Richard L Sealey v. Warden GDCP.
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Opinion
Case: 18-10565 Date Filed: 03/31/2020 Page: 1 of 62
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10565 ________________________
D.C. Docket No. 1:14-cv-00285-WBH
RICHARD L. SEALEY,
Petitioner - Appellant,
versus
WARDEN, GEORGIA DIAGNOSTIC PRISON,
Respondent - Appellee. ________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(March 31, 2020)
Before JORDAN, JILL PRYOR, and NEWSOM, Circuit Judges.
NEWSOM, Circuit Judge:
In 2002, Richard Sealey was convicted of murdering John and Fannie Mae
Tubner with an axe and sentenced to death. After unsuccessfully pursuing post-
conviction relief in Georgia state court, Sealey filed a federal petition for a writ of
habeas corpus under 28 U.S.C. § 2254. The district court denied relief. Case: 18-10565 Date Filed: 03/31/2020 Page: 2 of 62
Sealey was granted a certificate of appealability on four issues: (1) whether
his counsel rendered ineffective assistance by failing to investigate mitigating
evidence at sentencing; (2) whether the trial court denied him due process and a
fair trial by refusing his request for a one-day continuance; (3) whether the jury’s
verdict was unconstitutional or in violation of Georgia’s sentencing scheme; and
(4) whether he was denied his right to self-representation under Faretta v.
California, 422 U.S. 806 (1975).
We hold that the state habeas court’s decision as to Sealey’s ineffective-
assistance-of-trial-counsel claim was neither contrary to nor an unreasonable
application of federal law nor based on an unreasonable determination of the facts.
See 28 U.S.C. § 2254(d). We also conclude that we are barred from considering
Sealey’s other claims because he failed to raise them on direct appeal and cannot
show “cause” and “prejudice” to overcome the default. See Wainwright v. Sykes,
433 U.S. 72, 87 (1977). We therefore affirm the district court’s denial of Sealey’s
petition.
I
A
In the evening of January 23, 2000, Richard Sealey, Wajaka Battiste,
Gregory Fahie, and Deandrea Carter drove to the home of Carter’s grandparents—
John and Fannie Mae Tubner. Sealey v. State, 593 S.E.2d 335, 337 (Ga. 2004).
2 Case: 18-10565 Date Filed: 03/31/2020 Page: 3 of 62
The plan was for Sealey to keep the Tubners occupied while Carter tried to get
money from them. When the four arrived at the Tubners’ home, Sealey, Carter,
and Fahie went inside while Battiste waited for them in his car. Id. Fahie, who
testified against Sealey in exchange for a plea bargain, explained that he, Sealey,
and Carter visited with the Tubners for 20 to 30 minutes. At that point, Fahie went
to use the restroom; while he was doing so, Carter knocked on the door and said
that Sealey was “tripping.” Id. When Fahie exited the bathroom, Mr. Tubner was
bleeding on the living room floor, and Sealey was holding Mrs. Tubner down
while brandishing Mr. Tubner’s handgun. Id. Sealey then dragged Mrs. Tubner,
who was bound with duct tape, to a bedroom upstairs. Id. Fahie testified that
Sealey told him to look for money in the house, but he didn’t find any. Id.
When no money was found, Sealey instructed Carter to heat a fireplace
poker, which he used to torture Mrs. Tubner into telling them where she and her
husband kept their money. Id. Sealey then asked Carter to bring him a hammer so
that he could kill Mr. and Mrs. Tubner, and Carter brought him an axe. Id. Sealey
repeatedly struck Mrs. Tubner’s head with the axe, and “then went downstairs and
did the same to Mr. Tubner, who had crawled a short distance across the living
room.” Id.
According to Battiste, when Sealey, Carter, and Fahie returned to Battiste’s
car, Sealey told Fahie that he “had to do it” because the Tubners had mistreated
3 Case: 18-10565 Date Filed: 03/31/2020 Page: 4 of 62
Carter and her mother and because “they seen our face.” Sealey also told Battiste
not to drive fast and that he had a gun. Sealey and Carter directed Battiste back to
Sealey’s motel. Before getting out of the car, Sealey told Battiste “you have never
seen me” and “I’ll out your lights,” which Battiste took to mean that Sealey would
hurt him.
B
Sealey was indicted by a Georgia grand jury on two counts of murder,
fourteen counts of felony murder, two counts of possession of a firearm during the
commission of a crime, and one count of possession of a firearm by a convicted
felon.
John Beall was appointed to defend Sealey, and Beall chose Joseph
Roberto to be his second chair.1 As part of their sentencing-phase investigation,
Beall, Roberto, and Jodi Monogue, a paralegal in Roberto’s office, traveled to the
island of St. Croix in the U.S. Virgin Islands, where Sealey was raised, to gather
information about his background. The team went to Sealey’s childhood home and
the prison where he had spent time as a juvenile, and they also visited and
requested records from the local hospital and police station. They tried to track
1 The state habeas court acknowledged that Beall and Roberto both had experience with capital cases. It stated that Beall had tried four death penalty cases and that Roberto had been the second chair on two cases before Sealey’s.
4 Case: 18-10565 Date Filed: 03/31/2020 Page: 5 of 62
down Sealey’s baseball coach and speech therapist, but they were unsuccessful.
When they attempted to obtain Sealey’s school records, the principal initially
refused to provide them, despite having a release from Sealey. After Sealey’s team
pressed the issue, the principal told them that a “hurricane blew [the records] all
away.” Records produced during state habeas proceedings show that while in St.
Croix, the team held strategy meetings to prepare for trial.
The defense team met with Sealey’s half-sister, Pauline Corbitt, and two of
his nephews, Ronald Tutein and Kareem Dennis, during the St. Croix trip.
According to Sealey, “[a]ll three family members” whom the defense team
interviewed in St. Croix “indicated that they were willing to testify on Sealey’s
behalf.” 2 Roberto testified to the contrary: “[W]e had no one to come forward and
say a damn thing about Richard that was good, not one person. Not his mother, not
his sister. There were no friends. There was nobody.”
Beall and Roberto also conducted a preliminary investigation into potentially
mitigating mental-health evidence by having Sealey meet with Dr. Jack Farrar, a
clinical and forensic psychologist. Dr. Farrar testified at the state habeas
2 In an affidavit submitted to the state habeas court, Pauline Corbitt stated that she had told Sealey’s attorneys that she would come testify at Sealey’s trial but that, when they called her to come, it was on such short notice that she couldn’t adjust her schedule.
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Case: 18-10565 Date Filed: 03/31/2020 Page: 1 of 62
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10565 ________________________
D.C. Docket No. 1:14-cv-00285-WBH
RICHARD L. SEALEY,
Petitioner - Appellant,
versus
WARDEN, GEORGIA DIAGNOSTIC PRISON,
Respondent - Appellee. ________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(March 31, 2020)
Before JORDAN, JILL PRYOR, and NEWSOM, Circuit Judges.
NEWSOM, Circuit Judge:
In 2002, Richard Sealey was convicted of murdering John and Fannie Mae
Tubner with an axe and sentenced to death. After unsuccessfully pursuing post-
conviction relief in Georgia state court, Sealey filed a federal petition for a writ of
habeas corpus under 28 U.S.C. § 2254. The district court denied relief. Case: 18-10565 Date Filed: 03/31/2020 Page: 2 of 62
Sealey was granted a certificate of appealability on four issues: (1) whether
his counsel rendered ineffective assistance by failing to investigate mitigating
evidence at sentencing; (2) whether the trial court denied him due process and a
fair trial by refusing his request for a one-day continuance; (3) whether the jury’s
verdict was unconstitutional or in violation of Georgia’s sentencing scheme; and
(4) whether he was denied his right to self-representation under Faretta v.
California, 422 U.S. 806 (1975).
We hold that the state habeas court’s decision as to Sealey’s ineffective-
assistance-of-trial-counsel claim was neither contrary to nor an unreasonable
application of federal law nor based on an unreasonable determination of the facts.
See 28 U.S.C. § 2254(d). We also conclude that we are barred from considering
Sealey’s other claims because he failed to raise them on direct appeal and cannot
show “cause” and “prejudice” to overcome the default. See Wainwright v. Sykes,
433 U.S. 72, 87 (1977). We therefore affirm the district court’s denial of Sealey’s
petition.
I
A
In the evening of January 23, 2000, Richard Sealey, Wajaka Battiste,
Gregory Fahie, and Deandrea Carter drove to the home of Carter’s grandparents—
John and Fannie Mae Tubner. Sealey v. State, 593 S.E.2d 335, 337 (Ga. 2004).
2 Case: 18-10565 Date Filed: 03/31/2020 Page: 3 of 62
The plan was for Sealey to keep the Tubners occupied while Carter tried to get
money from them. When the four arrived at the Tubners’ home, Sealey, Carter,
and Fahie went inside while Battiste waited for them in his car. Id. Fahie, who
testified against Sealey in exchange for a plea bargain, explained that he, Sealey,
and Carter visited with the Tubners for 20 to 30 minutes. At that point, Fahie went
to use the restroom; while he was doing so, Carter knocked on the door and said
that Sealey was “tripping.” Id. When Fahie exited the bathroom, Mr. Tubner was
bleeding on the living room floor, and Sealey was holding Mrs. Tubner down
while brandishing Mr. Tubner’s handgun. Id. Sealey then dragged Mrs. Tubner,
who was bound with duct tape, to a bedroom upstairs. Id. Fahie testified that
Sealey told him to look for money in the house, but he didn’t find any. Id.
When no money was found, Sealey instructed Carter to heat a fireplace
poker, which he used to torture Mrs. Tubner into telling them where she and her
husband kept their money. Id. Sealey then asked Carter to bring him a hammer so
that he could kill Mr. and Mrs. Tubner, and Carter brought him an axe. Id. Sealey
repeatedly struck Mrs. Tubner’s head with the axe, and “then went downstairs and
did the same to Mr. Tubner, who had crawled a short distance across the living
room.” Id.
According to Battiste, when Sealey, Carter, and Fahie returned to Battiste’s
car, Sealey told Fahie that he “had to do it” because the Tubners had mistreated
3 Case: 18-10565 Date Filed: 03/31/2020 Page: 4 of 62
Carter and her mother and because “they seen our face.” Sealey also told Battiste
not to drive fast and that he had a gun. Sealey and Carter directed Battiste back to
Sealey’s motel. Before getting out of the car, Sealey told Battiste “you have never
seen me” and “I’ll out your lights,” which Battiste took to mean that Sealey would
hurt him.
B
Sealey was indicted by a Georgia grand jury on two counts of murder,
fourteen counts of felony murder, two counts of possession of a firearm during the
commission of a crime, and one count of possession of a firearm by a convicted
felon.
John Beall was appointed to defend Sealey, and Beall chose Joseph
Roberto to be his second chair.1 As part of their sentencing-phase investigation,
Beall, Roberto, and Jodi Monogue, a paralegal in Roberto’s office, traveled to the
island of St. Croix in the U.S. Virgin Islands, where Sealey was raised, to gather
information about his background. The team went to Sealey’s childhood home and
the prison where he had spent time as a juvenile, and they also visited and
requested records from the local hospital and police station. They tried to track
1 The state habeas court acknowledged that Beall and Roberto both had experience with capital cases. It stated that Beall had tried four death penalty cases and that Roberto had been the second chair on two cases before Sealey’s.
