailing considerations of comparable

weight.’” Hulett, 296 Ga. at 56 (3).

With those principles in mind, a review of the relevant

undisputed facts in the record and those found by the habeas court

shows the following. Cella, who remained on Tate’s case as post-

conviction counsel, timely filed a motion for new trial on the general

grounds on January 18, 2006. The trial court appointed attorney

Mitch Durham to serve with Cella. After agreeing to take a position

with the Cobb County District Attorney’s Office, Cella withdrew

from the case, and Reed joined Durham as co-counsel. From

September 2007 until February 2009, Tate wrote to the trial court

several times requesting that the court appoint him “nonconflicted,

competent counsel” in order “to avoid any and all future delays of

the proceedings of this case.” The trial court responded to Tate in

120 a letter assuring him that he had spoken with Durham, who advised

the court that he had been very busy with court proceedings recently

“but would be in touch with [Tate] shortly.” The trial court also

assured Tate that Durham was “well thought of and came highly

recommended from the defense bar” and that the court would again

encourage Durham to contact him.

The trial court subsequently held a status hearing on Tate’s

motion for new trial on June 30, 2009. At that hearing, Durham

explained to the trial court that he had been involved in a death

penalty trial when he was appointed to Tate’s case and that after its

conclusion he spoke with Tate by telephone to discuss his case. A

few days later, Durham received a letter from Tate stating that,

based on their conversation, Tate did not feel that Durham was

competent to represent him and that Tate was going to have no

further contact with him. Tate also refused a package from Durham

containing copies of the sentencing trial transcripts that Durham

had mailed to him pursuant to Tate’s request, and Tate also refused

receipt of a letter from Reed. Durham had spoken with Tate’s

121 mother multiple times about helping counsel establish some rapport

with Tate, a direction that had appeared promising, but he had not

heard back from her or been able to reach her in several weeks.

Durham told the trial court that counsel could have an amended

motion for new trial ready shortly but that they would like to talk to

Tate first.

Tate was then allowed to address the trial court. He stated

that he “d[id] not wish to proceed with a motion for new trial at all,”

and he requested that both Durham and Reed be removed from his

case. He also confirmed that Durham had spoken with him on the

telephone one time and written to him “numerous times,” as well as

visited him on one occasion, and that he had “denied any and all

other phone calls” from both Durham and Reed. Tate accused his

counsel of “not hav[ing] his best interest at heart.” Once again Tate

expressed his belief that “capital punishment was reserved . . . for

such cases as [his] own” and that his remorse for his crimes “d[id]

not mitigate the fact that [he was] still guilty.” Therefore, he

contended, “[u]ntil [he wa]s put to death, justice [wa]s being denied.”

122 Then he explained his conflict with his post-conviction counsel as

follows:

I have a full understanding of what’s going on. You know, who you are, who I am, who the lawyers are and how this has developed. . . . Now, I’m just simply allowing the courts to go through and do what they need to do. Now, these people over here, these gentlemen over here, they want to fight. They want to twist, elude, divert. . . . I do not trust them at all, either one of them.

The trial court then sought confirmation from Tate that he did

not wish to have Durham and Reed to represent him, and Tate

responded, “No, sir. I do not wish to have any attorneys represent

me.” Tate reiterated that he did not want to go forward with a

motion for new trial and that “[n]one of [his] rights were violated.”

He also stated that he “chose to waive any and all future appeals”

but that he understood that a motion for new trial and direct appeal

to this Court were required. Durham also agreed that, under

Georgia law, a defendant could not waive the direct appeal of his

death sentence, but he believed that the law required more than

“just going through the motions.” Therefore, he explained that he

and Reed intended to act as “vigorous[ly] as [they] could” as Tate’s

123 post-conviction counsel and that he took exception to Tate’s

accusation that they were “going to be lying and misconstruing

things.” However, upon the trial court’s inquiry, he opined that Tate

could waive the motion for new trial. Reed told the trial court that

he thought the actual conflict was that Tate was concerned only with

“the moral issue of the case,” which in his mind was “fairly clear,”

namely, that “he fe[lt] like he committed an act worthy of death”;

however, Reed said that counsel’s role was “to look at the legal

process and evaluate it differently than [Tate] d[id].”

Then Tate stated the following:

Like I said, as far as I’m concerned, I wish to waive the motion for new trial. If it is against the law, then we will proceed. But if it is not, if it is my right to do such, I ask that it be remanded [sic] to the Georgia Supreme Court and let them make their decision based upon these transcripts and what went on at trial, nothing more. And if you do chose [sic] to make me proceed on with a motion for new trial, I ask that both of these attorneys be replaced because any and all correspondence will be terminated in the future and [sic] it has been in the past. I do not wish to speak to these individuals, either one of them again.

