FILED U.S. COURT OF APPEALS ELEVENTH C IRCUIT March 31, 2004 THOMAS K

. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE EL EVENTH C IRCUIT

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_______ No. 02-11 488

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_______ D.C. Docket No. 01- 00254-5 :CV-3(WDO)

TIMOTHY D . CARR, Petitione r-Appel lant,

versus DERRICK SCHO FIELD, W arden Georgia Diagnosti c Prison, Respondents -Appelle es.

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_________ Appeal f rom t he United States D istrict C ourt for th e Middle Di strict of

Georgia

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________ (March 3 1, 2004) Before EDMOND SON, Chief Judge , BIRCH and MARC US, Circuit Judge s. BIRCH, Circuit Judge: Tim othy D . Carr , a Geo rgia priso ner convic ted of m urder and sentence d to death, a ppeals the district c ourt’s d enial of hi s petition f or writ o f habeas c orpus,1 Carr was also charged with and c onvicted of theft of Young’s vehicle. He was sentenced

to twenty ye ars of imprisonmen

t on the moto

r vehicl e charge. Carr v. Sta te , 480 S.E. 2d 583, 587 (Ga. 1997) (“Carr I ”). 2 brought purs uant to 28 U .S.C. § 2254. On appeal, Carr ra

ises three claim s: (1) the prosecutio n withheld the evidenc e of his co- defendant s’ agre emen ts in violati on of Brady v. Mary land , 373 U.S. 83, 83 S. Ct. 1194 (1 963), elicited f alse testimony regardin g those agreements, and f ailed to co rrect th e false impre ssion crea ted by that testimony in violation of Napue v. Illinois , 360 U. S. 264, 7 9 S. Ct. 1173 (1959) and Giglio v. United States , 405 U. S. 150, 9 2 S. Ct. 763 (1972); ( 2) the prosecutio n made

improper and prejudicia

l rem arks during

the senten cing phase closing ar gument s; and (3) C arr’s trial coun sel faile d to adequat ely inv estigate a nd prepare for the sentencing pha se. For the follow ing reasons , we find that Car r is not entitled to relief from his conviction or sentence, and AFFIRM the district court’ s denial of

his petition

. I. BACKGROUND Carr was convicted of the 1992 murder of Ke ith Young following a jury trial in Mo nroe County , Georg ia and wa s sentence d to death in 1994. 1 His convicti on and sen tence were affirmed on direct app eal. Carr v. State , 480 S.E . 2d 583 (Ga. 1997) (“ Carr I ”). Th e following facts w ere set f orth by the Geor gia Supreme Court:2 Burgeson was also convicted of ma lice murder and was sentenced to life in prison. Id. at 587 n.2. 3

1. The j ury w as authori zed to find that Car r, his gir l friend Melissa B urgeson, a

nd the 17-year-old v ictim [Young] attended a party on the even ing of the c rime s, where they all consum

ed alcohol and used drugs. Carr and Burgeson discussed robbing the victim at the party . In the e arly hours of the following

day, Burgeson t ook the victim’s car keys and t alked him into letting h er drive hi m home. Burgeson drove the victim, Carr, and tw o juveniles to a remote area of south Monroe County in the victim’s car. During the ride, Carr showed oneof the j uveniles a large knif e and whis pered tha

t he intended to k

ill the vict

im. Burgeson stopped the ca r on a dirt road, and when t

he victim opened the trunk to look f or mor e drugs, Burge son mot ione d to Ca rr to k ill h im. Carr g rabbe d the victi m’s hair, pull ed hi s head back a nd sl ashed his t hroat . At Bur geso n’s urging, Ca

rr stabbe d the victim

repeate dly and

then beat him in t

he hea d wit h a b ase bal l ba t. Af ter B urg eso n to ok t he v ict im’s mon ey, Carr and one of the j uveniles dragged the vi ctim’ s body to the roadside , leaving h im to die from his in juries. Carr and Burgeson f

led to Ten

nessee in t

he victim ’s car

and were arrested following a high speed chase. After r eceiving medical treatment at a local hospital, they were placed in the back of a police car in w hich police

had activa

ted a hidde n tape rec order. Their recorded conversation, in which Carr admitted killing the victim , was introduced into evidence at Carr’s trial. The j ury was also authorized to find from the evidence that the knife used to stab the victim wa s discovered in Burgeson’s purse. The evidence adduce d was suff icient to e nable a ra

tional jur or to find Car

r guilty of the cr imes charged beyond a r

easonable doubt. Id. at 587 (internal footnote omitted). 2 During th e trial, Carr w as repre sented by court-app ointed co unsel Harol d Martin an d Michael Di llon.3 Althoug h we initia

lly denied Carr’s application and Carr’s motion for reconsideration, we lat er construed Carr’s petition for rehearing en ba nc and/or application to the court en banc for a COA as a petition for rehearing and subse quently gr anted a COA. 4 Carr the n so ugh t ha bea s co rpu s rel ief i n th e Sup erio r Cou rt o f But ts C oun ty, Georgia . Follow ing an evide ntiary hearing, the court d enied the p etition as to Carr’ s conviction

but grante d the petiti on and vaca ted his dea

th sentence

on 23 June 2000. R2-10, Ex. Vol. 27, Ex. 63 at 1. T he court found that Carr’s trial counsel’ s errors “pre

judiced t he defens e” and tha

t Carr w as “denied a tria

l whose result [was] reliable as to the sentence.” Id. at 27. The state a ppealed, and the Georgia Supreme Court reversed the trial cour t and reins tated Car

r’s dea th sentence o n 19 March 2 001. Carr v. Head , 544 S.E. 2d 409 (Ga. 2001) (“ Carr II ”). Th e Suprem

e Court of

the Unite d States denied Carr ’s petit ion for wr

it of certiorari. Carr v. Head , 534 U.S. 905, 122 S. Ct. 238 (2001) (“ Carr III ”). Carr next filed an application for writ of habeas corpus in the United States District Court for the Middle District of Georgia. After briefing, but without an evidentiar

y hear ing, the di strict cou

rt denied t

he petition, denied Ca

rr’s m otion to alter or ame nd, and den ied Carr ’s appli cation for a certif icate of appealabi lity (“C OA”). We gra

nted a CO A on three

issues: “ (1) the a lleged Caldwel l violation; (2) the a lleged Brady

/Giglio/N apue violation; a nd (3) the ineffect

ive assista

nce of counsel d uring th e penalty phas e of his tri al claim.” 3 R2-30 at 2.5 II. DISCUSSION A. Standard of Review Our revi ew of a s tate cour t’s ju dgment

in a habea s corpus proceeding is governe d by a “

highly de ferentia

l standard of revie w for fa ctual determina tions made by a

state court.” Fugate v. Head , 261 F.3d 1206, 1215 (11th Cir. 2001), cert. denied , 535 U .S. 110 4, 122 S. Ct. 2 310 ( 2002 ). The s tate c ourt ’s determ inations are “pr

esume d to be corr

ect” and t he applica

nt bears “ the burden o f rebutting the presumption of correctness by clear and convincing evidence.” Id. (quoting 28 U .S.C. § 2254(e)( 1)). Fu rther, we can gr

ant feder al habeas relief o nly where th e state c ourt’s d ecision (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supre me Court of the United States; or (2) resulted in deci sion that w as based on an unreas onable determ ination of t

he facts in light of th e evidenc e present ed in the State cou rt procee ding. 28 U.S. C. § 2254(d

). The state cour

t’s dec ision is “ contrary

to” if it “ arrives a

t a conclusi on oppo site to th at reached b y [the Supreme Court] on a questio n of law” or “de cides a ca se differ

ently t han [the S uprem e Court] on a set of materially indistinguishable facts.” Willia ms v. Tay lor , 529 U. S. 362, 4 12-13, 120 S . Ct. 1495, 1523 ( 2000). A

state cour

t’s dec ision that a

pplies the l aw as det ermi ned by6

the Supreme Court to the facts is not “ contrary to” whether or not the federal court would hav e reached a di fferent resu lt. Fugate , 261 F .3d at 1216 . The st ate co urt’s decision is an objectively “unrea sonable application” if it “identifies the correct governing [Supreme Court] legal principle . . . but unreasonably applies that principle to the facts,” Wil li ams , 529 U. S. at 413, 120 S. Ct. at 1523, or “re fus[es] to extend the

governing le gal princi

ple to a con

text in whi ch the prin ciple should have controlled.” Ramd ass v. An gelone , 530 U.S. 156, 166, 1 20 S. Ct. 2113, 2120 (2000). B. The alle ged Brady

or Giglio violation Carr ar gues that th e state’ s failure to discloseits agree ments not to try the juvenile co-defe ndants, A

nthony L ee Daw ley a

nd Monica S ym onds, as a dults in exchange f

or their t estim ony viola

ted Brady v. Mary land , 373 U. S. 83, 83 S. Ct. 1194 (1963). He also m

aintains th at the pros ecution viol ated Giglio v. United States , 405 U. S. 150, 9 2 S. Ct. 763 (1972) a nd Napue v. Illinois , 360 U. S. 264, 7 9 S. Ct. 1173 (1959) b y elic iting and le aving uncor rected D awley ’s and S ym onds’s testim ony tha

t they had rece ived no bene fits or le nient trea tment in exchange

for their test imony . He co ntends that, although the state cour

t correc tly app lied the correct law, it failed to consider all of the evidence. 1. Testimony

Given Du

ring Sy monds’ and Daw ley’ s Procee dings4 Symonds’ statement was rec orded on 11 October 1992 in the presence of her fa ther.

