Filed: Sep. 13, 2012
Latest Update: Mar. 26, 2017
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT September 13, 2012 JOHN LEY No. 09-14257 CLERK _ D.C. Docket No. 07-00129-CV-CDL ROBERT WAYNE HOLSEY, Petitioner - Appellant, versus WARDEN, Georgia Diagnostic Prison, Respondent - Appellee. _ Appeal from the United States District Court for the Middle District of Georgia _ (September 13, 2012) Before CARNES, BARKETT, and EDMONDSON, Circuit Judges. CARNES, Circuit Judge: In the
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT September 13, 2012 JOHN LEY No. 09-14257 CLERK _ D.C. Docket No. 07-00129-CV-CDL ROBERT WAYNE HOLSEY, Petitioner - Appellant, versus WARDEN, Georgia Diagnostic Prison, Respondent - Appellee. _ Appeal from the United States District Court for the Middle District of Georgia _ (September 13, 2012) Before CARNES, BARKETT, and EDMONDSON, Circuit Judges. CARNES, Circuit Judge: In the ..
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
_________________________ ELEVENTH CIRCUIT
September 13, 2012
JOHN LEY
No. 09-14257 CLERK
__________________________
D.C. Docket No. 07-00129-CV-CDL
ROBERT WAYNE HOLSEY,
Petitioner - Appellant,
versus
WARDEN, Georgia Diagnostic Prison,
Respondent - Appellee.
__________________________
Appeal from the United States District Court
for the Middle District of Georgia
___________________________
(September 13, 2012)
Before CARNES, BARKETT, and EDMONDSON, Circuit Judges.
CARNES, Circuit Judge:
In the early morning hours of December 17, 1995, Robert Wayne Holsey
robbed a convenience store in Milledgeville, Georgia, and fled. Minutes later his
car was stopped by Baldwin County Deputy Sheriff Will Robinson. The deputy,
who was twenty-six years old, approached the vehicle. Holsey shot him dead.
Fourteen months later, in February of 1997, a jury convicted Holsey of malice
murder and armed robbery. The jury fixed his sentence at death on the malice
murder conviction, and the court imposed that sentence. He has been on Georgia’s
death row for the past fifteen years.
During those fifteen years, Holsey has exhausted his state court direct
appeal and state postconviction challenges. See Holsey v. State, 524 S.E.2d 473
(Ga. 1999) (direct appeal) [Holsey I]; Holsey v. Schofield, No. 2000-V-604, Sup.
Ct. of Butts Cnty. (May 9, 2006) (Final Order on Amended Petition for Writ of
Habeas Corpus) [Holsey II]; Schofield v. Holsey,
642 S.E.2d 56 (Ga. 2007)
(collateral appeal) [Holsey III]. Holsey’s convictions and death sentence were
affirmed on direct appeal. Holsey I, 524 S.E.2d at 480. In the state postconviction
proceedings, the trial court vacated Holsey’s death sentence, concluding that his
trial lawyers had rendered ineffective assistance at the sentencing phase of
Holsey’s trial in regard to presentation of mitigating circumstances evidence about
his limited intelligence and his troubled, abusive childhood. Holsey II, No. 2000-
V-604, at 82–84. The Supreme Court of Georgia reversed, however, holding that
2
Holsey had not shown that he was prejudiced by his trial lawyers’ alleged failures.
Holsey III, 642 S.E.2d at 60–62.
In November 2007, Holsey filed a 28 U.S.C. § 2254 petition for a writ of
habeas corpus. The district court denied that petition on July 2, 2009. Holsey v.
Hall, No. 3:07-cv-129(CDL) (M.D. Ga. July 2, 2009) [hereinafter Holsey IV].
Holsey moved for a certificate of appealability, which the district court granted on
two issues:
(1) Whether reasonable jurists could disagree that the Georgia
Supreme Court’s decision, which reversed the grant of
sentencing relief as to [Holsey’s] ineffective assistance of
counsel claim, was based on unreasonable determinations of
fact, and/or on an unreasonable application of clearly
established federal law, and/or was in contravention of clearly
established federal law; [and]
(2) [Whether] the Georgia Supreme Court’s affirmance of
Georgia’s unique reasonable doubt standard for mental
retardation claims contravenes and/or unreasonably applies
established U.S. Supreme Court precedent prohibiting the
execution of mentally retarded offenders and mandating federal
Due Process constraints on state burdens of proof meant to
protect fundamental federal constitutional rights. (Quotation
marks omitted.)
After the district court granted the COA on those issues, we resolved the
second issue in another case. In Hill v. Humphrey, 662 F.3d 1335, 1360–61 (11th
Cir. 2011) (en banc), we held that the Georgia Supreme Court’s decision affirming
3
the state’s reasonable doubt standard for mental retardation claims did not
contravene clearly established Supreme Court precedent. Our Hill decision
disposes of the second COA question. This opinion addresses the first one.
I. THE TRIAL
On January 8, 1996, a Georgia grand jury indicted Holsey for malice
murder, felony murder, and armed robbery. Four days later the State filed a notice
of its intent to seek the death penalty. The trial court appointed Andrew Prince as
lead counsel to represent Holsey at trial, and Brenda Trammel served as Prince’s
co-counsel.
A. The Guilt Phase
The guilt phase of Holsey’s trial began on February 1, 1997. As the
Supreme Court of Georgia has recounted, the State at the guilt phase proved the
following:
Robert Wayne Holsey robbed a Jet Food Store in Milledgeville with a
handgun shortly before 1:30 a.m. on December 17, 1995. Holsey
received money from both the cash register and the lottery machine
after telling the store clerk, “Bitch, I want you to give me all your
money.” Holsey’s voice was recorded on the store’s surveillance
videotape and was identified at trial by Holsey’s girlfriend. Holsey
fled the convenience store in a red Ford Probe automobile he had
borrowed from his sister’s girlfriend earlier that night. The red Probe
was stopped at the Royal Inn Motel approximately four minutes later
by Deputy William Edward Robinson, IV. Deputy Robinson made a
radio call identifying the red Probe’s license plate number and then
4
approached the automobile holding a flashlight. Deputy Robinson
received two bullet wounds, one to his right arm and one to the back
of the right side of his head. Deputy Robinson managed to fire several
shots before sustaining the fatal head wound.
After the shooting, another deputy spotted the Probe and turned
his patrol vehicle around to give chase, but the Probe sped away and
escaped. Witnesses observed the Probe traveling at a high rate of
speed through a red light and into lanes of oncoming traffic. One
witness who knew Holsey testified that she saw him alone in the
Probe as it passed by at the red light.
Having thus far evaded capture, Holsey called his girlfriend,
Mary Jackson, and asked her to pick him up at his sister’s house. He
specifically directed Jackson to come in her blue Jeep Cherokee
vehicle rather than in her burgundy-colored automobile. When
Jackson arrived at Holsey’s sister’s house, Holsey called to Jackson
from behind a fence on a hill. Holsey had changed clothes since he
left Jackson’s house several hours earlier. Jackson refused Holsey’s
request to take him to his mother’s house so he could monitor a police
scanner, but Jackson did agree to his request to drive him past the
motel where the murder had occurred and then back to his sister’s
house by way of back roads. When back at his sister’s house, Holsey
directed Jackson to park her Jeep Cherokee behind the Probe to
conceal its license plate. As Holsey and Jackson sat in the parked
Jeep Cherokee, a police officer spotted the Probe and verified that its
license plate number matched the license plate number in the victim’s
radio call. Holsey exited the Jeep Cherokee, refused the officer’s
command to put his hands up, looked around as though searching for
an escape route, and then ultimately surrendered.
