[PUBLISH] 

In the 

United States Court of Appeals 

For the Eleventh Circuit 

____________________ 

No. 18-13995 

____________________ 

DAVID FREEMAN, 

 Petitioner-Appellant, 

versus 

COMMISSIONER, ALABAMA DEPARTMENT OF 

CORRECTIONS, 

 Respondent-Appellee. 

____________________ 

Appeal from the United States District Court 

for the Middle District of Alabama 

D.C. Docket No. 2:06-cv-00122-WKW-WC 

____________________ 

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2 Opinion of the Court 18-13995 

Before JILL PRYOR, GRANT, and LAGOA, Circuit Judges. 

LAGOA, Circuit Judge: 

David Freeman appeals the district court’s order denying his 

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 

This Court issued a certificate of appealability (“COA”) with respect to the following claim: “Whether trial counsel provided ineffective assistance of counsel in violation of the Sixth Amendment 

to the United States Constitution when at the penalty phase of trial, 

it failed to conduct a reasonable mitigation investigation and failed 

to uncover and present mitigation evidence.” After careful review, 

and for the reasons stated below, we affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

 In 1996, Freeman was convicted of six counts of capital murder related to the murders of Sylvia Gordon (“Sylvia”) and Mary 

Gordon (“Mary”) and sentenced to death. Freeman v. State, 776 

So. 2d 160 (Ala. Crim. App. 1999). The Alabama Court of Criminal 

Appeals set forth the relevant facts, adopted from the state trial 

court, as follows: 

On March 11, 1988, Deborah Gordon Hosford picked 

up her sister, [17-year-old] Sylvia Gordon, from Lanier High School [in Montgomery] and drove to their 

home at 29 Rosebud Court, arriving at approximately 

3:30 p.m. Waiting on the porch was the defendant, 

David Freeman, who had ridden his bicycle to their 

home. Freeman . . . lived in a trailer near the Gordon 

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home, and he wanted a romantic relationship with 

Sylvia Gordon. Sylvia was not romantically interested in Freeman, and was planning to tell him that 

she no longer wished to see him. Deborah, Sylvia, and 

Freeman entered the home. Deborah had to return 

to work and left at approximately 3:45 p.m. When 

she left, Freeman and Sylvia were sitting on the 

couch. 

Freeman had given Sylvia a note essentially stating 

that he did not like seeing her only once a week, that 

he loved her, and that he did not want to lose her like 

all of his other girlfriends. Sylvia in return gave Freeman a note stating that she viewed the relationship 

only as friendship and that she did not want to have a 

serious relationship. Approximately a week prior to 

the murders, Freeman had a conversation with Francis Boozer, a co-worker, and told her that he would 

rather see Sylvia dead than [for] someone else have 

her. 

At about 1:00 a.m. Deborah Gordon Hosford returned home. She found the lights of the home 

turned off and the door unlocked and slightly ajar. 

She went inside and noticed that the house had been 

ransacked. She went to her sister’s bedroom and 

found Sylvia, dead, in her bed with multiple stab 

wounds and clad only in a T-shirt and socks. As she 

was fleeing the house, she saw her mother, [43–year–

old] Mary Gordon, lying in a pool of blood on the 

floor of her bedroom. Mrs. Gordon was clad only in 

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a shirt, with her body being nude from the waist 

down with her legs spread apart. 

Police arrived at the Gordon home and found blood 

throughout most of the house. Mary Gordon was 

stabbed 14 times by Freeman; two wounds were fatal. 

She lived for about five minutes [after being stabbed 

the first time]. She had also been raped, and the semen deposited in her was consistent as having been 

left by Freeman. Sylvia Gordon was stabbed 22 times 

by him, and she remained conscious for eight to ten 

minutes after the first wound was inflicted. None of 

the wounds were fatal; Sylvia Gordon bled to death. 

Examination also revealed that Sylvia Gordon had 

tears in her vagina. Additionally, police found a shoe 

print on the shirt of Mary Gordon and a shoe print on 

a card found on the floor near the body of Mary Gordon. Police also noted that all [telephone] lines in the 

house had been cut. 

Freeman had brought a knife with him and used it to 

brutally kill Sylvia Gordon because she did not want 

a relationship, as well as [to] kill Mary Gordon when 

she walked in on the murder. After committing the 

murders, Freeman stole the Gordons’ 1980 Pontiac 

Sunbird and put his bike that he had ridden to the 

Gordon home in it and fled the scene. He attempted 

to establish an alibi by later going to work. The Gordons’ car was found in a parking lot near Freeman’s 

apartment. Freeman’s fingerprint was found on the 

car and blood that was consistent with that of Sylvia 

Gordon and Mary Gordon was also in the car. 

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Additionally found in the car was a butcher knife that 

had been cleaned of blood. The butcher knife was examined by an expert in trace evidence with the Department of Forensic Sciences and was determined to 

be consistent with having caused the wounds to Mary 

Gordon, to cut the bra and panties of Mary Gordon, 

and to cut the jeans of Sylvia Gordon. 

When the police arrived at Freeman’s apartment, 

Freeman answered the door, and the officers noted a 

bandage on Freeman’s right hand. When asked how 

he cut his hand, Freeman lied, claiming that he had 

cut his hand while repairing a chair. Freeman was arrested at his apartment. The police, upon a consent 

to search, found the clothing worn by Freeman, 

which had blood consistent with that of Sylvia Gordon on them. A mixture of blood and semen was 

found in the underwear that he had worn. His shoes 

were seized and compared to the prints found on the 

shirt of Mary Gordon and the card found in the Gordon home. Examination revealed that Freeman’s 

shoes were consistent with the prints found at the 

scene. Bite marks were noted on Freeman’s arm, 

which were [determined to have been] made by Sylvia Gordon. 

Freeman initially lied to the police as to his involvement in the crimes. He tried to establish an alibi for 

his whereabouts. However, when confronted with 

the evidence, Freeman admitted to stabbing Sylvia 

Gordon and stated that upon Mary Gordon’s entering 

the home he had no choice but to stab her. Freeman 

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also claimed to have blacked out on two occasions 

during the crimes. 

Id. at 169–70 (alterations in original); see also Ex parte Freeman, 

776 So. 2d 203, 204–05 (Ala. 2000) (reiterating a condensed statement of the facts surrounding the murder and stating that “[t]he 

opinion of the Court of Criminal Appeals provides a thorough 

treatment of the facts of this case”). 

A. State Court Trial and Direct Appeal 

 In June 1988, Freeman was indicted on six counts of capital 

murder. Ex parte Freeman, 776 So. 2d at 203. Specifically, Count I 

of the indictment charged Freeman with murder where two or 

more persons are murdered by one act or pursuant to one scheme 

or course of conduct. See Ala. Code § 13A–5–40(a)(10). Counts II 

and III charged Freeman with murder during a burglary in the first 

degree. See id. § 13A–5–40(a)(4). Counts IV and V charged Freeman with murder during a robbery in the first degree. See id.

§ 13A–5–40(a)(2). Count VI of the indictment charged Freeman 

with murder during a rape in the first degree. See id. § 13A–5–

40(a)(3). 

 The case proceeded to trial in the Fifteenth Judicial Circuit 

for Montgomery County, Alabama, on June 17, 1996. Freeman 

was represented by lead counsel Allen Howell (“Howell”), and 

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attorneys William Abell (“Abell”) and John David Norris (“Norris”).1 At trial, Freeman “pleaded not guilty by reason of mental 

disease or defect, and he argued to the jury that as a result of his 

alleged mental disease or defect, he was unable to conform his conduct to the requirements of the law.” Freeman, 776 So. 2d at 169. 

 During his opening statement, Freeman’s counsel claimed 

the evidence would show that Freeman suffered from borderline 

personality disorder, and that the condition caused him to be 

1This was not the first time Freeman was tried on the charges and represented 

by Howell. Freeman was initially indicted on June 3, 1988, on the same six 

charges and pleaded not guilty and not guilty by reason of mental disease or 

defect. Freeman v. State, 651 So. 2d 573, 574 (Ala. Crim. App. 1992). After a 

trial at which he was represented by Howell, a jury found Freeman guilty as 

charged and by an advisory verdict recommended that he be sentenced to 

death. Id. In accordance with the jury’s recommendation, the trial court sentenced Freeman to death. Id. However, on a subsequent direct appeal after 

remand, the Alabama Court of Criminal Appeals reversed the convictions and 

remanded for a new trial, finding a violation of Batson v. Kentucky, 476 U.S. 

79 (1986), by the State. Freeman v. State, 651 So. 2d 576, 597 (Ala. Crim. App. 

1994). 

A second trial began in January 1996, but the trial court declared a mistrial due 

to Howell being ill. Freeman then moved to dismiss the indictment, arguing 

that jeopardy had attached. The trial court denied the motion on February 21, 

1996. Freeman then filed a petition for writ of mandamus, which the Alabama 

Court of Criminal Appeals and the Supreme Court of Alabama both denied. 

On February 23, 1996, Freeman filed an emergency petition for writ of habeas 

corpus and motion to stay trial and petition for removal of the case in the Middle District of Alabama, seeking to remove his case to federal court, and for 

the district court to determine that his double jeopardy protections had been 

violated. The district court denied those petitions on February 26, 1996. 

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unable to conform his conduct to the requirements of law. Freeman’s counsel argued that the State of Alabama was responsible for 

the crimes, given Freeman’s lifetime of placements in foster and 

state care, during which he was abused. He also argued that the 

evidence would show Freeman was diagnosed at age thirteen by 

Dr. Barry Burkhart, a clinical psychologist, as needing long-term 

psychiatric treatment but none was given, and that some of the 

psychologists employed by the State of Alabama did not do proper 

evaluations. 

 The State presented fifteen witnesses in its case in chief, including homicide detectives, the medical examiner, and Deborah 

Gordon Hosford, who was Mary’s daughter and Sylvia’s sister. 

 The defense began its case in chief by presenting the testimony of Marvin Hartley (“Hartley”). From 1986 to 1987, Hartley 

was a child-care worker at the Bell Road Group Home where Freeman lived. Hartley described Freeman as being a loner who was 

isolated from other children in the home and as “starving for love.” 

He stated that Freeman would have occasional outbursts when he 

did not get his way and once punched a hole in a wall. 

 Dr. Burkhart then testified extensively for the defense. Dr. 

Burkhart evaluated Freeman as a teenager at the Lee County 

Youth Development Center and saw him on four occasions in 

1989—twice in June and twice in August. He spent twelve hours 

with Freeman and administered numerous tests. His evaluation of 

Freeman was based on the test results, along with his history, the 

previous psychological evaluations performed on Freeman, and 

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observation. He reviewed the records concerning Freeman’s history, which were admitted into evidence during his testimony. 

Specifically, he reviewed records from the following entities: the 

Children’s Hospital of Alabama at Birmingham; the Eufaula Adolescent Center; the Taylor Hardin Hospital in Tuscaloosa; Mobile 

Clinical & Neuropsychological Associates; the Talladega County 

Department of Human Resources (the “Department”); the Rolla 

Regional Center for the Developmentally Disabled; the Eufaula 

Adolescent Center; the Lee County Youth Development Center; 

and Family and Child Services in Birmingham. 

 Dr. Burkhart testified as to an evaluation he performed on 

Freeman when Freeman was thirteen years old. He stated that 

Freeman was “a very difficult child to place, because of numerous 

previous failed placements.” He characterized Freeman as a “very, 

very troubled child,” who was depressed, angry, and had impulse 

control problems. Freeman was recommended to be placed in a 

long-term treatment facility and psychotherapy. Dr. Burkhart testified that Freeman was at the Rolla Development Disability Facility when he was seven because he had been removed from several 

placements, including a relative’s home in Missouri. Freeman was 

removed from the home in Missouri because “there was evidence 

from [Freeman’s] behavior that there was abuse in the home.” He 

saw Freeman again in 1989 and diagnosed him with major depressive disorder and Schizotypal Personality Disorder, a condition 

characterized by a pervasive pattern of social discomfort and disability, an inability to get along with others, an inability to make any 

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attachment to people, and brief paranoid psychotic episodes. 

