DUBINA, Circuit Judge:
Petitioner Brian Keith Terrell ("Terrell"), a Georgia death row inmate, appeals the district court's judgment denying him federal habeas relief pursuant to 28 U.S.C. § 2254. The district court denied his request for a certificate of appealability ("COA"), but we granted his application for a COA with regard to two claims of ineffective assistance of counsel. After reviewing the record, reading the parties' briefs and having the benefit of oral argument, we affirm the district court's judgment denying Terrell habeas relief.
Terrell's mother, Barbara Terrell ("Barbara"), was a friend to the victim, seventy-year-old John Watson ("Watson"), who suffered health problems and required dialysis three times per week. For over two years, she had been assisting him with meals and errands without any compensation. The two had discussed marriage, and Watson had promised to include Barbara in his will. While she was performing these acts of kindness, Terrell was in prison. On May 1, 1992, Terrell was released from prison and thus began the tragic events that led to Watson's murder.
On June 20, 1992, Watson notified the sheriff's office that he had received ten canceled checks that had been stolen and forged, totaling $8,700. Some of the checks had been made payable to Terrell. Because of his friendship with Barbara, Watson asked the sheriff to wait a few days before arresting Terrell. Watson informed Barbara about the forgeries and told her that he would not request a warrant for Terrell if he returned most of the money by Monday, June 22. Barbara relayed this information to Terrell, who promised to repay the money. However, the following day, Terrell reneged on his promise.
Terrell v. State, 271 Ga. 783, 784-86, 523 S.E.2d 294, 296-97 (1999).
A Newton County, Georgia, grand jury originally indicted Terrell on July 13, 1992, for malice murder, felony murder, and armed robbery of Watson. Later, the grand jury charged Terrell on ten counts of first degree forgery. Terrell's first trial, conducted in Houston County based on a change of venue, ended in a mistrial because the jury was unable to reach a
Terrell's third trial began in January 2001, and the jury again convicted him on the malice murder charge and the ten counts of first-degree forgery. Strauss continued to represent Terrell and utilized a different defense than he did in the first two trials. Instead of pointing fingers at numerous possible suspects like he did at the first two trials, Strauss focused the defense on Terrell's cousin, Jermaine Johnson ("Johnson"), as the lone gunman and argued that Terrell was not present at the crime scene. Terrell himself testified at the third trial and although he admitted to stealing and forging the checks, he denied any involvement in the beating or murder of Watson. However, the jury found Terrell guilty and recommended a death sentence for the malice murder conviction, finding the following aggravating circumstances: (1) the murder was committed while Terrell was engaged in an aggravated battery and an armed robbery; and (2) the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind and an aggravated battery to the victim before death. See O.C.G.A. § 17-10-30(b)(2), (7) (1998). The trial court accepted the jury's recommendation and, in addition to imposing the death sentence, sentenced Terrell to ten consecutive ten-year sentences for the forgery convictions. Terrell filed a motion for a new trial, and an amended motion for new trial, both of which the trial court denied. On appeal, the Georgia Supreme Court affirmed Terrell's convictions and sentences. See Terrell v. State, 276 Ga. 34, 572 S.E.2d 595 (2002). The United States Supreme Court denied certiorari review. See Terrell v. Georgia, 540 U.S. 835, 124 S.Ct. 88, 157 L.Ed.2d 64 (2003).
Terrell filed a state habeas petition, and after an amendment to the petition and an evidentiary hearing, the trial court denied relief as to Terrell's convictions but granted relief as to his death sentence, based on a number of specific claims of ineffective assistance of trial counsel. On appeal, the Georgia Supreme Court reversed the grant of habeas relief as to Terrell's death sentence, reinstated his death sentence, and affirmed the habeas court's denial of relief on all other claims. See Hall v. Terrell, 285 Ga. 448, 679 S.E.2d 17 (2009).