Law enforcement officers discovered, hidden near Holsey’s
sister’s house, clothing that matched the clothing worn by the armed
robbery perpetrator and a hat belonging to Jackson’s son. The murder
weapon was concealed nearby and was later found by a civilian.
Holsey’s tennis shoes were taken from him after his arrest, and expert
testimony showed that one of the shoes had blood on it with DNA
consistent with the victim’s blood. Holsey gave strong physical
resistance and screamed loudly when officers initially attempted to
conduct a gunshot residue test on his hand. A trace metal detection
5
test of Holsey’s hand was administered later and rendered a result
consistent with Holsey’s having held the murder weapon, which was
metal with wooden grips. A bullet recovered from the Probe was
matched with Deputy Robinson’s service weapon. The bullet
retrieved from Deputy Robinson’s head during his autopsy was
matched with a handgun belonging to Holsey’s girlfriend, Mary
Jackson. Jackson testified that Holsey admitted to her after the
murder that he had taken the handgun.
Holsey III, 642 S.E.2d at 59.
On February 11, 1997, the jury returned a verdict finding Holsey guilty of
malice murder, felony murder, and armed robbery, although “[t]he felony murder
conviction was vacated by operation of law.” Id. at 475 n.1. The sentencing
phase of Holsey’s trial began the next day.
B. The Sentencing Phase
At the start of the sentencing phase, the jury learned about Holsey’s
criminal record for the first time. The State introduced his 1983 guilty plea
conviction for armed robbery with serious bodily injury. For that crime, the state
trial court had sentenced Holsey to be “confined at labor for twenty years,” with
fifteen years to be served in prison. The State called Scott Maher to testify about
facts underlying the conviction. Maher testified that he was working as a night
clerk at a Milledgeville convenience store on July 8, 1983. Holsey, who was
eighteen years old at the time, entered the store, hit Maher in the face with a brick,
6
and emptied the store’s cash register.1 After Maher’s testimony, the State
introduced evidence that Holsey was paroled in July 1990 after serving seven
years of that sentence and placed on probation for the remainder of his sentence.
The State next introduced Holsey’s 1992 guilty plea convictions for two
counts of aggravated assault and one count of possession of a firearm by a
convicted felon. Based on those convictions, the state trial court had revoked his
probation for the 1983 armed robbery conviction and ordered him to serve the
remaining term of that sentence in prison. The court had also sentenced Holsey to
five years probation for the three 1992 convictions, to run consecutively with the
remainder of the sentence for the 1983 conviction. The jury heard all about that at
the sentencing phase of Holsey’s capital murder trial.
The jury also heard more details concerning the crime leading to Holsey’s
three convictions in 1992 for aggravated assault and felon in possession. Kenneth
Simmons testified that, while he was at the Soul Master’s Lounge in Milledgeville
on February 22, 1992, Holsey attacked him from behind and stabbed him four
times with a knife. As a result of Holsey’s attack, Simmons was knocked out and
suffered a punctured lung. Scotty Simmons, who is Kenneth Simmons’ first
1
The State also called two Milledgeville law enforcement officers, whose testimony
corroborated Maher’s.
7
cousin, testified that he was at the Soul Master’s Lounge when Holsey attacked
Kenneth Simmons. After the attack, Scotty Simmons decided to “go get” Holsey
and do him some harm, but Holsey fired a rifle at him seven or eight times.2 The
State rested.
Holsey’s attorneys, Prince and Trammel, then presented evidence of
mitigating circumstances. Trammel began by playing for the jury the videotaped
deposition of the owner of the Soul Master’s Lounge. His name is Clifford
Holsey, although he is not related to petitioner Robert Wayne Holsey. (We will
refer to this witness as “Clifford” to avoid confusion.) The first thing that Clifford
testified about was the night Holsey stabbed Kenneth Simmons. He said that
Kenneth and Scotty Simmons had gone to the Soul Master’s Lounge that night to
attack Holsey. He also told the jury that, although he did not see the stabbing,
Holsey had acted in self-defense.
Trammel also questioned Clifford about Holsey’s childhood. Clifford
testified that Holsey grew up in Clifford’s neighbor hood, so he had known Holsey
since Holsey was a small child. Trammel asked Clifford “to tell the jury what [he
2
The State also called Bertha Simmons and Cathey Bell to corroborate the testimony of
Kenneth and Scotty Simmons. Bertha Simmons testified that she saw Holsey stab Kenneth
Simmons at the Soul Master’s Lounge, and Bell testified that she also saw Holsey stab Kenneth
Simmons and that she saw Holsey fire a rifle at Scotty Simmons.
8
knew] about [Holsey] and the circumstances of his home life” growing up.
Clifford responded:
Well, I think [Holsey] came up the best that he could. I think
he was neglected from his mother. She, you know, kinda of
like—came up kind of like child abuse. And she just didn’t see about
them, you know, kind of walked all over them a little bit, and done
everything.
[Holsey] and [his siblings] were really not cared for and—I
don’t know. But I believe [Holsey] might have left home that one
time because their mother was really tough on them. I think she was
out kind of like courting around a little bit . . . .
Clifford also told the jury that Holsey grew up without his dad, who had
moved to Detroit after being shot and paralyzed, and that he had heard Holsey had
a bed-wetting problem until he was about twelve years old.
Clifford explained to the jury that Holsey and his siblings dressed as “[b]est
they could by living in the projects” and that their house was “rough” and infested
with cockroaches. Trammel asked Clifford, “Did you ever see [Holsey’s mother]
put her arms around her children and tell them that she loved them?” He
answered, “Never done that.” Clifford testified that he had heard Holsey’s mother
admit that she would curse at, “scold[,] . . . and beat” her children. He told the
jury that Holsey’s mother threatened her children and often left them home alone
because she cooked at night for the Soul Master’s Lounge. Clifford explained that
despite his bad life while a child, Holsey was not a “bad person” but instead was
9
“quiet and kept a smile on his face.”
Trammel asked Clifford about Angela Holsey, who was Holsey’s second-
oldest sister. Clifford said that Angela had spent time in “special ed when she was
small.” According to Clifford, “[s]he did have problems.”
After the jury watched Clifford’s videotaped deposition, Prince and
Trammel called eight more witnesses to testify live: Delores Cook, Belinda
Hawkins, Freda Webb, Ferrlando Jones, Otis Paschal, Sandra Kendrick, Regina
Reeves, and Demetra Holsey. The jury heard first from Delores Cook, who was a
cook at the Baldwin County Jail where Holsey was incarcerated after his 1992
convictions. She testified that Holsey had worked in the kitchen as a “trustee”
giving “out trays to the other inmates.” According to her, Holsey was “courteous”
and “respectful” and did not cause any trouble.
The jury then heard from Belinda Hawkins, a friend of Holsey’s. Hawkins
testified that she and Holsey went together to the Soul Master’s Lounge on
February 22, 1992. According to Hawkins, Holsey told her later that Kenneth
Simmons had hit him in the head with a brick and then three men attacked him.
She insisted to the jury that Holsey “didn’t start no fight” that night.
Freda Webb, a jailer for the Jasper County Jail, was the next witness. She
testified that she knew Holsey as an inmate at the Jasper County Jail where he had
10
been awaiting trial on the malice murder, felony murder, and armed robbery
charges. She described Holsey as “a real courteous[,] . . . model inmate[].” Webb
also testified that she did not believe that he “should get the electric chair” or that
he would be a danger to others in prison.