On July 7, 2009, the trial court entered an order stating the

124 following:

During the hearing [on June 30, 2009], Nicholas Cody Tate addressed the Court and expressed his desire to waive his right to a Motion for New Trial while preserving his remaining appeal rights granted by the Unified Appeal. The Trial Court observed Nicholas Cody Tate to possess the ability to understand the nature of the proceedings and the right he was waiving in addition to having the ability to effectively communicate his decision to the Court.

Consequently, the trial court found “that [Tate] voluntarily and

knowingly waived his right to a Motion for New Trial” and accepted

Tate’s waiver, thereby allowing the motion for new trial to be

withdrawn. The trial court did not remove Durham and Reed from

Tate’s case, and they filed a direct appeal brief with this Court on

January 11, 2010.

Tate now alleges that the trial court’s investigation was

insufficient. However, the trial court was familiar with both

attorneys’ qualifications and experience, and at the hearing the

court heard from counsel regarding what they had done in the case

and the possible reasons for the problems in communication. The

trial court also gave Tate ample opportunity to voice his complaints

125 about them. Although at the hearing Tate initially stated that he

did not want any attorneys on his case and at another point said

that he wanted his post-conviction counsel “replaced,” he eventually

concluded that he desired that Durham and Reed be removed from

his case and replaced with new counsel only if he were legally

required to proceed with the motion for new trial. Tate stated that,

in the event that he could simply move directly to filing the direct

appeal in this Court, he wished to do so. Tate was not required to

pursue a motion for new trial. See UAP IV (A) (1) (a) (“. . . A

defendant may, but is not required, to file a motion for new trial. . .

.”). However, both the UAP and the statutory basis for appellate

review of death penalty cases require a limited mandatory review by

this Court. See OCGA § 17-10-35; UAP IV (A) (3) (a) (“It shall be the

duty of the superior court to transmit the entire record, . . . as

defined in [the UAP], to the Supreme Court for review regardless of

whether a notice of appeal has been filed.”); Colwell, 273 Ga. at 338-

339 (2) (stating that neither a defendant nor his attorney could

withdraw the defendant’s mandatory direct appeal in his death

126 penalty case).

Tate’s statements show that the only conflict that he had with

his counsel was that he wanted to forego the motion for new trial

and proceed as quickly as possible with the mandatory direct appeal

to this Court and that he did not intend to work with any attorney

in filing that appeal. Moreover, Durham’s statement to the trial

court that counsel could have an amended motion for new trial

prepared shortly indicates that they had done a great deal of work

on the case, which is corroborated by the fact that counsel filed a

notice of appeal in Tate’s case in the trial court within 30 days of the

trial court’s order allowing Tate to withdraw his motion for new trial

and timely filed a brief on Tate’s behalf in his direct appeal. See

Chapel v. State, 264 Ga. 267, 269-270 (3) (c) (443 SE2d 271) (1994)

(“The amount of time and effort expended by an attorney on behalf

of a criminal defendant are weighty considerations in determining

whether that attorney should be appointed to represent the

defendant.”). Tate has not shown that the trial court abused its

discretion in allowing Durham and Reed to remain on his case to

127 litigate his mandatory appeal to this Court. See Hulett, 296 Ga. at

59 (4) (stating that a defendant’s “good relationship” with counsel is

not as persuasive a consideration in post-conviction proceedings

“where the bulk of counsel’s work is with the record under review”).

Therefore, the habeas court did not err in rejecting this claim.

D. The Warden’s Request to Call Tate to Testify.

Because of our decision in Division II (C) above reversing the

habeas court’s finding that trial counsel were ineffective in

investigating and presenting Tate’s case for mitigation, we need not

address the Warden’s contention that the habeas court erred in

denying his request to call Tate as a witness at the evidentiary

hearing to testify concerning the allegations that he made in his

habeas petition relating to this claim.

E. Abandoned Claims

Tate’s remaining claims, which he presented as a mere list and

which he supported only by an improper attempt to incorporate

arguments made in the habeas court rather than in this Court, are

deemed abandoned. See Supreme Court Rule 22; Whatley, 284 Ga.

128 at 573 (VI) (finding death penalty habeas claims abandoned under

Supreme Court Rule 22).

Judgment affirmed in Case No. S19X0826. Judgment reversed

in Case No. S19A0825. All the Justices concur.

129 BLACKWELL, Justice, concurring.

I join the opinion for the Court, which identifies several reasons

to reject the various claims for relief that have been asserted by

habeas counsel on behalf of Nicholas Cody Tate. I write separately

to note another — Tate himself apparently didn’t want any relief.