Dr. Burkhart was aware of a recent diagnosis by Dr. Guy Renfro 

that Freeman had borderline personality disorder, and he did not 

disagree with the diagnosis. 

 During his testimony about the diagnostic criteria for borderline personality disorder, Dr. Burkhart described the circumstances of Freeman’s childhood. Freeman had never known his 

mother during his “verbal lifetime,” and she was “mentally retarded and mentally ill and incapable of taking care of any of her 

children.” Dr. Burkhart mentioned several times that Freeman had 

spent his childhood in multiple placements—of which he counted 

eighteen by the time Freeman was nine years old—and that his 

childhood was “replete with failure of attachment.” Dr. Burkhart 

testified to an incident when Freeman was a child, where he believed that a woman he saw in church was his mother. Dr. 

Burkhart described Freeman’s behavior as it related to a diagnosis 

of borderline personality disorder, explaining that “[b]eginning at 

about age seven, every placement at which [Freeman] has been reports that he could not control his anger, that he had temper outbursts, that he had tantrums, that he made threats to people, that 

he got in fights.” Based on his evaluation of Freeman, Dr. Burkhart 

believed it was “very likely” that, at the time of his capital offenses, 

Freeman suffered a “brief reactive psychosis” from the stress of being abandoned or rejected by Sylvia, which rendering him unable 

to conform his conduct to the requirements of the law. 

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 The State cross-examined Dr. Burkhart with the psychological evaluations conducted on Freeman throughout his life and after he committed the murders. None of the mental health professionals had diagnosed Freeman as psychotic or found that he lacked 

the ability to conform his conduct to the law. During Burkhart’s 

cross-examination, the State admitted numerous exhibits, comprised of treatment summaries, placement reports, and psychological evaluations, all of which—with the apparent exception of a report by Dr. Renfro—came from exhibits already in evidence. Dr. 

Burkhart was also asked to confirm descriptions of Freeman’s aggressive and poor behavior contained in the exhibits. 

The final witness for the defense’s case in chief was Yvonne 

Price Copeland, a social worker for the Talladega County Department of Human Resources in charge of Freeman’s case while he 

was in foster care. Copeland testified that Freeman was placed in 

foster care shortly after he was born and never had a relationship 

with his mother, who, according to her records, was “mentally retarded.” Freeman’s father was also unable to care for him, as he 

was elderly, disabled, and had health problems himself. Copeland 

chronicled Freeman’s placements in foster homes and group 

homes beginning at the age of eight months. Copeland testified 

that among the placements was one with his stepmother’s daughter in Missouri, but that placement failed due to allegations of 

abuse, and because Freeman was reported as being defiant and aggressive. Other foster placements failed because of Freeman’s behavior. Copeland testified that, after the unsuccessful foster 

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placements, Freeman spent five years at St. Mary’s group home in 

Mobile, Alabama. He seemed to do well at St. Mary’s until 1983, 

when the staff reported he was aggressive and assaulted a house 

parent. Freeman would not discuss with Copeland what occurred 

at St. Mary’s. After being sent to two crisis shelters in Mobile, Alabama, Freeman was sent to the Lee County Youth Development 

Center for evaluation. Freeman was then sent to the Coosa Valley 

Attention Facility, a shelter facility, for two months before being 

sent to Gateway, a treatment facility for adolescent children. 

While Freeman was at Gateway, Copeland stopped working on his 

case in 1983. She reviewed the remainder of the Department’s records in preparation for her testimony the trial. She testified that, in 

addition to the two times that he tried to run away while she was 

his case supervisor, Freeman also attempted to run away from 

Gateway, and had climbed to the top of a building and would not 

get down. He also self-mutilated with a butcher’s knife. 

 Copeland confirmed that a defense exhibit was a social summary written by Doris Reeder, the social worker who was assigned 

Freeman’s case after Copeland, and included a chronological summary of Freeman’s placements. Her recollection was that there 

were between fourteen to sixteen attempts to place Freeman in facilities that refused to accept him, mostly because they could not 

give Freeman the services he needed, e.g., because he was delayed 

socially. Copeland also testified that Freeman’s siblings had all 

been taken into custody by the Department at one point or 

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another. Finally, she testified that Freeman “was probably the 

most difficult child that I had in my caseload.” 

The State cross-examined Copeland with Reeder’s social 

summary. Copeland testified as to the mental limitations of Freeman’s mother, which Copeland witnessed herself when she was 

sent to the home to investigate a report about the mother’s care of 

Freeman’s brother. Copeland testified regarding Freeman’s multiple placements as an infant. She also testified that Freeman, along 

with his brother Jimmy Terry and sister Linda, were sent to live 

with his stepmother’s daughter in Missouri (the “Smiths”). There 

were allegations of abuse made by neighbors against the Smiths, 

but an investigation concluded that “no real abuse had in likelihood 

occurred.” After that, Freeman was sent to the Rolla Center for 

evaluation at age seven, and then returned to Alabama. Freeman 

was then with another foster family for six months, who could not 

cope with his behavior. Freeman was then sent to the Symmetry 

House, which was a treatment center for young children. Freeman 

had behavior problems at Symmetry House as well. Copeland testified that an intake form from October 19, 1977, stated that Freeman “will do whatever necessary to get his way.” A foster family 

with whom Freeman lived after Symmetry house kept Freeman for 

only a month because he was aggressive and hostile toward their 

young child. 

 Freeman then lived at St. Mary’s Home from 1978 to 1982. 

There, he was defiant and ultimately struck a child-care worker. 

Copeland continued to chronicle Freeman’s placements after St. 

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Mary’s, including stays at emergency shelters, Lee County Development Center, and then at Gateway. Copeland read from a written summary addressing Freeman’s behavior at Gateway that included statements that Freeman was more aggressive with female 

staff than with male staff. The State continued to cross-examine 

Copeland concerning Freeman’s behavior while at Gateway, 

which included stealing, lying, and fighting. Freeman was moved 

from Gateway in August 1984 after an incident and placed at 

Eufaula Adolescent Adjustment Center. Copeland acknowledged 

that Eufaula attempted to give Freeman a multi-disciplinary treatment that included group and individual therapy and recreation, 

but when confronted with his inappropriate behavior, he would 

not accept responsibility. After Freeman “[e]loped” from Eufaula 

with a girl, he was charged with burglary for breaking into a trailer 

and was sent to the Department of Youth Services. Copeland’s 

cross-examination concluded with her acknowledgment that Freeman’s “behavior problems were what mainly limited us in the selection of a facility” for placement. 

In rebuttal, the State presented the testimony of Dr. Renfro 

by videotaped deposition2 and introduced a report by him into evidence. Dr. Renfro was appointed by the trial court to assess Freeman’s competency to stand trial and his mental state at the time of 

the murders. Based upon his four meetings with Freeman in 1995, 

2 Freeman objected to the playing of Dr. Renfro’s videotaped deposition because he “had withdrawn the questions, direct and re-direct, on the deposition.” The trial court overruled the objection. 

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a review of previous tests performed on Freeman, and his history, 

Dr. Renfro concluded that Freeman displayed Borderline Personality Disorder. Dr. Renfro described the various features of a Borderline Personality Disorder to include instability of self-image and 

interpersonal relationships, and testified that the frequent change 

in Freeman’s caregivers could have contributed to the instability of 

Freeman’s behavior in his numerous placements. Dr. Renfro 

agreed that being removed from the home of a proposed adoptive 

family in Missouri—the Smiths—could have contributed to Freeman’s “[v]ery fragile sense of self-image” and that “perhaps that 

could set a tone for feeling abandoned or feeling rejected because 

he had been moved from place to place and shifted from institution 

to institution and home to home.” Freeman was very reluctant to 

talk about his “family of origin” with him. Dr. Renfro testified that 

Freeman has fears of being abandoned and at times displayed inappropriate anger. He opined that Freeman experienced rage and anger upon being rejected, but it was not necessarily uncontrollable. 

Finally, Dr. Renfro testified on cross-examination that he considered Freeman’s statement to the police concerning stabbing Mary 

and cutting the phone wire as indicating that Freeman had the ability to make choices. 

 The final witness was Dr. Joe Dixon, a forensic psychologist 

in charge of coordinating the Lunacy Commission Evaluation 

when Freeman was in the Taylor Hardin Secure Medical Facility in 

Tuscaloosa, Alabama. Dr. Dixon’s notes from his initial psychological contact form completed in December 1988 indicated that 

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Freeman did not want to talk about where he was raised or his personal history. The Lunacy Commission that performed the evaluation on Freeman was comprised of three forensic psychiatrists. 

Dr. Dixon testified regarding the findings made by each psychiatrist 

as set forth in the Lunacy Commission Summary Report in January 

1989. In describing the day of the murders to each psychiatrist, 

Freeman recounted his day without mentioning the murders. 

None of the psychiatrists found that, at the time of the murders, 

Freeman lacked capacity to conform his conduct to the law as a 

result of mental disease or defect. 

 Ultimately, the jury found Freeman guilty on all six counts 

of capital murder. The case then proceeded to the penalty phase. 

 At the penalty phase, the State presented no witnesses but 

presented all of the previously introduced testimony and exhibits. 

Freeman submitted the following mitigating circumstances: that 

he had no significant history of prior criminal activity; that he was 

under the influence of an extreme mental or emotional disturbance 

at the time of the offense; that he was under extreme duress at the 

time of the offense; that he was unable to conform his conduct to 

the requirements of the law at the time of the offense; that he was 

substantially impaired; and his age of eighteen. Freeman also offered all the testimony and exhibits he put forth during the guilt 

phase. 

Freeman offered one witness during the penalty phase, Alexander Moore, who worked at St. Mary’s House when Freeman 

lived there. Moore described Freeman as “more or less a loner 

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during his stay at St. Mary’s, rather on the quiet side until confronted with anything that needed to be done or any corrections 

that needed to be made.” He confirmed that he had given an investigator for the defense two photographs of Freeman from the 

time he was at St. Mary’s, and the photos were admitted into evidence. Finally, Moore testified that “[Freeman], to my way of 

thinking, was a good child like any other normal child that lived 

the lifestyle that he had to live. I think he would be deserving of 

some leniency, . . . if at all possible.” 

 Freeman’s counsel’s closing argument at the penalty phase 

consists of three-and-a-half transcript pages. His counsel first argued that the State mischaracterized a prior incident in which Freeman had used a knife, and that Freeman’s prior juvenile record was 

not admissible for anything other than as “part of the total picture 

necessary to see this boy and his total mental state.” Counsel then 

argued that the mitigators of “extreme mental or emotional disturbance and the inability to conform his conduct to the requirements of law . . . aren’t the same here. They don’t mean the same 

thing as they did back [t]here,” apparently referencing the insanity 

defense from the guilt phase, i.e., that Freeman was unable to conform his conduct to the requirements of the law as a result of his 

alleged mental disease or defect. Counsel argued that the jury 

could “still find that these factors exist, because, obviously, they do. 

You [the jury] can decide they don’t exist to the level necessary to 

not hold him responsible, but they exist, and they exist to the level, 

we submit, that he shouldn’t be put to death.” Counsel argued that 

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Freeman’s age at the time of murders should be considered as well 

as the mitigator of “duress” because “he had a lot going on inside 

of him that made all of this occur.” Counsel argued for leniency, 

as Moore as suggested. 

 The jury ultimately returned an advisory verdict recommending a sentence of death for the murders of Sylvia and Mary by 

a vote of eleven to one.3 On August 15, 1996, the trial court entered 

a sentencing order specifically identifying aggravating and mitigating circumstances and imposed a sentence of death. The trial court 

found as aggravating circumstances that the capital offense was 

committed while Freeman was engaged in the commission of, or 

an attempt to commit, burglary, robbery, and rape, and that the 

murders were especially heinous, atrocious, or cruel. As statutory 

mitigating circumstances, the trial court found that Freeman had 

no significant history of criminal activity, that the offense was committed while Freeman was under the influence of extreme mental 

or emotional disturbance, and that Freeman was eighteen at the 

time of the crime. In considering all other relevant mitigating circumstances offered, the trial court found that Freeman’s emotional 

disturbance due to his family history and multiple placements was 

a mitigating circumstance as well as Freeman’s antisocial personality.