Terrell then sought federal habeas corpus relief, which the district court denied. After the district court denied Terrell's request for a COA, we granted his request on two claims of ineffective assistance of counsel: (1) whether counsel was ineffective for failing to obtain the services of a forensic pathologist; and (2) whether counsel was ineffective for not challenging sufficiently the armed robbery statutory aggravator. Based upon our independent review, we conclude that there is no merit to these claims of ineffectiveness of counsel, and we therefore affirm the district court's judgment denying Terrell habeas relief.
On habeas, we review de novo the district court's conclusions on legal questions and mixed questions of law and fact, and we review the district court's findings of fact for clear error. Mason v. Allen, 605 F.3d 1114, 1118 (11th Cir.2010). The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 ("AEDPA") imposes a highly deferential standard for reviewing the state court rulings on the merits of constitutional claims raised by a petitioner. "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." Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). Hence, AEDPA permits a federal habeas court to grant habeas relief only when the decision of the state court either was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
The phrase "contrary to" means that the state court decision applied a rule that contradicts the governing law set forth by the United States Supreme Court, or when faced with materially indistinguishable facts, it arrived at a result that differs from Supreme Court precedent. Kimbrough v. Sec'y, Dep't of Corr., 565 F.3d 796, 799 (11th Cir.2009). An "unreasonable application" of clearly established federal law occurs when "the state court correctly identifies the governing legal principle ... but unreasonably applies it to the facts of the particular case." Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 1522, 146 L.Ed.2d 389 (2000). "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Richter, 562 U.S. at ___, 131 S.Ct. at 786. Therefore, we must deny federal habeas relief as long as "some fairminded jurists could agree with the state court's decision, although others might disagree." Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011).
Terrell's burden to establish a claim of ineffective assistance of counsel is onerous. He must show both that his counsel's assistance was deficient and that the deficient performance prejudiced him. Richter, 562 U.S. at ___, 131 S.Ct. at 787. Counsel's assistance is deficient if it "fell below an objective standard of reasonableness,"
Terrell takes issue with the district court's finding that the state court's adjudication of his claim of ineffective assistance for counsel's failure to obtain the services of a forensic pathologist was neither contrary to, nor an unreasonable application of, Strickland, nor was it based on an unreasonable determination of the facts presented in the state proceedings. Terrell agrees with the state trial court that his attorney performed deficiently in this regard; however, he disagrees with the Georgia Supreme Court's finding that although his counsel was ineffective, Terrell did not demonstrate prejudice. See Terrell, 285 Ga. at 453, 679 S.E.2d at 22. Terrell asserts that there is a reasonable probability that the jury would not have found the requisite aggravating factors for imposition of the death penalty if Strauss had presented evidence from a forensic pathologist to challenge the State's expert, who opined that the victim was still alive at the time he suffered the blows to his face and head. Thus, he contends that his sentencing was prejudiced as a result of his counsel's deficient performance, and the district court erred in denying him habeas relief on this claim.
The state habeas court granted Terrell relief on this claim, and the Georgia Supreme Court reversed, finding that Terrell could not demonstrate that he suffered prejudice from his counsel's deficient performance in failing to obtain the assistance of a forensic pathologist. In its analysis, the state supreme court first noted that the State presented testimony at trial from a forensic pathologist, Dr. Mark Koponen, who testified that the victim was shot first and then beaten severely about the face and head, possibly with the butt of a pistol. Id. at 451, 679 S.E.2d at 21. Dr. Koponen further testified at trial that the victim was alive during the beating because he had bleeding underneath the membrane covering the brain. Id. at 452, 679 S.E.2d at 21. "Dr. Koponen testified that the victim was only possibly conscious during the beating, but that he was definitely alive." Id.
The state supreme court then highlighted the testimony from the state habeas hearing and concluded that Terrell did not demonstrate that he was prejudiced by his counsel's ineffectiveness in failing to utilize a forensic pathologist.
Id. at 452-54, 679 S.E.2d at 21-23 (internal quotation marks, citations and footnotes omitted).