After Webb testified, Prince called three of Holsey’s former coworkers from
the Milledgeville Pizza Hut. The first was Ferrlando Jones, the restaurant’s
assistant manager. He testified that Holsey was not a violent person, that he got
along with the restaurant’s other employees, and that he did what he was told to
do. Otis Paschal, the restaurant’s manager, testified that Holsey “was a very good
employee,” was “dependable,” did what he was told, and got along well with
others. He also told the jury that Holsey was “the quiet type” and that he never
saw any violent tendencies in Holsey. The last former Pizza Hut coworker to
testify was Sandra Kendrick, one of Holsey’s supervisors at the restaurant. She
testified that Holsey was a good employee. She also told the jury that she was at
the Soul Master’s Lounge when Holsey stabbed Kenneth Simmons in 1992 and
that Simmons had started the fight by hitting Holsey “beside the head.”
Prince next called Holsey’s oldest sister, Regina Reeves, to testify.3
3
When Reeves testified at Holsey’s trial in 1997 her last name was still Holsey. She
married after the trial, taking her husband’s name, and she thereafter testified again in 2003
during the postconviction proceedings. For consistency, we will refer to her as “Reeves”
11
Reeves is a former marine, a former Baldwin County deputy sheriff, and a Deputy
United States Marshal. Prince began the examination by asking Reeves about the
fight when her brother stabbed Kenneth Simmons. Reeves said that she did not
witness the fight but that during it her brother had suffered head injuries requiring
stitches. Prince asked her about Holsey’s incarceration at the Baldwin County
Jail, which began in 1992. According to Reeves, through good behavior Holsey
had earned “trustee status,” which gave him more freedom within the jail than
nontrustee inmates. Jail officials entrusted Holsey with miscellaneous tasks at the
jail and allowed him to drive a truck.
Reeves also testified about Holsey’s childhood. She told the jury that
Holsey is a middle child. He has two older sisters, Reeves and Angela, and two
younger ones, Demetra and Lisa. Reeves, Angela, and Holsey have the same
father, but he is not the father of Demetra and Lisa. Holsey’s father was shot and
paralyzed two months before Holsey was born. The family moved to Detroit after
Holsey was born so that his father “could get better medical attention.” While
they lived in Detroit, Holsey’s sister Demetra was born, and after five years in
Detroit, Holsey’s mother and her children moved back to Milledgeville, leaving
Holsey’s father behind. According to Reeves, Holsey never “really knew [his
throughout this opinion.
12
father] at all.”
Back in Milledgeville, Holsey and his now-four sisters (Lisa was born after
they moved back to Milledgeville) lived with their mother, usually in public
housing. Their mother received public assistance to help provide for her family,
but Reeves testified that “things were horrible” in their household. She recounted
how their mother would often beat the oldest three children: Reeves, Angela, and
Holsey. Because she “hated it there” and “was tired of taking beatings,” Reeves
left home when she was seventeen years old and joined the Marine Corps. She
later became a Deputy Sheriff and then a Deputy United States Marshal.
Reeves told the jury about Holsey’s mother’s involvement in his life. She
testified that their mother had once been hospitalized for psychiatric problems and
pointed out that she had not even bothered to show up for the sentencing phase of
her son’s trial. According to Reeves, Holsey’s mother had not been there for most
of his life. And although their mother had men in and out of the home while they
were growing up, none of those men had spent any time with Holsey. Instead,
Reeves testified that raising Holsey and her other siblings was “left up to [her],”
and without a mother or father around, Holsey “more or less” grew up on the
street.
Prince asked Reeves about Holsey’s school performance. She testified that
13
he “didn’t do well” and told the jury that he “might have made it to the tenth
grade,” but didn’t complete that grade. Teachers had usually just assigned Holsey
to the next grade instead of actually passing him into that grade. During Reeves’
testimony, Prince introduced Holsey’s school records into evidence, and he asked
Reeves to read from a section entitled “teacher’s remarks.” Reeves then testified:
A: . . . For the first grade says, a weak student in readiness
materials. Second grade says, very slow, needs help from
home. Third says, poor worker. Fourth says, poor worker.
Fifth says, can be controlled with firm discipline and a few
kind words. Very, very low I think it says.
Q: The part I’m interested—can be controlled with discipline and
a few kind words.
A: Yes.
Q: And needs help from home.
A: Yes.
Q: Now, did [Holsey] get any help from home from his Mama?
A: No.
Q: Did he get a few kind words from his Mama?
A: Back in those times, no.
Reeves also testified that, after spending some time in foster care, as a
teenager Holsey had lived for a time at the Georgia Department of Human
14
Resources’ Youth Development Center. Prince introduced into evidence Holsey’s
records from that center, which showed that his mother voluntarily admitted him
to the center in January 1980, when he was fourteen years old.
Those records also include a pyscho-social evaluation of Holsey that was
prepared by a behavioral specialist and a psychologist on July 31, 1980.
According to that evaluation, when Holsey was fourteen years old, he was
expelled from school because he “pulled a butcher knife (which he had brought
from home)” and held it to another student’s throat and “hit him in the face but did
not cut him.” A juvenile complaint report, which also was in the Youth
Development Center records, stated that the school had ordered Holsey not to
return unless his mother accompanied him.
Other evidence showed that Holsey’s mother did not accompany him back
to school. At Prince’s request, Reeves read from a juvenile complaint report
contained in the records:
The first part says . . . that [Holsey] was basically a runaway case. He
has no supervision at home and refuses to return home. Says Mrs.
Holsey would not go to the school, and sent a note with [him].
[Holsey] was not allowed to return. When he tried to come back the
principal called the police to remove [him].
Prince also asked Reeves to read a section of the psycho-social evaluation to the
jury, which described Holsey as borderline mentally retarded:
15
“[Holsey] evidenced an inappropriate effect during the evaluation.
He smiled inappropriately and had difficulty maintaining thought
patterns. At times he appeared unaware of his immediate
environment, and in a world of his own.” Another paragraph says,
“present testing indicates [Holsey] functions in the borderline mental
retardation range of intelligence. . . . [H]e appears as an anti-social
individual who thrives on taking risks or thrill seeking. He exhibits
an inability to plan ahead and make short or reckless disregard for the
consequences of his actions. His socialization relationships are
shallow, and he can be expected not to show strong loyalties to others
because his intelligence is so low his dislike for social convention is
likely to result in his being caught often.”
Reeves also recounted to the jury that the evaluation stated that academic testing
had showed that Holsey, who was fifteen years old at the time of testing,
functioned at a third-grade level.
Another part of the evaluation, which was introduced into evidence, states
that “[p]ersonality testing indicates [Holsey] is not showing any distress or guilt”
about putting the knife to his schoolmate’s throat and that “[h]is social adjustment
is so marginal if something is not done soon he will continue to cause problems.”
The evaluation reflected that Holsey had taken an IQ test on July 28, 1980, and
scored a 70. The evaluation concluded that Holsey “is probably seriously
disturbed.” A summary of a home evaluation conducted by the Youth
Development Center, also contained in the records submitted into evidence, stated
that Holsey’s mother “has no idea how to control [him] without resorting to
16
excessive punishment.”
The Youth Development Center records admitted into evidence at the
sentencing phase also contained a psychiatric evaluation of Holsey prepared by
Dr. Fred Trest, one of the center’s psychiatrists. Dr. Trest had concluded that
Holsey suffered a “behavioral/personality disorder, which includes . . . [an]
antisocial component” and that “his intelligence seems to be borderline.” Holsey
had told Dr. Trest that neither he nor his siblings had been treated “neglectfully”
or had “received physical or verbal abuse from his mother,” but “he readily
admit[ted] . . . that he has felt relatively rejected by his mother for his younger
siblings.” He also told Dr. Trest that his mother “‘yell[ed] at him,’” “infrequently
‘slap[ped] him on the head,’” and “intermittently spanked him with a belt” as
punishment when he misbehaved. And Holsey “reveal[ed] that his mother’s
present boyfriend is a friend to him . . . [who] takes him fishing and boat riding,
and plays football with him.”
