Michael William Ledford v. Warden, Georgia Diagnostic Prison

975 F.3d 1145

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 15, 2020
• Docket: 19-11090
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11090

________________________

D.C. Docket No. 4:17-cv-00211-MHC

MICHAEL WILLIAM LEDFORD,

Petitioner - Appellant,

versus

WARDEN, GEORGIA DIAGNOSTIC PRISON,

Respondent - Appellee.

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

(September 15, 2020)

Before WILLIAM PRYOR, Chief Judge, NEWSOM, and BRANCH, Circuit Judges.

NEWSOM, Circuit Judge: Case: 19-11090 Date Filed: 09/15/2020 Page: 2 of 33

Michael Ledford was convicted by a Georgia jury of malice murder, felony

murder, aggravated battery, aggravated sodomy, kidnapping with bodily injury,

and aggravated assault. Ledford v. State, 709 S.E. 2d 239, 245 n* (Ga. 2011). On

appeal from the district court’s denial of federal habeas corpus relief, Ledford does

not contest his conviction—only the sentence of death imposed by the same jury.

In challenging his death sentence, Ledford argues (1) that prosecutors exercised

their peremptory challenges in a way that discriminated against women, (2) that his

trial counsel rendered constitutionally ineffective assistance during the penalty

phase of his trial, and (3) that one of the jurors in his trial lied during voir dire and

thus deprived him of an impartial jury.

Having carefully reviewed the parties’ briefs and heard oral argument, we

hold that none of Ledford’s arguments entitle him to relief.

I

A

The horrific facts of Ledford’s crime are not presently disputed. The

Georgia Supreme Court described them as follows:

The evidence presented at trial showed that, on July 25, 2006, Michael Ledford pretended to go to work but, instead, bought beer and drank it near the Silver Comet Trail, a recreational trail used for biking, running, and other activities. Ledford knocked Jennifer Ewing from her bicycle as she rode by his location. He dragged her a distance off the trail to a location shielded from view by vegetation. He stripped off all of her clothing from the waist down, and he pulled her shirt up part way, exposing her breasts. She suffered bruises throughout her 2 Case: 19-11090 Date Filed: 09/15/2020 Page: 3 of 33

body in the struggle. When Ledford forced his penis into her mouth, she bit his penis and severely wounded it. Enraged by her resistance, Ledford unleashed a shocking attack during which he stomped on her face and nose, her larynx, and her ribs. Ms. Ewing gradually succumbed to asphyxiation caused by her wounds and the resulting bleeding into her lungs.

Ledford, 709 S.E.2d 239 at 245.

B

The procedural history of Ledford’s case is both exceedingly complicated

and largely unnecessary to his appeal. We will focus on a few key points.

The first is jury selection. During voir dire, juror Harold Ridarick testified

that, as a general matter, he was not conscientiously opposed to a sentence of life

with the possibility of parole as a penalty for murder. When asked if he would

automatically vote for any one of the three possible penalties—life, life without

parole, and death—he said that he would “equally consider” them. When the

prosecutor asked, however, whether Ridarick “fit[s] into the category” of people

who would not “consider life with the possibility of parole for somebody that’s

committed a malice or felony murder,” Ridarick answered: “I would probably fit

into that category.” After the prosecutor asked him to clarify whether he was

saying that “once [he] made that decision that they committed that malice or felony

murder that life with the possibility of parole is really not an option,” Ridarick 3 Case: 19-11090 Date Filed: 09/15/2020 Page: 4 of 33

clarified: “I’d still have to weigh the mitigating circumstances, factors, and you

know, depending on those I think I could go with either of the three.”

“Out of an abundance of caution,” Ledford’s trial counsel moved,

unsuccessfully, to have Ridarick removed for cause based on his apparent reticence

to “consider life with the possibility of parole for one that he found guilty of malice

or felony murder.” As we will explain later, Ledford now argues that Ridarick lied

during voir dire and that, in fact, he was really only ever willing to consider the

death penalty. Ledford’s new objection is based on several of Ridarick’s online

postings from May 22 and 23, 2009—the day and the day after the jury sentenced

Ledford to death—which Ledford’s lawyers apparently discovered sometime in

late 2013 or early 2014.

Also during voir dire, the state used nine of its twelve peremptory strikes to

remove females, who made up 15 of the 36 (or 42% of) venire members. Ledford

challenged these strikes as discriminatory, but the trial court determined that he

had not made a prima facie showing of discrimination, and so denied the challenge

without requiring the state to proffer non-discriminatory reasons for the strikes.

c

After jury selection came the trial, which was bifurcated into guilt and

penalty phases. At the close of the guilt phase, the jury convicted Ledford of

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malice murder for killing Ewing and of all other related charges. A few days later

at the close of the penalty phase, the same jury imposed a death sentence. Ledford

challenges his defense team’s penalty-phase strategy, which he says amounted to

constitutionally ineffective assistance of counsel. In particular, Ledford asserts

that his lawyers erred in putting on evidence concerning antisocial personality

disorder (ASPD) and psychopathy, which, he says, permitted prosecutors to argue

those issues against him. With respect to Ledford’s ineffective-assistance claim,

some background is in order.

Defense counsel decided that the “primary sentencing phase strategy [would

be] to show the jury that [Ledford] had voluntary and involuntary brain damage,

which diminished his frontal lobe capacity and prevented him from controlling his

impulses.” To that end, they wanted to use experts to establish that Ledford had

“psychiatric issues, based a lot on his upbringing and also his drug use and alcohol

abuse,” as well as eyewitness testimony to establish brain injury. Counsel planned

to augment their brain-damage strategy with testimony from Ledford’s family

members designed to humanize him.