On federal habeas review, the district court analyzed only the prejudice finding of the Georgia Supreme Court and concluded that the record evidence supported the state supreme court's factual determinations. It also concluded that the state supreme court's adjudication was in accord with Strickland and its progeny. The district court found that the state supreme court did not unreasonably apply Strickland when it determined that trial counsel's alleged failure to obtain a forensic pathologist did not prejudice Terrell because the likelihood of a different result was not substantial. The district court reasoned that even if Terrell had presented the forensic pathologist's testimony that the victim was dead when he received the blows to the head and face, the jury would still have found the depravity of mind aggravator to exist because of the repulsive and significant injuries to the victim. See O.C.G.A. § 17-10-30(b)(7). Thus, the district court concluded that Dr. Arden's testimony, if given at trial, would not have created a probability sufficient to undermine confidence in the death sentence.
The district court properly denied Terrell relief on this claim. The state supreme court correctly found that trial counsel's failure to engage the services of a forensic pathologist did not prejudice Terrell because the "likelihood of a different result [was not] substantial." Richter, 562
The state supreme court's factual findings are supported by the record. Our record review indicates that at Terrell's third trial, Strauss employed a residual doubt mitigation theory which was different than the defense Strauss presented at the two earlier trials. Strauss argued vehemently that Terrell was not present at the scene of the crime, and he noted the lack of physical evidence presented by the State to prove Terrell's guilt. Strauss attempted to plant the seed of residual doubt in the jurors' minds by pointing to Terrell's cousin, Johnson, as the lone murderer. Terrell himself testified that he did steal and forge Watson's checks, but he did not murder and beat him.
The state supreme court reasonably applied the prejudice prong of Strickland to the facts. In light of the residual doubt theory, Strauss did not present the testimony of a forensic pathologist to contradict the State's expert on the issue of whether the victim was alive or dead at the time he received the blows to the face and head. That distinction was not vital to the defense. Evidence that the victim was dead when he received the numerous blows to his head and face would have undercut the defense theory that whoever committed the gruesome murder and mutilation did so in a panic. Rather, this evidence would have suggested that whoever murdered Watson did so with malice and anger. It would have supported the State's theory that Terrell had a motive to kill Watson: to keep him quiet so Terrell would not be arrested and returned to prison. Thus, no reasonable attorney would present evidence that contradicted its defense theory and supported the State's theory.
Furthermore, this evidence would not have invalidated the statutory aggravator of depravity of mind. Showing that the deceased body of the victim was subjected to mutilation or serious disfigurement, whether the victim was conscious/unconscious or dead/alive, satisfies the statutory aggravator of depravity of mind. See Davis v. Kemp, 829 F.2d 1522, 1534 (11th Cir.1987); Conklin v. State, 254 Ga. 558, 565, 331 S.E.2d 532, 539 (1985); West v. State, 252 Ga. 156, 161-62, 313 S.E.2d 67, 71 (1984); Hance v. State, 245 Ga. 856, 862, 268 S.E.2d 339, 346 (1980). The jury found that the evidence supported each of the three sub-parts of the statutory aggravating circumstances separately: that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, and an aggravated battery. O.C.G.A. § 17-10-30(b)(2), (7). Because the jury need find only one statutory aggravating factor to justify the imposition of the death penalty, Zant v. Stephens, 250 Ga. 97, 100, 297 S.E.2d 1, 3-4 (1982), the invalidation of this one factor would not have likely changed the outcome of Terrell's sentence.
Even in light of Dr. Arden's testimony that the victim was dead when he suffered the blows to his head and face, Terrell cannot show any reasonable probability that the jury would not have found the statutory aggravator of depravity of mind beyond a reasonable doubt. At trial, Dr. Koponen testified that although alive, Watson was unconscious and could not feel the blows to his head and face. Thus, regardless of whether the victim was alive or dead at the time he received the brutal facial beating that caused significant mutilation and disfigurement, the jury still had evidence to support the aggravating circumstances. Accordingly, there is no reasonable
At Terrell's first trial, the State sought a conviction for armed robbery as well as a finding of the armed robbery aggravator. At the second and third trials, the State sought only a finding of armed robbery as an aggravating factor. The jury at the second trial did not find that the evidence supported this aggravating factor, but the jury at the third trial did. Terrell challenged the State's theory and evidence to support this aggravating factor and asserted in his state habeas petition that his counsel was ineffective for conceding this statutory aggravator instead of challenging its application. The state habeas court agreed with Terrell and found that no reasonable attorney would have failed to challenge this aggravating factor, especially given the prior success Strauss had in challenging it. Agreeing with the state habeas court, Terrell claims Strauss rendered ineffective assistance. Thus, he asserts that the Georgia Supreme Court and the federal court's findings to the contrary are unreasonable and this court should grant him relief on this claim.