4 Case: 18-10565 Date Filed: 03/31/2020 Page: 5 of 62
down Sealey’s baseball coach and speech therapist, but they were unsuccessful.
When they attempted to obtain Sealey’s school records, the principal initially
refused to provide them, despite having a release from Sealey. After Sealey’s team
pressed the issue, the principal told them that a “hurricane blew [the records] all
away.” Records produced during state habeas proceedings show that while in St.
Croix, the team held strategy meetings to prepare for trial.
The defense team met with Sealey’s half-sister, Pauline Corbitt, and two of
his nephews, Ronald Tutein and Kareem Dennis, during the St. Croix trip.
According to Sealey, “[a]ll three family members” whom the defense team
interviewed in St. Croix “indicated that they were willing to testify on Sealey’s
behalf.” 2 Roberto testified to the contrary: “[W]e had no one to come forward and
say a damn thing about Richard that was good, not one person. Not his mother, not
his sister. There were no friends. There was nobody.”
Beall and Roberto also conducted a preliminary investigation into potentially
mitigating mental-health evidence by having Sealey meet with Dr. Jack Farrar, a
clinical and forensic psychologist. Dr. Farrar testified at the state habeas
2 In an affidavit submitted to the state habeas court, Pauline Corbitt stated that she had told Sealey’s attorneys that she would come testify at Sealey’s trial but that, when they called her to come, it was on such short notice that she couldn’t adjust her schedule. She stated that she “would’ve come to Atlanta to beg for [her] little brother’s life if [she] had been given an opportunity.” Ronald Tutein also submitted an affidavit stating that he told Sealey’s lawyers that he would come to testify on Sealey’s behalf. Kareem Dennis’ affidavit states that, although Sealey’s lawyers may have wanted him to be a character witness, he was never contacted about it after the interview in St. Croix. 5 Case: 18-10565 Date Filed: 03/31/2020 Page: 6 of 62
proceedings that, after meeting with Sealey, he told Beall that “in [his] opinion
there was something very, very wrong with” Sealey and that he likely “suffered
from some kind of delusional, paranoid kind of disorder, perhaps even a psychoses,
and that certainly a neurological kind of process, an organic brain problem needed
to be evaluated.” In response to Dr. Farrar’s initial evaluation, Beall requested
funds from the trial court for a complete evaluation, stating that “based on what Dr.
Farrar said, Mr. Sealey needs two things: a full battery of psychological
evaluations and . . . if he finds evidence of organic injury he may need a
neurologist.” Despite requesting—and, so far as we can tell, receiving—funding
from the court, the defense team never had Sealey fully evaluated. 3
In the months and days leading up to Sealey’s trial, the state trial court held
several hearings to address complaints that Sealey had lodged against his counsel.
The first hearing took place three months before trial, after Sealey sent a letter to
the state trial judge alleging that Beall and Roberto were ineffective—Beall for
failing to move to recuse a member of the district attorney’s office and Roberto for
working only on the sentencing phase. At the hearing, counsel explained that they
3 The state and Sealey disagree about why Dr. Farrar never conducted a full investigation. Transcripts show that on August 2, 2002—just ten days before trial—Beall told the trial court that Dr. Farrar had tried, but was unable, to meet with Sealey at the jail because of the jail’s security policies. Dr. Farrar testified during the state habeas proceedings that he didn’t remember being contacted by Beall regarding a follow-up examination.
6 Case: 18-10565 Date Filed: 03/31/2020 Page: 7 of 62
were actively working on the recusal issue and that Roberto was focusing on the
sentencing phase while Beall focused on the guilt phase. The court found no
deficiency in Beall and Roberto’s representation and denied Sealey’s motion to
remove them.
Ten days before trial, the state trial court held a hearing to address another
request from Sealey that his counsel be removed. Sealey told the trial judge that
there was a “major conflict” with Beall and Roberto. 4 Sealey was concerned that
Beall had “given up all hope” in his case, citing a letter in which Beall had advised
Sealey to accept the state’s plea deal for life without parole. 5 Sealey said that he
wanted to represent himself and proposed that another lawyer, Mike Mears, act as
standby counsel, although Sealey wasn’t sure that Mears would have adequate time
to prepare. The court explained the dangers of self-representation and scheduled a
Faretta hearing to take place four days later so that Sealey could consider the risks
of proceeding without counsel.
4 In addition to his concerns about a “conflict,” Sealey also stated that Beall and Roberto failed to complete an investigation that he had requested (looking for a shoe on the roof of a store as possible evidence). Beall explained that the requested investigation had been completed, but nothing was found. 5 In this letter, Beall stated that “[t]he primary defense to the case [was] no longer viable” because the district attorney had turned over to the defense a letter written by Sealey that implicated him “in a conspiracy to provide perjured testimony at trial.” Beall warned Sealey that if he went to trial, the likely outcome would be the death penalty.
7 Case: 18-10565 Date Filed: 03/31/2020 Page: 8 of 62
At that hearing—now six days before trial—Sealey reaffirmed that he
wanted to represent himself with standby counsel, but he stated that he hadn’t
obtained new standby counsel and that having Beall or Roberto serve in that
capacity would be a “conflict.” The court decided that Sealey hadn’t established
“any legal grounds” for Beall and Roberto to be removed or for there to be a
continuance to find new counsel. After conferring with Beall and Roberto, Sealey
stated that he would “go ahead and have Mr. Beall and Mr. Roberto represent
[him] as trial counsel,” without waiving his rights as to the “conflict issue.”
C
At trial, the state’s case largely consisted of testimony from Sealey’s co-
defendants and physical evidence. Battiste and Fahie testified against Sealey,
relaying the facts of the murders as described above. The state also introduced Mr.
Tubner’s handgun, jewelry discovered in Sealey’s motel room, and testimony
regarding blood found on the floor and sink in Sealey’s motel bathroom. Sealey,
593 S.E.2d at 337.
As for the defense, Beall described the guilt-phase strategy as rooted in
sowing “residual doubt.” Defense counsel attempted to show inconsistencies in
the testimonies of Battiste and Fahie and argued that Sealey’s co-defendants had a
personal motive in testifying for the state. The defense also pointed to Sherry
8 Case: 18-10565 Date Filed: 03/31/2020 Page: 9 of 62
Tubner—Mr. Tubner’s daughter—as a possible suspect and questioned her about
her knowledge of the murders. Counsel tried to introduce Sherry’s polygraph
results—which indicated that she had lied when she said she didn’t know about or
have any involvement in the murders—but the trial court ruled that the polygraph
was inadmissible.
On Friday, August 23, 2002—for reasons that will become clear, the timing
matters—the jury found Sealey guilty of both murders. After the verdict was read,
the trial court excused the jurors for the weekend and instructed them that the
sentencing phase of the trial would commence on Monday.
The sentencing phase began on Monday, August 26, with the state’s
aggravation case, which lasted less than one day. The state attempted to link
Sealey to another crime—the murder of William Kerry—by showing that Sealey
used Kerry’s credit card the day Kerry was murdered. The state also presented
testimony from Rossie Neubaum, who said that Sealey had raped her by
threatening to “blow [her] brains out” unless she engaged in intercourse with him.
Finally, several witnesses described Sealey’s misconduct and violence in prison.
Law enforcement officials and correctional officers testified that, among other
things, Sealey had turned a spork into a shank and hidden razor blades, used a sock
full of dominoes to attack another inmate, and come at officers in an aggressive
9 Case: 18-10565 Date Filed: 03/31/2020 Page: 10 of 62
and threatening manner. Defense counsel cross-examined each of the state’s
aggravation witnesses.
After the state rested its aggravation case on Monday, the defense was un-
prepared to present its case in mitigation. Ronald Tutein—Sealey’s nephew and
the defense’s sole mitigation witness—wasn’t present to testify. Defense counsel
had arranged for Tutein, who lived in St. Croix, to arrive in time to testify on
Wednesday, August 28. Beall explained to the court that Tutein had a “medical
appointment” because of a recent surgery on his knees, such that he was
“not . . . able to leave last week in order to get here on time.” The defense
requested a continuance until Wednesday to allow for Tutein’s arrival.
The trial court denied the request. It decided that there was “ample
opportunity to have [Tutein] brought forward.” The court found that the issue
wasn’t brought to the court’s attention until late on Monday and, further, that “[t]he
defense was well aware that the exact day [Tutein] was needed might not be able to
be ascertained and they might have to get [him] here a couple of days ahead of
time.” The trial court did, though, grant an overnight continuance. The court
excused the jury and gave the defense until the next day so that Sealey and his
counsel would have time to discuss whether Sealey would testify.
The defense presented its mitigation case on Tuesday, August 27.
According to Beall, the defense team’s goal was “[t]o use residual doubt” and to
10 Case: 18-10565 Date Filed: 03/31/2020 Page: 11 of 62
“humanize” Sealey in mitigation, but when asked about sentencing strategy during
the state habeas proceedings, Roberto answered that “[t]here wasn’t one.” Counsel
entered as exhibits (without any meaningful explanation) pictures of Sealey’s
childhood home and the ballfield that Sealey played on in St. Croix, as well as a
few letters written by Sealey. No witnesses testified on Sealey’s behalf, and
Sealey decided not to take the stand.
In closing argument, the state emphasized Sealey’s past crimes and
wrongdoings, stressing that he would be a danger to others in prison if not
sentenced to death. For its part, the defense attempted to cast doubt on the
testimony of Fahie and Battiste, framing the issue for the jury as “whether or not
Gregory Fahie is believable enough to execute Richard Sealey.” Beall cited
historical examples—Jesus, Socrates, Alfred Dreyfus, Jeffrey Dahmer, the
Scottsboro Boys, and Charles Manson—seemingly in an effort to show the risk of
the death penalty being imposed arbitrarily.
The jury rendered its verdict the same day. The jury recommended a death
sentence after finding beyond a reasonable doubt that the following aggravating
circumstances existed:
[T]he murders were both outrageously or wantonly vile, horrible, or inhuman in that they involved the torture of the victims, depravity of mind, and the aggravated battery of the victims, that the murders were both committed for the purpose of receiving money or any other thing of monetary value, that the murder of Mr. Tubner was committed while Sealey was engaged in the capital felonies of armed robbery and 11 Case: 18-10565 Date Filed: 03/31/2020 Page: 12 of 62
aggravated battery, and that the murder of Ms. Tubner was committed while Sealey was engaged in the capital felonies of armed robbery, aggravated battery, and kidnapping with bodily injury.
Sealey, 593 S.E.2d at 336–37 (citing Ga. Code Ann. § 17-10-30(b)(2), (4), and
(7)). The trial court imposed a single death sentence for the two murders.
Sealey appealed to the Georgia Supreme Court. Sealey, 593 S.E.2d at 337.
Because Sealey was still represented by the same lawyers, no ineffective-
assistance-of-trial counsel claims were raised on direct appeal. Nor did he present
any of the other claims that he raises here—i.e., those concerning the denial of a
continuance during the sentencing phase, the jury’s verdict, or his right to self-
representation. The Georgia Supreme Court affirmed Sealey’s convictions and
sentence. Id.