During opening statements at the penalty phase, defense counsel laid out

their main theory to the jury. They described Ledford’s upbringing as abusive and

dysfunctional and said that he suffered brain damage when he was a child.

Counsel emphasized that Ledford didn’t choose to be brain-damaged; that he

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didn’t choose to have an abusive upbringing; and that he didn’t necessarily even

choose to be an alcoholic—a condition that allegedly exacerbated the brain

damage. Counsel didn’t mention anything about Ledford having ASPD or

psychopathy during opening arguments.

Defense counsel put on copious evidence in aid of their brain-damage

theory. Especially important was the testimony of Ledford’s brother Donald. He

testified that when Ledford was about eight or nine he fell out of a tree, landed on a

garage, rolled off, and hit the ground. Donald had initially thought the fall had

killed Ledford, who wasn’t moving. Ledford remained hospitalized for a month

and had to wear an upper-body cast for another month. Donald explained that

Ledford’s behavior changed after this injury and that he began experiencing severe

migraines.

Defense counsel also put on abundant expert testimony: from a mitigation

investigator, a forensic psychiatrist, a psychopharmocologist, a clinical social

worker, a neuropsychiatrist, an internist, and two more psychologists—all in aid of

their overarching theory that childhood injury and substance abuse had damaged

Ledford’s brain and rendered him mentally unwell and that this confluence of

events was not his fault. It was during expert testimony—especially on cross-

examination—that ASPD and psychopathy first came up. To provide some salient

examples, defense expert Dr. Thomas Sachy testified that people with brain scans

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that show a pattern of damage like Ledford’s have impaired moral judgment. He

explained that “if you put these people in a high dilemma situation with this brain

damage, they were more likely to do things that they would later think were

amoral.” On cross, Dr. Sachy allowed that the damage to Ledford’s brain would

leave him “prone to rage.”

Defense expert Dr. Robert Shaffer similarly testified that someone with

Ledford’s pattern of brain damage “would not really have feelings about the

consequences of what they were doing, the impact that it would have on someone

else, the ability to empathize with another person and feel a concern about what

would happen to that other person.” He also likened Ledford to “sexual sadists.”

Defense counsel asked Dr. Shaffer background questions about psychopathy

generally, and specifically elicited testimony that psychopathy is not a choice. On

cross, Dr. Shaffer observed that a rape of which Ledford had previously been

convicted was consistent with “sexual sadism.” He further testified that a previous

breaking-and-entering conviction was “consistent with what we’re seeing, which is

an individual who has no sense of emotion regarding the impact of his actions on

someone else.” He also noted that Ledford’s pattern of lying to cover his crimes

was “very characteristic of what we call psychopathic behavior.”

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On rebuttal, the state called its own experts, who supported the conclusion

that Ledford was either antisocial, a psychopath, or both, but who disputed the

notion that his disorder was caused by brain damage.

Defense counsel’s strategy failed; at the conclusion of the penalty phase, the

jury sentenced Ledford to death.

Ledford moved unsuccessfully for a new trial and then appealed his

conviction to the Georgia Supreme Court, which affirmed both his conviction and

the death sentence. In so doing, that court considered and affirmed the trial judge’s

determination that Ledford failed to make a prima facie case that the prosecution

discriminated on the basis of gender in exercising its peremptory strikes. Ledford

didn’t raise his juror misconduct or ineffective-assistance-of-trial-counsel claims

before the Georgia Supreme Court—or at any time on direct appeal. See generally

Ledford, 709 S.E.2d 239. Ledford filed a petition for certiorari in the United States

Supreme Court, which was denied, ending his direct appeal.

Ledford then sought state habeas relief. Most importantly for our purposes,

Ledford argued—for the first time—that Ridarick had lied in response to questions

at voir dire. Ledford sought to subpoena Ridarick and other jurors to testify that

Ridarick was unwilling to consider penalties other than death. In support of the

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subpoenas, Ledford proffered screenshots of Ridarick’s May 2009 online postings,

in which Ridarick had stated that “the only just punishment was the death

penalty.” 1 The posts clearly showed that Ridarick had expressed the belief that

only the death penalty was appropriate for Ledford, but they did not make clear

when he came to that conclusion. For instance, one stated: “So I pointed out to the

jury that by giving life in prison to Ledford we were giving him exactly what he

wanted.” He continued: “I myself could not sleep soundly at night knowing that I

had given a man convicted of malice murder the exact sentence he wanted and that

the only just punishment was the death penalty.” The state successfully moved to

quash Ledford’s subpoenas, contending that the juror testimony would be

inadmissible under Georgia law. 2

The state habeas court never decided on the merits whether Ledford was

entitled to relief based on Ridarick’s posts. The state argued that Ledford had

forfeited any argument about Ridarick’s supposed bias by virtue of his failure to

raise it on direct appeal, and the state incorporated its procedural-default position

into a proposed order denying Ledford’s state habeas petition. The state habeas

1 Other than the online postings themselves, Ledford offers no evidence to show that any of the subpoenaed jurors would have, in fact, given testimony to contradict Ridarick’s sworn statements at voir dire. 2 Because we ultimately hold Ledford’s juror-misconduct claims to be procedurally barred, we need not and do not decide whether the testimony of the subpoenaed jurors would be admissible under either Georgia or federal law.

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court adopted the state’s proposed order, holding that Ledford had procedurally

defaulted his juror-misconduct claim by failing to raise it on direct appeal. In the

same order, the state habeas court considered and rejected on the merits Ledford’s

claim that his trial counsel were ineffective for offering evidence pertaining to

ASPD and psychopathy.3 The court held both that counsel’s performance was not

deficient and that Ledford suffered no resulting prejudice.