3 In 1996, Alabama juries rendered advisory verdicts and trial courts determined sentences. See Ala. Code §§ 13A-5-46, 13A-5-47 (1996). 

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 Freeman’s convictions and sentence of death were affirmed 

by the Alabama Court of Criminal Appeals. Freeman, 776 So. 2d 

at 203. The Alabama Supreme Court granted Freeman’s petition 

for certiorari review, and, after oral argument and review of the 

record, affirmed the judgment of the Court of Criminal Appeals. 

Ex parte Freeman, 776 So. 2d at 204–05. On October 30, 2000, the 

United States Supreme Court denied Freeman’s petition for writ of 

certiorari. Freeman v. Alabama, 531 U.S. 966 (2000). 

B. State Court Postconviction Proceedings 

 On September 28, 2001, Freeman filed a petition for relief 

from his convictions and sentence pursuant to Alabama Rule of 

Criminal Procedure 32. Freeman filed several amendments, culminating in his Fourth Amended Petition for Relief from Conviction 

and Sentence Pursuant to Rule 32 of the Alabama Rules of Criminal 

Procedure (the “Rule 32 petition”). As Ground II for relief, Freeman alleged that he was denied the effective assistance of trial 

counsel in violation of the Sixth and Fourteenth Amendments.4 

4 Freeman raised twelve grounds for relief, which the district court summarized below, as: 

(1) his June 1996 retrial following the January 1996 mistrial violated Double Jeopardy principles, (2) his trial counsel rendered ineffective assistance[,] . . . (3) the admission of graphic 

and cumulative photographic and videotaped evidence violated Petitioner’s right to a fair trial, (4) the admission of unreliable and unscientific testimony by a forensic odontologist regarding bite marks violated Petitioner’s right to a fair trial, (5) 

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Under Ground II, Freeman alleged seventeen instances of ineffective assistance of counsel, labeled “A” through “Q.”5 Relevant to 

the admission of the hearsay testimony of Dr. Joel Dixon violated Petitioner’s rights under the Confrontation Clause, (6) 

Petitioner’s rights under the Eighth Amendment were violated[,] . . . (7) Petitioner’s right to counsel was violated when 

his lead trial counsel suffered from a debilitating psychological 

condition throughout trial, (8) his appellate counsel rendered 

ineffective assistance[,] . . . (9) Petitioner’s lead trial counsel 

suffered from an actual conflict of interest arising from a debilitating psychological condition which said counsel suffered 

throughout trial which said counsel failed to reveal to Petitioner, (10) Petitioner’s rights under the holdings in Ring and 

Apprendi were violated, (11) Petitioner is mentally retarded 

and, under Atkins v. Virginia, constitutionally ineligible for the 

death penalty, and (12) Petitioner’s indictment was constitutionally deficient under Ring and Apprendi and under Alabama 

law. 

5 The seventeen alleged instances of ineffective assistance of counsel as set 

forth in Ground II were summarized by the district court as follows: 

(a) failing to conduct meaningful voir dire, (b) failing to object 

to the admission of graphic and cumulative photographic and 

videotape evidence showing the crime scene and the victims, 

(c) failing to object to the testimony and narration of the crime 

scene video by the evidence technician, (d) failing to object to 

the admission of the forensic odontologist’s testimony as unreliable and unfounded scientifically, (e) failing to present evidence showing an alternative source for the bite marks on Petitioner’s arms, (f) failing to submit autopsy data to an independent pathologist for evaluation, (g) failing to present evidence showing Petitioner suffered from unspecified neurological impairments, (h) deposing Dr. Guy Renfro, (i) failing to 

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this appeal are Freeman’s allegations “J” and “K,” which stated as 

follows: 

J. Trial counsel failed to investigate, develop and present available evidence in mitigation of petitioner’s 

punishment. But for counsel’s deficient performance, 

there exists a reasonable probability that the result of 

petitioner’s trial would have been different. 

K. Trial counsel failed to present available evidence 

regarding petitioner’s background and his mental 

health history to the jury in a manner which would 

have allowed the jury to give this evidence mitigating 

effect during the sentencing phase. But for counsel’s 

deficient performance, there exists a reasonable 

object on hearsay grounds to the testimony of Dr. Joel Dixon 

summarizing the findings of other mental health professionals 

who actually examined Petitioner, (j) failing to present unidentified mitigating evidence, (k) failing to present unidentified 

evidence of Petitioner’s background and mental health history 

in a manner that would have allowed the jury to give mitigating effect to such evidence, (l) failing to present evidence of 

Petitioner’s good behavior in prison, (m) failing to impeach the 

testimony of prosecution witness Frances Boozer, (n) failing to 

raise challenges to the Alabama capital sentencing statute 

based upon the Supreme Court’s holdings in Ring v. Arizona 

and Apprendi v. New Jersey, (o) conceding during closing argument at the guilt-innocence phase of trial that a guilty verdict determined the appropriate sentence, (p) failing to object 

to the admission of raw psychological testing data, and (q) failing to investigate and present evidence showing Petitioner is 

mentally retarded . . . . 

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22 Opinion of the Court 18-13995 

probability that the result of petitioner’s trial would 

have been different. 

The postconviction court held an evidentiary hearing on 

Freeman’s Rule 32 petition on June 4, 2003. Three of Freeman’s 

attorneys testified: (1) Abell, the backup lead attorney in Freeman’s 

trial; (2) Norris, the second chair counsel at Freeman’s trial; and 

(3) Thomas Goggans, the appellate counsel in Freeman’s direct appeal. 

 Abell testified that he was appointed to represent Freeman 

about three weeks before his trial as a backup lead attorney because 

there had been several continuances due to Freeman’s lead counsel, Howell, being ill. By the time of Abell’s appointment, Howell 

had hired the experts and the investigations had been done. Abell’s 

role was to look over the records, and he met with Freeman once. 

Howell was in charge of hiring experts and conducting the investigation. Abell gave the opening statement in the guilt phase of the 

case—a decision that was made about ten minutes beforehand, although he was “fairly well prepared to go on with it.” Howell had 

told him a day or two before trial that he was not going to be at the 

trial. In his opening statement, Abell focused on Freeman’s unstable childhood as a ward of the State of Alabama, thinking that aspect of the case would be developed in the sentencing phase. Abell 

was not at trial for the sentencing phase. Abell testified on crossexamination that the evidence of guilt against Freeman was “overwhelming.” Howell discussed with Abell the decision to withdraw 

a not-guilty plea and enter a plea of “strictly not guilty by reason of 

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18-13995 Opinion of the Court 23 

mental disease or defect.” That decision was made because “it had 

been tried one time in a previous trial and proved to be unsuccessful,” and because they “were hoping that [they] could either gloss 

over or eliminate some of the more inflammatory aspects of the 

case, if [they] just concentrated on insanity.” 

Norris testified that he was appointed to represent Freeman. 

He was second-chair counsel at trial, as he had only been practicing 

two or three years at the time and Freeman’s case was his first capital case. He stated that Howell had sole responsibility for the decisions in the case and selected the experts. In response to the question of whether he had “any role in deciding how best to use the 

information that was available about Mr. Freeman’s background in 

terms of mitigation in front of the jury at the sentencing phase,” 

Norris responded that he “had no control over that,” as Howell 

“was lead counsel” and “made all the tactical decisions.” 

 At the conclusion of the testimony, Freeman’s postconviction counsel attempted to introduce an affidavit signed by Howell. 

Postconviction counsel explained that Howell was not testifying 

live because she6 now lived in upstate New York, and funds were 

not available to bring Howell to Alabama.7 Freeman’s 

6 By this time, Howell was known as Ally Howell. 

7 Freeman had filed a motion requesting funds for Howell to travel from New 

York to Alabama on July 25, 2002. The trial court denied the motion on August 5, 2002. Duringthe postconviction proceedings, Freeman had filed other 

motions seeking funds to hire experts and investigators. After a hearing on 

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24 Opinion of the Court 18-13995 

postconviction counsel had provided the State with Howell’s affidavit on May 29, 2003, a week prior to the hearing. In response, 

the State filed a motion to exclude the affidavit, arguing that it 

would be prejudiced if the Court admitted Howell’s affidavit into 

evidence because it would not be able to cross-examine Howell. At 

the hearing, Freeman’s counsel explained that they delivered the 

affidavit to the State within an hour of receiving it. In response to 

the postconviction court’s question of why the affidavit was dated 

May 28, Freeman’s counsel explained that “[i]t took time, some 

communication with Ms. Howell, some back and forth arranging 

the affidavit,” and that “[i]t took some time getting to know Ms. 

Howell before we could talk in enough detail about the case that 

the information started flowing.” The postconviction court 

granted the State’s motion to exclude the affidavit, and Howell’s 

affidavit was ordered sealed. 

 On June 25, 2003, the postconviction court entered a final 

order denying Freeman’s Rule 32 petition. After reviewing the testimony presented, the postconviction court reiterated that it had 

granted the State’s motion to exclude Howell’s affidavit8 and 

would not consider the affidavit in ruling on the petition. The 

the motions, the postconviction court entered an order denying Freeman’s 

Request for Extraordinary Expenses.

8 The postconviction court stated that it granted the State’s motion to exclude 

Howell’s affidavit “[b]ased on the holdings of the Alabama Court of Criminal 

Appeals in Callahan v. State, 767 So. 2d 380 (Ala. Crim. App. 1999), and Hamm 

v. State, 2002 WL 126990 (Ala. Crim App. 2002).” 

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18-13995 Opinion of the Court 25 

postconviction court also stated that it would not consider a written proffer submitted by Freeman at the conclusion of the hearing 

in which Freeman alleged what he could have proven if the postconviction court had granted his motion for funds. 

 As to ground “J”—Freeman’s claim that his trial counsel 

failed to investigate and present available evidence of mitigation—

the postconviction court found that Freeman “presented absolutely no evidence at his evidentiary hearing concerning this 

claim. . . . Freeman has failed to meet his burden of proving trial 

counsel’s alleged failure to investigate and present mitigating evidence was the result of deficient performance or caused him to be 

prejudiced as required by Strickland. Rule 32.3, ARCrP.”9 (Emphasis added). The postconviction court thus denied the claim. 

 Regarding ground “K”—Freeman’s claim that trial counsel 

were ineffective in their presentation of mitigating evidence—the 

postconviction court found that Freeman “failed to offer any evidence at his evidentiary hearing proving that if trial counsel had 

presented the evidence of his background and mental health history in a different manner, the outcome of his trial would have 

9 Alabama Rule of Criminal Procedure 32.3 provides as follows: 

The petitioner shall have the burden of pleading and proving 

by a preponderance of the evidence the facts necessary to entitle the petitioner to relief. The state shall have the burden of 

pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden 

of disproving its existence by a preponderance of the evidence. 

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26 Opinion of the Court 18-13995 

been different.” (Emphasis added). As a result, Freeman “failed to 

meet his burden of proving that trial counsel was either deficient 

in presenting mitigation evidence or that this presentation caused 

him to be prejudiced as required by Strickland. Rule 32.3, ARCrP.” 

(Emphasis added). As such, the postconviction court denied the 

claim. 

 Freeman then appealed the denial of his Rule 32 petition to 

the Alabama Court of Criminal Appeals. In his brief to the Alabama Court of Criminal Appeals, Freeman raised nine grounds for 

reversal, including nine individual sub-claims of ineffective assistance of trial counsel.10 Relevant here, Freeman merged grounds 

“J” and “K” from his Rule 32 petition and argued that the postconviction court erred in denying relief on his claim that trial counsel 

were ineffective “for failing to investigate, develop and present 

available evidence of petitioner’s background and mental health 

problems in a manner that would have permitted the jury to give 

such evidence mitigating effect.” Specifically, Freeman argued that 

his “absence of an evidentiary presentation” in the postconviction 

court was due solely to its denial of his request for funds to obtain 

“expert and investigative assistance.” Freeman also argued that his 

trial counsel’s decision to rely strictly on an “insanity” defense was 

unreasonable and “squandered the mitigating value of the 

10 Among other things, Freeman argued that the postconviction court erred in 

“denying [his] requests for funds necessary to develop and present the factual 

bases of [his] claims” and in “excluding the affidavit of lead trial counsel, Ally 

W. Howell, and the proffer of evidence submitted by petitioner.” 

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18-13995 Opinion of the Court 27 

information about [Freeman’s] background” because it “diverted 

the jury’s attention and the defense’s resources” from a mitigation 

case. He argued that trial counsel could have presented a substantial mitigation case with the documentation available at trial along 

with the assistance of experts, like a mitigation investigator, a social 

worker, and a neuropsychologist, and that there existed a reasonable probability that the result of the sentencing proceeding would 

have been different had trial counsel done so. 