II
Sealey filed a petition for a writ of habeas corpus in Georgia state court,
challenging various aspects of the trial proceedings and his counsel’s performance.
As relevant to his claims here, he argued (1) that his trial counsel rendered
ineffective assistance during the sentencing phase, (2) that the trial court erred in
denying his motion for a continuance during the sentencing phase, (3) that the
12 Case: 18-10565 Date Filed: 03/31/2020 Page: 13 of 62
jury’s sentence and verdict violated constitutional and statutory requirements, and
(4) that he was denied the right to represent himself under Faretta.
During the state habeas proceedings, Sealey and the state presented evidence
regarding (a) Sealey’s mental health, (b) trial counsel’s failure to present Ronald
Tutein at sentencing, (c) Sealey’s family life, background, and future
dangerousness, and (d) the decision of the jurors in his case to impose the death
penalty.
Both Sealey and the state put on mental-health experts who testified about
their impressions of Sealey’s background and their evaluations of him. Sealey
presented Dr. Antonio Puente—an expert in neuropsychology. Based on an
interview with Sealey’s mother, Dr. Puente hypothesized that Sealey might have
been a “blue baby”—that is, born with the umbilical cord wrapped around his neck
such that he would have suffered from hypoxia, i.e., a lack of oxygen—but he
acknowledged that no medical records corroborated that hypothesis. As to
Sealey’s childhood, Dr. Puente testified that Sealey had a “chaotic upbringing” and
that his life was “a series of . . . traumas”—from his problematic birth, to the
separation of his parents, to his move to New York City as a pre-teen.
13 Case: 18-10565 Date Filed: 03/31/2020 Page: 14 of 62
To evaluate Sealey’s mental health, Dr. Puente administered 50 tests, giving
about 15 of those tests twice to guard against “practice effect.” On one of the tests
that Dr. Puente administered twice—the Wechsler Adult Intelligence Scale
(WAIS)—Sealey obtained full-scale IQ scores of 75 and 79, which placed him
between the fifth and eighth percentiles. Dr. Puente concluded that Sealey suffered
from “organic brain syndrome,” which he said meant that “the brain is not working
properly and something is happening to the individual’s behavior or thinking.” 6
He also noted that Sealey’s prison records documented a “head injury” diagnosis,
although he was unsure whether that diagnosis arose from psychological testing or
from Sealey’s self-reporting. Dr. Puente further believed Sealey had “borderline
mental retardation or intellectual functions” and “arrested development,” meaning
his maturity was equivalent to a 14- or 15-year-old’s.
From a review of Sealey’s background, test results, and personal interviews,
Dr. Puente inferred that Sealey was unable to form plans, meaning that Sealey
“could be easily swayed.” In Dr. Puente’s view, Sealey’s time in prison
“contributed to his inability to develop a social compass or understanding on how
the world worked,” and when combined with pre-existing issues—such as “the
6 Dr. Puente explained that “[t]echnically,” under the Diagnostic and Statistical Manual of Mental Disorders, the diagnosis would be “dementia due to multiple ideologies [sic],” and under the International Classification of Diseases, “a diagnosis for head injury.” The term “organic brain syndrome,” he said, was just “an old-fashioned word that captures the concept.”
14 Case: 18-10565 Date Filed: 03/31/2020 Page: 15 of 62
lack of appropriate parenting, maybe the head injury, maybe the perinatal injury,
maybe the cannabis abuse”—Sealey’s lengthy incarceration left him with a “highly
impaired paradigm.”
The state countered Dr. Puente’s testimony by presenting Dr. Glen King, a
forensic psychologist who had also evaluated Sealey. With respect to Sealey’s
background, Dr. King testified that Sealey “described [his father] . . . as very
loving” and his mother as “very strict.” Dr. King stated that Sealey “certainly
indicated that he never felt physically abused by his parents” and didn’t describe
his childhood as chaotic. When investigating possible head injuries, Dr. King
testified that Sealey told him that he couldn’t recall ever being hospitalized or
receiving a blow to the head that left him unconscious. Sealey’s medical records
also didn’t indicate that he had experienced any symptoms from a serious head
injury. On the question whether Sealey suffered from hypoxia, Dr. King testified
that he “saw no evidence from Mr. Sealey that he has any cognitive deficits that
would be explained by something like that.” In other words, Sealey had “no motor
problems” and “no sensory difficulties,” and although “he had some differential
abilities, in terms of his cognitive functioning, . . . it would not be consistent with
what we would expect from hypoxia.”
Dr. King also challenged Dr. Puente’s administration of the WAIS. When
asked about Dr. Puente administering the WAIS test twice, Dr. King stated that
15 Case: 18-10565 Date Filed: 03/31/2020 Page: 16 of 62
“[i]n all my years of practice I’ve not seen it done before”—except, he said, to
measure a patient’s progress after a head injury—and that other tests exist to
specifically test for malingering. From reviewing the WAIS results, Dr. King also
believed that “some of the questions . . . were, frankly, just not scored correctly.”
He stated that Dr. Puente evidently didn’t ask follow-up questions when necessary
that might have allowed Sealey to achieve higher scores and that Dr. Puente
discontinued the testing too early. This indicated to Dr. King “that [Dr. Puente
did] not administer[] the test properly,” and “it call[ed] . . . into question all of the
results that [Dr. Puente had] obtained.” Dr. King observed that Sealey “generated
a verbal comprehension index of 91” on the WAIS even though his math score was
much lower. Dr. King took this as a signal that Sealey had “low average
functioning or average functioning”—not borderline intelligence—because “[t]he
people who have true borderline intellectual functioning generate index and IQ
scores that are all quite consistent and low.” But, all things considered, Dr. King
stated that “the vast majority of [Dr. Puente’s] test results appear to be pretty
consistent, I think, with what I found and indicate normal functioning.” None of
Dr. Puente’s test results suggested to Dr. King that Sealey suffered from organic
brain damage.
So too, Dr. King testified that the results of his own testing undermined Dr.
Puente’s diagnosis that Sealey had borderline intellectual functioning and organic
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brain syndrome. Because Dr. Puente had already administered the WAIS to Sealey
twice, Dr. King testified that he couldn’t also administer it due to “possible
practice effects.” So, Dr. King administered the Stanford-Binet intelligence test
and the Wide Range Achievement Test IV to evaluate Sealey’s ability in reading,
writing, arithmetic, and comprehension. Dr. King scored Sealey’s full-scale IQ at
82, which would be in the borderline-intelligence range, but he ultimately
determined that Sealey functions in the low-average range (between 85 to 95)
because half of the indices he obtained were in the borderline-intelligence range
and half were in the average range. Dr. King believed that Sealey may suffer from
a learning disability in math because Sealey’s “word reading, sentence
comprehension, and spelling . . . occur at the tenth grade to college level,” while
Sealey’s “math is at the sixth grade level.” Although some test results signaled to
Dr. King that Sealey had a “poor processing speed,” he testified that Sealey didn’t
have problems with “executive functioning” or frontal-lobe cognitive functions.
Overall, Dr. King concluded that Sealey’s results didn’t indicate either borderline
intelligence or that Sealey was functioning at a teenage level.
In sum, Dr. King “found no evidence in any record nor in any testing that
has been done or anything that [he had] done that indicates that [Sealey] is
mentally retarded or functions in the borderline range” and that there was no
“evidence whatsoever for any brain damage.” Dr. King testified that “Mr. Sealey
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is certainly capable of planning, engaging in goal-directed behavior, listening to
others and following their directions or giving directions to others” and that
“[t]here’s nothing that would indicate that he is . . . a follower all the time and lets
everybody lead him around by the nose.”
Some of the testimony and evidence at the state habeas hearing concerned
trial counsel’s failure to present Sealey’s nephew, Ronald Tutein, at sentencing.
Tutein testified that he didn’t have a conflict that would have kept him from
traveling to Georgia for Sealey’s sentencing. Although he had recently had knee
surgery, Tutein said that he was ready and willing to come testify on Sealey’s
behalf:
Q[:] Do you recall ever having a conversation with the attorneys for Richard Sealey where you told them that you couldn’t come for a doctor’s appointment or for any other reason?
A [Tutein:] No. I made it clear that whenever they needed me they can call me, I’ll be ready anytime. I believe I was still on leave for my knee, so there was no conflict with my job. I could leave as soon as they let me know.
Q[:] And were you ready, willing and able to come?
A [Tutein:] I was. I was already packed when they called. …
Q[:] And would you have been willing to plead for his life?
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A [Tutein:] Yes, definitely. 7
While he couldn’t remember all the details, Roberto testified as follows: “[T]hat
witness who I think was Tutein didn’t make it because maybe we didn’t have our
act together and [get] him the plane ticket early enough or he couldn’t really
commit, and la-dah-dah. It just, he wasn’t there.” Beall testified that the defense
“had planned on having live testimony, and at the very last minute that didn’t
happen.” Sealey also produced notes showing that Roberto’s office called Tutein
on Tuesday, August 27—the day Sealey was sentenced. The notes stated:
“prosecution ended one day early, not enough material to fill entire day, plane
ticket bought, may come but . . . cannot testify as it will be too late.”
As to the substance of Tutein’s habeas testimony, he said that Sealey’s voice
was “loud and always laughing” and that Sealey once gave him advice not to fight
with another person. Tutein related similar information in an affidavit submitted to
the state habeas court. In that affidavit, Tutein also stated that Sealey would take
him and his brother to play ball at the park, that Sealey tried “to discourage [him]
and Kareem [Dennis] from going down the same path that he did,” and that to him,
Sealey “was not a violent or aggressive person.”
7 Tutein also stated in an affidavit that if Sealey’s lawyers said that Tutein couldn’t make it to testify because he had a follow-up appointment, “that is not true” and that he “would have been there no matter what.”
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Other witnesses testified about Sealey’s family life, background, and future
dangerousness. Sealey presented James Aiken as an expert on the Virgin Islands
prison system. Aiken testified about the conditions that Sealey had likely faced
while incarcerated as a juvenile in Anna’s Hope and Golden Grove prisons:
“Inmates were in control of other inmates,” such that “[i]f you didn’t fight, if you
didn’t act crazy, if you didn’t inflict more violence on people, that violence will
come to you.” Aiken said that the Virgin Islands prison system was
“dysfunctional” and that inmates “were inflicting physical as well as emotional
violence against other inmates,” including “sexual misconduct.” Because “the
political system turned their backs to this,” he continued, “inmates had to fend for
themselves.” Although he admitted that there were no records of Sealey being
abused in prison, he stated that it wasn’t uncommon for abuse or allegations of
abuse to go unrecorded. Aiken also testified as to Sealey’s future dangerousness,
stating that Sealey “could be adequately managed in a proper security level for the
remainder of his life without causing undue risk of harm to staff and the inmates.”
Sealey presented affidavit testimony from other witnesses, including his
family members, elementary school teacher, baseball coach, and childhood friends.
