FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT OCTOBER 4, 2001 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_______________ No. 00-13980

_______________ D. C. Docket No. 99-00023-2-CV-RLV

STEPHEN A. MOBLEY, Petitioner-Appellant,

versus
FREDERICK J. HEAD, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.

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

______________________________ (October 4, 2001)
Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.2 BIRCH, Circuit Judge: Stephen A. Mobley appeals the district court’s denial of his petition for a writ of habeas corpus. Two issues were certified to us on appeal from the district court’s denial of habeas corpus relief: (1) whether Mobley was denied effective assistance of counsel through his attorney’s use of a “genetic deficiency” defense, and (2) whether Mobley was denied due pr ocess and effective assistance of counsel because the Georgia Supreme Court’s opinion in Sabel v. State , 282 S.E.2d 61 (Ga. 1981), requiring the defense to turn over all expert opinions, including those that the defense does not intend to use at trial, had a chilling effect on his counsel that prevented him from retaining experts to develop mitigating psychiatric testimony. Because we find that the Georgia Suprem e Court reasonably applied the relevant law to determine that Mobley had receive d effective assistance of counsel at his trial and his due process claim is procedurally barred, we AFFIRM.
I. BACKGROUND In early 1991, Mobley stole a Walther .380 pistol from a car belonging to an acquaintance. On 17 February 1991, John Collins was working as the night manager at a Domino’s Pizza franchise inHall County, Georgia, when Mobley entered the store and robbed him at gunpoint. After emptying the cash register, Mobley moved Collins from the front of the store to the back office, took3 additional money from the office and then shot Collins in the back of the head before fleeing out a side door. Mobley subsequently committed six a dditional armed robberies of various restaurants and drycleaners over a period of three weeks. He was apprehended after a high-speed chase as he fled the s cene of an attempted armed robbery. Once in custody, Mobley confessed to the r obberies and the murder of Collins. A Walther .380 found on the side of the road along the chase route matched the ballistics of the murder weapon. Mobley was indicted for malice murder, felony murder, armed robbery, aggravated assault and possession of a firearm during the commission of a crime. Daniel Summer and Andrew Maddox wereassigned by the court to defend Mobley. His first trial ended in a mistrial. Following an interim appeal on several issues, Mobley was tried a second time. Summer was also lead counsel forMobley’s second trial, but Charles Taylor replaced Maddox as Summer’s cocounsel. In bifurcated proceedings, the jury re turned a verdict of guilty on charges of malice murder, felony murder, armed robbery, aggravated assault and possession of a firearm during commission of a crime. At the sentencing phase of his trial, evidence was introduced that, while in pre-trial detention, Mobley sexually4 assaulted another inmate on two occasions . Evidence at the sentencing phase also included testimony that Mobley tattooed the word “domino” on his shoulder, hung a Domino’s pizza box lid on his cell wall and threatened a guard by saying he looked more and more like a Domino’s delivery boy every day. In their mitigation presentation, Summe r and Taylor called Mobley’s father, Charles Mobley, to testify. Ex. 12, Vol. X, at 2540. After relaying a brief history of the schools and institutions to which he sent Mobley as a child, Charles Mobley asked for mercy for his son. Id. at 2551. Counsel also called Doctor J. Stephen Ziegler, the psychologist who treated Mobl ey at the last facility where he was treated before reaching his eighteenth birthday. Id. at 2564. Ziegler testified that, at age 16, Mobley had a conduct disorder which is the equivalent of an adult antisocial personality disorder, and that pers ons with this disorder can become less violent and antisocial with age. Id. at 2598-99. Counsel also called Mobley’s aunt, Joyce Ann Childers, who was the family historian. Ex. 12, Vol. XI, at 2683. Childers testified about a family history over several generations of violent behavior, alcoholism, abuse and other antisocial behavior among male and female members of the Mobley family tree. Id. at 2685-2710. Counsel also introduced evidence that, since his arrest, Mobley ha d attempted several times to plead guilty to all charges against him inexchange for a life sentence.1 A detailed discussion of the history of the case is not necessary here. Further details are set forth in the Georgia Supreme Court’s opini on affirming his conviction and sentence on direct appeal. See Mobley v. State , 455 S.E.2d 61, 65, n. 1 (Ga. 1995). 