Dr. Trest’s evaluation reported that Holsey was twice suspected of
attempting suicide while at the Youth Development Center but that Holsey denied
it. The evaluation concluded that, at the time, Holsey “has just barely as many
antisocial behaviors as must be present in the childhood histories of adults who
are diagnosed as having antisocial personality disorders.” Dr. Trest also wrote
17
that Holsey admitted “to having had the antisocial urge to steal in the past.”
The Youth Development Center records also contained a “social history” of
Holsey written by Rosa Marks, a center social worker. Marks wrote the history
sometime after Holsey was admitted to the center, and she noted that he “was
doing fair in school until a year ago.” She summarized Holsey’s situation: “[His]
strength is in his physical environment and his average intelligen[ce]. His
limitations lie[] in his inability to express himself adequately. His mother has
given up all hopes and has little interest in [Holsey].”
In addition to eliciting testimony from Reeves about Holsey’s troubled,
abusive childhood, Prince asked her about Holsey’s other older sister, Angela.
Reeves testified that Angela was a violent person, had problems at school, was
sometimes bad to her children, and had been hospitalized several times at Central
State Hospital for mental problems. The first time that Angela was admitted to
Central State Hospital was when “she was kicked out of public school in the
fourth grade” because “[t]eachers were horrified of her.” According to Reeves,
Angela attended special education classes while she was at Central State Hospital.
Reeves said that as a child Holsey had rarely gotten into any trouble on his
own but instead “it was usually . . . with or because of . . . Angela.” She told the
jury that to get reward money Angela had turned Holsey in to the police for his
18
1983 armed robbery. To Reeves, at least, Angela’s betrayal was not surprising;
still, Holsey never confronted Angela about it.
Prince introduced into evidence Angela’s medical records from Central
State Hospital. Those records show, among other things, that when Angela was
eleven years old the Juvenile Court of Baldwin County ordered her admitted to
Central State Hospital for a “neurological work-up, electro-encephalogram, and a
complete review and evaluation of her personality.” During that court-ordered
stay, hospital officials found her to be in “the Borderline range of intellectual
functioning” and concluded that “the consideration of Mild Mental Retardation
cannot be entirely ruled out.” The officials found that Angela’s personality
“reflected a great deal of hostility, insecurity, and depression and indicated that
Angela was easily angered, could not control her anger, and did not understand it,
partially due to her intellectual level.” And a Central State Hospital evaluation
when Angela was sixteen years old “considered [her] to be functioning in a mild
mental retardation range.” All of that evidence was put before the jury.
Finally, Reeves told the jury about her brother’s character. She stated that
he has “always been mostly quiet” and she “used to tease him . . . about things
because he was always small and skinny.” But, she testified, “he’s always . . .
been the type that if you’re his friend or if you’re . . . family . . . he sticks up for
19
you. He stands . . . by you . . . no matter what.” According to Reeves, Holsey
would do just about anything to protect his sisters and his mother. She believed
that he did not have the ability to take advantage of the same opportunities that she
did because he does not have “what you would call good social skills. [He’s]
never really been, you know, that good in school.”
As Holsey’s ninth and last witness during the sentencing phase, Trammel
called Demetra Holsey, one of Holsey’s younger sisters. Pleading with the jury to
spare her brother’s life, she testified:
[W]henever I need[ed] him he was there. . . . No matter what the
problem was, if he could help us he would. When times got hard with
me, when people put me down I always had somebody I could go to
that would lift my head up and let me know I am somebody. No
matter what you said, you couldn’t take that away from me. You
know, I was always picked at because of my size. He always told me
I was beautiful, no matter what. People look at me from the inside,
not the outside. Just keep my head up and one day God will bless me.
....
I’d just like to say please, I beg of you, spare his life . . . . I
never had a father. My real father died when I was a baby. He was
my only father figure. . . . There’s some good in everybody. . . . I
don’t have no other male figure in my life. I have a child of my own,
and his father’s gone . . . , and I got to live a single mother’s life . . . .
But I need something. If it ain’t but a little bit, just please leave me
something.
The parties then presented their closing arguments. The prosecutor began
by telling the jury that the State had proven four statutory aggravating
20
circumstances: (1) “Holsey committed murder against a peace officer . . . while
[that peace officer] was engaged in the performance of his official duties,” see Ga.
Code Ann. § 17-10-30(b)(8); (2) “Holsey shot and killed Will Robinson for the
purpose of avoiding, interfering with, or preventing a lawful arrest of himself,” see
id. § 17-10-30(b)(10); (3) “Holsey murdered Will Robinson while he was engaged
in the commission of another capital felony, . . . armed robbery,” see id. §
17-10-30(b)(2); and (4) “Holsey . . . murdered Will Robinson while he had a prior
record of conviction for a capital felony, . . . . [the 1983] armed robbery,” see id. §
17-10-30(b)(1).
The prosecutor then discussed Holsey’s evidence of mitigating
circumstances. He said:
Ladies and gentlemen, yes, the defendant did not have a perfect
childhood. The fact that his sister turned him in for an armed robbery
to get a reward, does that justify his robberies and killing a police
officer?
Yes, he’s got another sister that has got some mental problems.
Does that justify what he’s done? No doctors have told us that Robert
Wayne Holsey has any mental problems.
....
Regina Holsey, she grew up in that same family. Same mother,
same father, same household. When Regina turned 18 years old, she
wanted to make something of her life. She joined the United States
Marine Corps. . . .
When [Holsey] turned 18, he robbed a Corral Convenience
Store. And you heard him take that brick, and he smashed it in the
face of Scottie Maher. Same age as Regina, same parents, same
21
environment, same conditions.
....
. . . Robert Wayne Holsey is the ox that gores and gores again.
Trammel presented closing arguments on behalf of Holsey. She began by
acknowledging that the State had proven four statutory aggravating circumstances.
She then defined a mitigating circumstance for the jury as “anything that you want
to consider or may consider that might just indicate to you that the ultimate
punishment in this case is not what should be given.”
Trammel highlighted for the jury Holsey’s troubled, abusive “home life,”
noting that he “grew up by himself.” Arguing that “[w]e don’t all start equally,”
Trammel told the jury that Holsey “had nothing that every child deserves to have.
He was deprived of everything.” He “had a mother who wouldn’t even go to the
school so he would get back in.”
She also highlighted Holsey’s limited intelligence, telling the jury that
Holsey is “borderline mentally retarded.” She reiterated that point by reminding
the jury that he “was just assigned [to grades] for school” and that by the time he
was eighteen years old he still could not sign his name. Finally, she asked the jury
to consider any lingering doubt it might have about Holsey’s guilt to weigh in
favor of not imposing the death penalty.
The court instructed the jurors that it was their “duty to determine within the
22
limits prescribed by law what punishment [would] be imposed in this offense” and
told the jurors that they were “authorized to consider all of the evidence received
here in court in both stages of this proceeding presented by the State and the
defendant.” After deliberating for less than two hours, the jury returned a verdict
finding that the State had proven four statutory aggravating circumstances and
fixing Holsey’s sentence at death for the malice murder conviction. The state trial
court imposed that sentence for that conviction and also sentenced Holsey to life
imprisonment for the armed robbery conviction.
On direct appeal the Georgia Supreme Court affirmed Holsey’s convictions
and the death sentence. Holsey I, 524 S.E.2d at 480. The court found,
“considering both the crime and the defendant, that the sentence of death was
neither excessive nor disproportionate to the penalties imposed in similar cases.”