On the morning that the evidentiary hearing in the habeas court

was set to begin, Tate gave one of his lawyers a handwritten

statement, in which he said unequivocally that he wished to

withdraw his habeas petition, forego further judicial review of his

death sentence, and permit the State to carry out the sentence

“without any further protests on my behalf.”27 The lawyer tendered

27 Entitled “Motion to Withdraw Filings and Termination of Appeals Notice,” the statement reads as follows: Comes now Nicholas Cody Tate, petitioner in the above styled case and moves this court to allow any-all state habeas corpus filings to be withdrawn; and that this be formal notice to allow the State’s sentence of death to be carried out without any further protests on my behalf. 1. After careful consideration and deliberation with state appointed attorneys from both the Federal Defenders Program and the Georgia Resource Center; and the diligent efforts put forth in reviewing all court transcripts from all court proceedings, I am satisfied that any-all of my pretrial and post[-]conviction concerns have been presented and properly addressed and considered by the

130 the statement to the habeas court “under protest” and objected to

the court putting any questions to Tate about the statement. At that

point, the habeas court indicated its intent to proceed with the

hearing, and Tate asked to be excused from the courtroom. The

habeas court then addressed Tate directly and said that “we’re going

to go on forward with this case today” and “you’re going to stay in

here and you’re going to hear the case.” Tate said that he wished to

“have nothing else to do with my attorneys,” and the habeas court

responded that it would not discharge the lawyers. The hearing then

proceeded.

The next day, near the conclusion of the evidentiary hearing,

courts. I do hereby testify, of my own free will, that I stand complete and utterly content with the sentence of death handed down by the Superior Court of Paulding County in late 2005; and upheld by the Georgia Supreme Court on June 28, 2010. I therefore come today to withdraw any-all state habeas corpus filed on, or after, January 31st, 2012 on my behalf; and I do not wish any other petitions filed in this case. 2. I hereby voluntarily termanate [sic] any-all further appeals of my conviction and death sentence. I wish this to serve as formal notification of my intent decision to abandon any-all further legal representation, of any kind; and now formally waive any-all additional avenues of relief. I look to the courts for your assistance in achieving a final conclusion to the matter of The State of Georgia vs. Nicholas Cody Tate. 131 the habeas court again spoke directly with Tate about his statement.

Tate signed the statement and affirmed that it reflected his genuine

wishes. He also reaffirmed his desire to end his relationship with his

lawyers. The habeas court spoke to Tate about the usefulness of

legal counsel, asked a “rhetorical question” about whether the court

had “an obligation to protect an individual from his or her own

decisions,” and the hearing came to an end shortly thereafter.

Four-and-a-half years later, the habeas court entered its final

order, granting habeas relief with respect to the death sentence. In

that order, the habeas court denied Tate’s request to withdraw his

petition on the ground that Tate had a “history of changing his

mind.” As evidence of this history, the habeas court noted that Tate

had refused to authorize the filing of a habeas petition until only

hours before his scheduled execution in January 2012.

Although no one claims in this appeal that the denial of the

request to withdraw was error, it seems to me that the request was

mishandled in the habeas court. A competent adult generally gets to

decide for himself whether to seek relief from the courts, and that

132 principle holds even when applied to an inmate under sentence of

death who wishes to forego the opportunity to pursue habeas relief.

See Kellogg v. Zant, 260 Ga. 182, 183 (1), (3) (390 SE2d 839) (1990)

(dismissing application for certificate of probable cause to appeal

from dismissal of “next friend” habeas petition, where inmate under

sentence of death on whose behalf petition was filed had expressed

desire to discontinue further litigation). To be sure, a waiver of the

right to pursue habeas relief is binding only to the extent that it is

voluntary, knowing, and intelligent, see Rawles v. Holt, 304 Ga. 774,

777 (822 SE2d 259) (2018), and the fact that a petitioner previously

has changed his mind about seeking habeas relief surely is reason

to be skeptical about whether his sudden announcement of a desire

to discontinue the proceedings is sufficiently fixed, firm, and

genuine to reflect a voluntary, knowing, and intelligent decision. But

a reason to be skeptical about a request to discontinue habeas

proceedings is not itself a sufficient reason to refuse the request.

When presented with Tate’s sudden request to withdraw his

habeas petition and waive further review of his death sentence, the

133 habeas court would have been right to proceed cautiously, especially

in light of the fact that Tate may have changed his mind once

before.28 The habeas court would have been authorized, for instance,

to question Tate at length about his decision. To ensure that the

decision was fixed and firm, the habeas court likewise would have

been authorized to bring Tate back to court at some later date and

to inquire whether he still desired to withdraw his petition.