Many hadn’t seen or spoken to Sealey for several years but recalled some details
about Sealey’s childhood. They testified that Sealey’s mother and father didn’t
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actively parent him and that he was spoiled, that he struggled in school and had a
stutter, and that he was a good athlete and popular. The affidavits also mentioned
that Sealey had moved to New York with his mother as a pre-teen and had later
returned to the Virgin Islands to live with his father, where he was given a BMW
and left unsupervised. Several affiants recalled Sealey going to prison for a
robbery and shooting that occurred in St. Croix.
d
Finally, Sealey presented the testimony of several jurors from his trial. One
juror, Monique Sheffield, testified in an affidavit that “[e]ven after all this time and
even with the crime being so terrible I am on the fence about my decision for the
death penalty.” She also stated that
some members of the jury, me included, were waiting for the defense to give us some reason not to give Richard Sealey the death penalty. I was surprised they didn’t get just one relative, or a friend, or somebody, to get up and say, this person is somebody I care about, please don’t kill him. I was waiting for somebody to say that and it would have made a difference to me.
Sheffield and other jurors also testified, as relevant here, that they would have
considered information about Sealey’s background—such as Sealey’s mental
health and experiences in prison—had it been presented at sentencing.
After considering all the testimony and evidence, the state habeas court
denied Sealey’s petition. With respect to Sealey’s ineffective-assistance claim, the 21 Case: 18-10565 Date Filed: 03/31/2020 Page: 22 of 62
court held that Sealey could not show both (1) that trial counsel were deficient in
their investigation and presentation of mitigating evidence and (2) that any errors
would have changed the outcome of Sealey’s trial. On Sealey’s contention that the
verdict and sentence were unconstitutional and in violation of Georgia statutes, the
court denied the claim on the merits and, in the alternative, held that it was
procedurally defaulted because Sealey failed to raise it at trial or on direct appeal.
The court determined that the other claims that Sealey has presented here—that the
trial court erred in denying his motion for a continuance and that he was denied the
right to represent himself under Faretta—were procedurally defaulted.
Sealey filed a certificate of probable cause in the Georgia Supreme Court,
which summarily denied review. The United States Supreme Court then denied
Sealey’s petition for a writ of certiorari. Sealey v. Chatman, 571 U.S. 1134 (2014).
Sealey next filed a petition for a writ of habeas corpus in federal court
pursuant to 28 U.S.C. § 2254, which the district court denied. Sealey v. Chatman,
No. 1:14-CV-0285-WBH, 2017 WL 11477455, at *39 (N.D. Ga. Nov. 9, 2017).
Although the district court acknowledged that “at least at first blush,” it “had grave
concerns regarding the paucity of the case that trial counsel presented in
mitigation,” it ultimately denied Sealey’s ineffective-assistance claims on the
merits. Id. at *7. With respect to Sealey’s argument that he was denied due
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process and a fair trial when the state trial court denied his motion for a
continuance, the district court held that this claim was procedurally defaulted and
that Sealey hadn’t shown cause and prejudice to overcome the default. Id. at *21.
On Sealey’s claims that the verdict was unconstitutionally arbitrary and that his
right to self-representation was violated, the district court dismissed them as
procedurally defaulted and, in the alternative, denied them on the merits. Id. at
*20–23.
Sealey sought a certificate of appealability from the district court, which it
granted on three issues: (1) whether Sealey’s trial counsel rendered ineffective
assistance by failing to investigate and present mitigating evidence at sentencing;
(2) whether the verdict was unconstitutionally arbitrary; and (3) whether Sealey
was denied his right to represent himself under Faretta. Sealey asked this Court to
expand the COA to include several additional claims. We initially denied Sealey’s
request but later granted his motion for reconsideration and expanded the COA to
include his claim challenging the trial court’s denial of the continuance during
sentencing.
III
“We review de novo the denial of a petition for a writ of habeas corpus.”
Morrow v. Warden, 886 F.3d 1138, 1146 (11th Cir. 2018) (quotation omitted). But
the Antiterrorism and Effective Death Penalty Act of 1996 prescribes a deferential
23 Case: 18-10565 Date Filed: 03/31/2020 Page: 24 of 62
framework for evaluating issues previously decided in state court. Raulerson v.
Warden, 928 F.3d 987, 995 (11th Cir. 2019). Under AEDPA, a federal court may
not grant habeas relief on claims that were “adjudicated on the merits in [s]tate
court” unless the state court’s decision (1) “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) “was based on an unreasonable
determination of the facts in light of the evidence presented in the [s]tate court
proceeding.” 28 U.S.C. § 2254(d). The state court’s factual determinations are
presumed correct, absent clear and convincing evidence to the contrary. Id.
§ 2254(e)(1).
At issue here, primarily, is AEDPA’s unreasonable-application-of-federal-
law provision. The key word is “unreasonable,” which is more than simply
incorrect. See Harrington v. Richter, 562 U.S. 86, 101 (2011); Williams v. Taylor,
529 U.S. 362, 410–11 (2000). “[A] state court’s application of federal law is
unreasonable only if no fairminded jurist could agree with the state court’s
determination or conclusion.” Raulerson, 928 F.3d at 995–96 (quotation omitted).
This is “a difficult to meet and highly deferential standard . . . , which demands
that state-court decisions be given the benefit of the doubt.” Id. at 996 (quoting
Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). We review “the last state-court
adjudication on the merits.” Greene v. Fisher, 565 U.S. 34, 40 (2011). Because
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here the Georgia Supreme Court summarily denied Sealey’s certificate for
probable cause, we review the state trial court’s habeas decision. See Wilson v.
Sellers, 138 S. Ct. 1188, 1192 (2018); see also Raulerson, 928 F.3d at 996 (“[W]e
‘“look through” the unexplained decision’ of the Supreme Court of Georgia to
review the superior court’s decision as if it were the last state-court adjudication on
the merits.” (quoting Wilson, 138 S. Ct. at 1192)).
IV
Sealey’s appeal focuses primarily on whether the state habeas court’s
rejection of his ineffective-assistance claim constituted an unreasonable application
of federal law under § 2254(d). The relevant federal law is the Supreme Court’s
decision in Strickland v. Washington, 466 U.S. 668 (1984). See Premo v. Moore,
562 U.S. 115, 121 (2011) (“The applicable federal law [for AEDPA purposes]
consists of the rules for determining when a criminal defendant has received
inadequate representation as defined in Strickland.”). To prove ineffective
assistance under Strickland, a defendant must show both (1) deficient performance
of counsel and (2) resulting prejudice. 466 U.S. at 687.
When considering the deficiency prong, courts must “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. As relevant to “counsel’s duty to
investigate”—a duty at issue in this case—“strategic choices made after less than
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complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Id. at 690–91.
While “[c]ounsel representing a capital defendant must conduct an adequate
background investigation,” we have held that “it need not be exhaustive.”
Raulerson, 928 F.3d at 997.
To prove prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome,” id.; accord Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1326 (11th
Cir. 2013) (en banc), which is a lesser showing than a preponderance of the
evidence, see Williams, 529 U.S. at 405–06. At the same time, “[i]t is not enough
for the defendant to show that the errors had some conceivable effect on the
outcome of the proceeding” because “[v]irtually every act or omission of counsel
would meet that test.” Strickland, 466 U.S. at 693. In a capital case, the prejudice
inquiry asks “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.” Johnson v. Sec’y, Dep’t of Corr., 643 F.3d
907, 935 (11th Cir. 2011) (alteration in original) (quoting Strickland, 466 U.S. at
695). An ineffective-assistance claim can be decided on either the deficiency or
26 Case: 18-10565 Date Filed: 03/31/2020 Page: 27 of 62
prejudice prong. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.”).
While the Strickland standard is itself hard to meet, “[e]stablishing that a
state court’s application of Strickland was unreasonable under § 2254(d) is all the
more difficult.” Richter, 562 U.S. at 105. “The Strickland standard is a general
one, so the range of reasonable applications is substantial.” Id. This means that
“[s]o long as fairminded jurists could disagree about whether the state court’s
denial of the claim was inconsistent with an earlier Supreme Court decision,
federal habeas relief must be denied.” Johnson, 643 F.3d at 910.
Sealey asserts that his trial counsel—Beall and Roberto—rendered
ineffective assistance at sentencing by failing to do four things: (A) discover and
present evidence of brain damage and borderline intellectual functioning; (B)
ensure that the sole mitigation witness, Ronald Tutein, was available to testify; (C)
discover and present evidence of Sealey’s background; and (D) present the results
of Sherry Tubner’s polygraph. Sealey also contends that (E) he was prejudiced by
the cumulative effect of counsel’s errors. We examine each contention in turn.
We first address Sealey’s argument that trial counsel failed to discover and
present mitigating mental-health evidence. The state habeas court determined that
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Sealey’s lawyers’ decision “not to pursue” mental-health evidence “was based
upon a thorough and reasonable investigation” and “was not deficient.” It further
held that the lawyers “were not ineffective for not presenting [Sealey’s] newly
acquired mental health diagnoses” because there was “no reasonable probability
that [Sealey’s] trial would have had a different outcome given [its] unreliability.”
The court also concluded that at least some of Dr. Puente’s test results were
“unreliable” and found that his diagnoses were “the product of errant analysis.”
Sealey contends that the state court’s decision is both an unreasonable
determination of the facts and an unreasonable application of Supreme Court
precedent. On the facts, Sealey argues that the record doesn’t support the state
court’s findings that Dr. Puente’s results were “unreliable” or that his analysis was
“errant” because multiple rounds of IQ testing all showed that Sealey was
operating in the borderline range. Although the court took issue with the way that
Dr. Puente administered the testing and his findings, Sealey argues that Dr. Puente
is one of the test’s developers, and that, as a neuropsychologist, he is more
qualified than the state’s expert, a forensic psychologist.
On the law, Sealey argues that, given the clear signs that he had mental-
health issues, trial counsel’s failure to further investigate and present evidence of
these issues constituted deficient performance. According to Sealey, once Dr.
28 Case: 18-10565 Date Filed: 03/31/2020 Page: 29 of 62
Farrar’s preliminary investigation revealed that there was something “very, very
wrong” with Sealey and that he likely “suffered from some kind of delusional,
paranoid kind of disorder, perhaps even a psychoses, and that certainly a
neurological kind of process, an organic brain problem needed to be evaluated”—
an assessment that caused Beall to request funding for a full mental-health
evaluation—counsel should have followed up. In addition to Dr. Farrar’s initial
opinion, Sealey contends that counsel knew from different members of his family
that he had a complicated birth and behavioral problems, and that “Sealey men”
struggled with mental illness. Sealey also points to Roberto’s testimony during the
state habeas proceedings that “Richard is not right,” “not normal,” and that he
“[d]amn straight” had mental issues. And even if (as the state habeas court
decided) counsel chose not to investigate Sealey’s mental health because they did
not personally think that he suffered from mental illness, Sealey asserts that they
weren’t excused from procuring an evaluation, which they needed to make an
informed decision.