The Georgia Supreme Court declined to review the state habeas court’s

decision, summarily denying Ledford’s application for a certificate of probable

cause. Ledford again unsuccessfully sought certiorari from the United States

Supreme Court.

Ledford next initiated federal habeas corpus proceedings in the Northern

District of Georgia. He brought all three claims at issue here—that the prosecutor

had exercised his peremptory strikes in discriminatory fashion, that his trial

counsel had provided ineffective assistance during the penalty phase, and that

Ridarick had lied to conceal bias during voir dire. Ledford also sought an

3 Ledford did not raise his juror-selection claim in state habeas proceedings, although he had raised it on direct appeal. The state notes this omission in its brief, but it does not argue that this claim is unexhausted. We conclude that the claim was properly exhausted because in Georgia “an issue actually litigated and decided on direct appeal is precluded from being relitigated on [state] habeas corpus,” at least “[a]bsent compelling reasons, such as a miscarriage of justice.” Turpin v. Todd, 493 S.E.2d 900, 909 (1997); Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010) (“[I]n order to exhaust state remedies, a petitioner must fairly present every issue raised in his federal petition to the state’s highest court, either on direct appeal or on collateral review.”).

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evidentiary hearing to develop additional evidence pertaining to his juror-

misconduct claim. The district court denied both Ledford’s request for a hearing

and his petition. After the district court also denied his motion to alter or amend

the judgment, Ledford appealed to this Court.

II

The state courts rejected two of Ledford’s claims—that the prosecution

exercised peremptory strikes in a discriminatory manner to exclude women and

that his trial counsel rendered constitutionally ineffective assistance of counsel—

on the merits, and one of his claims—that Ridarick lied during voir dire—on

procedural grounds. These two different postures lead to two different standards of

review in this Court.

The Antiterrorism and Effective Death Penalty Act (AEDPA) forbids us to

grant relief on a “claim that was adjudicated on the merits in State court

proceedings unless” the decision of the state court “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or “was based on an unreasonable

determination of the facts.” 28 U.S.C. § 2254(d).

A decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” A state court decision involves an unreasonable application of federal law “if the state court identifies 11 Case: 19-11090 Date Filed: 09/15/2020 Page: 12 of 33

the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.”

Knight v. Fla. Dep’t of Corr., 936 F.3d 1322, 1330–31 (11th Cir. 2019) (alterations

in original) (citations omitted). Importantly, as used in § 2254(d), “unreasonable”

means “more than simply incorrect.” Sealey v. Warden, Georgia Diagnostic

Prison, 954 F.3d 1338, 1354 (11th Cir. 2020). An “application of federal law is

unreasonable only if no fairminded jurist could agree with the state court’s

determination or conclusion.” Id. (quoting Raulerson v. Warden, 928 F.3d 987,

995–96 (11th Cir. 2019)). “This is a ‘difficult to meet and highly deferential

standard . . . , which demands that state-court decisions be given the benefit of the

doubt.’” Id. (quoting Raulerson, 928 F.3d at 996).

Because the Georgia courts considered and rejected Ledford’s jury-selection

and ineffective-assistance-of-counsel claims on the merits, AEDPA’s deference

regime applies to both. The Georgia courts did not consider Ledford’s juror-

misconduct claim on the merits but rather rejected it on procedural grounds.

Accordingly, instead of AEDPA’s deference regime, we will apply “cause-and-

prejudice” analysis to determine whether Ledford can overcome his procedural

default. We will explain the standards that govern that analysis below, in

conjunction with our evaluation of that claim.

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Ledford first challenges his conviction on the ground that the prosecution

discriminated against women in selecting his jury in violation of the Fourteenth

Amendment. Ordinarily, “[p]arties may . . . exercise their peremptory challenges

to remove from the venire any group or class of individuals normally subject to

‘rational basis’ review,” but they may not exercise such strikes “solely because of

race or”—as relevant here—“gender.” J.E.B. v. Alabama, 511 U.S. 127, 143, 146

(1994). “[T]he Equal Protection Clause prohibits discrimination in jury selection

on the basis of gender, or on the assumption that an individual will be biased in a

particular case for no reason other than the fact that the person happens to be a

woman or happens to be a man.” Id. at 146.

A well-established burden-shifting framework governs claims that the

prosecution exercised peremptory strikes in a discriminatory manner. As the

Supreme Court has explained it:

First, the defendant must make out a prima facie case by showing that the totality of the relevant facts give rise to an inference of discriminatory purpose. Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the . . . exclusion by offering permissible [gender]-neutral justifications for the strikes. Third, if a [gender]-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful . . . discrimination.

Johnson v. California, 545 U.S. 162, 168 (2005) (quotations and quotation marks

omitted); see also Smith v. Comm’r, Alabama Dep’t of Corr., 924 F.3d 1330, 13 Case: 19-11090 Date Filed: 09/15/2020 Page: 14 of 33

1343–44 (11th Cir. 2019) (applying the same burden shifting framework to a

gender-discrimination claim), cert. denied sub nom. Smith v. Dunn, No. 19-7745,

2020 WL 3578738 (U.S. July 2, 2020).

Both the state courts and the district court rejected Ledford’s jury-selection

claim at the first step—they determined that he failed to make a prima facie case of

gender discrimination. Ledford, 709 S.E.2d at 253. We agree, and we thus cannot

conclude that “no fairminded jurist could agree with the state court’s determination

or conclusion.” Sealey, 954 F.3d at 1354 (quotation omitted).