Id. The United States Supreme Court denied Holsey’s petition for a writ of
certiorari, Holsey v. Georgia, 530 U.S. 1246,
120 S. Ct. 2695 (2000), and his
petition for rehearing, Holsey v. Georgia,
530 U.S. 1297,
121 S. Ct. 17 (2000).
II. STATE POSTCONVICTION PROCEEDINGS
After the Supreme Court denied certiorari, Holsey filed a petition for a writ
of habeas corpus in Georgia state court raising thirteen grounds for relief. One of
those grounds for relief, which is the only remaining ground at issue in this appeal,
23
was that his trial lawyers rendered ineffective assistance at the sentencing phase by
failing to present enough mitigating circumstance evidence of his limited
intelligence and of his troubled, abusive childhood.
The state collateral court held an evidentiary hearing on June 16–18, 2003,
and December 8–9, 2003. Holsey called eight witnesses to testify: Dr. Mark
Cunningham, Dr. Jethro Toomer, Brenda Trammel, Ronald Singer, Judge L.A.
McConnel, Jr., Cathy Crawford, Regina Reeves, and Andrew Prince. He also
submitted 224 exhibits, including the deposition testimony of nineteen people, the
affidavits of fifty-two people, and his Department of Corrections records. The
State called nine witnesses to testify: Dr. Thomas Sachy, Evelyn Luton, Dr. Kris
Sperry, Mark Robinson, Sheriff William Masse, Jr., Fred Bright, Ricky Horn,
Jimmie Baggett, and Howard Sills. The State submitted 220 exhibits.
The state collateral court vacated Holsey’s death sentence, concluding that
his trial lawyers had rendered ineffective assistance at the sentencing phase of
Holsey’s trial in regard to the presentation of mitigating circumstances evidence
about his limited intelligence and his troubled, abusive childhood. Holsey II, No.
2000-V-604, at 82–83. The Georgia Supreme Court assumed that Holsey’s trial
lawyers had rendered deficient performance, but it reversed the state collateral
court. The Georgia Supreme Court held that even if Holsey’s trial lawyers were
24
deficient, Holsey had not shown that he was prejudiced by that deficiency. Holsey
III, 642 S.E.2d at 60–62.
The State contends that Holsey’s trial lawyers did present enough mitigating
circumstances evidence at the sentencing phase. Because the Georgia Supreme
Court’s conclusion that Holsey was not prejudiced by his trial lawyer’s assumed
deficiencies was neither an unreasonable application of clearly established federal
law nor based on an unreasonable determination of the facts, we will assume that
Holsey’s trial lawyers were deficient, as the Georgia Supreme Court did.
A. Mitigating Evidence Presented at the State Collateral Evidentiary Hearing
During the evidentiary hearing Holsey’s collateral counsel called two
witnesses to testify about his limited intelligence—Dr. Mark Cunningham and Dr.
Jethro Toomer. They called his oldest sister, Regina Reeves, to testify about his
troubled, abusive childhood. As additional evidence of his limited intelligence
and troubled, abusive childhood, they submitted the deposition testimony of eight
people and the affidavits of twenty-nine more. Holsey’s collateral counsel also
submitted some documentary evidence, including his Department of Corrections
records.
25
1. Holsey’s Witnesses
a. Dr. Cunningham
The first witness to testify for Holsey at the evidentiary hearing was Dr.
Mark Cunningham, a clinical and forensic psychologist whom the court
recognized as an expert in those fields. He was hired to evaluate Holsey’s
intellectual status and determine whether he is mentally retarded.4
Dr. Cunningham gave his opinion that Holsey is mildly mentally retarded.
He explained that:
There’s a broad misconception that the public has that somebody
who’s mentally retarded is slobbering and stuporous and can’t fasten
their clothes correctly and is unable to hold a job, could never learn to
read or write at all. In other words, the popular notion of what it
means to be mentally retarded in fact is more descriptive of somebody
who is severely to moderately retarded. . . . And so there are broad
misconceptions in the community about what it means to be mentally
retarded and what somebody who’s mildly mentally retarded can do
or not do.
Dr. Cunningham’s diagnosis of Holsey as mildly mentally retarded was
based on the definition of mental retardation in the Fourth Edition of the
Diagnostic and Statistical Manual of Mental Disorders. See Diagnostic and
Statistical Manual of Mental Disorders (4th ed. 2000) [hereinafter DSM-IV).
According to him, DSM-IV “is the diagnostic classification system that’s utilized
4
Holsey also submitted Dr. Cunningham’s written report on those topics.
26
by psychologists and psychiatrists so that [they] are all talking about the same
disorder.” Dr. Cunningham also explained that DSM-IV is accepted within his
professional community, and its definition of mental retardation is consistent with
the definition provided by the American Association of Mental Retardation, which
is “an association that began in 1876 and represents the primary professional
organization” concerned with mental retardation.
Dr. Cunningham testified that a diagnosis of “[m]ental retardation has three
prongs to it.”5 The first is that the person must have intellectual abilities that are
“significantly subaverage, which is defined as . . . an IQ score of approximately 70
or below.” However, the DSM-IV and the AAMR recognize that “an IQ score of
75 and below [c]ould also qualify because, in fact, that may well represent a true
IQ that’s less than 70 with [an] error component taken into consideration.”
5
As stated in the DSM-IV: “The essential feature of Mental Retardation is significantly
subaverage general intellectual functioning . . . that is accompanied by significant limitations in
adaptive functioning in at least two of [ten] skill areas . . . . The onset must occur before age 18
years . . . .” DSM-IV, at 41.
Georgia similarly defines mental retardation as “having significantly subaverage general
intellectual functioning resulting in or associated with impairments in adaptive behavior which
manifested during the developmental period.” Ga. Code Ann. § 17-7-131(a)(3); accord DSM-IV,
at 41. In Stripling v. State, 401 S.E.2d 500, 504 (Ga. 1991), the Georgia Supreme Court
explained that the “significantly subaverage intellectual functioning” factor of the mental
retardation definition “is generally defined as an IQ of 70 or below.” According to the court,
however, “an IQ test score of 70 or below is not conclusive” because “an IQ score is only
accurate within a range of several points, and for a variety of reasons, a particular score may be
less accurate.” Id.; accord Hill, 662 F.3d at 1341 n.6; see also infra pp. 30–31, 37.
27
The second prong of a mental retardation diagnosis is a significant
impairment in adaptive behavior, which means significant impairment in at least
two of ten adaptive behavior categories listed in the DSM-IV. Those ten
categories are communication, self-care, home living, social interpersonal skills,
use of community resources, functional academic skills, self-direction, work,
leisure, and health and safety. According to Dr. Cunningham, there are two
standardized tests an evaluator can administer to determine whether someone has a
significant impairment in adaptive behavior: the Vineland Social Maturity (or
Adaptive Behavior) Scales or the AAMR’s Adaptive Behavior Scales.6 Dr.
Cunningham described those tests:
Typically, the adaptive behavior scales use a respondent who has had
close observation of the individual . . . , you’re talking to [someone]
who has had experience observing this person in various roles and in
intimate daily life activities over an extended period of time. And
you then query this person in a very detailed sort of way, following
the questions that are laid out in the scale about what this person can
do or is not able to do.
Dr. Cunningham also explained that an evaluator can “get information on an
anecdotal basis by interviewing or getting depositions from a broad variety of
6
Dr. Cunningham explained that the Vineland Scales “provide[] information about how
[the patient] compares to community members as opposed to individuals that are mentally
retarded.” He also said that the AARM Scales “provide information about how [the patient]
compares to other individuals who are developmentally disabled, to other people that are
mentally retarded.”