(Considering that the habeas court did not render its final decision

until four-and-a-half years after the evidentiary hearing, there was

more than adequate opportunity for the court to revisit the issue

28 I am not so sure that Tate’s decision to authorize the filing of a habeas

petition “hours before” his scheduled execution in January 2012 reflects a sincere change of mind about the desirability of habeas relief. After all, a federal habeas petition filed on his behalf by his brother as a “next friend” was pending at the time, and for that reason, it is not clear that his execution would have gone forward in any event. And more important, we do not know why he authorized the filing of a state habeas petition on the day of his scheduled execution; perhaps it was because he genuinely decided at that point that he wanted habeas relief, or perhaps it was for some other reason. Cf. Kellogg, 260 Ga. at 183 n.1 (noting that inmate consistently had declined opportunities for post-conviction review of death sentence, except that he permitted filing of a petition for writ of certiorari in the United States Supreme Court following direct review “because of his mother’s illness”). As the opinion for the Court explains thoroughly, Tate consistently has declined to fight his death sentence in most of his post-conviction proceedings.

134 with Tate.) And if the court had any questions about his competence

to make such a decision, the court could have held a hearing to

receive evidence and resolve those questions.29 But the court did

none of these things, and as the record now stands, it shows only an

unequivocal request by Tate to withdraw his habeas petition and no

sufficient basis for concluding that his request is the product of

anything other than the free, voluntary, and intelligent decision of

a competent adult. To deny him the right to choose for himself

whether to continue his habeas proceedings on this limited record

was wrong.

A brief word about the obligations of habeas counsel also is in

order. A lawyer representing a competent adult has an ethical

obligation to “abide by [the] client’s decisions concerning the scope

and objectives of representation. . . .” Ga. R. Prof. Conduct 1.2 (a).

When a habeas petitioner represented by counsel indicates that he

wishes to withdraw his petition and discontinue the proceedings, his

29 No one expressed doubts in the habeas court about whether Tate now

is competent to make decisions for himself about his case. 135 lawyer certainly may take some time to fully advise the petitioner

about his legal options, to take care that the petitioner has not made

his decision under any misapprehension of the law, and to ensure

that the decision is a sincere, voluntary, and unequivocal one. And

if the lawyer doubts that the petitioner is competent to make the

decision, the lawyer has an obligation to raise the question of

competence with the court. But once the lawyer has discharged

these responsibilities, the lawyer ultimately must honor the decision

of a competent client. And at that point, the ethical obligation of the

lawyer is to help the client achieve the lawful objective of the

representation — here, the discontinuation of habeas proceedings —

not to press on with the pursuit of relief that the client no longer

wants.

There is no provision of the Rules of Professional Conduct that

relieves a lawyer of this obligation simply because the client is under

sentence of death or the lawyer believes that the decision of his

client is a bad one. A lawyer with a competent client under a death

sentence is not free to do whatever the lawyer wants, irrespective of

136 the wishes of his client. To the contrary, the lawyer must faithfully

represent his client in the cause that the client has determined to

pursue — not another cause that the lawyer would prefer — and

bear in mind that he is “only an assistant to the [client] and not the

master of the defense.” Morrison v. State, 258 Ga. 683, 686 (3) (373

SE2d 506) (1988) (addressing obligations of sentencing counsel)

(citation, punctuation and emphasis omitted). See also Colwell v.

State, 273 Ga. 634, 639 (3) (b) (544 SE2d 120) (2001) (“By ensuring

that counsel respected Colwell’s wishes, the trial court did not

transform counsel into co-counsel, rather, it ensured that counsel

served as Colwell’s counsel.” (Emphasis in original.)). The record in

this case leaves me unconvinced that the representation of Tate has

fulfilled this fundamental requirement of professional

responsibility.30

30 To be clear, I do not definitively conclude that Tate’s habeas counsel

have acted unethically. Because the habeas court failed to revisit the request with Tate at some point after the conclusion of the evidentiary hearing, we do not know if Tate — after further consultations with his lawyers in the days, months, and years following the evidentiary hearing — changed his mind again at some point and directed his lawyers to carry on with the effort to

137 I am authorized to state that Justice Boggs, Justice Peterson,

and Justice Bethel join in this concurring opinion.

obtain habeas relief. If he gave his counsel such a direction, however, we note that they never apparently communicated it to the habeas court, which considered the request to withdraw to be an open issue when it entered its final order. I also draw no firm conclusion about the extent to which the attempts by trial counsel to “outsmart” Tate, which are discussed in the opinion for the Court, were unethical. But as the lead opinion notes, such attempts certainly are not to be condoned. 138 DECIDED OCTOBER 31, 2019 – RECONSIDERATION DENIED NOVEMBER 14, 2019. Habeas corpus. Butts Superior Court. Before Judge Irwin from Rockdale Circuit. Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Tayo Popoola, Sabrina D. Graham, Assistant Attorneys General, for appellant. Mark E. Olive, Vanessa J. Carroll, for appellee.