Ledford relied solely on statistical disparities in seeking to make out a prima

facie case of discrimination; he did not present any additional facts. Ledford, 709

S.E.2d at 253. The state, he says, used 9 of its 12 peremptory strikes against

female jurors, where females made up 15 of the 36 prospective jurors. Ledford

further points out that while women made up 42% of the venire, the prosecution

used 75% of its peremptory strikes against women. This resulted in a jury, he

complains, with only two female jurors (17%).4

But not just any statistical disparities will suffice to demonstrate a prima

facie case of discrimination. See United States v. Hill, 643 F.3d 807, 838 (11th

Cir. 2011) (“Under our precedent these statistics, without more, do not establish a

prima facie case.” (emphasis added)). And our precedent makes clear that

4 Two out of four alternates were also women, bringing the total to four out of sixteen (25%).

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statistical disparities of the magnitude present in Ledford’s jury do not support a

prima facie case. In Hill, for example, “[t]he government had, and it exercised, 14

peremptory strikes; it used 9 (64%) of them against black venire members,” who

represented 41% of the venire. Id. Nevertheless, we affirmed the district court’s

determination that the defendant had not made out a prima facie case of

discrimination. Id. at 840.

In Hill, we also drew on our earlier decision in United States v. Campa,

where “the government was allotted 11 peremptory strikes and used 9 of them,”

and “[s]even of those nine strikes (78%) were used against blacks.” Id. at 838

(citing Campa, 529 F.3d 980, 989 (11th Cir. 2008)). If measured as a percentage

of strikes actually used, rather than as a percentage of those allotted, the disparity

in Campa was even starker than that here—78% as against 75%. And even if

measured as a percentage of allotted challenges, this case involves an only slightly

greater disparity—64% vs. 75%. Yet in Campa, despite numbers arguably more

suggestive of discrimination than we face here, we reversed the district court’s

determination that the defendant had made out a prima facie case. See Campa, 529

F.3d at 998. In light of Hill and Campa, we are hard pressed to describe as

unreasonable the state court’s decision here that Ledford failed to demonstrate a

prima facie case.

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Notably, the same precedents also make clear that the inference of

discrimination is weakened where, as here, the state accepts jurors in the allegedly

targeted group. That the state accepted female jurors, even in small numbers,

where a different allocation of strikes could have reduced female participation even

further, tends to undermine the inference that those women who were peremptorily

excluded were targeted on account of their gender. See Hill, 643 F.3d at 838

(observing that “[t]he final jury of 18 (12 plus six alternates) included nine (50%)

blacks” but could have included as few as “four (22%) black[]” members “[i]f the

government had exercised all of the strikes it could against black venire

members”); Campa, 529 F.3d at 998 (noting that “the jury included three black

jurors and an alternate black juror,” which demonstrated that “the government did

not attempt to exclude as many black persons as it could”). Although fewer

women—two female jurors with two female alternates—remained on Ledford’s

jury than black jurors in either Hill or Campa, the same principle applies because

the floor on female jurors was lower here. If the prosecution had used all of its

strikes against women, it could potentially have achieved an all-male jury. In total,

the state accepted six female jurors and three female alternates, but the defense

struck four and one, respectively, leaving the four who served (two jurors and two

alternates). Moreover, the prosecution accepted the very first prospective female

juror. Although none of these observations conclusively demonstrates the absence

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of discrimination, the overall pattern belies an intent to discriminate, and the

burden to make out a prima facie case lies with the party claiming discrimination—

here, Ledford.

Even if we were free to review the state courts’ decisions de novo, our

precedent would counsel affirmance. The proper disposition is even clearer under

§ 2254(d)’s exceedingly deferential standard. We cannot grant habeas relief unless

the state court’s application of the burden-shifting framework was

“unreasonable”—that is, unless it was an application that “no fairminded jurist”

could endorse. Sealey, 954 F.3d at 1354. Here, the Georgia Supreme Court

correctly applied the well-established burden-shifting framework, noting—much as

we have—that the statistical disparities to which Ledford pointed were insufficient

to establish a prima facie case absent “additional facts which may give rise to an

inference of discriminatory purpose.” Ledford, 709 S.E.2d at 253 (quotation

omitted). The Georgia court’s determination that Ledford failed to make prima

facie case is at the very least not unreasonable.5

5 At oral argument, Ledford relied heavily on the fact that the prosecution attempted to strike one additional woman from serving as an alternate. That may be a wrinkle not squarely addressed in our existing precedent, but it does not change the result here. Even if the prosecution had successfully struck another female juror, it would not make this case significantly different from our existing case law. It certainly does not change the circumstances enough to make the state court’s application of Batson and J.E.B. (or any other Supreme Court precedent) unreasonable. Moreover, when the government realized that it had fewer strikes available for removing alternates at the time, it withdrew its attempt to strike the female alternate juror in favor of striking the next alternate juror—a man. If anything, this pattern of behavior indicates that the government was not trying to reduce the number of women on the jury. Had that been the 17 Case: 19-11090 Date Filed: 09/15/2020 Page: 18 of 33

Ledford is not entitled to habeas relief based on the prosecution’s use of

peremptory strikes.

Ledford next argues that the state habeas court unreasonably applied clearly

established federal law when it declined to find that his trial counsel rendered

constitutionally ineffective assistance during the penalty phase of his trial. Ledford

argues—and at the state evidentiary hearing presented expert testimony—that “no

competent capital defense attorney would ever pursue a diagnosis of ASPD or

label his client a psychopath in mitigation of punishment.” If that proposition were

correct as a matter of law, Ledford may well have a viable ineffective-assistance

claim under Strickland—because the record demonstrates as a matter of fact that

defense counsel presented an ASPD diagnosis as part of their theory of defense.