Dawley’ s statement was recorded on 12 October 1992 in the presenc e of Monroe County , Georgia in ve st ig at or Ro be rt Jo ne s a nd Ju ve ni le Co ur t S er vi ce s O ff ic er Rh on da Mo od y. 7 Shortly after the m

urder, statements wer

e taken from Sy

monds and Dawley by Monroe County investigator Ricky S peir. 4 In each statement, S peir asked Sym onds and Da

wley whether they had been thre atened or promi sed any

thing in exchange for their statements, and Sy monds and Dawley

each responded “[n]o.” R2-10, Ex. Vol. 16, Ex. 48 at 2560, 2580. Sy monds and Dawley

were jointly tried in juvenil e court abo ut one month l ater. One of Carr’s at torneys atten ded the tri al. During the trial, Sym

onds’s counsel questioned Symonds regarding her

ear li er s tat emen t to Spe ir c on cer ni ng th e cr imes . Symo nd s t hen cor rec ted “some things in that

statem ent.” R

2-10, Ex . Vol. 22, Ex. 55 at 4657. Specifi cally , she changed he r earlier statem ent that D awley

had handed t

he basebal l bat to Ca

rr to say that Burges on had han ded the ba t to Carr. Dawley testifie d that he did

not assist Car r in any way, and had no t touched anything exc ept the kn ife. He explained that, when Burgeson gave Carr the bat, Carr handed Daw ley the knife and Dawley then h anded the knife to Bu rgeson. Dawley was aske d whether

he had underst ood that he w as not required to tal k to the off

icers, but could re main silent, a nd he respon ded that he“unde rstood it ve ry w ell” and sp oke free ly because he “was going to tell him the tr uth about everything.” Id. at 4694.8

At Dawley’s sentencin g in 1992 , his trial at torney, James Finley Brown , Jr., testified : He was made

no promises by

the Distr ict Attor ney’ s Offic e or anybody else in ex change for wh atever coop eration he gave them. And, I kn ow that, because I was his la

wyer from the beginnin g. His testimony was–H e had already talked to the police officers. I . . .was appointed a fter tha

t. And, he talked to them and gave th em the statem ent that he

did. Hehas been c onsistent thr oughout his ta lking with either my self or any of the other authorities in the case. I fee l like he has been as str

aightforw ard as he can about i t. . . . I know his participa tion was do ne without any pr omise s, in other

words. He did what he di d to tell w

hat happene d. R2-10, E x. Vol. 23, Ex. 58 at 5313. 2. Testimony

Given Du

ring Burge son’s Trial During Burgeson’s trial, Sym onds and Dawley adm

itted that they had talked to the prosecution, but each again responded “[n]o” when asked whether they had been promised anything or h oped to g ain a benefi t in exchan ge for thei r testimony. R2-10, Ex. Vol. 23, Ex. 57 at 4919-20, 5114-15. Sy monds, however, testified that she did n ot remember who got th e bat out o f the vehic le. She acknowledged that her statements regarding the bat differed when she talked to Speir and during her trial, a nd explaine d that she te stified dif ferently because s he “w as try ing to help [Dawley] get his murder charge off.” Id. at 4965-66.9

Dawley sim

ilarly acknowledged that he had first said that Burgeson handed him the bat and had then admitted that he handed the bat to Carr, and explained that he made the first stat ement in an attempt t o keep himself o ut of trou ble. Daw ley w as a sk ed w het her th e Fl in t [C ou nt y] Ju di cia l Di st ric t At to rne y, To mmy Floyd, had testif

ied on his be half durin g his sentenc ing, and responded tha t he did not remember. Floyd interru pted and e xplained that he “did go to that he aring. . . . I went there and I d

id not testif

y part icularly on Mr. D awley ’s beha lf. I te stified to the juven ile judge

that Mr. Dawle y wa s coopera ting with la

w enforc emen

t, that he had made a statement, and that I expected to use him as a witness.” Id. at 5158. 3. Carr ’s Tr

ial and Ha

beas Proc eedings Carr sou ght pro duc tio n of all favo rab le ev ide nce dur ing dis cov ery, including whether any witnesses had agreed to testify in exchange for benef icial treatment from

the state. At Carr’s trial, after Sym onds said that she had been found guilty

of all cha

rges exce pt for m urder, s he was as ked whether “th e State ma[d ]e any

deals wit h [her] in exchange

for [her ] testim ony” su ch as not prosecutin g her “ on any o ther char ges,” an d she answ ered “ No.” R 2-10, Ex . Vol. 5, Ex. 11 at 13 69. Sym

onds also ans wered “ [n]o” w hen asked w

hether she

remem bered who got the bat out of the car, and explained that, although she had testified during her

trial tha t Burgeson retrieve d the bat an d gave it to D awley to10

hand to Carr, her earlier testimony was “not true.” Id. at 1420-21. At Carr ’s trial, Dawley testifie d that he w as found guilty of t he mur der, but w as not convic ted of armed robbery or motor veh icle theft, an d was senten ced by the juven ile court. When the prosecutor asked whether Dawley was “prom

ised anything” or “given any le nient trea

tment” in excha

nge for his testimony or w hether hewas testifying in hopes of receiving a benefit from the state, Da wley answered “

No, sir.” Id. at 1432-33. Before the state habeas hearing, Carr deposed Floy d. When Floyd wa s asked whether Dawley’ s and Symonds’ s attorneys approached him about a plea, he answe red that “

the deal w as I would

leave the m in j uvenile cou rt, they would be charged wit h what they were char ged with. They woul d be tried i n juvenile court. Whatev er they

got they got and they

testifie d, that w as the deal.” R2- 10, Ex. Vol. 25, Ex. 59D at 18. Floyd answered “ No” when asked if most judges would m ove a juvenile defendant

charged with mur

der to “ adult court” but confirmed that he could hav e gotten Dawl ey and Symonds transferre d. Id. at 19-20. He explained that he left them in juvenile court in order to leave sentencing “ up to the Judge” and th ou gh t it migh t b e be tt er “f rom a cre di bi li ty s tan d p oi nt ” be cau se o f ho w “a jury would view” co ncession s received i n exchang e for their ag reement to testi fy. Id. at 22-23. Dawle y’s and Sy monds’ s credibil ity w as im portant to F loyd be cause11

“wi thout . . . their tes timony , [the st ate] w ould have a very w eak . . . , but not impossi ble case” against Ca

rr and Bur

geson. R2- 10, Ex. Vol. 23, Ex. 58 at 5308. During the

state habe as procee dings, Car r present ed the test

imony of his trial att orney , Martin ; Dawley; Da wley ’s defe

nse attorn ey, Brown; a

nd Floy d. Martin stated in his affidavit that he believed Dawley’ s testimony was “cr itical” s ince Dawley w as the only eyew itness to the

assault an d had no “ef fective w ay to i mpea ch his testimony” other tha n minor inconsisten cies. R

2- 10, Ex. Vol. 18, Ex. 50 at 2999-3000. He explained that he considere d “the

issue of any d eal be tween Dawley an d the State ” as “fut ile” b ased o n Dawle y’s testim ony at b oth Burgeso n and Carr ’s trials, and Fl oyd’ s statement as to his participa tion at Dawle y’s sentencing during Bu rgeson’s tri al. Id. at 3000. He stated that he would have used the information of an agreem ent between Dawley and Floy d in his “ cross-ex amina tion of Da

wley ” and that “ [i]t w ould have ha d a major impac t on [h is] abi lity to disc redit the St ate’s c ase, imp each Da wley’s credibili ty, a

nd to raise

doubts in the jurors’ minds a s to who did w hat to [] Young, and about [Carr’s] state of m ind at the time.” Id. at 3002-03. Martin believed that with it, he “c ould have ca st serious doubt on Daw ley’ s portray al of [Ca rr] a s a cold, calculating murderer who acted with malicious intent and who forced5 Burges on’s atto rneys, Tommy W ilson and P. Benson Ham , also tes tif ied that t

hey were unaware of the agreements at the t ime of the st ate tri als. Wilson said that he was unable to get a st atement from either Dawley or Symonds and that

he was unawa re of

the deal s, despi te havi ng fi led a moti on request ing di sclosure of any deals bet

ween the witnesse s and the state. Ham comm ented that, after his attempts t o us e th e pros ecut or’s fav orabl e comment s f or Dawley to chall enge Dawley’ s tes timony were in terru

pted by t

he prosecut or, he di d not ret urn to t hat ar ea of th e exam ination b ut wou ld hav e pur sued the inform ation o f the dea ls if he had been aware of it durin g the trial. 12 Dawley to com ply with his order s” and “ raised se rious doubts in the jur ors’ m inds as to whether [Carr] deserved the death penalty .” Id. at 3003. By af fidavit, Dawle y stat ed that he w as told that if he cooperated, h e “w ould not be s ent to a dul t co urt ” an d th at Fl oyd wo uld “try to get the judg e to go e asy” on him. R2-10, Ex. Vol. 17, Ex. 49 at 2865. Dawle y said that Floyd then told the judge “off the reco rd” that Dawley had cooperated