 On June 17, 2005, the Alabama Court of Criminal Appeals 

issued an unpublished memorandum decision affirming the judgment of the postconviction court denying Freeman’s Rule 32 petition. Freeman v. Alabama, No. CR-02-1971 (Ala. Crim. App. June 

17, 2005). As an initial matter, the Alabama Court of Criminal Appeals held that Freeman was not entitled to an evidentiary hearing 

in the postconviction court on his claim of ineffective assistance of 

counsel because “none of his allegations were pleaded with sufficient specificity to satisfy the requirements in Rule 32.3 and Rule 

32.6(b).”11 Id. at 15. The court also noted that Freeman had 

11 Alabama Rule of Criminal Procedure 32.6(b) provides as follows: 

(b) Specificity. Each claim in the petition must contain a clear 

and specific statement of the grounds upon which relief is 

sought, including full disclosure of the factual basis of those 

grounds. A bare allegation that a constitutional right has been 

violated and mere conclusions of law shall not be sufficient to 

warrant any further proceedings. 

(Emphasis added). 

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28 Opinion of the Court 18-13995 

“attempt[ed] to include more specific facts in his brief on appeal 

with respect to many of his allegations of ineffective assistance of 

counsel.” Id. at 15 n.8. Those facts, which the court did not specify, 

were not considered by the court. Id.

 As to ground “J” and “K” of Freeman’s Rule 32 petition, the 

appellate court held: 

Freeman did not allege in his petition what “available 

evidence” there was about his background or mental 

health history that his counsel did not present or what 

“manner” he believes his counsel should have presented the unidentified evidence. Likewise, other 

than the conclusory allegation that but for counsel’s 

conduct in this regard, there was a reasonable probability that the outcome of his trial would have been 

different, Freeman alleged no facts tending to indicate 

that he was prejudiced by counsel’s preparation for 

and conducting of the penalty phase of his trial. His 

contentions in this regard are vague and conclusory 

and wholly insufficient to satisfy his burden of pleading. Therefore, denial of these allegations of ineffective assistance of trial counsel was proper. 

Id. at 24–25 (emphasis added). The Alabama Court of Criminal Appeals affirmed the judgment of the postconviction court and subsequently denied rehearing on July 29, 2005. The Supreme Court of 

Alabama denied Freeman’s petition for writ of certiorari on January 20, 2006, in an unelaborated order. Ex parte Freeman, 971 So. 

2d 749 (Ala. 2006) (Table). And the United States Supreme Court 

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18-13995 Opinion of the Court 29 

denied certiorari on June 26, 2006. Freeman v. Alabama, 548 U.S. 

910 (2006). 

C. Federal Proceedings 

On February 16, 2006, Freeman filed his § 2254 federal habeas petition in the Middle District of Alabama. As ground IV for 

relief, Freeman alleged that he was denied effective assistance of 

trial counsel. Freeman acknowledged that he did not “fully prove 

his allegations at the state court evidentiary hearing”and claimed 

that the failure was due to the Alabama courts’ denial of his request 

for funds to hire experts and investigators and for travel expenses 

for Ally Howell to testify at the postconviction hearing. Freeman 

claimed that his allegations of ineffective assistance of trial counsel 

“will have evidentiary support upon a reasonable opportunity for 

further fact development.”

 Relevant here, in ground IV.E, Freeman claimed that he was 

denied the effective assistance of trial counsel due to “trial counsel’s 

failure to investigate, develop, and present evidence of [Freeman’s] 

background and mental health problems in a manner that would 

have allowed the jury to give it mitigating effect.” Freeman reiterated the argument he made to the Alabama Court of Criminal Appeals in his postconviction appeal—that trial counsel had “squandered the mitigating value of the information about [Freeman’s] 

background” by using the information “exclusively on an ill-conceived effort to establish that petitioner was not guilty by reason of 

mental disease or defect.” Freeman repeated his argument that 

with the documentation about Freeman’s life that was available at 

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30 Opinion of the Court 18-13995 

trial, and with the assistance of a mitigation investigator, a social 

worker, and a neuropsychologist, trial counsel could have presented the jury with substantial evidence for mitigation. Freeman 

further argued that trial counsel’s decision to rely on an “insanity 

defense” was unreasonable, and diverted the jury’s attention and 

the defense’s resources from “the truly compelling mitigating case 

that could have been made.” But for counsel’s failure, Freeman 

asserted, a reasonable probability existed that the result of sentencing would have been different.

On May 8, 2006, the Commissioner of the Alabama Department of Corrections (the “State”), filed an answer to Freeman’s petition. The State argued that Freeman did not raise in his Rule 32 

petition his present claim that focusing on the defense of mental 

disease or defect “squandered the mitigating value of the information about [Freeman’s] background,” that, therefore, the claim 

was not fairly presented to the state courts and was not exhausted, 

and that dismissal to allow Freeman to raise the claim in state court 

would be futile. In the alternative, the State argued that Freeman’s 

one-sentence claim in his Rule 32 petition that “trial counsel failed 

to present available evidence regarding [Freeman’s] background 

and his mental health history to the jury in a manner which would 

have allowed the jury to give this evidence mitigating effect during 

the sentencing phase” was dismissed by the Alabama Court of 

Criminal Appeals for failure to comply with Rules 32.3, 32.6(b), and 

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18-13995 Opinion of the Court 31 

32.7(d), and was therefore procedurally defaulted.12 With regard to 

Freeman’s claims that trial counsel were ineffective for failing to 

present a mitigation investigator, social worker, and neuropsychologist at trial, the State argued that those claims were not fairly 

presented to the state courts and therefore had not been exhausted. 

And the State argued that those claims were also not raised in Freeman’s Rule 32 petition and constituted a procedural default under 

state law. Furthermore, the State asserted that, although Freeman 

attempted to raise the issues in his brief before the Alabama Court 

of Criminal Appeals, these arguments were not considered by the 

appellate court because they were raised for the first time on appeal, and are procedurally defaulted on this basis. 

 The State filed its initial brief on procedural default and evidentiary hearing issues on March 19, 2007. The State argued that 

Freeman’s claim of ineffective assistance of counsel based on failure to present evidence of his background and mental health problems was procedurally defaulted because this claim was dismissed 

under an independent and adequate state procedural rule—specifically, the Alabama Court of Criminal Appeals rejected the claim 

12 This Court has since clarified that an Alabama state court’s dismissal of a 

federal constitutional claim for failure to plead a sufficient factual basis under 

Rule 32.6(b) is a ruling on the merits that does not preclude federal habeas 

review under the procedural-default doctrine. Borden v. Allen, 646 F.3d 785, 

812 (11th Cir. 2011) (reviewing a claim dismissed pursuant to Alabama Rules 

of Criminal Procedure 32.3 (burden of proof), 32.6(b) (specificity), and 32.7(d) 

(summary dismissal)); Frazier v. Bouchard, 661 F.3d 519, 524–25 & n.6 (11th 

Cir. 2011) (same). 

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32 Opinion of the Court 18-13995 

under Rules 32.3 and 32.6(b). The State also argued that the claim 

was procedurally defaulted because it was never fairly presented in 

state court. Specifically, Freeman had “add[ed] considerably to his 

claim” and now alleged that his trial counsel should have hired experts. Because new legal theories and factual claims that were not 

presented to the state court do not satisfy the exhaustion requirement, and because any state remedy at this point would be barred 

on several grounds in state court, Freeman’s claim was procedurally defaulted, according to the State. Finally, the State noted that, 

where a federal habeas petition alleges a different legal theory or a 

new factual claim with respect to an issue raised in state court, the 

exhaustion requirement is not met. The State contended that Freeman was not entitled to an evidentiary hearing on any of the procedurally defaulted claims because he had not shown cause and 

prejudice to overcome the procedural defaults. 

On April 16, 2007, Freeman filed his brief on the merits and 

in opposition to the State’s brief on procedural default. Freeman 

argued that his claim of ineffective assistance of counsel was not 

procedurally defaulted as a result of the Alabama Court of Criminal 

Appeals’ invocation of Rules 32.3 and 32.6 in affirming the postconviction trial court’s denial of his fourth amended rule 32 petition. 

Specifically, Freeman argued that there was no procedural default 

because, as applied by the Alabama Court of Criminal Appeals, 

Rules 32.3 and 32.6 were not independent of federal law, and did 

not constitute an adequate ground for withholding merits review. 

Even if the Alabama appellate court’s application of Rules 32.3 and 

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18-13995 Opinion of the Court 33 

32.6 was adequate and independent, Freeman claimed the circumstances here constituted “cause” to overcome the resulting procedural bar. 

 With regard to the “additional facts” and “additional evidence” that he set forth in his federal habeas petition, Freeman argued that they did not fundamentally alter his claim as set forth 

before the Alabama Court of Criminal Appeals and therefore did 

not offend the exhaustion requirement. Freeman then proceeded 

to set forth almost twenty pages of mitigation information that he 

claims should have been presented at trial. Freeman claimed that 

this “more extensive information” was developed in an investigation conducted for the federal habeas proceedings. This new information was based on “witness interviews conducted by a trained 

investigator and planned with the assistance of experts who had reviewed the record and interviewed [Freeman].” None of the new 

factual allegations obtained in the investigation for the federal habeas proceedings were supported by affidavit or report, or sworn 

to in any way. 

 Among the information gathered in the habeas investigation 

was a claim that Freeman was sexually abused. It was alleged that 

Freeman’s younger brother, Jimmy Terry, saw Freeman being sexually abused by Thomas Smith, the husband of Freeman’s older 

stepsister, Edna Smith, while they were living with her. It was further alleged that the investigation revealed that Jimmy Terry and 

Freeman were physically abused while with the Smiths. Ms. 

Packer, a worker at St. Mary’s, where Freeman had been sent to 

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34 Opinion of the Court 18-13995 

live at the age of nine, believed that Freeman was sexually abused 

by Alexander Moore, who was the “house dad” at the group home. 

Alexander Moore was the sole witness presented by trial counsel 

during the penalty phase. Freeman claimed that he had “repressed 

the memories of his abuse, and was therefore incapable of directing 

post-conviction counsel toward that information.” 

 Freeman further obtained the services of an unidentified social worker who “performed a thorough review of the records, conducted interviews, and examined additional information gathered 

during the investigation.” She determined that Freeman’s “entire 

life had been marked by rejection, trauma, abuse, and mistreatment.” The social worker determined that Freeman had a long 

history of being misdiagnosed and that his “‘conduct’ problem” 

was caused by sexual abuse and trauma. Freeman also retained an 

unidentified neuropsychologist who “was provided with the documents contained in the record as well as the additional information 

gathered through a competent investigation,” who found that 

Freeman suffered from post-traumatic stress disorder (“PTSD”) 

and had shown signs of disassociation. 

 Additionally, Freeman argued that his trial counsel’s mitigation preparation was deficient and “not materially distinguishable 

from” that in Wiggins v. Smith, 539 U.S. 510 (2003), and that he 

was prejudiced as a result. Finally, Freeman sought an evidentiary 

hearing in the federal habeas proceeding, arguing that he had been 

denied the funds necessary to develop his claims in state court and 

that the facts he alleged, if true, would entitle him to relief. 