But the legal premise of Ledford’s argument does not withstand scrutiny.6

“Under Strickland’s familiar two-part test, [a defendant] must show that

counsel’s performance (1) ‘fell below an objective standard of reasonableness’ and

(2) ‘prejudiced the defense.’” Tharpe v. Warden, 834 F.3d 1323, 1338 (11th Cir.

2016) (quoting Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). “When a

government’s intention, it would not have withdrawn a strike against the only woman that it knew the defendant had accepted. 6 Because the Supreme Court of Georgia summarily denied Ledford a certificate of probable cause on this claim, we “look through” to state habeas court’s order. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

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habeas petitioner in state custody raises a Strickland claim in federal court, the

commands of Strickland and § 2254(d) operate in tandem so that our review is

‘doubly deferential.’” Id. (quoting Yarborough v. Gentry, 540 U.S. 1, 6 (2003)

(per curiam)). We will thus grant relief only if the state habeas court unreasonably

determined that trial counsel performed reasonably—i.e., “where there is no

possibility fairminded jurists could disagree,” Harrington v. Richter, 562 U.S. 86,

102 (2011), that defense counsel acted “outside the range of professionally

competent assistance,” Jenkins v. Comm’r, Ala. Dep’t of Corr., 963 F.3d 1248,

1270 (11th Cir. 2020) (quotation omitted).

Insofar as Ledford argues for “a per se rule that a lawyer renders ineffective

assistance by presenting evidence of an antisocial personality disorder for purposes

of mitigation,” his position is squarely foreclosed by Morton v. Sec’y, Fla. Dep’t of

Corr., 684 F.3d 1157, 1168 (11th Cir. 2012). Ledford’s argument comes

perilously close to asking us to overrule Morton, which of course we cannot do.7

Although Ledford disclaims any reliance on a per se rule that presenting

ASPD evidence in mitigation constitutes deficient performance, his expert squarely

testified (as already noted) that “no competent capital defense attorney would ever

pursue a diagnosis of ASPD or label his client a psychopath in mitigation of

7 “We are bound to follow a prior panel or en banc holding, except where that holding has been overruled or undermined to the point of abrogation by a subsequent en banc or Supreme Court decision.” Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998).

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punishment.” As a result, the thrust of his argument is in stark tension with

Morton. There, we explained that whether to present such evidence is “uniquely a

matter of trial strategy” because “a diagnosis of antisocial personality disorder” is

“a double-edged sword” that has the potential either to harm or to help the

defendant. Morton, 684 F.3d at 1168; see also Strickland, 466 U.S. at 690

(“[S]trategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable.”). Accordingly, Ledford must do

more than just point to his trial counsel’s use of ASPD evidence; he must explain

why presenting ASPD evidence was unreasonable based on the particular

circumstances of his case.

Ledford attempts such an explanation, but his arguments come up short. He

contends that his trial counsel could have provided all the mitigating evidence of

his awful upbringing—in Ledford’s view, the strongest mitigating evidence

available—without introducing any evidence from psychological experts at all.

And he insists that the only cost of avoiding psychological experts would have

been losing out on flimsy evidence of Ledford’s childhood brain damage. He

further argues, most importantly, that his preferred strategy would have prevented

the prosecution from bringing up Ledford’s psychological condition at all because

Georgia law precludes such evidence unless the defendant first opens the door to it.

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Even accepting Ledford’s premises uncritically—i.e., assuming (1) that trial

counsel could have prevented any testimony about his psychological state by

declining to put on the ASPD evidence and (2) that beyond the diagnosis itself, he

would have sacrificed only the evidence of childhood brain injury—Ledford has

failed to demonstrate that his trial counsel’s preferred strategy “fell below an

objective standard of reasonableness.” Strickland, 466 U.S. at 688. Competent

trial counsel could have reasonably concluded that presenting the theory that

childhood brain injuries gave Ledford ASPD was worth opening the door to

additional psychopathy evidence. Ledford’s crime was heinous and shocking—the

kind of thing that a troubled childhood alone, no matter how extreme, might not be

enough to excuse in the minds of a jury. Defense counsel could have reasonably

concluded that brain damage, no matter how proven, might provide an avenue for

escape that no amount of childhood abuse or suffering could provide—an excuse

that could, in the minds of jurors, eliminate Ledford’s responsibility for his

appalling crime.

Let us elaborate. Defense counsel could have reasonably concluded that it

would be difficult for a jury to imagine that any amount of abuse or personal

suffering could sufficiently explain what Ledford did—lie in wait to rape a

stranger only to beat her to death when she resisted. Such conduct speaks to a

dispassionate plan for personal gratification with no thought of the cost to be borne

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by the innocent who became his target—not the kind of crime that a troubled

upbringing could satisfactorily explain. Counsel could also have reasonably

concluded that Ledford’s best (or only) hope to avoid the death penalty was an

explanation of his crimes that undermined his agency in that heinous act, rather

than merely partially undermining his culpability. Counsel could also have

reasonably concluded that brain injury might offer this kind of excuse—if a

childhood fall, possibly in combination with chronic alcoholism, somehow turned

Ledford into a “psychopath” then his crimes could be seen as the product of a

disability beyond his control. Cf. Morton, 684 F.3d at 1169 (explaining that

counsel “could have reasonably decided that [expert] testimony was necessary to

explain why Morton’s childhood mitigated his moral culpability for the murders”

(emphasis added)). Accordingly, even a purportedly flimsy case of brain damage

might reasonably have attracted Ledford’s counsel more than a straightforward

troubled-childhood strategy.