. Id. He explained that, although he d ecided tha

t he did not w ant to testi fy aga inst Carr , Floy d made

it clear tha t he “ would be in trouble if [he] backed out . . . , a

nd that they

would help [him] get out of th e [Youth Deten tion Cent er] early” if he testi fied. Id. at 2866. Brown, Dawley ’s trial attorney, e xplained that he and Floyd had an unwritte n understan ding that Fl oyd wo uld not m ove the ca se to adult c ourt if Dawley testifie d. 5 Brown said, howe ver, tha t any agreem ent was un enforce able and tha t, if

Dawl ey had refu sed to t est ify, t her e was not “a who le l ot M r. Fl oyd could have done about it except fuss and carry on.” R2-10, Ex. V ol. 10, Ex. 42 at 492. Brow

n also noted that the de cision to proceed in th e juvenil e court ag ainst Dawley and Symonds was made before h e was appoin ted. Martin te stified tha t he6 Burgeson’s attorneys opined that , if they had been aware of the agreements, they would have used the agree men ts to attack the credib ility of Dawley and Sym onds. Ha m said that it “would have been [an] extremely powerful weap on[] in attackin g [their] c redib ility.” R2-1 0, E x. Vo l. 20, E x. 52 at 3664. 13 was unaw are of th e agreem ents and tha

t, if he h ad known of

them, he would ha

ve used them

to impe ach the w itnesses a t trial. 6 Floyd was asked whether “ there [was] ever a deal”

between the juveniles with the st ate, and

answere d: In the ter m that you mean deal, no. Ther e was a d ecision m

ade to leave the cases in juvenile court. That decision had to be made, made very quickly. I frankl y don’t recall the procedure a t that time . .

. . A conver sation wa s had . . . with [ Dawley ’s counse l] beca use [the state’s investigator] wanted to talk to Mr. Dawley some m ore [because he felt that] . . . Dawley[’ s] . . . initial statement . . . was incomplete. . . . I told [Dawley’ s counsel] that Mr. Dawley ’s case was going to rem

ain in juvenile court , that w hat happene d, I wa s making no deals as to disposition, that I would make no recomm endations as to sentence

but at the time of

sentencing , I woul d report to the Court . . . by whateve r me ans w[er

e] appr opriate a t the time, what , if anything, Mr. Dawle y wa s doing, w hether hewas cooperating, whether he was going to testif

y, or whether he wasn’ t. If that is what y ou mea

n by deal. It w as not y our typ ical if y ou do this, I’ ll do this. I had already done som ething that was at le ast irrevoca ble in m y m ind, as fa r as putting

them in juvenil e court. The only other thing

that cam e from that was, I will te stify that, before th e appropr

iate cour t as to wha

t his involvem

ent is. R2-10, E x. Vol. 10, Ex. 41 at 231-32. Floyd e xplained: My posit ion today is the wa y, . . . it ha s alway s been. I take issue with the w ord deal. And I take issue wi th it for th is reason. The14

decision to . . . tr

y Da wley and Sy monds in juvenile

court had a

lready been made. A discussion was had with Mr. Brown concerning Mr. Dawley because [th e investi gator] wanted to talk to him some more. And I suppos e the deal

aspect of that cam e in with, if he cooperates, then I wil l let the C ourt know a t the appro priate ti me tha t he cooperate d; on the cont

rary , if he doe sn’t, I ’ll let the Court k

now that, as well. Id. at 245-46. When a sked about hi s deposition t estim ony tha t he agree d to leave Dawley and Sy

monds in juvenile court but chose not to negotiate a delinquency finding for the sake of “credibility, ” Floyd explained that “there r eally was no deal in the sense

of a plea bargain”and hoped tha

t a jury “wo uld not think th eir testimony was influenced in any way.” Id. at 252-55. He cla rified tha t it was no t a “de al” “ in the stric t sense of t hat term ” but that he

“told them t

hat, if t hey w ould testify and cooperate, that . . . their cases would be tried in juvenile court.” Id. at 257. He c onceded tha

t the agreement to try

Dawley and Sy

monds in juvenile court in exchange

for their testimony “

was not publ ic recor

d, but it w as known to counsel for both Mr. Carr and Mrs. Burgeson because I told them. ” Id. at 256. He did not know t

he date of his disclosur

e to their counsel, b ut com mente d that he “talked to them on m

any occasions.” Id. at 258. Carr’ s claim

was denie d by the

state habe as court a

nd the state

appeals court. The state appellate court denied the Brady /Giglio/N apue claim , finding insuffici ent evidenc e “of

the existe nce of deals between the State and Sy monds7 The court st ated th at “[ t]he e vidence s upports t he habeas court’ s fi ndings that there were no deal s between the distr ict att orney and the juvenile wit nesses in exchange f

or their t estimony and that there was no . . . pr osecutori al misconduct

during Carr’s tri al.” Carr II , 544 S.E.2 d at 4 12-1 3. 15 and Dawley.” R2-10, Ex. Vol. 27, Ex. 63 at 44. The Georgia Suprem e Court affirm ed. 7 Carr II , 544 S.E .2d at 412- 13. 4. Applicable Law Due proc ess is viola

ted when t

he prosec ution suppre sses eviden ce that is favorable t o the defen se and material t o the defen dant’s gui lt or pun ishment, Brady , 373 U. S. at 87, 83 S. Ct. at 1196-97, or knowingl y uses f alse evidence or “allows it to go uncorrected,” Napue v. Illinois , 360 U. S. 264, 2 69, 79 S. Ct. 1173, 1177 (1959), even whe re the evi dence “ goes only to the cre dibility

of the wi tness” because t he jury ’s estim

ation of tha

t witness’ s reliabil ity m

ay be determ

inative of the defend ant’s guilt

. Id. at 269, 79 S . Ct. a t 1177. Re versal is n ot require d, however, where t

he evidenc e, although useful to the defen se, was not likely to have chang ed the verd ict. Giglio , 405 U. S. at 154, 92 S. Ct. at 766. A con vic tio n ob tai ned by th e kn owi ng u se o f fal se o r per jure d te sti mony, including te stimon

y that reflect s on the cre dibility of the wi tness, w ill “b e set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of

the jury,” or where the prose cutor’ s failure to respond t o a discovery request m

isled the de fense and

create d “a r

easonable probabilit

y that,16

had the evi dence been disclosed to the defe nse, the r esult of the

proceedings would have been different.” United States v. Bagley , 473 U. S. 667, 6 78-679, 682, 105 S. Ct. 3375, 3382-83 (1985). Perjured testim ony “is considered m aterial unless failure to disclose it would by harmless beyond a reasonable doubt.” Id. at 680, 105 S. Ct. at 33 82. The m ore speci fic the request, “ the mo re reas onable it is for the de fense to a ssumefrom the nondiscl osure that

[the im peaching inform ation] does not exist , and to m ake pretr ial and tri al decisio ns on the basi s of this assumption.” Id. , 473 U. S. at 682- 83, 105 S. Ct. at 33 84. Consti tutional er ror exists where the prosecution failure to disclose evidence, including evidence that would have

impeached the e yewi tnesses’ testimony, a nd the defendant fail ed to receive “a trial re sulting in a verdict worthy of confidence.” Kyles v. W hitley , 514 U.S. 419, 434, 1 15 S. Ct. 1555, 1566 ( 1995). D efense c ounsel is ent itled “to rely on, not ju st the pres umption that the pr

osecutor w ould fully

perform his duty to disclose all exculpatory materials, but also the implicit representation that such mate rials would be include d in the open files tend ered to de fense cou nsel for th eir examination.” Strickle r v. Greene , 527 U. S. 263, 2 84, 119 S. Ct. 1936, 1949 (1999). E

vidence tha

t a witne ss has lied u

nder oath i s “direct proof ” that the witness might alter the tru th for his own benefit , United St ates v. B ernal-Obeso , 989 F.2d 331, 336 (9th Cir. 1993), and can provide “the assault that was17

warran ted” on thewitness’ s testimony inst ead of lim iting the de fense to inconsi stencies i n testimony as gro unds for i mpeachment. Kyles , 514 U. S. at 443 n.14, 115 S. Ct. at 1570 n.14. “ [W]here the prosecutor knowingly used perjured testimony, or failed to correct wh at he subs equently learn ed was false te stimony,” the testim ony is c onsidered m

aterial “‘ if thereis any

reasonab le likeliho od that the fals e tes timo ny could have affected the judgment of the j ury’” United St ates v. Alzate , 47 F.3d