5 At the conclusion of the sentencing phase of the trial, the jury recommended a sentence of death. Mobley raised severa l enumerations of error on appeal, but his conviction was affirmed. 1 See Mobley v. State , 455 S.E.2d 61 (Ga. 1995). Mobley filed a writ of habeas corpus with the Supe rior Court of Butts County, Georgia. At the habeas hearing, Mobley presented testimony from two mental health experts, psychiatrist Michael Gomez and psychologist Hugh Anthony Semone. Ex. 26, Vol. I, at 29, 87. Based on his intervie w with Mobley and a review of Mobley’s records, Doctor Gomez concluded that Mobley’s antisocial personality disorder was the result of his childhood environment, including abuse, neglect and inconsistent punishment. Id. at 38, 43-44. Doctor Semone also interviewed Mobley and other family members including Mobley’s maternal grandmother. Id. at 101, 106. He also concluded that Mobl ey’s “dysfunctional and disorganized and punitive” family structure was the most si gnificant factor in Mobley’s violent behavior pattern. Id. at 171. Mobley’s grandmother, Mary Walraven, testified that her daughter was verbally and emo tionally abusive to Mobley. Id. at 243-47. The Superior Court upheld the conviction but vacated Mobley’s sentence on the grounds that Mobley was denied effective assistance of counsel for two main6 reasons: (1) his counsel presented a genetic defect theory to explain Mobley’s violent and anti-social behavior without the assistance of an expert; and (2) his counsel failed to present other mitigating ps ychiatric evidence. Ex. 27, at 27-32. The Georgia Supreme Court reversedand reinstated Mobley’s death
sentence. See Turpin v. Mobley , 502 S.E.2d 458, 461 (Ga. 1998). Reviewing the lower court’s findings and the evidence produ ced at the habeas hearing, the court found that Mobley’s counsel had conducted anextensive investigation, interviewed several witnesses, and obt ained all available records from every school and treatment facility Mobley attended. Id. at 463-64. The court noted that, when interviewed by counsel in preparation for trial, Mobley denied that he had ever been abused or neglected, as did his parents and sister. Id. Based on the evidence developed by counsel, the c ourt concluded that the se ntencing phase strategy was reasonable, and, accordingly, denied Mobl ey’s ineffective assistance claim. The court also found that Mobley’s claim regarding the Sabel order was barred because that issue was addressed and rejected on direct appeal. Id. at 461-62. The federal district court also denied the writ.
II. STANDARD OF REVIEW Mobley’s habeas petition was filed in fe deral district court in February 1999. Accordingly, this appeal is governed by the Antiterrorism and Effective Death7 Penalty Act of 1996 (“AEDPA”), and sp ecifically 28 U.S.C. § 2254. Because a state court initially considered the petition on the merits, we must deny the writ unless one of two exceptions applies. First, we may grant the writ if the state court rendered a decision “that was contrary to , or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). We may also grant the writ if the state court’s decision “was based on an unreasonable determination of the facts in light of the evidence pres ented in the State court proceeding.” Id. at §2254(d)(2). In conducting our review, the state court’s factual findings are presumed correct unless rebutted by clear and convincing evidence. Id. at §2254(e)(1).
III. DISCUSSION The Georgia Supreme Court denied Mobley’s petition for habeas relief on the two claims before us, finding that Mobley’s due process claim was procedurally barred and his ineffective assi stance claims lacked merit. The federal district court also denied the writ, fi nding that the Georgia Supreme Court had reasonably applied federal law. We address each issue in turn.