On the record before us, we find counsel’s failure to further investigate
Sealey’s mental health deeply troubling. Beall and Roberto were put on notice by
Dr. Farrar that something was “very, very wrong” with Sealey, that Sealey
“suffered from some kind of delusional, paranoid kind of disorder, perhaps even a
29 Case: 18-10565 Date Filed: 03/31/2020 Page: 30 of 62
psychoses,” and “that certainly a neurological kind of process, an organic brain
problem needed to be evaluated.” Counsel also heard from Sealey’s family that
“Sealey men” suffered from mental-health issues, and Roberto himself
acknowledged that Sealey was “not right” and “not normal.” Dr. Farrar’s
comment, in particular, seemed to have made an impression on counsel, as it led
Beall to request funds from the court for further evaluation. Even armed with all
of this information though, counsel simply didn’t follow through. We have
recognized that “[i]n the context of penalty-phase mitigation in capital cases . . . it
is unreasonable not to investigate further when counsel has information available
to him that suggests additional mitigating evidence—such as mental
illness . . . may be available.” Jones v. Sec’y, Fla. Dep’t. of Corr., 834 F.3d 1299,
1312 (11th Cir. 2016). Having said that, we needn’t decide here whether counsel’s
performance was constitutionally deficient because we hold Sealey was not
prejudiced by any deficiency on their part.
In short, Sealey cannot prove that “absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Johnson, 643 F.3d at 935 (alteration in
original) (quotation omitted). Dr. Puente testified that Sealey suffered from
“organic brain syndrome and borderline mental retardation or intellectual
functions,” and that Sealey had a “highly impaired paradigm” and “could be easily
30 Case: 18-10565 Date Filed: 03/31/2020 Page: 31 of 62
swayed.” Had these findings been presented in mitigation, the state surely would
have presented Dr. King (or another expert) to rebut Dr. Puente’s testing and
conclusions. Dr. King testified during the state habeas proceedings that Dr. Puente
did “not administer[] the [WAIS] test properly” and that, in any event, most of Dr.
Puente’s results were “consistent” with his own and “indicate[d] normal
functioning.” The state habeas court seemingly credited Dr. King’s testimony over
Dr. Puente’s when it found that the results of at least some of Dr. Puente’s tests
were “unreliable” and stated that Dr. Puente’s diagnoses were not “supported by
the record and [were] the product of errant analysis.” While Sealey claims that the
state habeas court’s determination of the facts in this regard was unreasonable, he
hasn’t come forward with clear and convincing evidence to rebut the presumption
of correctness we must give to the state court’s findings under § 2254(e)(1). See
Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271, 1292 (11th Cir. 2012)
(“Our review of findings of fact by the state court is even more deferential than
under a clearly erroneous standard of review.” (quotation omitted)).
The state court’s decision was reasonable, especially considering that
Sealey’s mental-health evidence—at least some of which was weakened by
testimony from the state’s expert—isn’t nearly as compelling as mitigating
evidence in cases where the Supreme Court has held that habeas relief was
warranted. Take, for example, Porter v. McCollum, where the Court held that a
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petitioner was prejudiced by his counsel’s failure to present “(1) [his] heroic
military service in two of the most critical—and horrific—battles of the Korean
War, (2) his struggles to regain normality upon his return from war, (3) his
childhood history of physical abuse, and (4) his brain abnormality, difficulty
reading and writing, and limited schooling.” 558 U.S. 30, 41 (2009). When
contrasted with a case like Porter, the new mental-health evidence presented
here—of mild mental impairment—is insufficient to establish prejudice.
While the new mental-health evidence is debatable, the aggravating
evidence presented against Sealey was powerful. The jury found Sealey guilty of a
brutal double murder, committed with an axe. In recommending the death
sentence, the jury found several aggravating circumstances to be present, including
that the murders involved torture of the victims. More specifically, Sealey tortured
Mrs. Tubner with a hot fireplace poker before murdering her, with the intention of
discovering where she and her husband hid their money. During the sentencing
phase, the state also presented evidence linking Sealey to another murder,
testimony from a woman who alleged that Sealey had raped her while putting a
gun to her temple, and several witnesses who described Sealey’s misconduct and
violence in prison. What the Supreme Court said in Strickland applies here as
well: “Given the overwhelming aggravating factors, there is no reasonable
probability that the omitted evidence would have changed the conclusion that the
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aggravating circumstances outweighed the mitigating circumstances and, hence,
the sentence imposed.” 466 U.S. at 700; see also Jones, 834 F.3d at 1315 (“In the
face of these powerful aggravators and the arguably limited mitigating value of
[the doctor’s] testimony, [the petitioner] has not come close to showing that the
[state court] acted unreasonably in finding no prejudice on account of counsel’s
deficient performance.”).
The state habeas court’s conclusion that Sealey did not suffer prejudice
because of counsel’s failure to present mental-health evidence therefore was not an
unreasonable application of Strickland.
We next address Sealey’s argument that his trial counsel were ineffective in
failing to present Ronald Tutein—Sealey’s nephew and the defense’s sole
mitigation witness—at sentencing. The state habeas court rejected this part of
Sealey’s claim on prejudice grounds, without deciding deficiency, holding that
Tutein’s testimony on habeas “was neither compelling nor mitigating for the
crimes . . . [Sealey] had committed and [that] there is no reasonable probability that
this testimony would have changed the outcome of [Sealey’s] trial.” We therefore
give § 2254(d) deference to the state court’s holding on prejudice, which—as we
will explain—likewise leads us to reject Sealey’s claim here.
33 Case: 18-10565 Date Filed: 03/31/2020 Page: 34 of 62
Sealey argues that counsel’s failure to present Tutein at sentencing was
“quintessential deficient attorney performance” and that “[r]easonable capital
defense counsel would have made certain that their witness arrived sufficiently in
advance of the proceedings.” As to prejudice, Sealey presented the following
testimony of a juror from his trial: “I was surprised they didn’t get just one relative,
or a friend, or somebody, to get up and say, this person is somebody I care about,
please don’t kill him. I was waiting for somebody to say that and it would have
made a difference to me.” Although the state court dismissed Tutein’s testimony
as “neither compelling nor mitigating for [Sealey’s] crimes,” Sealey contends that
he “need only show a reasonable probability that at least one juror may have been
swayed to exercise mercy,” not that the “unpresented evidence explains or lessens
the brutality of the crime.” Sealey asserts that Tutein would have appeared
credible to the jury—because he is a deputy marshal for the Superior Court of the
Virgin Islands—and that his testimony would have made a difference.
Even if counsel’s performance was deficient—an issue that we needn’t
decide—Sealey cannot prove that he was prejudiced at sentencing by counsel’s
failure to present Tutein. While prejudice can be proven if “there is a reasonable
probability that at least one juror would have struck a different balance,” see
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Wiggins v. Smith, 539 U.S. 510, 537 (2003), the state court reasonably concluded
that no juror would have been swayed by Tutein’s weak testimony. Although
Sealey put forward the affidavit of a juror from his trial suggesting that testimony
from his family would have made a difference, the assessment of prejudice does
“not depend on the idiosyncrasies of the particular decisionmaker.” Strickland,
466 U.S. at 695. Rather, the inquiry under Strickland is an objective one. Id.; see
also Williams v. Allen, 542 F.3d 1326, 1345 (11th Cir. 2008) (“The [Supreme]
Court made clear [in Strickland] that the assessment [of prejudice] should be based
on an objective standard that presumes a reasonable decisionmaker.”).
When assessing prejudice under Strickland, courts “reweigh the evidence in
aggravation against the totality of available mitigating evidence,” Wiggins, 539
U.S. at 534, which appears to be exactly what the state habeas court did here. The
state court acknowledged that most of Tutein’s testimony was about Sealey’s
father, and the only testimony regarding Sealey was that “he was loud and always
laughing and once discouraged [Tutein] from fighting” and that Sealey was a
“good uncle” who was “always nice to [Tutein].” The court also considered
Roberto’s testimony that Tutein “was going to say a few kind words but there
wasn’t a lot of depth to” his testimony because Tutein hadn’t spent a significant
amount of time with Sealey. Against Tutein’s relatively thin testimony, the state
court weighed the “brutal torture and murder of Mr. and Mrs. Tubner,” and had
35 Case: 18-10565 Date Filed: 03/31/2020 Page: 36 of 62
before it the other aggravating evidence presented at sentencing—Sealey’s
implication in another murder, an allegation of rape, and Sealey’s misconduct and
violence in prison. See supra at 9–10, 32–33. Sealey cannot show that “no
fairminded jurist” would have done as the state habeas court did in denying his
claim. See Raulerson, 928 F.3d at 995–96 (quotation omitted); see also Morrow,
886 F.3d at 1152 (holding that the state court “reasonably concluded” that the
petitioner’s “new evidence would not have shifted ‘the balance of aggravating and
mitigating circumstances’” (quoting Strickland, 466 U.S. at 695)).
Accordingly, the state court’s decision that Sealey suffered no prejudice as a
result of his counsel’s failure to present Tutein was not contrary to or an
unreasonable application of clearly established federal law.
Sealey next asserts that his counsel were ineffective in failing to discover
and present other evidence pertaining to his background. The state habeas court
detailed the steps that counsel took to investigate Sealey’s childhood—including
their trip to St. Croix—and concluded that counsel weren’t ineffective. The court
wasn’t persuaded by the additional affidavits produced on habeas from persons
who said that they would have testified on Sealey’s behalf. It noted that some
affidavit evidence was contradictory, and some was aggravating. The court further
stated that “none of the affiants state [that Sealey] was abused or mistreated nor do
36 Case: 18-10565 Date Filed: 03/31/2020 Page: 37 of 62
they state [that Sealey’s] needs of food, clothing, shelter or even love were
neglected.”
The state court decided some parts of this challenge on Strickland’s
deficiency prong and others on both the deficiency and prejudice prongs. 8 Under
§ 2254(d), we defer only to determinations actually made by the state court and
otherwise conduct de novo review. See Rompilla v. Beard, 545 U.S. 374, 390
(2005) (reviewing the prejudice prong de novo because the state court didn’t reach
it). We conclude that we needn’t parse the state court’s sub-holdings because,
even under de novo review, Sealey has not shown that he was prejudiced by his
counsel’s failure to discover or present this background evidence.
Sealey argues that, although the state habeas court recited the steps that
defense counsel took in investigating his background, it failed to acknowledge his
argument that counsel didn’t follow through by presenting the evidence at
sentencing or by obtaining additional witness testimony. He points out that no
matter how thorough counsel’s investigation was, there’s no disputing that it netted
8 For example, the state habeas court decided both that counsel weren’t deficient in failing to present the lay witness testimony acquired during the state habeas proceedings and that this failure didn’t prejudice Sealey. But as to counsel’s gathering of background records, their investigation of mitigating evidence in St. Croix, and their decision not to interview Sealey’s mother, the state habeas court made no determination on prejudice, deciding the claims on deficiency instead.
37 Case: 18-10565 Date Filed: 03/31/2020 Page: 38 of 62
just a few documents and photos, which were simply entered as exhibits and went
unexplained by defense counsel. Sealey asserts that counsel failed to gather and
present evidence about his life that a jury could find mitigating, such as his
difficult childbirth, his stutter, his “chaotic” move from the Virgin Islands to the
Bronx, and his incarceration in difficult prison conditions. Additionally, Sealey
contends that he has family, friends, and former teachers that would have testified
on his behalf had they been located and asked. To show that such evidence and
witnesses would have made a difference, Sealey again cites the testimony of jurors
who said that they were waiting for the defense to provide insight into Sealey’s life
and background.