And while it is true that ASPD can be aggravating rather than mitigating,8

trial counsel here could have reasonably concluded that linking ASPD to an injury

8 We have often recognized, in the context of rejecting ineffective-assistance claims in which a defendant faulted his trial counsel for failing to present evidence of ASPD, that such evidence is often more aggravating than mitigating. See Weeks v. Jones, 26 F.3d 1030, 1035, n.4 (11th Cir. 1994) (noting, in dicta, based on out-of-court precedent, that “[a]ntisocial personality disorder has been held not to be mitigating as a matter of law”); Reed v. Sec’y, Dep’t of Corr., 593 F.3d 1217, 1248 (11th Cir. 2010) (holding that a “diagnosis—that Reed had an antisocial personality disorder and narcissistic personality disorder—was more harmful to Reed than mitigating”); Cummings v. Sec’y, Fla. Dep’t of Corr., 588 F.3d 1331, 1368 (11th Cir. 2009) (describing “a 22 Case: 19-11090 Date Filed: 09/15/2020 Page: 23 of 33

sustained when the defendant was an innocent child could ameliorate any

aggravating effect the diagnosis might have had and transform it into a mitigating

factor. The defense did not present ASPD as mitigating on its own but emphasized

its theory that Ledford’s ASPD was the result of brain injury sustained through no

fault of his own. This judgment, too, was reasonable.

Maybe Ledford is right, in retrospect, that his trial counsel’s strategy was not

the best one—and that the course he now outlines would have given him a better

chance at avoiding a death sentence. Maybe not. But even if Ledford is right, trial

counsel’s strategy was not unreasonable, especially in light of our clear holding in

Morton that ASPD evidence can be mitigating in certain circumstances. We would

hesitate to hold that Ledford’s counsel acted deficiently even if we were at liberty

to review the state courts’ decisions de novo. Once again, that outcome is even

clearer considering the second layer of AEDPA deference—deference to the

Georgia state habeas court. That court concluded that Ledford’s representation

was sufficient after an extremely thorough examination of trial proceedings—

indeed, its summary of the proceedings occupied half of the court’s 70-page order.

diagnosis of antisocial personality disorder” as “not mitigating but damaging”); Evans v. Sec’y for the Dep’t of Corr., 703 F.3d 1316, 1332 (11th Cir. 2013) (explaining that “we have held consistently” that evidence of “antisocial personality disorder” is “potentially aggravating” because it “is a trait most jurors tend to look disfavorably upon, that is not mitigating but damaging” (quotations omitted)); see also Kokal v. Sec’y, Dep’t of Corr., 623 F.3d 1331, 1349 (11th Cir. 2010).

23 Case: 19-11090 Date Filed: 09/15/2020 Page: 24 of 33

Moreover, that court diligently applied the Strickland standard and concluded that

trial counsel’s strategy was not deficient, relying heavily on Morton, which, as we

have explained, provides the proper frame of analysis. We are certainly not

prepared to call an analysis so similar to our own an “unreasonable application” of

Strickland that “no fairminded jurist” could endorse. Sealey, 954 F.3d at 1354.

We cannot, therefore, disturb the state habeas court’s conclusion that trial

counsel’s performance was not deficient, and we have no need to consider whether

counsel’s actions prejudiced Ledford’s defense. No relief is due to be granted on

this point.

We now turn to Ledford’s final claim for relief—Ridarick’s alleged juror

misconduct. For the first time before the state habeas court, Ledford proffered

evidence of Ridarick’s May 2009 online comments, which were posted soon after

the verdict was returned, and argued that they contradicted Ridarick’s sworn

statements at voir dire. As Ledford reads the posts, they demonstrate Ridarick’s

belief that the death penalty is the only just sentence for malice murder. Ledford

points out that at voir dire Ridarick stated that he could and would consider all

possible sentencing options for a person convicted of malice murder. Accordingly,

Ledford says, the posts prove that Ledford lied at voir dire and, in fact, was set on

24 Case: 19-11090 Date Filed: 09/15/2020 Page: 25 of 33

the death penalty from the outset—which, Ledford argues, violated his

constitutional right to an impartial jury.

The state habeas court didn’t reach the merits of this claim but instead

disposed of it on procedural grounds, concluding that Ledford had defaulted it by

failing to raise it on direct appeal. 9 When a state court determines that a claim was

defaulted on procedural grounds, we will review it on the merits “only in two

narrow circumstances.” Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir.

2003). A petitioner must show either (1) “‘cause’ for the default and actual

‘prejudice’ resulting from the default” or (2) a “fundamental miscarriage of

justice”—i.e., that “a constitutional violation has resulted in the conviction of

someone who is actually innocent.” Id.

Ledford does not contend that he is actually innocent, so we focus here on

cause and prejudice. “To show cause, the petitioner must demonstrate ‘some

objective factor external to the defense’ that impeded his effort to raise the claim

properly in state court.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010)

(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). “We have . . . determined

that an ineffective-assistance-of-counsel claim . . . may constitute cause”—but

only, and importantly, as we explain below, if it is “both exhausted and not

procedurally defaulted.” Ward, 592 F.3d at 1157. “To establish ‘prejudice,’ a

9 See supra at 19 n.7. 25 Case: 19-11090 Date Filed: 09/15/2020 Page: 26 of 33

petitioner must show that there is at least a reasonable probability that the result of

the proceeding would have been different” if he had been allowed to raise the issue

in state court. Henderson, 353 F.3d at 892.

Ledford argues that the ineffective assistance of his appellate counsel

establishes cause for his default. 10 Specifically, he contends that his appellate

counsel were deficient in failing to investigate Ridarick’s social media activity

during his direct appeal. Ledford’s cause argument fails because he failed to

timely raise it.