1103, 1110 ( 11th Cir. 1995) (alt eration in original) (quoting United States v. Agurs , 427 U.S. 97, 103, 96 S. Ct. 2392, 2397 (1976)). E vidence of a defendant’s s tate of m ind, and spe cificall

y whe ther his ac tions at the timeof the murder were im

pulsive or premeditated, is an im portant consideration for a jury on whether to recommend the death p enalty. Dobbs v. T urpin , 142 F.3 d 1383, 1389 (11th Cir. 1998). 5. Applic ation of Re levant La w to Thes e Facts The juveniles’ testim ony was a key stone in the case against Carr. It was critical to Carr’ s state of mind a t time of the off

ense, an d to the degr

ee of aggravati on of the cr ime. They both testifi ed that You ng pleade d for his l ife. Dawley said that C arr told Y oung that Ca rr was “ going to kill y

ou, boy ” and directed Dawle y to get

the baseball bat fro m the car. R 2-10, Ex . Vol. 5, Ex. 11 at 1457-58. S ym onds testif ied that Ca

rr whispered to her

in the car

on the way

to the18

crime scene that he “

was going to kill [Young].” Id. at 1380-81. Floyd urged the jury to credit Dawley

and Sy monds’ testimony over

Carr’ s testimony dur

ing his argum ents at the

end of both t

he penalty

and sentenc ing phases. A majority

of the witnesses, however, testified that no deal had been offered to Dawley and S ym onds. Da wley , his attor

ney, and Sy

monds st ated a num

ber of times that they

had not bee n offere d any de al in excha nge for the ir testim

ony. T he district attorney testified at the state habeas hearing that he never negotiated an agreement with Dawle y and Symonds. Dawley and Symonds were sent enced two year s before C arr’s trial. Theref ore, any “deal” by F loyd w ith Dawl ey and Sym onds to leave

their proc eedings in t

he juveni le court in

exchange f

or their testim ony wa s limi ted to the te stimon y that they pr

ovided the in

vestigator s and would have e xpir ed by th e time of Carr’s t rial. M oreov er, if a deal e xist ed, Car r’s counsel was aware that Dawley and Symonds were tried in juvenile court, that there wa s no signific ant change in their te stimon

y as to Carr’ s actions or motiva tion, and t

hat their t estim ony wo uld not have c hanged the o utcom e of Carr’ s conviction

or sentenc e in light of

the overw

helming evidence . Thus, the district c ourt did not err in findi ng that the s tate cour

ts did not unre asonably determine the facts in light of the evidence presented and properly applied the law to those facts.19

C. The alle ged Caldwell violation Carr con tends that t

he state un dermined the j ury’ s sense of r esponsibilit

y for sentencing

by ar guing that the

jury would m erely

be ma king a rec omm

endation fo r sentencing

which wo uld then be i mpose d by the trial j udge. He

maint ains that hi s sentencing was rendered fundamentally unfair because no corrective action was taken by counsel or the trial judge. 1. State mentsMade Dur

ing Sentenc ing During the

sentencing

phase, th e prosecu

tor began hi s closing ar

gument by explaining t

he jury ’s dutie s during sent encing. H e explaine d that the de cision to seek the death penalty is made by the district attorney, and that he had m ade that decision in this case. He elaborated that “a j ury should ultimately decide whether or not . . . Carr

would ser

ve life in prison or be

electrocuted in the G eorgia el ectric chair, [ and] not [ the prosecutor], not a judge , but a j ury. ” R2-10, Ex. Vo l. 6, E x. 13 at 1900-01. He explained,

Now, L adies and G entlem en, as I say, you’ re going to m

ake the recommendation as t o punis hment. Now, don’t misund erstand. You’re not going to s entence t his Defe ndant. The Judge is go ing to sentence him, and you

should not fe el that you are doing anything to Tim othy D on Carr. It’s y our job to listen to the

evidence , to evalu ate the evidenc e, and to d ecide the appropria

te punishment, and t

hen you make a reco mmenda tio n as a jur y. . . . [ I]t ta kes a[n] unanim ous verdict before t he death penalty can be impose d. If on e of you does n’t vo te for the de ath p enalt y, it’s not a mistrial. W e don’t do this again. It’s a life sentence.20

. . . W e bring [th e punishm ent] ba ck to the pe ople and le t them decide the se difficult questions [ as to whet

her to im pose a dea

th sentence ]. Y ou’ve got to decide this question, not [the prosecutor], not [the defense attorney], not [the trial judge] , but y ou twelveladies and gentlemen. You n eed to know what the consequences of your acts are. If y ou can’t become unanim

ous, then it’s a life sentence. R2-10, Ex. Vol. 6 , Ex. 13 at 190 4-05. He later c ontinu ed, “You’ve got two choices, life in prison, or recomm end to [t]he Court to sentence him to death.” Id. at 1919. C arr’s attorney

asked the j ury to “say

by y our verdic t: We be lieve in fairness . We believe in

the sacredness of a

human life, a nd thou shalt n ot kill” instead of “vot[ing] to tell the Judge . . . that it’ s all right to kill that twenty-threeyear-old m an child.” Id. at 1933, 19 25. The jud ge began the

charge by

explaining to the jur

y that the deter

minat ion of the pun ishment was “our” du ty. Id. at 1935. He instructed the jury that, if they found Carr guilty of “one or m ore statutory aggravating circumstances, ” they were “authorized to authorize the imposition of a sentence of death.” Id. at 1941. He advised tha

t their ver dict would thus read: “W e, the j ury, find the f ollowing statutory aggravating circumstance or c ircumstances, and . . . fix the penalty at life imprisonment, or we recomm end the death penalty,” id. at 1941, and continued that if the ir verdic t was “ the death p enalty

. . . t hen the De fendant w ould be sentenced to be put to death in the manner provided by law.” Id. at 1942. He advised the m to dis regard “ any hin t, suggesti on, or opini on by [t ]he Cour t as to21

what penalty should be im posed in this c ase,” a

nd that “ [w]ha

tever pen alty i s to be impose d within the

limit s of the la

w as I ha ve instruc ted you

is a m atter sole ly for you the jury to determine.” Id. at 1942. 2. Consideration on Appeal On direct appeal, the Georgia Supreme Court held that it had “considered [the prose cutor’ s rem arks] in the conte xt of the en tire sentencing proce eding” and held that: “(t)o establish a Caldwel l violation, a defenda nt necessa

rily m ust show that t

he remarks to the

jury improperly

describe d the role assigned to the jury by local law . [Cit.]” Roma no v. O kl aho ma , [], 512 U.S. [1,] 9, 114 S. Ct. [2004 ,] 2010 [(1994)] . View ed in conte xt, the prosecutor’s comments in this case do not contravene Caldwel l , since the prosecutor’s description of the jury’ s role was not an affirmative m

isstatement of the law and any confusion this isolated portion of a

rgument may

have engen dered wa s alleviat ed by th e repeate d emph asis of the

entire pr oceeding th at the ju

ry, and not the prosecutor or the court, was vested with the decision as to whether Carr shoul d live or d ie.

. . . The jury’ s role as sole decision maker was reinforced through out the en tire sente ncing ph ase proceed ing.