28
third parties, and that provides additional information about somebody’s adaptive
behavior capabilities.”
The third prong of a mental retardation diagnosis is that there must be “the
onset of mental retardation before the age of eighteen.” Dr. Cunningham
explained that there are degrees of mental retardation. “The highest functioning
level of mental retardation is called mild mental retardation[, which is] a misnomer
because there’s nothing mild about this condition. It’s a catastrophic disability.”7
According to Dr. Cunningham, mild mental retardation represents an IQ score
from 50 to about 70 or 75. Below it is moderate (IQ of 40 to 55), severe (IQ of 20
to 40), and profound (IQ of 20 or below) mental retardation.
7
Unlike Dr. Cunningham, the DSM-IV does not describe mild mental retardation as “a
catastrophic disability.” According to the part of the DSM-IV that Holsey’s collateral counsel
submitted into evidence at the evidentiary hearing:
Mild Mental Retardation is roughly equivalent to what used to be referred to as
the educational category of “educable.” This group constitutes the largest
segment (about 85%) of those with the disorder. As a group, people with this
level of Mental Retardation typically develop social and communication skills
during the preschool years (ages 0–5 years), have minimal impairment in
sensorimotor areas, and often are not distinguishable from children without
Mental Retardation until a later age. By their late teens, they can acquire
academic skills up to approximately the sixth-grade level. During their adult
years, they usually achieve social and vocational skills adequate for minimum
self-support, but may need supervision, guidance, and assistance, especially when
under unusual social or economic stress. With appropriate supports, individuals
with Mild Mental Retardation can usually live successfully in the community,
either independently or in supervised settings.
DSM-IV, at 43.
29
To perform his evaluation of Holsey, Dr. Cunningham reviewed “a very
large set of records,” which included the results of IQ tests that Holsey had taken
in the past; deposition testimony; sworn affidavits;8 arrest records; and school,
Department of Corrections, and other institutional records. Dr. Cunningham also
administered to Regina Reeves, Holsey’s sister, the Vineland Adaptive Behavior
Scale and the AAMR Adaptive Behavior Scale. He used Reeves because he
believed that she is “the most reliable and functional member of [Holsey’s]
family.”
Dr. Cunningham testified that Holsey satisfied the first prong of the mental
retardation test. He reviewed three IQ tests that Holsey had taken, one in 1980,
when he was fifteen years old; one in 2001, when he was thirty-six years old; and
one in 2003, when he was thirty-seven years old. Holsey scored a 70, 69, and 71
on those tests. According to Dr. Cunningham, because Holsey took those tests
across a twenty-three-year period, the clustering of his IQ score within three points
showed “an extraordinarily reliable demonstration of his actual intellectual
8
Dr. Cunningham reviewed affidavits, which Holsey also submitted into evidence during
the evidentiary hearing, from the following people: Essie Anderson, Donald Foster, Sandra
Frances, Mary Havior, Belinda Hawkins, Angela Holsey, Demetra Holsey, Henry Holsey, Jr.,
Annie Howard, Rosa Ingram, Ferrlando Jones, Thomas Lee, Billy McGriff, Louvenia Melchor,
Lelia Powell, Sonya Rooks, Sara Simcox, Hugh Tucker, Robert Warner, Freda Webb, Dr.
Herbert Ebert, and Holsey’s mother.
30
capability.”
Dr. Cunningham also testified that Holsey was “significantly impaired” in
eight of the ten adaptive behavior categories: communication, home living, social
interpersonal skills, use of community resources, functional academic skills, self-
direction, leisure, and health and safety. He also noted that Holsey’s global
adaptive behavior functioning is “in the eight year old range.” And based on
Holsey’s score on the 1980 IQ test and other anecdotal evidence, Dr. Cunningham
testified that there was an onset of mental retardation before Holsey turned
eighteen. For those reasons, Dr. Cunningham testified that Holsey is mildly
mentally retarded, “which . . . does not reflect a mild disorder, but rather the mild
end of a continuum of severe disability.”
b. Dr. Toomer
The next witness Holsey’s collateral counsel presented was Dr. Jethro
Toomer, a forensic psychologist whom the court recognized as an expert in that
field.9 He testified that, in December 2001 when Holsey was thirty-six years old,
he performed a psychosocial evaluation on Holsey to determine whether Holsey is
mentally retarded.10 As part of that evaluation, Dr. Toomer administered the 2001
9
Holsey also submitted Dr. Toomer’s written report.
10
According to Dr. Toomer:
31
IQ test on which Holsey scored a 69 and administered a WRAT “to assess overall
achievement functioning as it relates to a particular grade level.” On the WRAT
that Dr. Toomer gave him, Holsey scored equal to the fifth-grade level in reading
and spelling, and equal to the fourth-grade level in math.
Dr. Toomer testified that he reviewed “several things,” including Holsey’s
school records and “affidavits filed by a variety of family members and people
who knew him during his developmental years.” He also interviewed Reeves and
administered to her the Scales of Independent Behavior, Revised. Based on all of
that information, Dr. Toomer testified that Holsey shows “deficits in a variety of”
adaptive behavior categories and that there is some evidence that he suffered an
onset of mental retardation before turning eighteen. In Dr. Toomer’s opinion
Holsey is mentally retarded.
c. Regina Reeves
Holsey’s collateral counsel called his oldest sister, Regina Reeves, to testify
[A] [p]sychosocial evaluation is . . . a kind of history taking. It’s a semistructured
interview where the individual is asked a series of questions regarding his
developmental history from birth up to the present time. And as part of that
information getting, the individual is observed regarding his overall presentation,
clinical presentation, intellectual and cognitive presentation, how the person
responds to questions asked, [and] how the individual processes information. All
that is part of the observational piece that occurs in conjunction with the taking of
the psychosocial history.
32
about his childhood. The first part of her testimony was about Holsey’s
upbringing in Detroit. She testified that Holsey often saw their mother and father
fight, “[s]ome physical; a lot of verbal.” One time their father hit their mother
with the handle of a broom or a mop, and another time their mother set a milk
carton and a newspaper on fire and threw them on top of their father, who was
confined to a wheelchair.
Reeves also testified about Holsey’s life after their mother moved him and
his siblings back to Milledgeville. According to Reeves, their mother suffered
from psychological problems, including “depression and some other stuff,” and
the family lived in a “horrible” economic situation as their mother struggled to
earn enough money to provide for the family. Before she went on welfare, their
mother earned money by working long hours in cafeterias, babysitting, and
cleaning other people’s homes. Because their mother worked so much, Reeves
“more or less played the role as the mother.”
Reeves testified that the family did not always have enough food to eat.
Their mother gave eating priority to Holsey’s two younger sisters. Reeves
testified about a time when Holsey “got up the nerve to ask for something else to
eat and [his mother] made him eat, you know, everything that was left in the pot,
the [chicken] bones, the rice, the chicken, everything.”
33
Reeves said that their mother was hard on her children, especially the oldest
three: Reeves, Angela, and Holsey. For example, she was often in a bad mood
and regularly spoke negatively about their father. When Reeves, Angela, and
Holsey realized that she was in a bad mood, they would try to hide but often with
little success. As a result, they suffered a lot of verbal and physical abuse.
Reeves described Holsey as “always quiet, nervous, and small” and said that
he stuttered “really bad” until he was “[w]ell into his twenties.” Instead of trying
to build up Holsey’s self-confidence or getting him help for his stuttering, their
mother would berate and make fun of him. She told him that “he was just like his
no-good-ass daddy” and that “he was going to be a punk and a sissy.” And she
told him that he had a “can’t talk ass” and that he couldn’t “talk worth a shit.”