On appeal, the Georgia Supreme Court reversed the state habeas court and concluded that Terrell's counsel was not ineffective in failing to challenge the armed robbery aggravating factor. In making this determination, the state supreme court noted that although the state habeas court found that the victim had $1.61 in his right-front pocket after the murder, that sum of money was comprised merely of coins, which Terrell likely would not have been interested in taking during the crime. The state supreme court found that although the habeas court relied upon the investigator's testimony that the victim's wallet was undisturbed, the evidence at trial showed that people in the community, and Terrell, knew that Watson carried his cash separately in his left-front pocket and kept his wallet in his back pocket.
Furthermore, the investigators found the victim's left-front pocket turned out and empty, and evidence showed that Watson had withdrawn $150 from the bank the weekend before the murder. The supreme court reasoned that Watson probably had some of this cash with him on the day of his murder because he was planning to leave his home to receive his dialysis treatment. In addition, the evidence showed that after the murder, Terrell shopped for clothes and paid cash, although Terrell had not worked regularly since his release from prison, about six weeks prior to the murder. Most significantly, at the third trial, the State presented the testimony of Raymond Graham who stated that Terrell asked him if he wanted to participate in murdering and robbing Watson. Due to the significant amount of circumstantial evidence to support the jury's finding of the armed robbery aggravator, the state supreme court found that Strauss was not deficient in failing to challenge this aggravator.
To further support its finding that Strauss was not deficient in failing to challenge this aggravator, the state supreme court, unlike the state habeas court, found that Strauss did not concede the armed robbery aggravator. It noted that Strauss proffered during closing argument in the sentencing phase that the evidence did not support the State's theory that the crime
In analyzing the state court's decision under AEDPA, the district court first determined that the state supreme court's decision was not based on an unreasonable determination of the facts. The record supported the state supreme court's findings regarding the lack of cash in the victim's left-front pocket after the murder, Terrell's purchase of clothes with cash on the day of the murder, Watson's withdrawal of $150 from the bank two days before the murder, and Raymond Graham's testimony that Terrell asked him to assist in robbing and murdering Watson. In sum, the district court found that overwhelming circumstantial evidence supported the jury's finding of the armed robbery aggravator.
The district court next determined that the state supreme court did not unreasonably apply Strickland to the facts of the case in finding that Strauss did not render deficient performance. First, the district court found that Strauss continuously challenged the armed robbery aggravator. [R. Vol. VII, p. 1585, Doc. 5-38, p. 26.] On cross-examination, Strauss elicited testimony from the State's investigator that he could not say with certainty that Watson had money in his pocket when he was murdered. Strauss also questioned Graham about his eight-year delay in providing testimony that Terrell asked him to assist in the robbery and murder of Watson. Strauss extracted from Graham that he told an investigator that he was only testifying because he wanted parole from the sentence he was serving. In fact, Graham admitted that when the State informed him that he would not receive a deal in exchange for testifying, he initially refused to testify. Strauss had Graham admit to numerous convictions and had him inform the jury that he was currently serving a life sentence as a result of a felony murder conviction.
The district court also found that Strauss did not concede the armed robbery aggravator during the sentencing phase closing argument. Strauss was commenting on State witness Sam House's testimony when he made the alleged concession.
[R. Vol. VII Doc. 5-39, p. 1709-10.] Thus, in the context of the closing, the district court found that Strauss was not conceding that a robbery occurred.