. . . Any lingering confusion as to the jury’ s role would have been alleviate d by Carr’s closin g argument and the trial co urt’s charge. Carr m ade it cle ar that the

jurors w ere the s ole decisi on maker. Th e ent ire th rus t o f hi s ar gu ment was to impr ess on th e ju ry it s aw eso me responsi bility in dec iding pu nishment . . . . Carr I , 480 S.E . 2d at 593- 94.22

The district court found “no decision contrary to or involving an

unreasona

ble applic ation of cl early establishe d federal law as d eterm ined by the Supreme Court” and that “ the state court decisions were not based on an

unreasona

ble deter minat ion of the f

acts in ligh

t of the evi dence pre sented.” R2-17 at 9. It concluded t

hat Carr had “ pointed to no c ase and the Court has f

ound no factually indistinguishable case from the United States S upreme Court that was applied incorrectly by the state courts in this case.” Id. at 13-14. In its denial of a COA, the distric t court fou nd that, f ollowing an

“exa cting revi ew” of t

he state court’s factual findings, the findings “were pre sumed to be correct and [Carr] failed to p rove other

wise by clear a nd convincing

evidence .” R2-23 at 2. The district court further found that the state court neither applied a rule of law that contradicted Supreme Court precedent or that resulted in a different opinion than that reached by the Suprem e Court in materially indistinguishable facts nor based its decisio n on an unrea sonable det ermi nation of th e facts, establishe d by the presente d evidence . R2-23 a t 2. 3. Law Applicable to Our Review We rev iew t he c los ing argu ments for i mprop riet y und er ca refu l sc rut iny, and will reverse on ly if t

he argument rende red the pr oceeding “ ‘fundam

entally unfair.’” Cargill v. Turpin , 120 F.3 d 1366, 1379 ( 11th Cir. 1997) (cit ation23

omitte d). “ [I]t i s constituti onally imper missib le to rest

a death se ntence on a determ ination made by

a sentenc er who ha s been led to believe t hat the responsibil ity fo r determ

ining the app ropriate ness of the defendant ’s deat

h rests elsewhere.” Caldwel l v. Missis sippi , 472 U. S. 320, 3 28-29, 105 S . Ct. 263 3, 2639 (1985). “To establish a Caldwell violation, a defenda

nt necessa

rily m ust show that the remark s to the ju ry im properly describe d the role a ssigned to the jury by local law.” Dug ger v. A dams , 489 U.S. 401, 4 07, 109 S. Ct . 1211, 121 5 (1989). However, a Caldwel l violation is not establi shed where “th e jury was not affirmatively

misled regarding its role in the sentencing process.” Roma no v. Okl aho ma , 512 U. S. 1, 9, 114 S. Ct. 2004, 2010 ( 1994). W e have, t herefore, held that “references to and descriptions of the jury ’s sentencing verdict . . . as an advisory one, as a recom

mendation to the judge, and of the judge as the final sentencing authority” do not constitute Caldwel l violations w here they “ac curately characterize the jury ’s and judge’s sentencing roles under [state] law .” Davis v. Singletary , 119 F.3d 1471, 1482 (11th Cir. 1997). In Georgia, [i]n al l cases tr

ied by a jury in which th e death pe nalty . . . may be impose d, . . . the jury

shall retire to determine

whether any m itigating or aggrav ating circumsta

nces . . . exist a

nd whether

to recom mend merc y for the defen dant. Up on the findings of the j ury, the judge shall fix a sentence wi thin the limits prescri bed by law.24

O.C.G .A. § 17 -10-2(c) (2002). O nce the j ury ha s made its deter minat ion, the judge’ s role is m

andated. “W

here a st atutory

aggravating circum stance is f ound and a rec ommendation of death is m

ade, the court shal l sentence

the defen dant to death.” O.C.G. A. § 17-10-31 (2002). 4. Applic ation of L aw to The se Facts The jur y wa s informed that the

trial cour t was re quired to im

pose a dea

th sentence on their re comm endation by

both the dist

rict cour t’s ju ry inst ructions a nd the prosecutor’s a

rgument as a who le. The prosecutor ’s com

ment accurate ly charact erized th e jury ’s role as recom mending the sentence to the j udge, and t he parties a rguments and jud

ge’s ins tructions inform ed the ju ry tha t they were the arbiters of the sentence imposed on Carr. D. Ineffective Assistance of Counsel Carr con tends that h is trial c ounsel wer e ineffe ctive for

failing to adequatel

y develop and

present m

itigating e vidence a

t sentencing. He m

aintains th at this evidence would have

corroborated his te stimon y rega rding his re lationship w ith Burgeson , her dominatin g and manipul ative pers onality, and h er role in th e crime. He argue s that counse l failed t o present documentary and testim

onial evide nce of his upbringing , corrob orating his serious m ental health problem s, and evi dence of his good char

acter. He asse rts that the Georgia Supreme Court fo cused on the25

quantity , instead

of the qual ity, of evidenc e present ed during se ntencing, and failed to c onsider the

quality of the unobt ained m

itigating e vidence. He m aintains th at t he G eor gi a Su pre me Co urt ’s d eci si on is con tra ry to Uni ted Sta tes Sup reme Court pre cedent an d based upon a n unreasona

ble deter minat ion of the f

acts. 1. Testimony

Presente d During C arr’s Trial During ope ning and clos ing arguments in the g uilt phase o f the trial, the pros ecuto r atta cked C arr’s tr ial te stimon y as con cocte d lies , and a rgued that C arr’s testimony regarding his relationship with Burgeson and his childhood was uncorroborated by any credible independent testimony. He also com mented that one of the m

ental health expert ’s testimony as to the de velopm ent of Car r’s sta te of mind on the night of the murder was “ hearsay,” R2-10, Ex. Vol. 6, Ex. 13 at 1912-13, because everything the psychiatrists and psychologist knew about Carr was told to them by Carr or his family. Id. at 1916. At sentencing, Carr presented the testimony of (1) psychologist Dr. Robert Storms; (2) registered psy chiatric nurse and clinical social worker, Darrian Jones Bogenholm; and (3) addiction psychiatrist, Dr. James Spencer Cheatham as mental health ex perts, and (4 ) Carr’s mother, Georgia Carr; and (5) u ncle, William A. Smit h as character wi tnesses.26

Storm s testifie d that Car

r had a lif e-long histo ry of

depression , alcohol

and drug abuse, and was no t only “ very p sychol ogically

dependent”

on Burgeson

but was also “basical ly a very dependent guy.” R2-10, Ex. Vol. 6 , Ex. 13 at 177 2. He said that C arr and hi s family w ere super stitious and b elieved in “wi tchcraf

t and paganism.” Id. at 1774-77. He explained that C arr rel ied heavil y on Bur geson in the area of the occ ult, and th at Burges on was a “ psychol ogically

domina nt individual” and “classic enabler.” Id. at 1777-78. He saw nothing that would lead to the conclusion that Carr “had an excessively violent tem perament.” Id. at 1780. Carr introduced Bogenholm “a s an expert in the field of psychological evaluation.” Id. at 1812, 181 5. The pr osecutor ob

jected that he did n ot believe Bogenholm

was “ qualified as an expe rt in the f ield of for

ensic psychology

in order to of

fer an e xpert opinio n in that area” and th at her te stimon y, w hich she acknowledged was based on interviews with Carr and his family mem bers, was “hearsay .” Id. at 1816, 181 8, 1820 . The tri al jud ge ov errul ed th e pros ecuto r’s objectio n since interviewing is “th e main way of gather ing inform

ation” “ in the psychological and psychiatric area.” Id. at 1821. Bogenholm then explained that some of the problem s Carr experienced could be at

tributed to the proble ms tha t his m other had du

ring her pr

egnancy with him and durin g his birt h. She state d that Car r’s fa ther was an alcohol ic who27

physic ally a

nd emo tionally

abused his m

other and C arr, a

nd that Car

r saw his father beat his mother frequently and tried to protect her when he was as young as three years old. Bogenholm explained that Carr

had been se xually

abused by

both male and female “family mem bers, [and] vari ous members of the co mmunity . . . from the tim e of the age of three.” Id. at 1826. S he substanti ated Car r’s stor ies of abuse by inte rviewing o ne of the male abu sers. She described Carr, who had attem pted suicide

several times as a child by bea ting his hea d against a

floor or wall, and lat er throug h drug abu se, as sufferi ng from depress ion. Bogenholm noted that she had found Carr to be “very sensitive” and “ very com passionate.” Id. at 1848. Cheatham

testifie d that Car

r had a “ very l engthy history

of drug and

alcohol abuse” or “multi-su bstance ab use” and, th ough “[n]ot by natu re” a violen t person, had a “heightened

potential f

or violence ” when he

was “ under the influence of drugs or alcohol.” Id. at 1859-60. He explained that C arr wa s “ve ry str ongly influence d by sat anism

and witch craft” and was e asily controlled by Bur geson, who he iden tified as a wi tch. Id. at 1 86 2. H e al so op in ed t hat Car r be came emotionally dependent on Burgeson and was afraid that Burgeson would harm him. Cheatham reviewed the testing that had been perform ed on Carr, and advised that there was “some very strong indication of . . . ear ly life brain injury .” Id. at28

1877-78. He also noted that Carr suffered from severe depression, and that there were many factors invo lved in Car r’s behavior