When considering prejudice, the “issue 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.”
Johnson, 643 F.3d at 935 (alteration in original) (quotation omitted). We conclude
that the background evidence presented during the state habeas proceedings
wouldn’t have tilted the aggravating-mitigating balance away from the death
penalty. On the contrary, and as the state habeas court acknowledged, much of the
evidence produced was contradictory and possibly even aggravating.
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What little mitigating evidence could be gleaned in the affidavits wouldn’t
have altered the outcome at Sealey’s sentencing. It suggests, at most, that Sealey’s
childhood was “chaotic,” that his parents were unstable and emotionally absent,
that Sealey had a learning disability and stutter, that he was moved from St. Croix
to New York as a pre-teen, and that he was incarcerated as a juvenile in an adult
prison. This isn’t nearly as extreme as the troubled childhoods of petitioners in
other cases in which prejudice was found and relief was granted. In Wiggins v.
Smith, for example, the Supreme Court recognized that the mitigating evidence that
went unpresented was “powerful”:
[The petitioner] experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother. He suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care. The time [the petitioner] spent homeless, along with his diminished mental capacities, further augment his mitigation case.
539 U.S. at 534–35. The Supreme Court held that if this mitigating evidence had
been presented at the petitioner’s trial, “there [was] a reasonable probability that
[the jury] would have returned with a different sentence.” Id. at 536; see also
Williams, 529 U.S. at 395–96 (describing the petitioner’s childhood as
“nightmarish” because he suffered severe and repeated beatings, was committed to
the custody of social services, spent time in an abusive foster home, and failed to
advance beyond sixth grade).
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Some of the evidence regarding Sealey’s background and childhood—even
the evidence that could be considered mitigating—is contradictory and therefore of
questionable reliability. For example, the affiants testified (1) that Sealey’s parents
were absent and that his father “ruled the[] house with fear,” but also that his
parents did not give him any boundaries and spoiled him; (2) that Sealey grew up
in a “pretty rough” neighborhood, but also that it was full of “middle class
families”; (3) that Sealey struggled in school and suffered from a stutter, but also
that he was a good athlete, popular, and intimidating; and (4) that Sealey was a
follower, but also that he was big for his age and stood up for other children.
Further—and worse for Sealey’s prejudice argument—much of the evidence
presented in the affidavits could be considered aggravating. For example, the
affidavits state that, in St. Croix, Sealey often committed petty crime, especially
theft and vandalism, that he sold drugs, and that his father paid off the police so
that they would look the other way. An affidavit from Doris Walton—a friend of
Pauline Corbitt, Sealey’s half-sister—explains that Sealey blew through thousands
of dollars given to him by his family (through Walton, as the family’s contact in
Atlanta) and, at one point, came into her office unannounced, placed a bag of
marijuana on her desk (putting her job at risk), and laughed. Most seriously,
several witnesses testified about Sealey’s supposed participation in a robbery and
shooting in the Virgin Islands.
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In conclusion, there isn’t a reasonable probability that Sealey’s sentence
would have been different if this background evidence was presented. See
Strickland, 466 U.S. at 694 (“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”). Even under de novo review, we conclude
that Sealey was not prejudiced.
Sealey next argues that counsel were ineffective in failing to present the
results of Sherry Tubner’s polygraph test during the sentencing phase. Part of
defense counsel’s “residual doubt” strategy was to suggest that Sherry Tubner—
Mr. Tubner’s daughter—was responsible for the murders. The results of a
polygraph test indicated that Sherry had lied when asked whether she was involved
with the Tubners’ deaths. Defense counsel “tried 16 ways from Sunday” to get the
polygraph admitted during the guilt phase, but it was deemed inadmissible by the
state trial court. Counsel didn’t attempt to admit it during the sentencing phase,
which Sealey challenges as ineffective assistance.
The state habeas court rejected Sealey’s argument for two reasons—one
legal and one factual. 9 As a legal matter, the court held that counsel didn’t perform
9 The state habeas court also seemed to suggest that, in the alternative, this part of Sealey’s claim was barred because the Georgia Supreme Court rejected it on direct appeal. But on Sealey’s direct appeal, the Georgia Supreme Court reviewed only the exclusion of the polygraph results during the guilt phase because, as Sealey argues, “trial counsel did not seek, and therefore the trial court did not rule upon, their admissibility in the penalty phase.” See Sealey, 593 S.E.2d at 41 Case: 18-10565 Date Filed: 03/31/2020 Page: 42 of 62
deficiently in not attempting to admit the polygraph evidence at sentencing
because, at the time of Sealey’s trial, “polygraph results were inadmissible during
the guilt/innocence phase and there was no precedent that allowed for their
admission during the sentencing phase.” The court cited Baxter v. Kemp—the
prevailing law at the time of Sealey’s trial—in which the Georgia Supreme Court
concluded that counsel weren’t ineffective for “failing to try to introduce
inadmissible polygraph evidence at the sentencing phase.” 391 S.E.2d 754, 756
n.4 (Ga. 1990), overruled by Height v. State, 604 S.E.2d 796, 798 (Ga. 2004).
Although the Georgia Supreme Court held—after Sealey’s trial—that polygraph
results could be admitted at sentencing, see Height, 604 S.E.2d at 798, the state
habeas court reasoned that Sealey’s lawyers weren’t required to predict
developments in the law.
As a factual matter, the court also found that the polygraph was of
questionable reliability because the report of Sealey’s own expert, Walter Maddox,
stated that Sherry might not have actually been lying. Thus, the court held that the
evidence “would have, at the least been unreliable, and at the worst could have
339. Sealey’s claim here, which pertains to admission of the polygraph during the sentencing phase, is thus properly before us.
42 Case: 18-10565 Date Filed: 03/31/2020 Page: 43 of 62
further inculpated [Sealey] as the person wielding the axe and destroyed any
reasonable doubt that may have existed from the guilt/innocence phase.” 10
Sealey challenges the state habeas court’s legal reason for rejecting the
claim, asserting that it was never the case that, under Georgia law, polygraph
results were per se inadmissible during the sentencing phase. Sealey contends that
counsel should have known that the rules of admissibility at sentencing are much
more generous than during the guilt phase. Because defense counsel’s sentencing
strategy was “residual doubt,” Sealey argues that the polygraph results were crucial
to suggest Sherry’s involvement. As to Maddox’s report, Sealey maintains that it
was privileged work product at the time of sentencing and that, accordingly, the
state couldn’t have used it against him.
The state habeas court’s determination that Sealey’s counsel weren’t
deficient was not an unreasonable application of Strickland. Legally, it seems to us
that a plausible reading of Baxter at the time of Sealey’s trial was that polygraph
evidence was indeed inadmissible at sentencing. After all, Baxter held that the
10 Because the state court clearly held that Sealey’s counsel didn’t perform deficiently, we give that holding deference under § 2254(d). The parties dispute whether the state court’s determination that the polygraph would have been unreliable or possibly inculpatory if admitted constitutes a holding on prejudice. We needn’t decide that here because, even under de novo review, Sealey’s prejudice argument fails.
43 Case: 18-10565 Date Filed: 03/31/2020 Page: 44 of 62
lawyers in that case didn’t render ineffective assistance in “failing to try to
introduce inadmissible polygraph evidence at the sentencing phase.” 391 S.E.2d at
756 n.4 (emphasis added). Further, in Height—the case that overruled Baxter—the
Georgia Supreme Court held that “to the extent that Baxter v. Kemp or any other
case intimates that unstipulated polygraph results are per se inadmissible as
mitigation evidence, it is hereby overruled.” Height, 604 S.E.2d at 798 (citation
omitted). That shows that before Height it was, at the very least, reasonable to
interpret Baxter as precluding polygraph results during sentencing.
Even supposing that defense counsel should have surmised that the
polygraph could be admitted at sentencing, that doesn’t mean that they were
deficient in failing to seek its admission. As a factual matter, knowing from the
Maddox report that the polygraph’s reliability was questionable, counsel could
have strategically chosen not to present it for fear that it would be attacked and—as
the state habeas court found—end up being more aggravating than mitigating. As
counsel must have been aware, while there was no evidence tying Sherry Tubner to
the crime scene, there was physical evidence implicating Sealey—including
eyewitness testimony, the victim’s gun and jewelry in Sealey’s motel room, and
the blood found in Sealey’s motel bathroom.
Sealey’s argument also fails because he cannot prove prejudice. Even if
the state didn’t have access to the Maddox report, it could have challenged the
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reliability of the polygraph results in some other way or pointed to the physical
evidence tying Sealey to the crime. Sealey has not shown that “there is a
reasonable probability that . . . the result of the proceeding would have been
different” had the polygraph results been admitted. Strickland, 466 U.S. at 694.
Thus, the state court’s determination that counsel didn’t perform
deficiently wasn’t an unreasonable application of Strickland. Moreover, Sealey
cannot show, even on de novo review, that he was prejudiced.
E
The final aspect of Sealey’s ineffective-assistance claim is that the state
habeas court didn’t “weigh the cumulative prejudice flowing from each of
counsel’s errors and omissions in the sentencing phase.” Sealey contends that the
evidence that counsel failed to discover and present at sentencing—expert
testimony about his “brain impairment,” witnesses to speak about Sealey’s
background, and the polygraph results—taken together, would have changed the
vote of at least one juror. 11
11 It’s unclear to us whether the state habeas court actually decided this claim. The court did hold that one of Sealey’s claims—that “all claims combined resulted in an unfair trial and appeal, in violation of [Sealey’s] constitutional rights”—failed to assert a state or federal constitutional violation and was non-cognizable because no cumulative-error rule existed in Georgia. Neither Sealey nor the state seem to address whether this part of the state court’s holding affects our analysis. In any event, we take Sealey’s argument before us to be different—that, while the state habeas court performed the aggravating-versus-mitigating balancing as to Sealey’s individual ineffective-assistance claims, it didn’t consider all the potentially mitigating evidence together.
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In Williams, the Supreme Court held that the state habeas court’s
“prejudice determination was unreasonable [under Strickland] insofar as it failed to
evaluate the totality of the available mitigation evidence—both that adduced at
trial, and the evidence adduced in the habeas proceeding in reweighing it against
the evidence in aggravation.” 529 U.S. at 397–98. The mitigation evidence that
the petitioner there presented, in total, “might well have influenced the jury’s
appraisal of his moral culpability.” Id. at 398. In sum, the state habeas court in
that case “failed to accord appropriate weight to the body of mitigation evidence
available to trial counsel.” Id.
We conclude that we needn’t decide whether the state court unreasonably
applied Strickland by failing to balance the aggravating evidence against all
available mitigating evidence because Sealey’s argument would still fail under de
novo review. See Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1290–91
(11th Cir. 2012) (explaining that “we are entitled to affirm the denial of habeas
relief” by considering a petitioner’s claim under a de novo lens); see also McGahee
v. Ala. Dep’t of Corr., 560 F.3d 1252, 1266 (11th Cir. 2009) (explaining that if “a
state court decision is an unreasonable application of federal law under 28 U.S.C.