Reviewing the record, the district court found that it was reasonable for Strauss to focus his time and energy on acquittal at trial and residual doubt in his closing argument. Strauss continuously emphasized the State's lack of physical evidence placing Terrell at the crime scene, and he built doubt in the jurors' minds during trial by pointing to Johnson as the lone gunman. At sentencing, Strauss presented testimony from Terrell's family members and friends that Terrell was respectful, nice, protective of his family, and a good father. Strauss emphasized that Terrell was overall a good person who did not deserve the death penalty. Noting that Strauss had passed away before the state habeas hearing, the district court presumed that Strauss, an experienced trial attorney, "did what he should have done, and that he exercised reasonable professional judgment." Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir.2005) (quoting Williams v. Head, 185 F.3d 1223, 1228 (11th Cir. 1999)). Therefore, given the totality of the evidence, the district court concluded that the state supreme court reasonably applied Strickland in finding that Strauss rendered effective assistance in regard to this allegation.
As the district court found, the state supreme court's adjudication of Terrell's claim of ineffectiveness of counsel was reasonable. First, Terrell cannot demonstrate by clear and convincing evidence that the state supreme court's factual findings were erroneous. The record provides powerful circumstantial evidence to support the jury's finding of the armed robbery aggravating factor: the State provided evidence (1) that supported a strong inference that Terrell was armed with a firearm on the day of the crime; (2) that the victim had cash because two days prior to the murder, he withdrew $150 from the bank; (3) that the victim normally carried cash in his left-front pocket, which was turned out when investigators arrived at the crime scene; (4) that Terrell would have known of Watson's propensity to carry cash in his left-front pocket because he had spent a significant amount of time with the victim; (5) that Terrell's mother testified that the day prior to the murders, she asked Terrell if he had the money to repay Watson and he told her that he did not; (6) that a witness testified that later on the day of the murder, Terrell purchased clothes with cash; and (7) that a long-time friend testified that Terrell asked him to assist in the robbery and murder of Watson. Based on this record, Terrell cannot overcome the presumption of correctness with regard to the state supreme court's factual findings. See Rose v. McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011) (stating that deference under AEDPA requires that a federal habeas court do more than simply disagree with the factual findings of the state court; "[i]nstead, it must conclude that the state court's findings lacked even fair support in the record").
Next, the state supreme court did not unreasonably apply Strickland to the facts in adjudicating Terrell's claim. Strauss did not perform deficiently. Contrary to Terrell's assertion, Strauss did not concede the armed robbery aggravating factor; rather, he paraphrased investigator Sam House's testimony to show the
In light of the State's theory that Terrell killed Watson out of anger because Terrell knew that if Watson pressed charges and had him arrested, Terrell would return to prison, Strauss reasonably challenged the State's lack of physical evidence to support its case. Strauss also reasonably employed a defense theory of residual doubt during the guilt and sentencing phases of the trial. Strauss highlighted all the gaps in the State's evidence, and he told the jurors that if they removed from their consideration the testimony of Johnson and Graham, two convicted felons with long rap sheets, "there is not a shred of evidence that connects [Terrell] clearly to the crime." [R. Vol. VII, Doc. 5-39, p. 1707.] Strauss exploited the unreliability of these two witnesses and continued to assert Terrell's innocence.
Furthermore, Strauss presented testimony from Terrell's family members and friends at the sentencing phase to support the defense theory that Terrell was not the kind of person who would murder an elderly, infirm person. A family pastor testified that Terrell had been active in church and had always been respectful, and a prison pastor, who counseled Terrell several times a month, testified that Terrell had a good, positive attitude. Friends testified that Terrell was a nice, caring, protective person, who respected his elders and was a good father. In all, Strauss presented ten people who testified that Terrell was a good person who did not deserve the death penalty.
Given the totality of the record, we conclude that the state supreme court reasonably determined that Strauss did not perform deficiently during the sentencing phase by focusing on the residual doubt theory instead of focusing solely on rebutting the State's evidence in support of the armed robbery aggravating factor. Furthermore, we cannot say that even if Strauss performed deficiently in this regard, that his deficient performance caused Terrell prejudice. The jury found that the State had proven that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, and an aggravated battery to the victim before death. This finding was sufficient for the jury to impose the death penalty. Therefore, there is no reasonable probability that Strauss's failure to challenge the armed robbery aggravator would have changed the outcome of the sentencing.