She would also “curse[] out [and] humiliate[]” her son. Reeves said that although
Holsey wet the bed until he was thirteen years old, his mother never took him to
the doctor or tried to help him with that problem.
Reeves testified that “[i]t wouldn’t take much of anything” to set their
mother into a violent rage, and she provided examples of the physical abuse
Holsey and Angela suffered. According to Reeves, their mother would beat her
children “[s]ometimes daily, every other day,” and that sometimes she beat them
outside of the home, “[i]n the yard, on the porch[,] [Holsey] got beaten on the
34
corner . . . right there near our house.” Reeves said that their mother would beat
Holsey with extension cords, shoes, and a broom, and would hold his head under
the bathtub faucet as he struggled and cried. She said that those beatings left
permanent scars on his body.
Testifying about a specific beating, Reeves recounted:
[O]ne night in particular[, when Holsey was twelve or thirteen,] my
mother waited because she knew [he was going to wet the bed] that
night. And the mattresses were cheap, and everything, so when he
peed the bed you could, the water went right through. And when she
heard it she woke him up out of his sleep with an extension cord. . . .
Just beat him with the extension cord and made him go wash up and,
you know, clean up the mess.
Reeves also testified that Holsey witnessed his mother abuse his sister
Angela in a particularly brutal way on two occasions. On one occasion, she
intentionally burned Angela using a wall heater, and on the other, she beat Angela
to the point that Angela was unconscious and Reeves and Holsey “thought she was
dead.”
Reeves stated that Holsey had never lived on his own and that he could not
do household chores, like “taking care of things or cleaning up.” She also thought
that Angela had influenced Holsey’s behavior. According to Reeves, Angela had
been in prison a number of times, has psychological problems, and was
institutionalized as a juvenile. Angela began getting in trouble when she was
35
“really small,” and she and Holsey would often get into trouble together. But
Reeves believed that Angela was always the leader and Holsey sometimes got into
trouble because of things that Angela had done. Holsey rarely told on Angela and
would sometimes cover for her. Reeves stated that after Holsey got out of prison
for his robbery conviction and then for his probation violation, he moved in with
Angela, which Reeves thought was not a good idea “[b]ecause of how [Angela]
lived her life, the people that she had there,” and “the influence that she would
have over him.”
2. The Depositions and Affidavits
a. Dr. Marc Einhorn
Holsey’s collateral counsel submitted into evidence the deposition
testimony and the written report of Dr. Einhorn, a clinical psychologist who had
actually been hired by the State in connection with the collateral proceeding to
evaluate whether Holsey is mentally retarded. Dr. Einhorn testified that, in
conducting his evaluation of Holsey, he did two things. First, he interviewed
Holsey in person and administered psychological testing on April 24 and 25, 2003.
Second, he reviewed the records that Holsey and the State provided him, which his
written report states are the same records that Dr. Cunningham and Dr. Toomer
reviewed in conducting their evaluations.
36
During the interview, Holsey told Dr. Einhorn that he had begun reading in
prison and that he read books, including the Bible, although he did not read every
day. In his report, Dr. Einhorn summarized the interview: “[C]ommunication
adequate. Thought processes were coherent, logical, and goal directed. He did
not ask any questions during the examination . . . .”
Dr. Einhorn administered to Holsey an IQ test and a WRAT. On the IQ test,
Holsey scored a 71. On the WRAT, he scored in the first percentile (fourth-grade
level) in reading and in the fourth percentile (fifth-grade level) in spelling and
math. Based on that psychological testing, Dr. Einhorn testified that Holsey met
the first prong of the DSM-IV definition of mental retardation.
Dr. Einhorn also testified that Holsey shows significant deficits in some
adaptive behaviors, which is the second prong of the DSM-IV diagnosis for
mental retardation. He explained, however, that those deficits and Holsey’s low
test scores were not due to mental retardation. Instead, he reported that “cultural
deprivation, alcohol abuse, [and] low average to borderline intellect” likely caused
“Holsey’s below average test scores and poor overall adjustment to life.”11
11
On the subject of causation, Dr. Cunningham testified that cultural deprivation is not
inconsistent with mental retardation. He explained:
Mental retardation is independent of cause. And so whether or not your hardware
was permanently stunted because you didn’t get proper nurturance as a baby,
37
Testifying at deposition, he explained his opinion:
He’s neglected, he’s abused, he drinks, he does poorly in
school, he gets into trouble, he starts hanging out with the wrong
people, and it’s all pretty predictable. He doesn’t get into lockstep
with the mainstream.
....
He never had the advantages of what most of us would have . . .
. He was culturally deprived. He was psychologically deprived. He
didn’t have anything. He was a victim of his circumstances. He
didn’t have proper parenting. He didn’t have proper food. He didn’t
have a proper education. He didn’t have a father figure at all. He
didn’t have really anything.
....
[H]e’s essentially borderline to low average [in intellectual
functioning]. If you throw into the equation alcohol abuse [beginning
at an early age], his terrible conditions he grew up in, practically
anyone would make a poor adjustment to life . . . .
In his written report, Dr. Einhorn noted other evidence that was inconsistent
with a mental retardation diagnosis:
Mr. Holsey’s mother denied any delays of developmental milestones
and these would be expected in true mental retardation. . . . [T]here is
no history of special education placement. Despite his difficult
childhood, he managed to learn basic skills that surpassed the
expectancy of mentally retarded individuals. For example, in 1996,
on the Wide Range Achievement Test[,] he obtained a high school
level score in arithmetic . . . . This included the ability to calculate
percentiles. This performance is well within normal limits. . . .
because you were neglected or abused or were impoverished or ate lead paint or
were dropped on your head, whatever it is that compromised this hardware in a
permanent way, all of that is called mental retardation.
38
Additional contraindications of subnormal intelligence are seen in the
transcripts of telephone calls to his sister, report of his playing poker,
and his [sophisticated responses to disciplinary actions] while
incarcerated.
Dr. Einhorn also highlighted that, as a Pizza Hut employee, Holsey was an
“excellent” dishwasher although he was a poor pizza maker because he could not
read ingredients, and that while in prison “he earned the level of trustee and was
allowed to drive a truck.” Dr. Einhorn pointed out that, in telephone conversations
with Reeves, Holsey “used vocabulary that was well above a mentally retarded
vocabulary.” He also testified, “Mentally retarded people don’t play poker or at
least don’t understand enough to play poker.”12
b. Dr. Shapiro
Holsey’s collateral counsel submitted the deposition testimony of Dr.
12
Dr. Cunningham criticized Dr. Einhorn’s reliance on the purportedly contradictory
evidence. For example, he testified that Dr. Einhorn should not have relied on Holsey’s mother’s
statements that Holsey did not have delays in developmental milestones. First, according to Dr.
Cunningham, the DSM-IV recognizes that mildly mentally retarded children may not have any
developmental delays, and second, Holsey’s mother is a poor source of information because she
“is mildly mentally retarded or borderline intelligent herself.” He also criticized reliance on the
1996 WRAT test, saying that test “was administered outside of the observation of the examiner”
and that he was “surprised that Dr. Einhorn didn’t bring a more critical analysis to bear as he
would look at what is so obviously a grossly outlying score.” Dr. Cunningham also thought that,
although Holsey did use words in telephone conversations with his sister that were “a little
surprising,” Dr. Einhorn had placed too much emphasis on that fact. Finally, Dr. Cunningham
disagreed with Dr. Einhorn’s view that doing an excellent job washing dishes and being able to
play poker were inconsistent with mental retardation, and said that view “suggests that Dr.