. Id. at 1879-80. He believed that Carr could b e helped b y treatment. Id. at 1880. Georgia Carr, Carr’ s mother, testi fied that C arr wa s “a h appy c hild” who loved his fa

ther, U lla Donne ll Carr, although Ul la denied t hat Carr was his son

and was cruel to h im. Id. at 1793-95, 1799. She explained that she and Ulla divorced when Carr was ten, and Carr lived w ith her until he was fourteen and then moved in with hi s father. She had nev er seen Carr act violent ly. Carr’s uncle, Willi am A. Smit h, also te stified tha

t Ulla re jected that Car r was his child. Duing the penalty phase closing arguments, the prosecutor questioned wheth er “there [was] an y redeemin g soc ial va lue in Mr. Carr ” and d iscu ssed Carr’s criminal record b efore emphasizi ng the det errent effect o f the death penalty. He discredit ed Carr’ s defenseand the tes timony of the wi tnesses to C arr’s childhood and its eff

ect on hi m. Carr’s attorney r esponded by arguing that, if the jury voted for the de ath penalt

y, they woul d never know whether Carr ha d “any

redeem ing grace and redeeming character istics.” Id. at 1928. 2. Testimony

Presente d During C arr’s Habeas P roceeding s At the state habeas corpus proceedings, Martin testified that, when preparing for trial, he developed a strategy for the m itigation phase and conducted8 Martin said that, although Carr saw Dr. Ellis, a psychologist who worked with the Lamar

County Prison, on a

weekly basis, he did not ca

ll Ellis to te stify

in mitiga tion “[b]ec ause I

did not feel that he had the medical expertise, nor the training, nor backg round to . . . help Mr. Carr. I felt that the peopl e who I had amassed and was going to use were g oing to be sufficient to do what I was appointed to do.” R2-10, Ex. Vol. 10, Ex. 42 at 382.

9 Martin clarified that

these ind ividualswere no t institutionalized in me ntal hea lth facil ities, bu t w er e i n p ri so n a nd th at he ha d n o s uc h i nf or ma ti on on ot he r m em be rs of Ca rr ’s fa mi ly.

10 S pecific ally, Martin did not call Richard Car r, Carr’s cousin, who was imprisoned for murder, id. at 335, and Scott Hubbard, a long-time fr iend, who had t old Martin that he sp ent “six 29 an investiga

tion for m

itigating e vidence. R2-10, E x. Vol. 10, Ex. 42 at 330, 3 33, 343. He acknowledg ed that he h ad asked the state’ s psych ologist, D r. Stor ms, about testi fying a

bout Carr ’s “ future da

ngerousness ” but that S torms “had no comment on that.” 8 Id. at 356-57. Martin requested a nd was gra

nted a cour

tappointed psychiatrist, Dr. Cheatham , and said that both an MRI and a CT scan were performed on Car r. He said that he also reviewed Carr’s school and medical records, and then se nt these re cords and t he nam es of all k

nown rele vant individuals t o Dr. C heatham and his coll eagues, Bogenholm and Franc o, for review. During int erviews with Car r, Mart in learne d that Car

r had been

subject ed to his fam ily’ s alcohol a

nd sexual ab use, and t

hat there were f amily mem bers who suffere d from

menta l illness. 9 He said th at he ele cted not to c all som e of the individuals listed by Carr as potential witnesses because he did not believe they

cou ld h elp Carr and cou ld a ctu all y hav e ha d a n ega tiv e impa ct o n th e jur y. 10 Id. atmon ths drunk” and used a lot of pot, crack, and hallucinog enic mushrooms, id. at 337-3 8. H e

indicated that he would not have called Richard Carr as a witness “on Mr. Carr’s life a nd my life,” id. at 335, and that Hubbard was “[n]ot at all what I wa nted on behalf of Mr. Carr.” Id. at 338.

11 Georgia Carr, Carr’s

mother, provided M artin with an affi davit

detailing Carr’s childhood, incl uding an episode in which Carr saved his dad from choking

. She also provide d signe d testimonials from 21 character witnesses on Carr’s beha lf. 30 335, 371. H e stated th at he did not “go into charac ter evide nce” bec ause the prosecutio n had Carr ’s rec ord availa ble, and h e “di dn’t have

any c haracte rs to put in.” Id. at 477. Ma

rtin explained that he

had reque sted and re ceived a n arrative and letter s from

Carr’ s mother and fam

ily m embe rs, and had used it in pr eparatio n for trial. 11 He said th at he did not call some of the le tter-w riting indivi duals because t hey ha d “som

e problem

in answer

ing [Mart in’s] questions” o r had m ade inconsi stent sta tements to Mart in. Id. at 339-40, 486. Martin said he m et with C arr’s fam ily “ on a regula r basis” a nd had talke d to “anyone that had something [to] contribute[] to Mr. Carr’ s defense.” Id. at 340-41

. He also ta

lked to poten

tial witne sses about B urgeson’ s mani pulative na

ture, but the “people that [he] talked to wer e not . . . consistent in their . . . statem ents.” Id. at 388-89. He explained that he was unabl e to tell w

hether som

e of the ind

ividuals were te lling the tr

uth because

their stor ies change d from

day to day, and “ did not feel they had any probative value in [Carr’s] case. ” Id. at 372, 380. Martin said12 Scott Hubbard stated that, although he had been in a relationship with Burgeson for about five years, it wa s a “terrible experience” for all but about six months. R2-10, E x. Vol. 17, Ex. 49 at 2832. He explained that she was “very controlling” and “intimida ting” and oft en threatened people. Id. He state d that she was into pi lls, mariju

ana, ac id, halluc inogen

ic mushro oms, and liquor, and suppl ied hi m wit h drugs to keep him “in line.” Id. at 2832-33. Hubbard said that Burgeson wa s “very disturbed,” “used to getting whatever it was she wanted,” “had no c onscienc e,” and “was into witchcraft.” Id. at 2832. He claimed that their “relationship involved a lot of . . . physical fig

hting,” that he spent m

uch time d

efendin g himsel f from her beatings, and

that, on one occasion, she threw a knife at him. Id. Young’s cousin, Richard Hambrick, testified that Bur geson thought she could exercise power over people. . . . [Burgeson] took [witchcraft] very se ri ou sl y, and several of the people that hung ar ound with her t

ook it pretty

serious, too. They wer

e afraid of her; people knew not to fuck with her

. 3. [Burgeson] seemed to have a lot of power over several people in the group. . . . [Burge son] was an

extremely

violent pe

rson and a

big bully . She was n

ot afra id to get up in your fac e no matter who you were. . . . [P]eople were afraid she would carry outher th reat s. [Burgeson] carried a seven inch hunting knife around with her. . . . She always had it on her

.

. . . 4. . . . [Burgeson] knew exactly what she was doing an d her abi lity to manipula

te people was scary . . . . One nig

ht . . . [Bur

geson] g ot sever

al people there to jump on this one guy

passed out in the . . . chair. They started throwing food on him and then dumping c igare

ttes and c igare

tte ashes on him. He got up and went outside. Folks from the party followed him out and poured kerosene on his boots and set them on fire. He jum ped up and pu t the f ire ou t. The next thin g Iknew, they had throw

n him into a fire pit. . . . Fortunately , for him there was no fire in the pit . . . . 5. The othe

r incide nt . . abou

t [Burge so n’s] e xt reme violence was when she had several people in her group jump on a guy . . . at a party . . .[Bur

geson] had [ ] Symonds invite [the victim] to the party. . . . Someone hit [the victim ] in the face witha guita

r. Several people just jumped on the guy and beat the shit out of him

. He was lynched a

round the throat and drug around the room. He was then taken out and put in the trunk of the car and beat aga in. They drove him ar

ound in the trunk of the car for a while and then dumped him out by the railroad tracks. . . . 31 that, in deciding whom to call as m itigation witnesses, he looked at whether “they could hel p” Carr. Id. at 380. During the

state habe as procee dings, Car r submitted testimony

regardin g Burgeson’s history of violent, dominating behavior, 12 Carr’ s intoxication and6. The cr owd was v ery

much intopartying. . . . [Burgeson] was also a drug deale r.

. . . [Burgeson] never gave any thing away . If she ga

ve you drug s it was for a reason.

. . . so they would owe her

. . . . [Burgeson] used the drugs and other things to control people. 7. . . . People at those parties would go crazy and do anything

she told them to do. I d. at 2844-47. Angel Beaver, a friend of Symonds, also testified re garding the bea ting af te r Symonds had invited the victim to the party at B urgeson’s request. Symonds’s sister, Mar n i Robinson, stated that

Burgeson was manipulative and had other people “do her dirty work.” Id. at 2843. Beaver commented that Burg eson“had an unnatura l ability to manipula

te people ” and “c ould be very threate nin g.” Id. at 2838. Beaver observed that the people around Burgeson “wer

e intimidatedby her. . . . She would g et every one drunk and exerc ise h er control over them.” Id. at 2838-39. Sh e s ai d t ha t B ur ge so n “ wo ul d m ak e” Sym on ds se ll “c rys ta ls ” f or dr ug mo ne y, and

that Symonds was so sc ared of Burge son that sh e would pay her a lthough she had not sol d any cry stals. Id. at 2839.