Before a habeas petitioner can rely on an allegation of ineffective assistance

of counsel to demonstrate cause to excuse a procedural default, he must show that

he properly raised the argument in state court, because ineffective assistance is

itself a constitutional claim. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000)

10 At oral argument, Ledford’s counsel expressly disclaimed any reliance on any cause argument of the type that the Supreme Court recognized in Williams v. Taylor, 529 U.S. 420 (2000), and underscored that Ledford relies solely on ineffective assistance of appellate counsel to show cause to excuse his default. 529 U.S. at 442 (indicating that a “trial record” that “contains no evidence which would have put a reasonable attorney on notice that” a juror had answered dishonestly at voir dire can “establish cause” for a procedural default committed by failing to timely object to the juror dishonesty). With respect to Williams, Ledford argues only that it shows why any failure to develop the record in the state habeas court was not due to lack of diligence on his part and why he should therefore have been given an evidentiary hearing, an issue that we address below. Even if Ledford hadn’t disclaimed any reliance on the kind of cause identified in Williams, Ledford failed to argue that particular cause argument before the district court, and we needn’t allow him to raise the argument now. See Ochran v. United States, 117 F.3d 495, 502–03 (11th Cir. 1997) (explaining that we may hold a position forfeited before the district court even where the opposing party fails to raise the forfeiture argument to us).

26 Case: 19-11090 Date Filed: 09/15/2020 Page: 27 of 33

(“A claim of ineffective assistance . . . must be presented to the state courts as an

independent claim before it may be used to establish cause for a procedural

default.” (alteration adopted) (internal quotation marks omitted)); see also Ward,

592 F.3d at 1157 (“We have . . . determined that an ineffective-assistance-of-

counsel claim, if both exhausted and not procedurally defaulted, may constitute

cause.” (emphasis added)). Because Ledford did not properly raise his ineffective-

assistance-of-appellate-counsel claim in state court, he has failed to exhaust (and

thus cannot now press) his only argument for cause.

Before the state habeas court, Ledford provided only hints of the argument

he now advances—insufficient to exhaust and preserve it. In two footnotes in his

initial state habeas petition, Ledford stated (1) that “[t]o the extent that Petitioner’s

counsel failed to protect Petitioner’s rights in this regard, counsel’s performance

was unreasonably deficient, and Petitioner was prejudiced by the deficiencies,” and

(2) that “[t]o the extent that Petitioner’s counsel failed to argue, develop, or present

these issues, failed to adequately preserve objections thereto, or failed to

effectively litigate these issues on direct appeal, Petitioner’s counsel rendered

ineffective assistance, and Petitioner was prejudiced thereby.”

Both footnotes referred generally to a collection of vaguely worded

allegations of jury misconduct in the body of the petition, all of which Ledford has

since abandoned, save for his allegation that Ridarick lied at voir dire. But

27 Case: 19-11090 Date Filed: 09/15/2020 Page: 28 of 33

nowhere before the state habeas court did Ledford argue that his appellate counsel

performed deficiently by failing to challenge Ridarick’s conduct in particular, let

alone how or why his appellate counsel were deficient in that connection. And in

his application for a certificate of probable cause to the Supreme Court of Georgia,

Ledford did not so much as mention an argument that his appellate counsel were

ineffective. He just baldly asserted that he could prove cause and prejudice to

overcome the default of his juror-misconduct claims if he were given an

evidentiary hearing.

Such general, conclusory statements are insufficient to preserve a claim for

federal habeas review. See Kelley v. Secretary for the Dep’t of Corr., 377 F.3d

1317, 1344 (11th Cir. 2004) (“[H]abeas petitioners cannot preserve otherwise

unexhausted, specific claims of ineffective assistance merely by arguing that their

lawyers were ineffective in a general and unspecified way.”). We have held that

“[t]he exhaustion doctrine requires a habeas applicant to do more than scatter some

makeshift needles in the haystack of the state court record.” McNair v. Campbell,

416 F.3d 1291, 1303 (11th Cir. 2005) (quoting Kelley, 377 F.3d at 1345).

Ledford’s “references to federal law in his state habeas proceedings are exactly the

type of needles in the haystack that we have previously held are insufficient to

satisfy the exhaustion requirement.” Id. And because “a cause and prejudice

argument which is not presented in state court is itself procedurally defaulted,”

28 Case: 19-11090 Date Filed: 09/15/2020 Page: 29 of 33

Ledford cannot raise it “for the first time on federal habeas” unless he can show

“cause and prejudice for that particular default as well.” Fults v. GDCP Warden,

764 F.3d 1311, 1317-18 (11th Cir. 2014).11

But Ledford makes no argument that he can show cause and prejudice

sufficient to excuse the default of his ineffective-assistance-of-appellate-counsel-

based cause argument. Instead, he simply asserts—wrongly, as we have

explained—that he sufficiently preserved his ineffective-assistance-of-appellate-

counsel claim by means of his passing mentions in state habeas filings. And

because Ledford cannot establish cause or prejudice to excuse the default of his

ineffective-assistance-of-appellate-counsel claim, that claim cannot serve as cause

to excuse the default of his juror-misconduct claim. In short, Ledford has failed to

exhaust—and thus has procedurally defaulted—his only argument for overcoming

the original procedural default. Accordingly the district court did not err in

denying his claim of juror misconduct.