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18-13995 Opinion of the Court 35 

 The State filed a brief on the merits on July 19, 2007. The 

State argued that Freeman’s claims should be denied review altogether, or at least “severely restricted,” because his pleadings before the federal habeas court added significant new factual allegations not pleaded below, thus denying the state courts a full and 

fair opportunity to decide Freeman’s constitutional claims. As 

such, the new legal theories and new factual claims set forth in the 

federal habeas petition should be deemed unexhausted. Additionally, the State argued that the new allegations were procedurally 

defaulted, as they would now be barred on several grounds in state 

court. And the State asserted that federal habeas relief was foreclosed because Freeman had not established that he was entitled to 

relief pursuant to § 2254(d)(1)–(2). 

 More than twelve years after Freeman filed his federal habeas petition, the district court entered a 270-page Memorandum 

Opinion and Order denying Freeman’s “original federal habeas 

corpus petition (Doc. # 5), as supplemented by the new facts alleged in his brief in support (Doc. # 64)” on July 2, 2018. Before 

addressing the merits of Freeman’s claim for federal habeas relief 

based on ineffective assistance of trial counsel, the district court began its analysis by noting that the Alabama Court of Criminal Appeals had concluded that Freeman’s ineffective assistance claims 

were “bereft of any evidentiary support and lacked merit.” The 

district court’s “independent examination of [Freeman’s] fourth 

amended Rule 32 petition [was] consistent with [the] conclusion” 

of the Alabama Court of Criminal Appeals that “none of [his] 

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36 Opinion of the Court 18-13995 

ineffective assistance ‘claims were pleaded with sufficient specificity to satisfy the requirements in Rule 32.3 and 32.6(b).’” 

 The district court found that Freeman’s federal habeas petition presented “completely different, somewhat more factually detailed” ineffective assistance claims than had been presented in Alabama state court. The district court further found: 

Freeman’s “new” ineffective assistance complaints 

are more factually specific than the conclusory claims 

he fairly presented to the state circuit court in his Rule 

32 proceeding. Insofar as [Freeman] presents this 

court with new ineffective assistance claims, this 

court will undertakede novo review of those claims 

consistent with 28 U.S.C. § 2254(b)(2).[13]

The district court reasoned that “concerns of judicial economy justify the federal habeas court’s consideration and rejection on the 

merits of the new claims, rather than stay and abatement to permit 

the petitioner’s dilatory and useless return to state court to exhaust 

state habeas remedies” where a federal habeas petitioner “as here 

. . . presents meritless or even frivolous new versions of conclusory 

ineffective assistance claims his state habeas court previously rejected on the merits.” (Emphasis added).

13 Section 2254(b)(2) provides that “[a]n application for a writ of habeas corpus 

may be denied on the merits, notwithstanding the failure of the applicant to 

exhaust the remedies available in the courts of the State.” 28 U.S.C. 

§ 2254(b)(2) (emphasis added). 

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18-13995 Opinion of the Court 37 

Consistent with this conclusion, the district court reviewed 

Freeman’s claim that his trial counsel failed to investigate, develop, 

and present mitigating evidence under § 2254(d) in part, and de 

novo, in part. 

 First, as to the claim asserted in Alabama state court, the district court conducted review under § 2254(d), and found as follows: 

[Freeman] alleged no specific facts and presented no 

evidence to the circuit court during his Rule 32 proceeding evidentiary hearing supporting these particular ineffective assistance complaints. Moreover, 

[Freeman] failed to allege with any reasonable degree 

of specificity exactly what new or additional mitigating evidence his trial counsel should have presented 

during [his] June 1996 capital murder trial. Under 

such circumstances, the circuit court’s and Alabama 

Court of Criminal Appeals’ conclusions that these 

complaints failed to satisfy either prong of the Strickland standard was neither (1) contrary to, or involved 

an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of 

the United States, nor (2) resulted in a decision that 

was based on an unreasonable determination of the 

facts in light of the evidence presented in [Freeman’s] 

state trial and mandamus proceedings. 

The district court then reviewed de novo what it construed 

as Freeman’s “new factual allegations supporting his vague and 

conclusory Wiggins complaints about unpresented mitigating evidence . . . , identifying allegedly ‘new’” mitigation evidence. After 

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38 Opinion of the Court 18-13995 

“thoroughly examin[ing] the entire record” from the 1996 trial, including various state exhibits, and the testimony of Dr. Burkhart, 

Dr. Renfro, and Freeman’s former childcare worker, Copeland, the 

district court found that “trial counsel presented an extensive case 

in mitigation,” and that “this is not a case in which defense counsel 

failed to present extensive available mitigating evidence.” The district court also found that, with two exceptions, “all of the ‘new’ 

mitigating evidence” Freeman identified in support of his Wiggins

claims was “either available to [his] trial counsel or actually presented” to the sentencing jury. 

With regard to Freeman’s allegations of sexual abuse, the 

district court concluded that, “[o]n this record, and after independent, de novo review, the failure of [Freeman’s] June 1996 trial counsel to investigate potential child sexual abuse inflicted upon [Freeman] did not cause the performance of [his] trial counsel to fall below an objective level of reasonableness.” Specifically, the district 

court cited to extensive documentation of psychological evaluations in the state court record as establishing “that, throughout his 

developmental period, [Freeman] consistently either (1) failed to 

make any allegation of sexual abuse or (2) denied any sexual contact whatsoever.” Freeman did not allege that he told his trial 

counsel that he had been a victim of sexual abuse. Thus, Freeman 

alleged no facts and presented no evidence “establishing it was objectively unreasonable for his June 1996 trial counsel to refrain 

from investing their limited time and energy in an investigation of 

potential child sexual abuse inflicted upon [him].” 

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18-13995 Opinion of the Court 39 

Similarly, as to Freeman’s allegation that he suffered from 

PTSD, the district court concluded that the failure of trial counsel 

to investigate potentially mitigating evidence of neurological disorders, including PTSD, “did not cause the performance of [Freeman’s] trial counsel to fall below an objective level of reasonableness.” None of the mental health evaluations conducted prior to 

Freeman’s first trial diagnosed him with PTSD. Moreover, the 

court explained: 

[T]he testimony of Dr. Burkhart, Dr. Renfro, and Dr. 

Dixon revealed a variety of mental health diagnoses, 

including Conduct Disorder, Adjustment Reaction, 

Adjustment Disorder, Borderline Personality Disorder, Schizotypal Personality Disorder, and Antisocial 

Personality Disorder. [Freeman] offers no specific 

facts and no evidence showing his trial counsel were 

aware, or reasonably should have been aware, of any 

information suggesting that a neurological examination of [Freeman] by a neuropsychologist in June 1996 

would have produced any new or different mitigating 

evidence beyond that already available to [his] defense team. 

Finally, the district court found that there was “nothing objectively unreasonable” with either “the scope of the investigation 

into potentially mitigating evidence undertaken by [Freeman’s] 

trial counsel” or “the manner with which [Freeman’s] trial counsel 

presented their mitigating evidence through the lengthy, detailed, 

testimony of Dr. Burkhart, Dr. Renfro, and Ms. Copeland (which 

must be viewed in conjunction with the many detailed exhibits 

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40 Opinion of the Court 18-13995 

introduced into evidence near the conclusion of Dr. Burkhart’s testimony).” The court noted that presenting the same evidence “in 

anecdotal form from members of [Freeman’s] family” during the 

penalty phase “might very well have undermined the theme of [his] 

case in mitigating, i.e., that [Freeman] had been separated from, 

and deprived of stable relationships with, his family as a child - 

which led him to develop Schizotypal or Borderline Personality 

Disorder.” Thus, the district court found that Freeman’s complaint 

of ineffective assistance of trial counsel for failure to investigate, 

develop, and present mitigating evidence, based on factual allegations raised for the first time in his federal habeas corpus petition, 

did not satisfy the deficient performance prong of Strickland v. 

Washington, 466 U.S. 668 (1984). 

Next, the district court found that Freeman also failed to establish the prejudice prong of the Strickland standard. The court 

explained that, to the extent Freeman argued that an unidentified 

social worker and an unidentified neuropsychologist could have 

provided helpful testimony during the penalty phase, Freeman 

failed “to identify any such expert or to proffer an affidavit, sworn 

declaration, or other properly authenticated documentation showing what testimony each such expert could have furnished had they 

been called at [his] June 1996 capital murder trial.” And the court 

noted that Freeman failed to allege any facts or evidence showing 

that these witnesses were available and willing to testify at the trial. 

Such conclusory allegations, the district court found, failed to satisfy the prejudice prong of Strickland. 

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18-13995 Opinion of the Court 41 

 Likewise, the district court found that—having reviewed the 

“extensive mitigating evidence” presented at trial through “[v]oluminous records,” and trial testimony from Dr. Renfro, Dr. 

Burkhart, and Copeland—there was no reasonable probability that 

the outcome of the sentencing phase would have been different 

had trial counsel presented the anecdotal testimony from Freeman’s family members or others concerning Freeman being sexually abused. Freeman did not provide any affidavits or other evidence showing that Freeman or anyone else was available and willing to testify at the 1996 trial that Freeman was sexually abused. 

Moreover, any such testimony “would have been subject to potentially devastating cross-examination based upon the failure of those 

same witnesses to report their suspicions of child abuse to responsible law enforcement authorities or child protective services officers in a timely manner.” 

 Finally, the district court found that the evidence of guilt was 

overwhelming, as were the aggravating facts that Freeman committed “multiple intentional murders during the course of a burglary, robbery, and rape.” The evidence was also overwhelming 

that the murders were “heinous, atrocious, and cruel.” 

For all the above reasons, the district court found there was 

“no reasonable probability that, but for the failure of [Freeman’s] 

trial counsel to present any of the ‘new’ mitigating evidence identified in [his] pleadings in this court, the outcome of the punishment phase of [Freeman’s] June 1996 capital murder trial would 

have been different.” Thus, the district court concluded that (1) 

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42 Opinion of the Court 18-13995 

under de novo review, Freeman’s ineffective assistance of trial 

counsel claim failed to satisfy either prong of Strickland, and (2) 

under the Antiterrorism and Effective Death Penalty Act of 1996’s 

(“AEDPA”) deferential review, the Alabama Court of Criminal Appeals’ rejection on the merits of the claims made in the Rule 32 

proceeding did not warrant relief pursuant to § 2254(d).

 The district court also denied Freeman’s request for an evidentiary hearing for two reasons. First, even assuming the truth of 

all of Freeman’s “new potentially mitigating information,” the district court found that Freeman had not established Strickland prejudice. Second, Freeman failed to proffer any affidavit or sworn 

declaration in support of his new evidence. The district court 

found that there was “no need for an evidentiary hearing in federal 

court where a federal habeas petitioner fails to proffer any evidence 

he would seek to introduce at a hearing.”14

14 In denying Freeman’s request for an evidentiary hearing, the district court 

relied on several decisions from this Court. See, e.g., Jones v. Sec’y, Fla. Dep’t 

of Corr., 834 F.3d 1299, 1320 (11th Cir. 2016) (finding that the district court did 

not abuse its discretion in failing to grant petitioner an evidentiary hearing in 

a habeas corpus proceeding where the only evidence petitioner presented in 

federal court was bare allegations from state Rule 3.850 motion and petitioner 

never submitted an affidavit in state or federal court supporting specifics of 

claim; “Jones had not presented enough by way of specific factual averment 

or proffer to entitle him to an evidentiary hearing on this claim.”), Hamilton 

v. Sec’y, Fla. Dep’t of Corr., 793 F.3d 1261, 1266 (11th Cir. 2015) (“A § 2254 

petitioner is not entitled to an evidentiary hearing if he fails to ‘proffer evidence that, if true, would entitle him to relief.’” (quoting Pope v. Sec’y for 

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18-13995 Opinion of the Court 43 

 The district court ultimately denied “[a]ll relief requested in 

[Freeman’s] original federal habeas corpus petition (Doc. #5), as 

supplemented by the new facts alleged in his brief in support (Doc. 

#64).” The district court also denied Freeman a certificate of appealability. Final judgment was entered on July 2, 2018. On July 

27, 2018, Freeman filed a motion to alter or amend the judgment 

under Federal Rule of Civil Procedure 59(e), which the district 

court denied on August 15, 2018. 