13 Hubbard said that, after Carr moved in with Hubbar d and Bu rge son in 1991, Carr was “a lw ays eating the mushrooms, smoking dope, doing acid, and drinking.” Id. at 2833. He explained that Carr was at a low point in his life, “didn’t feel that there was any kind of a f

uture ahead” of

him, and was “becoming addicted to the drugs and alcohol” supplied by Burgeson. Id. Hubbard said that he and Carr “wor

ked” for Burg eson by burglarizing houses and then giving Burg eson the stolen goods so that she could t hen pay for rent, drugs and alcohol for all of them. Id. Hubbard and Tammy Leone both stated that, aft er Carr found out that Hubbard and L eone were “involved,” he became angry and got “sexually involved” with Burgeson. Id. at

2822, 2834. Hubbard and Leone said that, in early October 1992, Carr spent a lo t of time wi

th Burg eson while

Leone was at work, and was using a lot of drugs and alcohol while he was with Burgeson. Hubbard and Leone said that, on the nig ht of the murder, Carr appeared “stoned” before he began drinking. Id. at 2824, 2835. Hubbard claimed that Carr continued drinking and “was so drunk he wasn’t making sense.” Id. at 2835. Leone declar ed that Carr drank “almost all of the[fifth of] Tequila and smoked a ton of pot. He got so drunk and drugged-out. He acted wired and irrational.” Id. at 2824. Carr’s aunt , Claudia S mith, and cousins, Brenda Barnes, Debbie H arris, and Rhonda Simmons, saw Carr and Burgeson a day or so bef

ore the murder. Smith reported that Carr and Burgeson “seemed like they

were out of their heads.” Id. at 2753. Barnes said that the two were “clear ly drunk an

d high to t

he point that they

were ou t of their heads .” Id. at 2777. H arris remembered

that Carr was “dazed and a little scared , and he couldn’t seem to re spond to [Burgeson].” Id. at

2782. Simmons reported that Carr was holding a liquor bottle and “looked like he was in a daze or sick . . . just sort of staring ahead” and not say ing much. Id. at 2785. B arnes sa id that, after Burgeson tried to choke Carr, Carr “looked

scared and tried to get her off him, but he was too drunk.” Id. at 2777. Smith said that Carr “was acting like a crazy manthat night. . . . hopping around and pawing at the dirt like an animal.” Id. at 2754. She said that Carr went into the woods with Burge s on, and when he came out, he was “looking a round . . .like he just woke up or something. He kept asking what was g oing on and where was every body.” Id. 32 behavior on the days leading up to the crime, 13 Burgeson’ s abusive be havior14 Hubbard and Leone stated that, after Carr and L eone attempted to reconcile in September of 19 94 , B ur ge so n b ec am e “ fi er ce ly a ng ry” and began acting bizarrely, wea

ring all black, carry

ing a knife, a nd dy ing her hair to ma

tc h Leone’s. Id. at 2822-23, 2835. Leone said that B urgeson “scream[ed] bloody murder” w hen Carr told her that he had chosen to stay with Leone, and that

Carr acted scared of Burgeson. Id. at 2823. Hubbard said that , on the ni ght of the murder, Burge son appeared “drunk or high on

something ,” was ho stile to Le one as if “she wa nted to pick a fi ght with her.” Id. at 2835. Leone said that, after she refused Burgeson’ s order for her to have a drink of tequila, Burge son told he r that she would force it down [her] throat . . . 33. [Burgeson] then

asked [Leone] to step outside. [Burgeson] told [Leone] [that they ] coul d sha

re [Ca rr] a nd [Hu bbar d]. [Leone] told her

no way, that she

could have [Carr] to herself. When [Leone] said that, [Burgeson] got super a ngry . . . and started looking for her knife in her pocketbook say ing “Where’s my knife ?” She was goingcrazy looking f

or it, and [Leon e] got real scared because [she] thought [Burgeson] had lost her mind and was going to com e after [Leone]. [Burg eson] started shouting at [Carr], who seemed c ompletely drunk and out of it. Then she hauled off andslapped him hard across the face. [Carr] didn’t do any thing but sort of cr ou ch th er e t ryi ng to av oi d a no th er hi t. Th ey w er e a ct in g c ra zy. 34. [ Burgeso n] co uldn ’t fin d her k nife, and sh e went back t o drin king. Id. at 2824. Barnes and Simmons stated that Burgeson wa s “acting like a crazy wom an ,” and Simmons said that Burgeson was “scre aming and cussing read bad . . . about how she couldn’t find her knife.” Id. at 2777, 2786. Hubbard and Simmons both asserted that Burgeson beganshouting at all of them, angry

that she could not f

ind her kn ife, and slapped C arr whe

n he did not know where it was. Simmons reported that Burgeson slapped Carr so hard that it spun [Carr] around sideways. He staggered for a

second an d s ort of cowered a littlewhile [Burgeson] stood over him. He held his hand to his face and looked at [Burg eson] with

a shocked

and scared look on him. . . . [Carr] didn’t do or say any thing back to [Bu rge son]. Id. at 2786. Barnes remembered that B urgeson had “rushed upto [C arr] a nd put her hu ge hands on his neck and started

to choke h

im” and “ heard he r threa ten to kill [Carr].” Id. at 2777. Harris stated that Burgeson was “acting

crazy, wild,” “ had killing in her ey es,” shoved Carr, and told Carr that she would “kill [his] ass right here!” Id. at 2782. Leone said that she left to ca ll for a ride, and returned to find Carr “looking like he hardly knew where he was or

what was going on” and Burgeson looking insane and say ing that she “wanted [Leone ’s] blood.” Id. at 2825.

15 Frankie Hollis, a neighbor of Carr’ s father, had known Carr for 18 y ears. She stated

that Carr babysat for he

r children, and that she found him to be trustworthy and loving around children. Brenda Barne s, Carr’ s cousin, a

ttended Ca

rr’s tri al andcould have also testified as to the event in which Carr “saved his daddy ’s life.” Id. at 2771. When his father started choking on a piece 33 toward Carr during that same period of tim e, 14 and his rel ationships w ith his famil y and in t he c ommuni ty. 15 Sym onds’ sist er, Mar

ni Robinson; S ym onds’of meat, Carr performed the Heimlich maneuve r on his father. 34 frien d, Ang ela Bea ver; Yo ung’s cous in, Ri chard Hambrick ; Scot t Hubb ard; C arr’s ex-wife , Tam

my D. Le one; Carr ’s cousins, Bren da Barne s, Debbi e Harr is, and Rhonda Simmons; and Carr ’s former neighbor, Frankie Hollis, stated that they were not contacted by Carr’ s trial attorneys but would have testified for Carr. Carr’ s aunt, Cl audia Sm

ith, also s aid that she

never tal ked to Car

r’s tr ial attor neys, but was subpoenaed for the trial. Nonetheless, she attended the trial, but was never calle d to testi fy. Carr’ s attorney ’s billin g records and trial record sh owed no evidence of any contact with any of the potential witnesses who had written testimonials on his behalf. 3. Tre atme nt of Claim

During H abeas Pr

oceedings The state habeas court found Carr’s trial counsel’s perf ormance deficient as to the presentation of mitigating evidence. It noted that

[Carr’s] m

other, Georgia Carr, was r eadily available to aid her son’s def ense; howe

ver, cou nsel faile d to elicit a fract ion of the mitigating i nformation Mrs . Carr was prepared to present

. . . For the purposes of the habeas hearing, Mrs. Carr testified that [Carr’ s attorney

] fail ed to prepa

re her pr ior to her testim ony at t

he sentencing

phase of th e trial a

nd did not allo w her to a sk the jur y for merc y for her son. According to Mrs. Carr, [Carr’ s attorney ] did not touch on most of the information in her narrative.

. . . [C]ouns el faile d to presen t evidence

concerning [Carr ’s] r

eaction to the death o f his father, whic h might have serv ed to explain his drug35

and alcohol

abuse and hi s relation ship with B urgeson. It mi ght also have bett er explain ed the even ts leadin g to Young ’s death. [Carr] has also presented a ffidavits of num erous wit nesses who wou ld h ave des crib ed h is d epr ess ion and menta l st ate i n th e da ys preceding Young’s death and w

ho would hav e testifi ed about Burgeson’s abusive behavior toward [Carr]. Had these witnesses been conta cted by

[counsel] and given a

n opportunity

to testify , the result of t he sentenc ing phase li kely w ould have be en differ ent.