11 Strictly speaking, failing to raise an argument in state court is an exhaustion problem, not a procedural default. But “[a] claim is procedurally defaulted for the purposes of federal habeas review where ‘the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.’” Henderson, 353 F.3d at 898–99 (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)). Georgia law generally bars successive habeas petitions, treating claims not raised in an initial petition as procedurally defaulted. See Gibson v. Head, 646 S.E.2d 257, 259 (2007); see also Ga. Code Ann. § 9-14-51 (“All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition. Any grounds not so raised are waived . . . .”).

29 Case: 19-11090 Date Filed: 09/15/2020 Page: 30 of 33

Ledford’s request for an evidentiary hearing fails as well, and for similar

reasons. As already explained, Ledford requested a hearing for two reasons: (1) to

further develop his juror-misconduct claim on the merits and (2) to allow him to

present evidence of cause and prejudice. Before us, Ledford contends, as he

argued to the district court, that his appellate counsel’s deficient performance

provides cause and that his claim is strong enough to establish prejudice, and,

therefore, that he should have been allowed to present the evidence of juror

misconduct that the state habeas court never heard—testimony that he says will

establish that Ridarick lied at voir dire. Separately, he contends that even if the

evidence currently in the record does not establish cause and prejudice for his

default, he should have been allowed a hearing to produce additional evidence.

The district court denied his requests.

When a habeas petitioner seeks a hearing in federal court, the court must

first determine “whether the prisoner was diligent in his efforts” to develop the

facts in state court. Williams v. Taylor, 529 U.S. 420, 435 (2000). If he was not

diligent, he must satisfy the conditions of § 2254(e)(2). Id. That provision

requires a showing that

(A) the claim relies on, (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due 30 Case: 19-11090 Date Filed: 09/15/2020 Page: 31 of 33

diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). If, on the other hand, the petitioner was diligent, “a

federal court must consider whether such a hearing could enable an applicant to

prove the petition’s factual allegations, which, if true, would entitle the applicant to

federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

Separately, “[w]hen a petitioner asks for an evidentiary hearing” specifically

on the issues of cause and prejudice, “neither section 2254(e)(2) nor the standard

of cause and prejudice that it replaced apply.” Henry v. Warden, Ga. Diagnostic

Prison, 750 F.3d 1226, 1231–32 (11th Cir. 2014). Rather, “[w]hen a petitioner has

requested an evidentiary hearing on the procedural default of a substantive claim,

we need ask only whether the district court abused its discretion when it denied an

evidentiary hearing on that issue.” Id. at 1332.12

12 The district court here seemingly denied Ledford a merits hearing based on a mistaken understanding of the law, requiring both a showing of diligence under Williams and satisfaction of the 28 U.S.C. § 2254(e)(2) test, whereas Williams actually allows a diligent litigant to bypass (e)(2) when seeking a merits hearing. And although the district court did not separately address the propriety of a cause-and-prejudice hearing as opposed to a merits hearing, it ultimately concluded that Ledford was “not entitled to an evidentiary hearing under the standard discussed above”—apparently applying the same standard to both types of hearing. The district court thus applied the wrong standard with respect to both merits and cause-and-prejudice hearings. Because the district court made an error of law, we cannot defer to its decision under the abuse- of-discretion standard as we ordinarily would when reviewing a decision to deny a hearing. See Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1351 (11th Cir. 2008) (“An error of law is per se abuse of discretion.”).

31 Case: 19-11090 Date Filed: 09/15/2020 Page: 32 of 33

Without deciding whether or not Ledford pursued his juror-misconduct

claim diligently below, we affirm the district court’s refusal to conduct a hearing,

either to develop the merits or to investigate cause and prejudice. Any merits

hearing would have been futile because it is plain that Ledford could not prove the

petition’s factual allegations. See Schriro, 550 U.S. at 474 (“In deciding whether

to grant an evidentiary hearing, a federal court must consider whether the hearing

could enable an applicant to prove the petition’s factual allegations, which, if true,

would entitle the applicant to federal habeas relief.”). Specifically, there is no way

an evidentiary hearing could allow Ledford to overcome procedural default—as

the district court correctly held, he failed to exhaust his ineffective-assistance-of-

appellate-counsel-based cause argument. As already explained, that argument was

the only cause for default that Ledford has presented in federal court, and without

it he cannot overcome the procedural bar on his juror-misconduct claim.

Ledford’s requested cause and prejudice hearing would have been similarly

futile. Although Ledford requested a hearing in part to show cause and prejudice

as to his juror-misconduct claim, he failed to request a hearing to show cause and

prejudice with respect to his ineffective-assistance-of-appellate-counsel-based

cause argument—or, indeed, even argue that he could show cause and prejudice as

to that claim. As we have explained, he merely argues, wrongly, that he exhausted

the claim properly. With his only argument to show cause itself procedurally

32 Case: 19-11090 Date Filed: 09/15/2020 Page: 33 of 33

barred, a hearing on cause and prejudice would have been futile; both we and the

district court would be procedurally barred from finding Ledford’s appellate

counsel ineffective, no matter what evidence he adduced at the hearing.

Accordingly, vacating and remanding to the district court to allow it to apply the

proper standards for evidentiary hearings would serve no purpose; Ledford cannot

ultimately prevail, in any event.

III

The district court correctly concluded that Ledford is not entitled to federal

habeas relief. We cannot say that the Georgia courts unreasonably decided

Ledford’s jury-selection and ineffective-assistance claims. And Ledford

procedurally defaulted his juror-misconduct claim in state court, and he cannot

show cause to excuse that default because his only cause argument—ineffective

assistance of his appellate counsel—itself was not properly exhausted in state

court. That failure precludes any relief, no matter what Ledford might have been

able to prove in an evidentiary hearing. As result, we also affirm the district

court’s decision to deny the hearing.

AFFIRMED.