 On October 5, 2018, Freeman filed a motion for a certificate 

of appealability in this Court. Relevant here, Freeman argued that 

“[r]easonable jurists could disagree with the district court’s procedural handling of Mr. Freeman’s substantial claims of ineffective 

assistance of counsel.” Specifically, Freeman argued that: (1) even 

accepting the district court’s characterization of Freeman’s ineffective assistance of trial counsel claims that differ from the ineffective 

assistance of trial counsel claims presented in the Rule 32 proceeding as “new” claims, the claims are procedurally defaulted, not unexhausted, and therefore reasonable jurists could disagree with the 

district court when it disposed of Freeman’s claims under 

§ 2254(b)(2) rather than under the rules of procedural default; (2) 

even if Freeman’s claims are unexhausted and eligible for review 

Dep’t of Corr., 680 F.3d 1271, 1291 (11th Cir. 2012))), and Chandler v. 

McDonough, 471 F.3d 1360, 1363 (11th Cir. 2006) (finding that the district 

court did not err in not granting an evidentiary hearing to the petitioner where 

the petitioner made no proffer to the district court of any evidence that he 

would seek to introduce at a hearing). 

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44 Opinion of the Court 18-13995 

under § 2254(b)(2), the district court exceeded the limits of review 

by conducting de novo review instead of determining whether 

Freeman raises a colorable federal claim; (3) the district court’s de 

novo review was not a true de novo review because it generated 

its own bases for seeing trial counsel’s errors in a light more favorable to the State; and (4) Freeman’s ineffective assistance of trial 

counsel claims should be analyzed under the rules of procedural 

default pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013). 

 On December 2, 2019, this Court granted Freeman’s motion 

for a certificate of appealability, in part, specifically with respect 

only to the following claim: “Whether trial counsel provided ineffective assistance of counsel in violation of the Sixth Amendment 

to the United States Constitution when at the penalty phase of trial, 

it failed to conduct a reasonable mitigation investigation and failed 

to uncover and present mitigation evidence.” This appeal ensued. 

II. STANDARD OF REVIEW 

 “When reviewing a district court’s grant or denial of habeas 

relief, ‘we review questions of law and mixed questions of law and 

fact de novo, and findings of fact for clear error.’” Reaves v. Sec’y, 

Fla. Dep’t of Corr., 717 F.3d 886, 899 (11th Cir. 2013) (quoting 

Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000)). “An ineffective assistance of counsel claim is a mixed question of law and 

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18-13995 Opinion of the Court 45 

fact subject to de novo review.” McNair v. Campbell, 416 F.3d 

1291, 1297 (11th Cir. 2005). 

 The issue of claim exhaustion presents a mixed question of 

law and fact, and a “district court’s ultimate conclusion that a claim 

is exhausted is subject to de novo review.” Fox v. Kelso, 911 F.2d 

563, 568 (11th Cir. 1990). Likewise, “[w]e review a district court’s 

determination as to whether a habeas petitioner is procedurally 

barred from raising a claim in federal court de novo.” Kelley v. 

Sec’y for Dep’t of Corr., 377 F.3d 1317, 1345 (11th Cir. 2004). 

III. ANALYSIS 

 On appeal, Freeman argues that that the district court erred 

in denying his federal habeas petition on his claim that his trial 

counsel rendered ineffective assistance of counsel in their investigation and presentation of mitigating evidence at the penalty phase 

of his trial. Significantly, Freeman’s argument on appeal concerns 

only the claims of ineffective assistance of trial counsel that the district court reviewed de novo under § 2254(b)(2) of AEDPA. Freeman, however, does not make a separate argument addressing the 

district court’s denial of relief under § 2254(d) of AEDPA. 

 In response, the State argues that the district court correctly 

held that the Alabama state courts’ denial of Freeman’s claim of 

ineffective assistance of trial counsel was not unreasonable. The 

State further argues that the district court “should have concluded 

its analysis with a review of the state court’s decisions” under 

§ 2254(d). Specifically, the State asserts that it was unnecessary for 

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46 Opinion of the Court 18-13995 

the district court to conduct de novo review of the “new” claims of 

ineffective assistance of counsel because they were not presented 

to the Alabama state courts and therefore are not exhausted—in 

essence, arguing that the claims are procedurally defaulted. The 

State alternatively argues that the district court’s de novo review is 

sound such that its denial of Freeman’s petition should be affirmed. 

But Freeman, in reply to the State’s arguments, contends that 

“[t]he question of whether the District Court should have reviewed 

de novo is not properly before the Court.” Freeman asserts that 

our review is limited to the issue defined in the certificate of appealability, i.e., whether his trial counsel provided ineffective assistance of counsel in its investigation and presentation of mitigation 

evidence. 

 We first address the scope of the issues specified for review 

by our COA and then turn to the merits of the case. 

A. Issues specified for review in this Court’s COA 

 Pursuant to 28 U.S.C. § 2253(c)(3), a COA “shall indicate 

which specific issue or issues” are subject to review from a final 

habeas corpus proceeding. To that end, this Court has held that 

“[i]t is abundantly clear that ‘our review is restricted to the issues 

specified in the certificate of appealability.’” Spencer v. Sec’y, Dep’t 

of Corr., 609 F.3d 1170, 1180 (11th Cir. 2010) (quoting Williams v. 

Allen, 598 F.3d 778, 795 (11th Cir. 2010)). However, we will construe the issue specified in the COA “in light of the pleadings and 

other parts of the record.” Murray v. United States, 145 F.3d 1249, 

1251 (11th Cir. 1998); see also, e.g., McClain v. Hall, 552 F.3d 1245, 

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18-13995 Opinion of the Court 47 

1254 (11th Cir. 2008) (refusing to consider appellant’s claim that his 

trial counsel was ineffective for failing to discover and present certain mitigating evidence where this Court granted a COA as to 

whether appellant’s trial counsel “rendered ineffective assistance in 

his investigation of mitigating evidence for the penalty phase of the 

trial” and the specific claim was not made in appellant’s request for 

a COA or in his state and federal habeas petitions). We will also 

construe the COA to encompass any issue that “must be resolved 

before reaching the merits” of a claim identified in the COA. Santos v. United States, 982 F.3d 1303, 1309 n.3 (11th Cir. 2020). 

 Here, Freeman contends the State’s argument about the district court’s de novo review of his claims that the State asserts are 

unexhausted and procedurally defaulted is beyond the scope of the 

COA in this case and should not be considered by this Court. But 

whether Freeman’s claims are barred from federal review, and if 

not, what legal standard applies, are threshold procedural issues 

that must be resolved before we can reach the merits of his Sixth 

Amendment claims. See McCoy v. United States, 266 F.3d 1245, 

1248 n.2 (11th Cir. 2001) (resolving procedural-default and retroactivity issues not specified in the COA). 

 Thus, we will consider the issue of whether Freeman’s 

claims that his trial counsel provided ineffective assistance during 

the penalty phase were exhausted or procedurally defaulted. See 

id., 266 F.3d at 1248 n.2; cf. Rozzelle v. Sec’y, Fla. Dep’t of Corr., 

672 F.3d 1000, 1009–10 (11th Cir. 2012) (determining that a 

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48 Opinion of the Court 18-13995 

threshold issue was “[n]ecessarily subsumed” within the COA, 

even though the COA did not expressly include the issue).

B. The district court’s review of Freeman’s “new” claims under 

§ 2254(b)(2) 

 Under § 2254(d), “[a]n application for a writ of habeas corpus 

on behalf of a person in custody pursuant to the judgment of a State 

court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim” either “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the 

United States,” or “(2) resulted in a decision that was based on an 

unreasonable determination of the facts in light of the evidence 

presented in the State court proceeding.” But § 2254(b)(2) provides 

that “[a]n application for a writ of habeas corpus may be denied on 

the merits, notwithstanding the failure of the applicant to exhaust 

the remedies available in the courts of the State.” 

 Here, the district court reviewed some of Freeman’s claims 

“de novo” under § 2254(b)(2). The court explained that Freeman 

presented “completely different, somewhat more factually detailed, versions of his ineffective assistance complaints aimed at the 

performance of his trial counsel.” The court found that these 

claims were “new” and “more factually specific than the conclusory claims he fairly presented to the state circuit court.” The district court determined that, to the extent Freeman presented new 

ineffective assistance claims, it would undertake de novo review of 

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18-13995 Opinion of the Court 49 

the claims under § 2254(b)(2). The district court explained its reasons for conducting this review: 

When, as here, a federal habeas corpus petitioner presents meritless or even frivolous new versions of conclusory ineffective assistance claims his state habeas 

court previously rejected on the merits, concerns of 

judicial economy justify the federal habeas court’s 

consideration and rejection on the merits of the new 

claims, rather than stay and abatement to permit the 

petitioner’s dilatory and useless return to state court 

to exhaust state habeas remedies on such meritless 

claims. 

Because the district court characterized Freeman’s claims of ineffective assistance of trial counsel—to the extent they relied on 

newly-presented factual allegations—as new and therefore unexhausted, the State argues that the district court should not have reviewed them de novo, but instead should have considered the new 

claims procedurally barred. 

 “Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); accord Ogle v. Johnson, 

488 F.3d 1364, 1368 (11th Cir. 2007) (“The habeas statute requires 

applicants to exhaust all available state law remedies before filing a 

federal habeas petition.”); 28 U.S.C § 2254(b)(1)(A). “Under the exhaustion requirement, a habeas petitioner challenging a state conviction must first attempt to present his claim in state court.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also Picard v. 

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50 Opinion of the Court 18-13995 

Connor, 404 U.S. 270, 276 (1971) (“Only if the state courts have had 

the first opportunity to hear the claim sought to be vindicated in a 

federal habeas proceeding does it make sense to speak of the exhaustion of state remedies.”). “The exhaustion requirement 

springs from principles of comity, which protect the state court’s 

role in the enforcement of federal law and prevent disruption of 

state court proceedings.” Ward v. Hall, 592 F.3d 1144, 1156 (11th 

Cir. 2010). “Consistent with the purpose of the exhaustion rule, 

‘state prisoners must give the state courts one full opportunity to 

resolve any constitutional issues by invoking one complete round 

of the State’s established appellate review process.’” Pruitt v. Jones, 

348 F.3d 1355, 1359 (11th Cir. 2003) (quoting O’Sullivan, 526 U.S. 

at 845); accord Ward, 592 F.3d at 1156 (“[T]o exhaust state remedies, a petitioner must fairly present every issue raised in his federal 

petition to the state’s highest court, either on direct appeal or on 

collateral review.”). In the context of a habeas proceeding in the 

Alabama state courts, one complete round of Alabama’s established appellate review process means that the claim must be presented on appeal to the Alabama Court of Criminal Appeals and on 

petition for discretionary review to the Alabama Supreme Court. 

See Pruitt, 348 F.3d at 1359. 

 “[O]nce the federal claim has been fairly presented to the 

state courts, the exhaustion requirement is satisfied.” Picard, 404 

U.S. at 275; accord McNair, 416 F.3d at 1302. “The Supreme Court 

has instructed us that if ‘the substance of a federal habeas corpus 

claim [was] first . . . presented to the state courts,’‘despite 

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18-13995 Opinion of the Court 51 

variations in the . . . factual allegations urged in its support,’the 

claim is exhausted.” Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271, 

1286 (11th Cir. 2012) (alterations in original) (emphasis added) 

(quoting Picard, 404 U.S. at 277–78). In accordance with this principle, this Court has stated that the claims petitioners present in 

their federal habeas petition are not required to be “carbon copies 

of the claims they presented to the state courts.” Kelley, 377 F.3d 

at 1344. Rather, 

[w]e recognize that habeas petitioners are permitted 

to clarify the arguments presented to the state courts 

on federal collateral review provided that those arguments remain unchanged in substance. . . We simply 

require that petitioners present their claims to the 

state courts such that the reasonable reader would 

understand each claim’s particular legal basis and specific factual foundation.

Id. at 1344–45 (emphasis added); accord McNair, 416 F.3d at 1302. 