. . . The defense strate gy at t rial wa s to dem onstrate t

hat Burge son intimi dated [Ca

rr] into followin g her com mand to attack Y oung; however, counsel only

presente d [Carr ’s] t estim ony to su pport this theo ry, desp ite th e avai labi lity of supp orti ng wit ness es. . . . Co unse l’s failure to contact

these pote ntial witn esses or to use their testim ony to corroborate [Carr’s] testimony is unreasonable and likely was prejudicial such that the outcome of the sentencing could have been differe nt. R2-10, Ex. Vol. 27, Ex. 63 at 33-35. T he state habeas court also noted that Georgia Carr’s affidavit and counsel’s billing statements directly contradicted Carr’s attorney’ s testimony that “ he had interviewed everyone who had presented a [testimonial ] letter” in su pport of Ca rr. Id. at 39. It found “ a reasona

ble probability

that the outcome

of the sent encing phas e would ha ve been dif

ferent had the jury heard testimony about [Carr’s] good character.” Id. at 40. The Georgia Supreme

Court held that state “habeas court’s findings [we] re either clearly erroneous factually or legally insufficient.” Carr II , 544 S.E.2d at 41 9. T he c ou rt n ot ed t hat , pr io r to tri al, Car r’s att orn eys rec eiv ed r epo rts fro m a psychi atrist, two psy chologists, and a socia l worker experien ced as a m

itigation36

investigator, and interviewed several of Carr’s fam ily mem bers and solicited letters fro m other family members and acquainta nces for mitigat ion evid ence. Id. at 414-15. Specifically, the Ge orgia Supreme Court found that the record showed that Carr ’s trial counsel c ontacted “ several o f the[] potential witnesses” “‘ who would have d escri bed [C arr’s] . . . men tal st ate in the da ys prece ding Young ’s death and who would have testified about Burgeson’s abusive behavior toward [Carr] ,’” a

nd that Car

r’s tr ial counsel ’s testimony

about his re luctanceto call various Ca

rr fam ily m embe rs and fr

iends indica

ted “ valid stra

tegic rea son[s] f

or limiting the use of these witnesses.” Id. at 421. It also found that there was “ no actual prejudice

because C arr and hi s experts [ and other witnesses] testifie d about Carr’ s . . . mental state . . . as w ell as Bur geson’s domina

ting personality a

nd behavior.” Id. Moreover , the cour t found that

Carr’ s counsel w as not defi cient with regard to the presentation of good character evidence since he “presented Carr’ s mother and uncle

to testify about Car

r’s good, non-violent

charact er” and believed a

large num

ber of cha

racter witnesse s “w ould not havebeen eff ective in light of Carr’s criminal record and the evidence presented at trial.” Id. at 424. The federal district court denied relief on this claim, finding that Carr failed to show that the decision by the Georgia Supreme Court had unreasonably applied the applicable law or unreasonably applied the facts in light of the evidence37

presente d. The c ourt speci fically noted that t

here wa s “no reasonable

probabilit

y that, absent the alleged errors, the state courts would have concluded the balance of aggravating and mitigating circumstances did not warrant death in this case. ” R2-17 at 13

. 4. Law Applicable to Our Review We re view the m

ixed questio ns of law and fact r aised in an

ineffec tive

ass is tan ce o f co un sel cla im de novo , and review the district court’s findings of fact for clear error

. Mincey v. Head , 206 F.3d 1106, 1142 (11th Cir. 2000). We, there fore, r eview the di stric t cou rt’s fac tual deter minati on as to whe ther c ouns el’s decisions were tactical or strategic for clear error, but review the legal question as to whethe r that tac tic or strategy was rea sonable under the cir cumst ances de novo . Horton v. Zant , 941 F.2 d 1449,1462 ( 11th Cir. 1991). The determ ination of credibili ty, including an a ttorney ’s testimony

regardin g decisions o f tactic and strategy , is with in the province of the district c ourt, wh ich has the opportunity

to observe an d study the wit ness. Cave v. Singletary , 971 F.2d 1513, 1518 (11th Cir. 1992). T o establish a claim of ineff ective as sistance o f counsel, “a pe titioner m ust show both that his counsel’s performance was deficient and that he w as prejudiced by his counsel’s errors.” Zeigler v. Crosby , 345 F.3d 1 300, 130 8 (11th Ci r. 2003).38

In capital cases, the senten cer is re quired to c onsider al l relevan t aspects o f the defen dant’s c haracte r, the record, a nd the circumsta

nces of the

offense to provide the necessary “respect due the uniqueness of the individual,” Lockett v

. Ohio , 438 U. S. 586, 6 04-05, 98 S . Ct. 295 4, 2964-65 ( 1978), for the “ highly subjective, unique , individualized ju dgment regardin g the punishm

ent that a particular person deserves.” Turner v. Murray , 476 U. S. 28, 33 -34, 106 S . Ct. 1683, 1687 ( 1986) (inte rnal cita tion and quota

tion ma rks omitted) (pl

urality opinion). It is esse ntial that t he sentenc ing body c onsider the “com passionate

or mitigating factors stemm ing from the diverse frailties of hum ankind.” Woodson v. North Ca rolina , 428 U. S. 280, 3 04, 96 S. Ct. 2978, 2991 (1976). Ineffe ctive assistance of counsel is established when counsel has failed to provide the jury with the “ totality of the available m

itigation e vidence . . . [to] []we igh[] . . . against the evidenc e in aggra

vation,” including a “ graphic de scription of [the def endant’ s] childhood, filled w ith abuse a nd privation , or the r

eality that he w as ‘bor

derline mentally re tarded, ’ [whi ch] m ight well . . . infl

uence[] the jury ’s appraisal of hi s moral culpability.” Willia ms v. Tay lor , 529 U.S. at 397 -98, 120 S. Ct . at 1515. “Miti gating evidence, wh en availa ble, is a ppropriate

in every case where the defendant is placed in jeopardy of receiving the death penalty .” Horton , 941 F.2 d at 1462. A

n attorney

who mistakenly

believes t

hat mitigating evi dence is not39

appropriate and who, therefore, fails to investigate has “f allen below [a] reasonable professional norm[.]” Id. A defens e counsel’ s elicita tion of evid ence that

a defenda

nt facing t

he death penalty “had a ‘good’ reputatio n, . . . was gene rally known as a

hard wor ker who took careof his fam

ily, and . . . had a good reputation f or truth an d veracit

y” is n ot enough to meet the “ standard of objecti ve reason ableness r equired by

the Sixth Amendm ent.” Collier v. Turpin , 177 F.3d 11 84, 1201 -02 (11th Cir. 1999). Counsel m

ust present

“m ore than a hollow she ll of the te stimon y nece ssary ” for the jury ’s “ ‘parti cularize d considera tion of rel evant aspe cts of the [defenda nt’s] character and record.’” Id. (quoting Woodson , 428 U.S. at 303 , 96 S. Ct. at 299 1). Counsel’ s failure

to dem onstrate a

vailable e vidence of

the defen dant’s upbringing, disposition, history

of providing

needed as sistance t o his fam ily and others, acts of compa ssion and her

oism, and circu

mstan ces at the

timeof the cr

ime, especial ly his health, e mploy

ment h istory , and eco nomic status, “ br[ings] into question

the reliability of the jury ’s determination that death was the appropriate sentence. ” Id. at 1202. Counsel’s failure to introduce evidence of a defendant’s good character, because of

the possibility that

the prosecution could in troduce unf

avorable prior unlawful acts, ha s been found ineffec tive wher

e the good c haracte r testim ony “cons tituted theonly m

eans of showing that [th e defenda nt] wa s perhaps l ess40

reprehensible than the facts of the murder indicated,” Harris , 874 F.2 d at 764, or demonstrated that the d efendant d id well in a s tructured environment. Wil li ams , 529 U.S. at 396, 120 S. Ct. at 1514. M oreover, ineffec tive assist ance of c ounsel is demons trated w

here couns el “f

ail[ed] to present

any w itnesses a

t the sente ncing hearing” and thus per

mitte d the prose cutor to em phasize the

defendant ’s “ lack of redeem ing chara cter” by

arguing tha

t the jur y wa s unable to l earn any thing about defendant ’s character from anyone wh om the defendan t knew. Cave , 971 F.2d at 1519. 5. Applic ation of L aw to The se Facts Although de fense cou

nsel faile d to call a ll possible witnesses f or testim ony regarding Carr’s “ good” character , the witnesses who did testify provided positive charact er inform

ation as w ell as inf

orma tion regar ding the phy sical, e motiona l, and sexual a

buse that he

had suffe red during childhood, the possibili ty of o rganic brain damage, and his m ental state at the time of the crim e. The evidence that was presente d provided th e jury with the inform ation nece ssary to ensure t

he determination that death was the appropriate sentence. III. CONCLUSION We find no reve rsible erro r in the di strict cou rt’s opinio n and judgment. Theref ore, the denial of C arr’s petition fo r writ of habeas co rpus is AFFIRMED

.41

EDMON DSON, Chief Judg e, concu rs in the result.