§ 2254(d),” we perform “a de novo review of the record”). We cannot say “that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
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The murders of Mr. and Mrs. Tubner were extremely brutal. Among other
aggravating circumstances, the jury found beyond a reasonable doubt that both
murders “involved the torture of the victims, depravity of mind, and the aggravated
battery of the victims.” Sealey, 593 S.E.2d at 336; see Ga. Code Ann. § 17-10-
30(7). Sealey used a fireplace poker to torture Mrs. Tubner and bludgeoned both
victims to death with an axe. The jury also had before it the rest of the state’s
aggravation case—allegations of another murder, an alleged rape, and misconduct
and violence in prison. See supra at 9–10, 32–33. Compared to the aggravated
nature of the case, the totality of mitigating evidence—both the sparse evidence
that counsel presented during sentencing and the weak, contradictory, and
potentially aggravating evidence produced on habeas—cannot lead us to conclude
that “the balance of aggravating and mitigating circumstances did not warrant
death.” Johnson, 643 F.3d at 935 (quoting Strickland, 466 U.S. at 695) (analyzing
the prejudice prong de novo).
* * *
In sum, Sealey has not shown that his trial counsel were constitutionally
ineffective under Strickland during the sentencing phase. We affirm the district
court’s denial of Sealey’s petition as to his ineffective-assistance claim.
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V
We next consider Sealey’s claims that the state habeas court and district
court held to be procedurally defaulted because Sealey didn’t raise them on direct
appeal: (1) that the trial court’s denial of a continuance at sentencing denied him
due process and a fair trial; (2) that the death sentence was unconstitutionally
arbitrary and in violation of Georgia’s sentencing scheme; and (3) that he was
denied his right to represent himself under Faretta v. California, 422 U.S. 806
(1975). 12 Sealey argues that he can overcome the procedural default of these
claims by showing his appellate counsel were ineffective in failing to raise them on
direct appeal. Before considering Sealey’s ineffective-assistance-of-appellate
counsel arguments, we’ll briefly summarize the exhaustion requirement and the
steps of our procedural-default analysis.
For a federal court to review a claim for habeas relief, a petitioner must
“first properly raise the federal constitutional claim in the state courts”—i.e.,
exhaust it. Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010) (citing 28 U.S.C.
§ 2254(b)). As relevant to Sealey’s case, Georgia’s appeal process requires that a
petitioner seek a certificate of probable cause to appeal to the Georgia Supreme
12 “We review de novo the determination of a district court that a habeas petitioner is procedurally barred from raising a claim in federal court.” Henry v. Warden, Ga. Diagnostic Prison, 750 F.3d 1226, 1230 (11th Cir. 2014).
48 Case: 18-10565 Date Filed: 03/31/2020 Page: 49 of 62
Court; claims not raised in an application for a certificate of probable cause are
considered unexhausted on subsequent federal habeas review. Hittson v. GDCP
Warden, 759 F.3d 1210, 1231 & n.22 (11th Cir. 2014); see also Pope v. Rich, 358
F.3d 852, 854 (11th Cir. 2004) (per curiam).
Relatedly, federal courts are barred from reviewing a habeas petitioner’s
claim “if a state court rejected it on a state procedural ground.” Henry v. Warden,
Ga. Diagnostic Prison, 750 F.3d 1226, 1230 (11th Cir. 2014). Such a state-court
ruling precludes federal review of the underlying claim so long as it “rests upon
[an] ‘independent and adequate’ state ground.” 13 Judd v. Haley, 250 F.3d 1308,
1313 (11th Cir. 2001). We can consider a defaulted claim, however, if a petitioner
can show (1) “cause for the default” and (2) “actual prejudice resulting from the
alleged constitutional violation.” Ward, 592 F.3d at 1157 (citing Wainwright, 433
U.S. at 84–85). 14 A petitioner can establish “cause” by “identify[ing] ‘some
objective factor external to the defense’ that impeded his ability to raise the claim
13 We review de novo whether a claim has been procedurally defaulted, as it “is a mixed question of fact and law.” Harris v. Comm’r, Ala. Dep’t of Corr., 874 F.3d 682, 688 (11th Cir. 2017) (quotation omitted). Sealey doesn’t seem to dispute that the state habeas court’s ruling—that his claims were procedurally defaulted—“rests upon ‘adequate and independent’ state grounds.” Ward, 592 F.3d at 1156 (quotation omitted); see also id. at 1176 (holding that “the state habeas court’s procedural default ruling [applying Georgia’s procedural default rule barring habeas review of claims not raised at trial or on direct appeal] rested on an adequate state law ground”). We therefore proceed to consider Sealey’s argument that he has overcome the default. 14 A petitioner can also overcome a procedural default by showing “a fundamental miscarriage of justice,” Holladay v. Haley, 209 F.3d 1243, 1254 (11th Cir. 2000), but that exception isn’t at issue here.
49 Case: 18-10565 Date Filed: 03/31/2020 Page: 50 of 62
in state court.” Henry, 750 F.3d at 1230 (quoting Murray v. Carrier, 477 U.S. 478,
488 (1986)). To establish “actual prejudice,” “a petitioner must demonstrate that
the errors at trial actually and substantially disadvantaged his defense so that he
was denied fundamental fairness.” Ward, 592 F.3d at 1157 (quotation omitted).
A showing of ineffective assistance of appellate counsel in failing to raise a
claim on direct appeal can constitute “cause” so long as the ineffective assistance
“occur[red] during a stage when a petitioner had a constitutional right to counsel,”
Payne v. Allen, 539 F.3d 1297, 1314 (11th Cir. 2008), and the ineffective-
assistance claim itself is “both exhausted and not procedurally defaulted,” Ward,
592 F.3d at 1157 (citing Hill v. Jones, 81 F.3d 1015, 1031 (11th Cir. 1996)). No
one disputes that Sealey had a right to counsel during his state-court trial and direct
appeal. See Payne, 539 F.3d at 1314. We also conclude that Sealey properly
exhausted 15 his ineffective-assistance-of-appellate-counsel claim because the state
15 The state contests whether Sealey exhausted his ineffective-assistance-of-appellate-counsel claim. To properly exhaust an ineffective-assistance-of-appellate-counsel claim, Sealey must have “assert[ed] this theory of relief and transparently present[ed] the state courts with the specific acts or omissions of his lawyers that resulted in prejudice.” Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004). Even though Sealey didn’t develop his ineffective- assistance-of-appellate-counsel claim as well as he could have, we conclude that the claim is exhausted because the state habeas court “had an opportunity to address [Sealey’s] claim[] in the first instance when it rejected the merits of his [ineffective-assistance-of-appellate-counsel] claim.” Holland v. Florida, 775 F.3d 1294, 1316 (11th Cir. 2014) (quotation omitted); see also Sandstrom v. Butterworth, 738 F.2d 1200, 1206 (11th Cir. 1984) (“There is no better evidence of exhaustion than a state court’s actual consideration of the relevant constitutional issue.”).
50 Case: 18-10565 Date Filed: 03/31/2020 Page: 51 of 62
court actually considered and denied it. 16
“[T]o determine cause and prejudice, we must ascertain whether [Sealey]
has shown ineffective appellate counsel in not timely raising” the procedurally
defaulted claims, and “to determine whether [Sealey] has shown ineffective
appellate counsel, we must determine whether [he] has shown underlying
meritorious . . . claims.” Id.; see also Brown v. United States, 720 F.3d 1316, 1335
(11th Cir. 2013) (holding that “because there is so little merit to the [defaulted]
claim, [the petitioner] cannot demonstrate that his appellate attorneys were
ineffective by failing to raise it on direct appeal”). As with any ineffective-
assistance claim, the Supreme Court’s decision in Strickland governs. Smith v.
Robbins, 528 U.S. 259, 285 (2000) (stating that Strickland applies to ineffective-
assistance-of-appellate-counsel claims); see also Edwards v. Carpenter, 529 U.S.
446, 451 (2000) (stating that, while “counsel’s ineffectiveness in failing properly to
16 The state habeas court held that Sealey “failed to present any evidence” to support his ineffective-assistance-of-appellate-counsel claim and that Beall spent a “considerable amount of time, 207 hours, preparing” for Sealey’s motion for a new trial and direct appeal. Whether the state court’s decision concerning the ineffective-assistance-of-appellate-counsel claim receives deference under § 2254(d) within this procedural default analysis is an issue that has divided courts. Compare Visciotti v. Martel, 862 F.3d 749, 768–69 (9th Cir. 2016) (noting the disagreement among circuits and deciding to review the ineffective-assistance claim within the procedural default context de novo), with Richardson v. Lemke, 745 F.3d 258, 273 (7th Cir. 2014) (“In our circuit, when we review a state court’s resolution of an ineffective assistance claim in the cause-and-prejudice context, we apply the same deferential standard as we would when reviewing the claim on its own merits.”). We needn’t address the conflict here because even under de novo review, Sealey’s ineffective-assistance-of-appellate-counsel claim fails.
51 Case: 18-10565 Date Filed: 03/31/2020 Page: 52 of 62
preserve the claim for review in state court will suffice” as cause, “the assistance
must have been so ineffective as to violate the Federal Constitution”). We have
acknowledged that “[a]n attorney is not required under the Constitution or the
Strickland standards to raise every non-frivolous issue on appeal,” and that “there
can be no showing of actual prejudice from an appellate attorney’s failure to raise a
meritless claim.” Brown, 720 F.3d at 1335.
To assess ineffectiveness, therefore, we proceed to the underlying merits
of Sealey’s procedurally defaulted claims. We conclude that these claims are
without merit and thus, Sealey’s counsel weren’t ineffective in failing to raise them
on direct appeal and he suffered no actual prejudice as a result. He therefore
cannot overcome the default.
Sealey argues that the trial court’s denial of a one-day continuance denied
him due process and a fair trial. Sealey contends that “[n]o reasonable attorney
would fail to challenge” the denial of the continuance—which he calls “perhaps
the most consequential erroneous ruling by the trial court”—on direct appeal.
On the continuance claim’s underlying merits, Sealey argues that, although
trial courts have discretion to grant or deny continuances, the trial court’s denial of
a modest, one-day continuance deprived him of due process, a fair trial, and the
effective assistance of trial counsel. Sealey relies primarily on two cases: Morris v.
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Slappy, 461 U.S. 1, 11–12 (1983) (quotation omitted), for the proposition that “an
unreasoning and arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay violates the right to the assistance of counsel”; and
Powell v. Collins, 332 F.3d 376, 396 (6th Cir. 2003), for the proposition that in
order to succeed on this type of claim, a habeas petitioner must show that the trial
court’s error in denying him a continuance deprived him of a fundamentally fair
trial in violation of due process, which resulted in actual prejudice. In Morris, the
Supreme Court rejected a habeas petitioner’s claim that the trial court abused its
discretion and violated the petitioner’s right to counsel by denying a continuance
that he had requested because his appointed counsel was substituted only six days
before trial. 461 U.S. at 3–4. The Supreme Court held that “broad discretion must
be granted trial courts on matters of continuances; only an unreasoning and
arbitrary insistence upon expeditiousness in the face of a justifiable request for
delay violates the right to the assistance of counsel.” Id. at 11–12 (quotation
omitted). And again, the Court ultimately found no Sixth Amendment violation.