And “courts should exercise flexibility in determining whether defendants have met [the exhaustion] requirement.” Pope, 680 F.3d 

at 1286 (quoting Cummings v. Dugger, 862 F.2d 1504, 1507 (11th 

Cir. 1989)). 

 With these principles in mind, we conclude that Freeman’s 

claim of ineffective assistance of trial counsel was exhausted in state 

court. In Freeman’s fourth amended Rule 32 petition filed in Alabama state court, he alleged as follows: 

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52 Opinion of the Court 18-13995 

J. Trial counsel failed to investigate, develop and present available evidence in mitigation of petitioner’s 

punishment. But for counsel’s deficient performance, 

there exists a reasonable probability that the result of 

petitioner’s trial would have been different. 

K. Trial counsel failed to present available evidence 

regarding petitioner’s background and his mental 

health history to the jury in a manner which would 

have allowed the jury to give this evidence mitigating 

effect during the sentencing phase. But for counsel’s 

deficient performance, there exists a reasonable probability that the result of petitioner’s trial would have 

been different. 

 Freeman’s claim in state court did not containany factual 

allegations in support of his claim that his trial counsel were ineffective in failing to investigate and present “substantial evidence” 

of mitigation. His allegations remained largely unchanged in his 

briefing to the Alabama Court of Appeals and the Supreme Court 

of Alabama.

 And Freeman’s federal habeas petition raised the same legal 

(and conclusory) basis for his claim of ineffective assistance of counsel as it was presented in the Alabama state courts. Freeman 

claimed that his trial counsel failed “to investigate, develop, and 

present evidence of [Freeman’s] background and mental health 

problems in a manner that would have allowed the jury to give it 

mitigating effect.” Freeman reiterated the argument he made to 

the Alabama courts—that trial counsel had “squandered the 

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18-13995 Opinion of the Court 53 

mitigating value of the information about [Freeman’s] background” by couching this information “almost entirely” in terms of 

the “ill-conceived effort to establish that petitioner was not guilty 

by reason of mental disease or defect.” He repeated his argument 

that, with the documentation about Freeman’s life that was available at trial, and with the assistance of a mitigation investigator, a 

social worker, and a neuropsychologist, trial counsel could have 

presented the jury with substantial evidence of mitigation. He further argued that trial counsel’s decision to rely “strictly on an insanity defense that lacked evidentiary support” was “objectively 

unreasonable,” and diverted resources from the case for mitigation. 

However, when Freeman filed his district court brief on the 

merits, he set forth almost twenty pages of extensive factual allegations in support of his claim that his counsel were ineffective for 

failure to investigate, develop, and present evidence of his background and mental health problems in a manner that would have 

allowed the jury to give it mitigating effect. In that brief on the 

merits, Freemen alleged mitigation information concerning abuse 

and neglect he suffered while in state care from the time he was a 

baby until he was eighteen years old. Freeman claimed this “more 

extensive information” was developed in an investigation conducted for the federal habeas proceedings. The information was 

obtained only after a social worker and psychologist reviewed the 

documents admitted into evidence at trial and “saw strong indications of possible sexual abuse,” and after a mitigation specialist 

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54 Opinion of the Court 18-13995 

conducted interviews. None of the factual allegations were supported by affidavit or sworn to in any way, although some of the 

allegations were supported by citations to the exhibits entered at 

trial. Among the information gathered in the investigation was a 

claim that Freeman was sexually abused. Specifically, the new factual allegations included a claim that Freeman’s brother, Jimmy 

Terry, saw Freeman being sexually abused by Thomas Smith, the 

husband of Freeman’s older stepsister, Edna Smith, while they 

were living with her. Additionally, Ms. Packer, a worker at St. 

Mary’s, believed that Freeman was sexually abused during his time 

there. 

 Additionally, Freeman obtained the services of an unidentified social worker who “performed a thorough review of the records, conducted interviews, and examined additional information 

gathered during the investigation.” She determined that Freeman’s “entire life” had been marked by rejection, trauma, physical 

and sexual abuse, and mistreatment. Freeman alleged that the social worker determined that “[m]any of the individuals who interacted with [Freeman] were not qualified to provide proper care and 

treatment, and consequently failed to identify (or perhaps to even 

look for) the cause of what was labeled early on as a ‘conduct’ problem: the sexual abuse and trauma that young [Freeman] suffered.” 

Freeman also retained an unidentified neuropsychologist who 

“was provided with the documents contained in the record as well 

as the additional information gathered through a competent 

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18-13995 Opinion of the Court 55 

investigation” and found that Freeman suffered from PTSD and 

had shown signs of disassociation.

Although the question of exhaustion is a closer call than it 

was in Pope, as Freeman’s claim in state court did not containany 

factual allegations in support of his claim that his trial counsel were 

ineffective in failing to investigate and present “substantial evidence” of mitigation, we conclude that “the substance of” Freeman’s claim was first presented to the state court, despite the “variations in the . . . factual allegations urged in its support.” See Pope, 

680 F.3d at 1295 (quoting Picard, 404 U.S. at 277–78). In his Rule 

32 petition, Freeman claimed that his counsel “failed to present 

available evidence regarding petitioner’s background and his mental health history to the jury in a manner which would have allowed the jury to give this evidence mitigating effect during the 

sentencing phase.” At its core, this is the same legal issue that Freeman presented to the district court in his federal habeas petition. 

Cf. id. at 1287 (“Here, the failure-to-mitigate-at-sentencing claim as 

pled in Pope's federal habeas petition raised the exact same legal 

issue that was presented to the state court—that but for the complete absence of any investigation and presentation of mitigation 

evidence, there is a reasonable probability that the result of Pope's 

sentencing proceeding would have been different.”). While Freeman “certainly expanded on the topics raised earlier in state 

court”—i.e., almost thirty pages of factual allegations of mitigation 

information, including explicit and lengthy allegations of physical 

abuse, sexual abuse, and PTSD—“we cannot ignore that they 

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56 Opinion of the Court 18-13995 

involve the same issues.” See id. Ultimately, the new factual allegations do not change the substance of Freeman’s claim. 

 Having concluded that Freeman’s claim as to the new factual allegations was exhausted in state court, we now turn to Freeman’s claims. 

C. Freeman’s claims of ineffective assistance of trial counsel 

 As an initial matter, we again recognize that the district 

court conducted de novo review of and denied Freeman’s claims 

relating to the new factual allegations raised in his brief on the merits, instead of denying those claims as unexhausted and procedurally barred, pursuant to § 2254(b)(2). See LeCroy v. Sec’y, Fla. 

Dep’t of Corr., 421 F.3d 1237, 1261 & n.26 (11th Cir. 2005) (explaining that a federal court may alternatively deny federal habeas relief 

on an unexhausted federal claim on the merits under § 2254(b)(2), 

or on the basis of a procedural bar). However, as previously noted, 

we conclude that those claims were in fact exhausted. See Pope, 

680 F.3d at 1287. However, for ease of reference, we divide our 

discussion of Freeman’s claims into those that the district court analyzed under AEDPA and those that the district court reviewed de 

novo. 

1. Claims the District Court Addressed Under AEDPA 

 The district court reviewed the claims that it deemed exhausted pursuant to § 2254(d). Specifically, the court reviewed the 

Alabama courts’ rejection on the merits of Freeman’s “highly conclusory versions of these same ineffective assistance complaints 

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18-13995 Opinion of the Court 57 

during the course of [his] Rule 32 proceedings,” and found that 

Freeman “alleged no specific facts and presented no evidence to the 

circuit court” in support of the claims. Additionally, the court explained Freeman “failed to allege with any reasonable degree of 

specificity exactly what new or additional mitigating evidence his 

trial counsel should have presented” at his trial. As such, the court 

found that, under the circumstances, the Alabama courts’ conclusions regarding Freeman’s claims under Strickland were neither 

“contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” nor 

“resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented” in Freeman’s 

state court proceedings. See § 2254(d).

 On appeal, Freeman fails to make any argument that the Alabama Court of Criminal Appeals’ denial of Freeman’s claim of ineffective assistance of counsel was contrary to or involved an unreasonable application of Strickland, or that it was based on an unreasonable determination of the facts in light of the evidence presented in state court. Freeman’s argument on appeal is instead directed toward the district court’s de novo review of claims presented for the first time in the district court—not the district court’s 

§ 2254(d) review of the Alabama state courts’ decisions. Thus, 

Freeman has abandoned the issue on appeal. See Atkins v. Singletary, 965 F.2d 952, 955 n.1 (11th Cir. 1992) (holding that a habeas 

petitioner abandons an issue by failing to address it on appeal). 

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58 Opinion of the Court 18-13995 

 But, even if we considered the issue, Freeman is not entitled 

to relief. Under § 2254(d), “the availability of federal habeas relief 

is limited with respect to claims previously ‘adjudicated on the 

merits’ in state-court proceedings.” Harrington, 562 U.S. at 92 

(quoting § 2254(d)). Here, the “last related state-court decision that 

. . . provide[s] a relevant rationale,” Wilson v. Sellers, 138 S. Ct. 

1188, 1192 (2018), is the Alabama Court of Criminal Appeals’ unpublished memorandum decision affirming the judgment of the 

postconviction court denying Freeman’s Rule 32 petition. The appellate court held that Freeman was not entitled to an evidentiary 

hearing in the postconviction court on his claim of ineffective assistance of counsel because “none of his allegations were pleaded 

with sufficient specificity to satisfy the requirements in Rule 32.3 

and Rule 32.6(b).” Freeman v. Alabama, No. CR-02-1971, at 15 

(Ala. Crim. App. June 17, 2005). The appellate court further held 

that: 

Freeman did not allege in his petition what “available 

evidence” there was about his background or mental 

health history that his counsel did not present or what 

“manner” he believes his counsel should have presented the unidentified evidence. Likewise, other 

than the conclusory allegation that but for counsel’s 

conduct in this regard, there was a reasonable probability that the outcome of his trial would have been 

different, Freeman alleged no facts tending to indicate 

that he was prejudiced by counsel’s preparation for 

and conducting of the penalty phase of his trial. His 

contentions in this regard are vague and conclusory 

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18-13995 Opinion of the Court 59 

and wholly insufficient to satisfy his burden of pleading. Therefore, denial of these allegations of ineffective assistance of trial counsel was proper. 

Id. at 24–25. 

This Court has “held repeatedly that a state court’s rejection 

of a claim under Rule 32.6(b) is a ruling on the merits.” Boyd v. 

Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320, 1331 (11th Cir. 2012). 

Because the Alabama appellate court’s decision was on the merits, 

§ 2254(d) applies. 

In an ineffective assistance of counsel claim, § 2254(d)’s 

terms are judged by the standard set forth in Strickland v. Washington. Harrington, 562 U.S. at 92. “To succeed on an ineffective 

assistance claim under Strickland, Petitioner must show (1) that his 

trial ‘counsel’s performance was deficient’ and (2) that it ‘prejudiced [his] defense.’” Whatley v. Warden, Ga. Diagnostic & Classification Ctr., 927 F.3d 1150, 1175 (11th Cir. 2019) (alteration in 

original) (quoting Strickland, 466 U.S. at 687). And to determine 

whether Freeman is entitled to habeas relief under § 2254(d), we 

must ask “(1) whether the [state court] decisions were ‘contrary to, 

or involved an unreasonable application of, clearly established Federal law, as determined’ in Strickland, or (2) whether the . . . decisions were ‘based on an unreasonable determination of the facts in 

light of the evidence presented in the state court proceeding.’” Id.

(citations omitted). “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.’” Harrington, 562 U.S. at 101 (quoting Williams 

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60 Opinion of the Court 18-13995 

v. Taylor, 529 U.S. 362, 410 (2000)). Indeed, under AEDPA, “[a] 

state court must be granted a deference and latitude that are not in 

operation when the case involves review under the Strickland

standard itself.” Id. The standard for habeas relief under AEDPA 

is “difficult to meet,” as the Supreme Court has explained: 

[Section 2254(d)] preserves authority to issue the writ 

in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents. It goes no further. . . . As a condition for obtaining habeas corpus 

from a federal court, a state prisoner must show that 

the state court’s ruling on the claim being presented 

in federal court was so lacking in justification that 

there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. 