Under AEDPA, however, we must evaluate not only whether there was a reasonable probability of a different result, but also, whether any reasonable jurist could decide otherwise. If fairminded jurists could disagree about the correctness of the state supreme court's decision that Terrell did not demonstrate that Strauss provided
Under the rubric set forth in AEDPA, we conclude that the state supreme court's adjudication of Terrell's claims of ineffective assistance of counsel did not involve an unreasonable application of Strickland or depend on unreasonable findings of fact. Thus, the district court correctly rejected Terrell's claims and denied his petition for habeas relief. Accordingly, the judgment of the district court is affirmed.
MARTIN, J., concurring:
Brian Keith Terrell was granted a Certificate of Appealability for his federal habeas appeal on two issues. I agree with the majority's conclusion that Mr. Terrell does not ultimately succeed on either of his two claims for relief. I write separately, however, to address the Georgia Supreme Court's analysis of Mr. Terrell's second claim, which I understand to misstate clearly established precedent from the United States Supreme Court. My purpose here is simply to properly articulate the Supreme Court rule in this circumstance in order to protect against dilution of jurisprudence on this subject.
In Mr. Terrell's second claim for relief, he argues that his attorney, John Strauss, provided ineffective assistance of counsel by failing to adequately challenge the statutory aggravating circumstance of armed robbery. In evaluating an ineffective assistance of counsel claim, we must examine both whether Mr. Terrell's counsel performed deficiently and if so, whether Mr. Terrell was prejudiced by that deficient performance. Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993). If Mr. Terrell fails to show either that his counsel performed deficiently or that he was prejudiced by that deficient performance, his ineffective assistance of counsel claim fails. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984).
Mr. Terrell was tried three times for the brutal murder of John Watson. Majority Op. at 1259-60; see also Terrell v. State (Terrell II), 276 Ga.34, 572 S.E.2d 595, 600 (2002). For his first trial, in addition to the malice murder and felony murder charges, the State charged Mr. Terrell with one count of armed robbery. In that first trial, the jury was not able to reach unanimous agreement on either the armed robbery charge or murder charges. Majority Op. at 1259-60; Terrell II, 572 S.E.2d at 600. When Mr. Terrell was tried for the second time, the State dropped the armed robbery count. But the State still relied on the armed robbery evidence when it asked the jury to find armed robbery as an aggravating circumstance during the penalty phase of the trial. Again, the second jury appeared to reject the state's theory on armed robbery, to the extent that it did not find armed robbery as an aggravating circumstance. See Terrell v. State, 271 Ga. 783, 523 S.E.2d 294, 295 (1999) (Terrell I) (setting forth the two other aggravating circumstances
Mr. Terrell's argument is that Mr. Strauss performed deficiently because he abandoned this successful strategy at the third trial by failing to adequately challenge the armed robbery aggravator. In Mr. Terrell's view, Mr. Strauss essentially conceded to the jury that an armed robbery had been committed. Again, this concession was in contrast to Mr. Strauss's approach at trials one and two. And based on this concession, Mr. Terrell argues that the jury at his third trial arrived at a different conclusion than the juries from the first two trials, when it selected armed robbery as an aggravating factor to the murder charge.
The Georgia Supreme Court rejected Mr. Terrell's argument that his counsel conceded the armed robbery, and indeed affirmatively found that Mr. Terrell's counsel had made no such concession. Hall v. Terrell (Terell III), 285 Ga.448, 679 S.E.2d 17, 21 (2009). The Georgia Supreme Court interpreted counsel's statement as simply speculation as to why some other person might have been at the scene of the murder. Id. Now the majority on this panel has agreed with the Georgia Supreme Court's finding on this, adding that Mr. Terrell's counsel challenged the evidence of the armed robbery during cross-examination of the various witnesses. Majority Op. at 1268-69.