A. Due Process Claim Mobley argues that he is entitled to habeas relief because his right to due process was violated by the trial court’s entry of a Sabelorder. At the time of8 Mobley’s trial, the Georgia Supreme Court’s opinion in Sabel required that the defense turn over to the prosecution a report by every expert consulted, whether or not the defense intended to call the expert at trial. See Turpin , 502 S.E.2d at 461 (explaining effect of Sabelopinion). A Sabel order was duly entered in Mobley’s case over his counsel’s objection. After Mobley’s trial, but prior to the filing of his direct appeal, the Georgia Supreme Court amended its position to require that the defense only turn over reports for expert s it planned to use at trial. See Rower v. State , 443 S.E.2d 839, 842 (Ga. 1994). On direct appeal, Mobley argued that this order “exceeded the permissible scope [of discovery] as outlined in Rower ” and requested a new trial. Ex. 14, at 100. Mobley’s assertion of error was c onclusory, however, and no allegation of a chilling effect was made. The Georgia Supr eme Court ruled that entry of the Sabel order was error, but that the error was harmless because “Mobley does not assert, nor does the record reflect, that Mobley was required to provide or did in fact provide the state with any scientific reports in violation of the Rowerrule.” Mobley , 455 S.E.2d at 66. Mobley did not raise the chilling effect argument until he filed his habeas petition, at which time he argued that hi s trial counsel would have consulted a mental health expert to assist him in the sentencing phase but decided not to take9 the risk of having to turn over a damaging psychiatric evaluation to the prosecutor. Ex. 24, at 8-18. The habeas court found this argument persuasive. Ex. 27, at 29. The court reasoned that the Georgia Supr eme Court’s analysis of the issue on direct appeal was “based on an obsolet e test that was overruled after petitioner’s direct appeal.” Id. The court relied on a subsequent Georgia Supreme Court decision, Childress v. State , 467 S.E.2d 865, 871-72 (Ga. 1996), which recognized that a Sabelorder can have a chilling effect on counsel’s decision to retain an expert. The habeas court decided that the harmless error test had changed since Mobley’s direct appeal and granted relief. Id. The Georgia Supreme Court reversed. See Turpin , 502 S.E.2d at 461-62. The court noted that Mobley failed to argue on direct appeal that the Sabel order had a chilling effect. The court went on to find that, contrary to the habeas court’s interpretation, “[l]ater cases did not ch ange the harmless error test for Sabel discovery orders.” Id. at 461. Furthermore, the court found that, because Mobley did not argue that the order had a chilling e ffect when he raised the error on direct appeal, the claim was procedurally barred. Id. The federal district court also denied the writ, finding that the Georgia Supreme Court’s ruling was a reasonable app lication of the law. R2-24, at 22-25.10 The district court noted that the experts whose testimony was proffered at Mobley’s habeas hearing based their opinions on disputed facts. Mobley’s experts based much of th eir conclusions on their belief that Mobley was physically abused by both his parents, that he was molested or was in fear of be ing molested at the Anneewakee treatment facility, that his father wa s an alcoholic, and that his mother was cruel to him. However, Mobley’s sister testified that neither her father nor her mother had ever abus ed Mobley. . . . The only evidence of “physical abuse” was that Mobley’s parents spanked him and that his father had occasionally spanked him with a belt. Additionally, there was no evidence that Mobleywas ever sexually abused at Anneewakee. R2-24, at 24-25. Because the factual basi s for the experts’ testimony was disputed, the district court found that the Georgia Supreme Court’s rulings were not “unreasonable” applications of law warranting habeas relief. Id. Mobley now argues that the Georgia Supreme Court unreasonably applied federal law in denying his due process claim. However, Mobley failed to raise his chilling effect argument on direct appeal , and, accordingly, the issue is not properly before us for review. See Cobb v. Wainwright , 666 F.2d 966, 968 n.1 (5 th Cir. 1982). Assuming, however, that Mobley’s conclusory assertion of a due process violation on direct appeal was suffi cient to preserve federal habeas review, we also conclude that any error was harmle ss. As discussed in Part II.B. of this opinion, infra , any failure by Mobley’s counsel to retain an expert was colored by11 Mobley’s denial of any childhood abuse or trauma. We agree with the district court that no reversible error exists.