Id. at 102–03. 

Here, Freeman’s Rule 32 petition, filed in the Alabama state 

court, alleged the following: 

J. Trial counsel failed to investigate, develop and present available evidence in mitigation of petitioner’s 

punishment. But for counsel’s deficient performance, 

there exists a reasonable probability that the result of 

petitioner’s trial would have been different. 

K. Trial counsel failed to present available evidence 

regarding petitioner’s background and his mental 

health history to the jury in a manner which would 

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18-13995 Opinion of the Court 61 

have allowed the jury to give this evidence mitigating 

effect during the sentencing phase. But for counsel’s 

deficient performance, there exists a reasonable probability that the result of petitioner’s trial would have 

been different. 

In affirming the trial court’s denial of Freeman’s claim, the appellate court found that“none of his allegations were pleaded with 

sufficient specificity to satisfy the requirements in Rule 32.3 and 

Rule 32.6(b)” and that Freeman’s claim of prejudice was “vague 

and conclusory and wholly insufficient to satisfy his burden of 

pleading.” Freeman, No. CR-02-1971, at 24–25. As such, the Alabama appellate court concluded that the denial of these allegations 

of ineffective assistance of trial counsel was proper.

We agree with the district court’s determination under 

AEDPA that Freeman has not demonstrated the Alabama courts’ 

denial of his Strickland claims were “contrary to, or involved an 

unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or “resulted in a decision that was 

based on an unreasonable determination of the facts in light of the 

evidence presented” in Freeman’s state court proceedings. 

Our decision in Boyd is instructive. In Boyd, Boyd’s Rule 32 

petition “baldly assert[ed]” his claims of ineffective assistance of 

counsel. 697 F.3d at 1332. “Taking these vague and conclusory 

allegations together, the Alabama Court of Criminal Appeals determined that Boyd’s claim fell far short, on its face, of establishing 

either Strickland’s performance or prejudice prong.” Id. This 

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62 Opinion of the Court 18-13995 

Court “agree[d] with the district court that the Alabama court’s dismissal of this claim as facially insufficient was neither contrary to 

nor an unreasonable application of Strickland.” Id. at 1333. This 

Court explained that “because Boyd’s petition completely failed to 

detail what mitigating evidence should have been developed, and, 

failed to provide the kind of evidence that may warrant relief under 

Strickland,” it could not say that the Alabama appellate court’s rejection of this claim was contrary to or an unreasonable application 

of Strickland. Id. at 1334. 

 Similarly, here, given the bald assertions in Freeman’s Rule 

32 petition, it cannot be said that the Alabama Court of Criminal 

Appeals’ denial of Freeman’s claim on the basis that his allegations 

failed to satisfy his burden of pleading was contrary to or an unreasonable application of Strickland. 

 Accordingly, we affirm the district court’s denial of these 

claims. 

2. Claims the District Court Reviewed De Novo 

 As explained above, we conclude that Freeman’s claim of ineffective assistance of counsel—though based in part on factual allegations presented for the first time in his district court brief on 

the merits—was exhausted in state court. However, because the 

district court believed otherwise, it conducted de novo review as 

to the claim and denied it on the merits. See § 2254(b)(2); LeCroy, 

421 F.3d at 1261 n.26. Because we conclude that Freeman’s claim 

as to the new factual allegations was exhausted here, we review the 

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18-13995 Opinion of the Court 63 

claim under AEDPA. And, under AEDPA’s highly deferential 

standard of review, we deny Freeman’s claim. See Frazier v. Bouchard, 661 F.3d 519, 531 (11th Cir. 2011) (“[W]here the relevant 

claim implicates Strickland, our review is even more deferential.”). 

 Again, to determine whether Freeman is entitled to habeas 

relief, we must determine “(1) whether the [state court] decisions 

were ‘contrary to, or involved an unreasonable application of, 

clearly established Federal law, as determined’ in Strickland, or (2) 

whether the . . . decisions were ‘based on an unreasonable determination of the facts in light of the evidence presented in the state 

court proceeding.’” Whatley, 927 F.3d at 1175 (citations omitted). 

Under Strickland, a convicted defendant who claims that he was 

denied effective assistance of counsel is required to show that 

“counsel’s performance was deficient,” i.e., “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ 

guaranteed the defendant by the Sixth Amendment.” 466 U.S. at 

687. Additionally, “the defendant must show that the deficient performance prejudiced the defense,” which “requires showing that 

counsel’s errors were so serious as to deprive the defendant of a fair 

trial, a trial whose result is reliable.” Id. As to the Strickland deficiency prong, “a person challenging a conviction must show that 

‘counsel’s representation fell below an objective standard of reasonableness.’” Harrington, 562 U.S. at 104 (quoting Strickland, 466 

U.S. at 688). “A court considering a claim of ineffective assistance 

must apply a ‘strong presumption’ that counsel’s representation 

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64 Opinion of the Court 18-13995 

was within the ‘wide range’ of reasonable professional assistance.” 

Id. (quoting Strickland, 466 U.S. at 689). 

 Here, the relevant state court decision on the merits of Freeman’s claim concluded that Freeman was not entitled to an evidentiary hearing in the postconviction court on his claim of ineffective 

assistance of counsel because “none of his allegations were pleaded 

with sufficient specificity to satisfy the requirements in Rule 32.3 

and Rule 32.6(b).” Freeman, No. CR-02-1971, at *15. In reviewing 

the state court’s decision, our review is limited under AEDPA to 

“whether the state court's determination that [Freeman] failed to 

plead sufficient facts in his Rule 32 petition to support a claim of 

ineffective assistance of counsel was contrary to or an unreasonable 

application of Supreme Court precedent.” Powell v. Allen, 602 

F.3d 1263, 1273 (11th Cir. 2010). We therefore “look only to the 

allegations in [Freeman’s] Rule 32 petition and whether those allegations sufficiently state a claim for ineffective assistance of counsel.” Id.; accord Borden v. Allen, 646 F.3d 785, 817 (11th Cir. 2011) 

(explaining that the record under review for purposes of 

§ 2254(d)(1) “is limited to the record that was before the state court 

that adjudicated the claim on the merits” (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011))). 

 Therefore, we must answer two questions to resolve this habeas appeal: (1) whether Freeman’s Rule 32 petition “pleaded 

enough specific facts that, if proven, amount to a valid penalty 

phase ineffective assistance of counsel claim”; and (2) “if we answer 

the first question in the affirmative, we must determine whether 

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18-13995 Opinion of the Court 65 

the Alabama Court of Criminal Appeals’s decision to the contrary 

was unreasonable under § 2254(d).” Daniel v. Comm’r, Ala. Dep’t 

of Corr., 822 F.3d 1248, 1261 (11th Cir. 2016). As noted above, beyond the bald assertions in Freeman’s Rule 32 petition, Freeman 

failed to plead any factual allegation with sufficient specificity in 

support of his claim. See Boyd, 697 F.3d at 1333–34. And while 

Freeman now raises additional allegations in support of his claim, 

“we do not consider such supplemental allegations . . . when reviewing the reasonableness of the state court’s resolution of this 

claim, which was based on the allegations before it,” in accordance 

with AEDPA. Powell, 602 F.3d at 1273 n.8; accord Borden, 646 

F.3d at 816 (“[W]e believe that a review of a state court adjudication on the merits in light of allegations not presented to the state 

court—for example, by examining additional facts or claims presented for the first time in a petitioner’s federal habeas petition—

would insufficiently respect the ‘historic and still vital relation of 

mutual respect and common purpose existing between the States 

and the federal courts.’” (quoting Williams v. Taylor, 529 U.S. 420, 

436 (2000))). 

 Accordingly, Freeman has not demonstrated, under 

AEDPA, that the Alabama courts’ denial of his Strickland claims 

was “contrary to, or involved an unreasonable application of, 

clearly established Federal law, as determined by the Supreme 

Court” or “resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented” in his 

state court proceedings. 

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66 Opinion of the Court 18-13995 

IV. CONCLUSION 

 For the foregoing reasons, we affirm the district court’s denial of Freeman’s habeas petition. 

 AFFIRMED. 

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18-13995 JILL PRYOR, J., Concurring in the judgment 1 

JILL PRYOR, Circuit Judge, concurring in the judgment: 

David Freeman, born into challenging circumstances and 

thrust into a nightmarish childhood, committed a nightmarish 

crime when he was still a teenager. There is no doubt that his lead 

trial counsel abdicated many of her duties, failing, for example, 

even to attend the start of the guilt phase of the trial and speaking 

for fewer than four pages of transcript at the penalty phase in defense of her client’s life. After Mr. Freeman’s conviction, new lawyers filed a shell of a state postconviction petition, omitting critical 

details that may have supported Mr. Freeman’s claim that his trial 

counsel were ineffective in failing to investigate and present a case 

in mitigation of the death penalty. In federal habeas proceedings, 

Mr. Freeman has for the first time alleged the kind of mitigating 

circumstances that, if true, could entitle him to habeas relief despite 

the aggravated crime he committed: extreme physical abuse, sexual abuse, housing instability, neglect, abandonment, severe poverty, and family history of mental health problems, Mr. Freeman 

included. But at this point, these allegations are, sadly, too little too 

late. 

I write separately because, in my view, the majority opinion 

“is too long and says too much about too many things unnecessarily.” Green v. Sec’y, Dep’t of Corr., 28 F.4th 1089, 1160 (11th Cir. 

2022) (Jordan, J., dissenting in part and concurring in part). I aim to 

be brief. 

After he was convicted and sentenced to death, Mr. Freeman 

filed a petition for postconviction relief under Alabama Rule of 

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2 JILL PRYOR, J., Concurring in the judgment 18-13995 

Criminal Procedure 32. In his petition he alleged that his trial counsel had failed to investigate and present a constitutionally adequate 

case in mitigation of the death penalty. Aside from alleging that 

counsel failed to unearth and present evidence of his “background” 

and “mental health history,” the petition was completely devoid of 

factual allegations. The Rule 32 court held an evidentiary hearing 

anyway, denying relief afterward. On appeal, the Alabama Court 

of Criminal Appeals concluded that the hearing had been unwarranted. Mr. Freeman had failed to plead his claim with sufficient 

specificity as required by Alabama Rules of Criminal Procedure 

32.3 and 32.6(b), so his petition should have been dismissed at the 

pleading stage. I agree with the majority opinion that this decision 

was neither contrary to nor an unreasonable application of clearly 

established law under the Antiterrorism and Effective Death Penalty Act of 1996. 

Fast forward to federal habeas proceedings. In his merits 

brief, Mr. Freeman specifically alleged, for the first time, the universe of mitigating evidence trial counsel should have uncovered 

had they conducted a reasonable investigation of Mr. Freeman’s 

background and mental health. The allegations—because, without 

any evidence to support them, that is all they are—paint a truly 

tragic portrait of Mr. Freeman’s life leading up to the crime. Nonetheless, I must concur in the majority opinion’s decision to deny 

him relief. These allegations were not presented to the state court, 

and “the record under review [of a state court’s decision] is limited 

to the record in existence at that same time, i.e., the record before 

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18-13995 JILL PRYOR, J., Concurring in the judgment 3 

the state court.” Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011). 

So, Mr. Freeman could not rely on new evidence (let alone mere 

allegations) not in the state court record to argue that federal courts 

should grant habeas relief. 

I would be remiss, however, if I failed to reiterate this: the 

system failed Mr. Freeman all along the way. No one disputes that 

Mr. Freeman suffered tremendously as a child and adolescent. At 

age 18, he committed a horrific crime. Mr. Freeman, on trial for his 

life, did not seem to get the fair shake the Constitution guarantees: 

counsel who fulfilled their duty to investigate and present a case in 

mitigation and the opportunity to have his ineffective assistance of 

counsel allegations heard postconviction. Now, federal habeas 

counsel has told us what might have been presented in mitigation 

of the death penalty. If the allegations are true, it is at least conceivable that a reasonable factfinder would have voted against death. 

But allegations are not evidence, and now it is far too late. 

Respectfully, I concur in the judgment. 

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