If I were the fact-finder, I would come to a different conclusion about Mr. Strauss's argument than did the Georgia Supreme Court and my colleagues on this panel. At Mr. Terrell's first trial, Mr. Strauss vigorously argued to the jury, "Whatever happened out there, robbery was not part of it ... It's not there." In the same way, Mr. Strauss cogently and persuasively argued at Mr. Terrell's second trial that the government's evidence of an armed robbery was "guess work." Then for some reason, not apparent from the record at Mr. Terrell's third trial, Mr. Strauss did not challenge the State's assertion of an armed robbery. Rather, Mr. Strauss acknowledged to the jury that "[t]here was a crime probably of robbery intended, whatever." It is true that again in the third trial, Mr. Strauss made some attempts to shed doubt on the evidence of the robbery during cross-examination of the State's witnesses. But he did not build upon this cross-examination by dedicating a portion of his closing argument to explain why there was insufficient evidence of an armed robbery. Indeed, the only time that he mentioned the armed robbery was when he acknowledged to the jury that there had been a robbery. On this record, and if I were deciding this case de novo, I would find that Mr. Terrell's counsel conceded the armed robbery aggravator during his closing argument.
Also if I were deciding the issue in the first instance, I would find that Mr. Strauss was ineffective for abandoning the strategy which had twice been so successful for Mr. Terrell. Indeed, I would agree with Mr. Terrell that when his counsel conceded the robbery, his performance was constitutionally deficient. I am simply hard pressed to understand why Mr. Strauss felt that it was necessary or beneficial to abandon a strategy that had been successful in not one but both of Mr. Terrell's earlier trials. It is true that Mr. Strauss's strategy at the penalty phase was to emphasize residual doubt regarding Mr. Terrell's guilt. But I see no reason why this strategy required a concession on the armed robbery. Indeed, Mr. Strauss effectively argued at the second trial that there had been no armed robbery and that Mr. Terrell was not involved in the murder. Based upon these specifics of this record, and if I were reviewing this case de novo, I would find that counsel's performance at Mr. Terrell's third trial was deficient.
My deeper concern arises from the Georgia Supreme Court's analysis of the prejudice prong of Mr. Terrell's Strickland claim. The Georgia high court made its prejudice determination by asking whether there was a "reasonable probability" that the jury would have changed its finding about "the existence of an armed robbery," even if Mr. Strauss had advocated at the third trial on the issue of the armed robbery in the same way he had at the first two trials. Terrell III, 679 S.E.2d at 21 (emphasis added). Said another way, the Georgia Supreme Court's inquiry was whether Mr. Terrell's eligibility for the death penalty was affected by his counsel's performance. But this is not the proper inquiry required under clearly established Supreme Court precedent.
In reviewing a record for prejudice during the sentencing phase of a capital trial, we are required to reweigh all of the evidence, new and old, good and bad, and determine as best we can, the probability of a different outcome. See Porter v. McCollum, 558 U.S. 30, 41, 130 S.Ct. 447, 453-54, 175 L.Ed.2d 398 (2009) (per curiam) ("To assess that probability, we consider the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding and reweig[h] it against the evidence in aggravation." (quotation marks omitted)); see also Sears v. Upton, ___ U.S. ___, ___, 130 S.Ct. 3259, 3266-67, 177 L.Ed.2d 1025 (2010) (per curiam); Wong v. Belmontes, 558 U.S. 15, 26, 130 S.Ct. 383, 390, 175 L.Ed.2d 328 (2009) (per curiam). As a result, the Georgia Supreme Court should have inquired into how counsel's concession of the armed robbery affected the jury's decision to sentence Mr. Terrell to death — not whether the jury would have, or could have, found the armed robbery aggravating factor in any event. Again, I make this point because of the importance of applying the proper standard in these cases going forward.
I have agreed with the majority of this panel that, based upon the findings of the Georgia Supreme Court, Mr. Terrell cannot establish deficient performance by his counsel at his third trial. No finding about prejudice is therefore necessary. On this record, I concur with the majority's decision affirming the District Court's denial of habeas relief to Mr. Terrell.