Id. at 3.
We conclude that Sealey cannot prove that his appellate counsel were
ineffective in failing to raise the continuance claim because it lacked merit. The
state trial court’s decision to deny the continuance in Sealey’s case cannot be
considered “unreasoning” or “arbitrary” under Morris because the court acted
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within its discretion to deny the continuance. See Van Poyck v. Fla. Dep’t of
Corr., 290 F.3d 1318, 1326 (11th Cir. 2002) (“The decision of whether to grant a
continuance is reserved to the sound discretion of the trial court.”). The court
engaged in a colloquy with Sealey’s lawyers in an effort to understand why Tutein
wasn’t available and stressed that they should have been prepared for their witness
to testify.
Moreover, Sealey acknowledges that he “must also show that the denial [of
the continuance] resulted in actual prejudice.” Br. of Petitioner at 104–05 (citing
Powell, 332 F.3d at 396); see also Van Poyck, 290 F.3d at 1326 (“[T]o establish
that a denial of a continuance was reversible error, a defendant must show that the
denial caused specific substantial prejudice.” (quotation omitted)). Had the trial
court granted his request for a continuance to allow for Tutein’s arrival, Sealey
cannot show that Tutein’s testimony would have changed the outcome at
sentencing, given the weak nature of the testimony compared to the heinous nature
of the crimes and other aggravating circumstances. See supra at 34–36.
Because Sealey wouldn’t have succeeded on his continuance claim had it
been raised on direct appeal, he cannot prove that his counsel were ineffective in
failing to raise it or that he suffered actual prejudice as a result. See Brown, 720
F.3d at 1335. Especially considering that “[j]udicial scrutiny of counsel’s
performance must be highly deferential,” Strickland, 466 U.S. at 689, Sealey’s
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counsel could have strategically decided not to raise this claim in order to focus on
others during his direct appeal. Accordingly, Sealey cannot overcome the
procedural default of this claim.
As for his next defaulted claim, Sealey argues that the death sentence was
arbitrary and constitutionally insufficient for essentially two reasons: (a) the
aggravating circumstances for the two murders were consolidated, in violation of
Georgia’s sentencing procedures and Gregg v. Georgia, 428 U.S. 153 (1976); and
(b) the state trial court found an aggravating circumstance necessary to impose the
death penalty, in violation of the Sixth Amendment and Ring v. Arizona, 536 U.S.
584 (2002).
The state habeas court determined that Sealey’s claim was procedurally
defaulted because he didn’t raise it in his direct appeal and, alternatively, that it
was without merit. The court reasoned that Georgia’s capital-sentencing scheme
doesn’t require the jury to designate for which murder it is imposing the death
sentence and, in any event, that at least one aggravating circumstance was found
for each murder. Because the state court decided in the alternative to reject the
claim on the merits, we give that decision deference under § 2254(d). See
Raulerson, 928 F.3d at 1001 (holding that “a state court’s alternative holding is an
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adjudication on the merits” that is reviewed “under the deferential framework set
forth in section 2254(d)(1)”).
As we will explain, because this claim is without merit, Sealey’s counsel’s
failure to raise it cannot constitute ineffective assistance.
First, according to Sealey, “the jury failed to determine the aggravating
factors for each count” and instead “improperly consolidated both determinations
and submitted to the trial judge one aggravating factor determination and one
sentence, as opposed to two separate determinations and two sentences, one for
each count.” This, Sealey contends, violates the Supreme Court’s decision in
Gregg because it doesn’t adhere to the capital-sentencing procedures that the
Supreme Court approved in that case—that Georgia juries must “identify at least
one statutory aggravating factor” for each crime before imposing the death penalty.
428 U.S. at 206.
This also shows, Sealey argues, that the verdict is arbitrary because “it did
not adhere to the unanimity requirement under Georgia’s sentencing laws.”
Because the jury returned a single death sentence without specifying as to which
murder it applied, it is possible, Sealey theorizes, that some jurors intended to vote
for a death sentence in conjunction with the murder of Mrs. Tubner and others in
conjunction with the murder of Mr. Tubner, with no unanimity for either offense.
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The state trial court then “compounded the jury’s error,” Sealey argues, by
imposing a single death sentence based on “Counts I and II of the indictment”—
i.e., the murder charges.
Contrary to Sealey’s assertion, the jury’s findings as to aggravating
circumstances distinguished between the two murders. Sealey acknowledges that
“the trial court charged the jury to deliberate on two sentences for two murder
crimes.” While the sentencing verdict form only asked the jury to mark whether or
not aggravating circumstances existed, and further, which penalty it chose, another
form given to the jury—titled “Findings of Jury as to Alleged Statutory
Aggravating Circumstances”—clearly asked the jury to mark whether it found
each aggravating circumstance, as to each murder, beyond a reasonable doubt.
After the jury rendered its verdict, the judge read aloud the jury’s findings on the
statutory aggravating circumstances, specifying to which murder each applied. 17
The jury therefore clearly weighed the aggravating circumstances for each murder
separately.
Sealey’s death sentence also complied with Georgia’s sentencing scheme.
The state habeas court acknowledged that, in Georgia, the finding of a single
statutory aggravating circumstance renders a defendant eligible for the death
penalty; whether to impose death lies with the jury. Ga. Code Ann. § 17-10-30(c).
17 The court also polled the jurors and confirmed that each chose to impose the death penalty.
57 Case: 18-10565 Date Filed: 03/31/2020 Page: 58 of 62
The jury found ten statutory aggravating factors—five pertained to Sealey’s
murder of Mr. Tubner and five pertained to his murder of Mrs. Tubner. Because
the jury found more than one aggravating factor for each murder, Sealey’s death
sentence doesn’t contravene § 17-10-30 or Gregg.
Second, Sealey asserts that the trial court’s decision—“that, when all the
relevant aggravating and mitigating factors are taken together, a death sentence is
the appropriate response to the murder of John Tubner or Fannie Tubner”—was an
unconstitutional factual finding under the Sixth Amendment, which prohibits a
sentencing judge (sitting without a jury) to find an aggravating circumstance
necessary to impose the death penalty. See Ring, 536 U.S. at 609.
In Ring, the Supreme Court invalidated Arizona’s sentencing scheme,
which allowed a “trial judge, sitting alone, [to] determine[] the presence or absence
of the aggravating factors required by Arizona law for imposition of the death
penalty.” Id. at 588. The Court made clear in Ring that capital defendants “are
entitled to a jury determination of any fact on which the legislature conditions an
increase in their maximum punishment.” Id. at 589. Here, Sealey’s sentence
doesn’t run afoul of the Sixth Amendment or Ring. It was the jury—not the state
trial judge—that found the aggravating circumstances necessary to impose the
death penalty. The jurors were given a form on which aggravating circumstances
58 Case: 18-10565 Date Filed: 03/31/2020 Page: 59 of 62
were found beyond a reasonable doubt, as to each murder. The judge read this
form aloud and imposed a death sentence based on the jury’s findings, but it was
the jurors who determined that the aggravating circumstances existed.
Because Sealey’s verdict-based claim would not have succeeded had it
been presented, Sealey cannot show that appellate counsel were ineffective in
failing to raise it or that he suffered actual prejudice as a result. He therefore
cannot overcome the procedural default.
In his final procedurally defaulted claim, Sealey argues that he was denied
the right to represent himself at trial under Faretta v. California, 422 U.S. 806
(1975). Sealey contends that the trial court’s repeated admonitions and reluctance
to allow him to proceed without counsel, combined with the court’s “refusal to
appoint stand-by counsel other than Beall and Roberto,” caused an “involuntary”
waiver of his right to self-representation.
In Faretta, the Supreme Court recognized a “right of self-representation”
grounded in the Sixth Amendment right to counsel. Id. at 818. When a defendant
“insists that he wants to conduct his own defense,” a state may not
“constitutionally hale a person into its criminal courts and there force a lawyer
upon him.” Id. at 807. Because a defendant choosing to represent himself
“relinquishes, as a purely factual matter, many of the traditional benefits associated
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with the right to counsel,” a defendant “must knowingly and intelligently” choose
that course. Id. at 835 (quotation omitted). “Although a defendant need not
himself have the skill and experience of a lawyer in order competently and
intelligently to choose self-representation, he should be made aware of the dangers
and disadvantages of self-representation, so that the record will establish that ‘he
knows what he is doing and his choice is made with eyes open.’” Id. (quoting
Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)).
Sealey’s Faretta claim lacks merit and, accordingly, appellate counsel
weren’t ineffective in failing to raise it on direct appeal. True, Sealey asserted his
right to self-representation when he stated “I want to represent myself,” and
clarified, “with standby counsel.” But Sealey later changed his mind: Following
the district court’s explanation of the risks of self-representation, and after
conferencing with Beall and Roberto, Sealey unambiguously said that “[w]ithout
waiving my rights to a conflict, I’d like to proceed with these two attorneys [i.e.,
Beall and Roberto] as counsel,” and he later clarified that he wanted them to
represent him “as trial counsel,” not standby counsel. The state trial court’s
warnings were proper, considering that Faretta requires that a defendant be “made
aware of the dangers and disadvantages of self-representation.” And while the trial
judge warned Sealey that he would be at a “severe disadvantage” proceeding
without a lawyer and “strongly advise[d]” him not to represent himself, he also
60 Case: 18-10565 Date Filed: 03/31/2020 Page: 61 of 62
acknowledged that “I cannot force lawyers upon you” and “[t]he law says you have
the right to represent yourself.” 18
Sealey cannot prove that his appellate counsel were ineffective in failing to
raise this claim on direct appeal or that he was actually prejudiced and thus, Sealey
cannot overcome the procedural default of this claim.
In sum, because his procedurally defaulted claims are not meritorious,
Sealey cannot prove that his appellate counsel rendered constitutionally ineffective
assistance in failing to raise them on direct appeal or that he suffered actual
prejudice. He thus cannot overcome the default. Accordingly, we affirm the
district court’s denial of Sealey’s petition as to his procedurally defaulted claims.
VI
We conclude that the district court did not err in denying Sealey’s petition
for a writ of habeas corpus. The state habeas court’s denial of Sealey’s ineffective-
assistance-of-trial-counsel claim was not contrary to or an unreasonable application
of Strickland or based on an unreasonable determination of the facts. As to
18 The trial judge went on to say: “I guess it’s sort of like I have the right to operate on my own foot if I want to. You can do it. It might not be the smartest thing you’ve ever done in your life . . . but you have the right to do that. I don’t think you should, but it’s your decision.” Although the judge might have been forceful in suggesting that Sealey shouldn’t represent himself, he plainly gave Sealey a choice. The judge’s warnings do not rise to the level of rendering Sealey’s waiver “involuntary.”
61 Case: 18-10565 Date Filed: 03/31/2020 Page: 62 of 62
Sealey’s procedurally defaulted claims, we conclude that he cannot show cause
and prejudice to justify his failure to raise the claims on direct appeal. We
therefore affirm the district court.
AFFIRMED.
Related
Cite This Page — Counsel Stack
954 F.3d 1338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-l-sealey-v-warden-gdcp-ca11-2020.