B. Ineffective Assistance Claims Mobley also raises two ineffective a ssistance of counsel claims. First, he argues that the trial court’s entry of the Sabelorder denied him effective assistance of counsel because the chilling effect of the order prevented his attorney from consulting with experts who might have a ssisted in preparing mitigating evidence. Mobley also argues that his trial counsel was ineffective at the sentencing phase because he attempted to put forward a “g enetic deficiency” theory to explain Mobley’s behavior, but did so without th e benefit of an expert in genetics. In order to establish ineffective assistance of counsel, Mobley must demonstrate that his counsel’s performan ce “fell below an objective standard of reasonableness” and that he suffered pr ejudice as a result. Williams v. Taylor , 529 U.S. 362, 390-91, 120 S. Ct. 1495, 1511-12 (2000) (quoting Strickland v. Washington , 466 U.S. 668, 688, 104 S. Ct. 2052 (1984)). Thus, in order to obtain habeas relief, Mobley must show that the Georgia Supreme Court’s application of the ineffective-assistance test was an unreasonable one. Williams , 529 U.S. at 391,
120 S. Ct. at 1512. See also § 2254. 1. The Sabel Order2 We need not address the issue of counsel’s effectiveness if prejudice is lacking. See Strickland , 466 U.S. at 697, 104 S. Ct. at 2069 (“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.”). 12 The Georgia Supreme Court correctly found that Mobley failed to demonstrate prejudice as a result of the entry of the Sabel order. 2 The experts that Mobley presented at the habeas hearing based their testimony on their understanding that Mobley’s father was an alcoholic, that his parents abused him and that his mother was cruel and contro lling. This testimony was contradicted by testimony from Mobley’s sister that neither parent was abusive toward him. Furthermore, when counsel originallyinvestigated Mobley’s background for possible mitigating evidence, Mobley deni ed that he was ever abused by his parents. Summer testified at the habeas hearing that one of the reasons he chose not to hire a mental health expert was the lack of mitigating evidence and his fear of a damaging report. In light of all of these factors, we do not find that the Georgia Supreme Court’s evaluation of th e claim was unreasonable or contrary to established law. Mobley’s ineffectiv e assistance claim based on the Sabel order fails. For similar reasons, Mobley also cannot demonstrate that the Georgia Supreme Court erred in its application of the ineffective-assistance standard to13 evaluate his claim regarding trial counsel s’ presentation of mitigating evidence. Mobley essentially argues that his tr ial counsel chose the wrong strategy and should not have attempted to put forward a genetic deficiency theory without the benefit of an expert in genetics. As discussed above, the Georgia Supreme Court found that Mobley’s counsel sought to find what they called “traditional mitigation evidence.” They intervie wed Mobley’s mother, father, and sister, all of whom reported that there was no physical or sexual abuse in Mobley’s childhood. Mobley’s parents also denied any birth trauma or alcohol abuse. Mobley himself denied that he had ever been physically abused, sexually abused or neglected. Turpin , 502 S.E.2d at 463. Mobley’s counsel also obtained records from every school and institution Mobley attended and reviewed them. Id. They spoke with some of the individuals who had treated Mobley. Id. Counsel also sought court funding for genetic testing of Mobley and for an expert geneticist to assist him in preparing mitigation testimony, but it was denied by the court. See Ex. 10, at 18. Mobley now argues that his trial counsel pursued the wrong strategy. That strategy was informed, however, by the information provided by Mobley himself. “[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless . . . counsel’s failure to pursue those investigations may not later be ch allenged as unreasonable.” Strickland , 466 U.S.14 at 691, 104 S. Ct. at 2066. Trial counsel sought evidence that Mobley had been abused or neglected in the hopes of putting forward such information as an explanation for Mobley’s apparent sociopath ic tendencies. Mobley denied that he was abused or neglected. He cannot nowcomplain that trial counsel failed to present such evidence to the jury. Nor can Mobley successfully challenge trial counsels’ ultimate decision to proceed with a genetic defense. Faced with almost no mitigating evidence, counsel attempted to put forward a genetic e xplanation based on evidence of a family history of violent temperaments and abusive behavior. Counsel did not use a genetic expert because he was denied funding for one. Our inquiry is limited to whether counsel’s strategic decisions we re reasonable ones at the time they were made. Chandler v. United States , 218 F.3d 1305, 1315 n. 16, 1318 (11 thCir. 2000) (en banc). Given that trial counsel had almost no other mitigating evidence to work with, we cannot say that it was unr easonable to pursue the genetic deficiency theory that counsel presented to the jury . This ineffective assistance claim fails.
III. CONCLUSION Because the Georgia Supreme Court’s decision did not involve an unreasonable application of, or a decision contrary to, federal law, we AFFIRM the denial of the writ of habeas corpus by the federal district court.15