Einhorn doesn’t have a clear perception of what someone who’s mildly mentally retarded is
capable of and how they function.”
39
Shapiro. He is a psychologist whom Holsey’s trial lawyers had hired about two or
three months before the trial to perform a general assessment, a general
psychological assessment, and an assessment of Holsey’s intellectual, academic,
and emotional functioning, but had not called as a witness. Holsey’s trial
attorneys had given Dr. Shapiro only one document before he made those
assessments—a two-page summary of Holsey’s family history that they had
prepared. In conducting his evaluation, Dr. Shapiro did not review “historical data
concerning . . . Holsey from school records, [Youth Development Center] records,
prison records, [or] prior mental health evaluations.” (In his deposition, Dr.
Shapiro testified that he had not needed those records because “[t]o some extent,
[they’re] irrelevant . . . [because] if someone’s mentally retarded at the time you
evaluate them, it’s likely that they were mentally retarded as a child also.”)
Dr. Shapiro met with Holsey for several hours at the Jasper County Jail on
December 12, 1996, a little less than two months before the trial. During that
interview, Holsey told him that (1) he had been raised by his mother and had
grown up without a father figure; (2) he had “stayed in trouble” growing up; (3) he
often ran away from home because he was bored and wanted to get out of his
house; (4) he would “get a whoopin” whenever he got caught; (5) he regularly
skipped school; and (6) when he was fourteen years old, he took a knife to school
40
one day because of “race riots” and found a white student and threatened him.
Holsey also told Dr. Shapiro that he had been in foster care because his mother
“couldn’t contain him,” that police were called after he “got into a fight” with
another foster child, and thereafter he was sent to the Youth Development Center.
After the interview, Dr. Shapiro administered some of the subtests of the
Stanford-Binet Intelligence Scale to calculate Holsey’s IQ. Dr. Shapiro explained
that he had administered only some of the Stanford-Binet subtests because others
were inappropriate given Holsey’s age, and he had administered all of the subtests
that were age-appropriate for Holsey. Using the results of those subtests, Dr.
Shapiro determined that Holsey’s IQ was 79.13 He had also administered the Wide
Range Achievement Test, which is scored on the same scale as an IQ test, and
Holsey had scored a 93 on the math section. Dr. Shapiro testified at deposition
that “it would not be possible or likely for a mentally retarded person to be able to
achieve that score.” He did state, though, that he “[p]ossibly” had not watched
Holsey take the WRAT math section but instead had left the test with Holsey at
13
In his live testimony at the evidentiary hearing, Dr. Cunningham, one of Holsey’s
expert witnesses, criticized Dr. Shapiro’s use of the Stanford-Binet Intelligence Scale test in 1996
to calculate Holsey’s IQ. According to Dr. Cunningham, Dr. Shapiro should have given to
Holsey thirteen subtests of the test instead of the six subtests that he actually gave. And even if
giving the six subtests was appropriate, in Dr. Cunningham’s view Dr. Shapiro had used the
wrong standardization table in calculating Holsey’s IQ as 79. If he had used the correct table, Dr.
Cunningham believed, he would have come up with an IQ of 75.
41
the jail to be mailed back to him.14 Other testing done by Dr. Shapiro showed that
Holsey was reading at a fourth-grade level.
Based on his evaluation, Dr. Shapiro was of the opinion that Holsey’s
intellectual functioning was in the borderline mentally retarded range. Dr. Shapiro
testified that he probably had told Prince about his impressions in “a very brief
conversation,” but he did not prepare a written report for Prince or Trammel, likely
because neither attorney requested one.
Dr. Shapiro further testified that Holsey’s state collateral counsel had
provided him with two 3-inch, three-ring binders full of documents, which
included Holsey’s school and Youth Development Center records, scores from
tests that others had administered, and affidavits from relatives and others who
knew Holsey. After reviewing those documents, Dr. Shaprio testified that he still
believed that Holsey is not mentally retarded but instead is in “the borderline
range.” Dr. Shapiro acknowledged that borderline intellectual functioning means
a person is in approximately the bottom fifth percentile of intellectual functioning.
14
Dr. Shaprio testified that he did not recall how he got the WRAT math portion back
from Holsey, but his usual practice was to “put the materials in the charge of the correction
officer and ask that they make sure the defendant completes the materials and sends it back.”
Holsey’s collateral counsel submitted the affidavit of Tanekia Kelly, a former detention officer at
the Jasper County Jail. She attested that she remembered Dr. Shapiro meeting with Holsey but
that she did not remember Dr. Shapiro delivering any tests or paperwork to her that concerned
Holsey. No witness testified, however, that anyone had taken the test for Holsey, supplied him
with any answers, or changed any answers that he gave.
42
Noting that the DSM-IV states that “the essential feature of antisocial
personality disorder is a pervasive pattern of disregard for and violation of the
rights of others that begins in childhood or early adolescence and continues into
adulthood,” the State asked Dr. Shapiro if Holsey suffers from antisocial
personality disorder. Dr. Shapiro responded that he did not have enough
information to answer that question. He did testify, however, that Holsey “had
some conduct problems early on,” including skipping school and running away
from home, bringing a knife to school and putting it to another student’s throat,
getting in fights, and robbing a convenience store. In his opinion, Holsey’s history
of conduct problems would be “contributory to conduct disorder,” which “[i]f it
continues until adulthood and becomes a persistent pattern of behavior . . . [it
becomes] part of his ingrained personality, and . . . is now his nature to be
antisocial.”
c. Former Teachers
Holsey’s collateral counsel submitted the affidavits of three of his former
teachers: Sara Simcox, Annie Howard, and Thomas Lee. They attested that
Holsey “wasn’t a very good student”; displayed an “obvious slowness”; suffered
serious intellectual limitations; could “barely read”; “just wasn’t playing with a
full deck”; and “didn’t have any smarts going for him.” Howard and Lee also
43
provided their impressions of Holsey’s family. Howard attested in her affidavit
that she “got the feeling that [Holsey’s mother] didn’t understand how serious
[his] limitations were” and added that Holsey’s sister Angela “was constantly
having to be removed from the classroom.” Lee provided similar information
about Angela, telling the court that he had often seen her “in fistfights with grown
men.”
d. Holsey’s Family Members
Holsey’s collateral counsel submitted deposition testimony and affidavits
from Bertha Ingram, who is Holsey’s mother’s niece; and from Holsey’s mother.
Ingram told the court that Holsey’s home “was always filthy and stunk with the
smell of urine and rotting food”; that Holsey’s mother favored her two youngest
children and viciously beat Holsey and Angela. According to Ingram, their
mother “would plug in a curling iron and whack their little hands with it once it
got hot.” She would also lash “them with extension cords, belts, a washer/dryer
hose, cooking spoons or anything else she found handy.” And while beating them,
their mother would call Holsey and Angela “‘buck teeth mother fucking
monkeys’” and “‘ugly ass bitches.’” She also told the court that Holsey’s mother
mocked his inability to read by sometimes putting a book in his hands and saying
things like: “‘Can you read any of the words in this book, boy?’”; “‘What’s wrong
44
with your head anyway?’”; and “‘You’re good for nothing just like your daddy
was.’”
Holsey’s mother admitted whipping her children as a form of punishment
when they misbehaved, but she denied burning them with a curling iron or beating
them with an extension cord or shoes. She also denied that the house was filthy.
Holsey’s collateral counsel also submitted the affidavits of the following
people: Rosa Ingram, Holsey’s aunt; Sonya Parks, one of Holsey’s cousins; Henry
Holsey, Jr., another of Holsey’s cousins; Linda Ingram, Holsey’s mother’s second
cousin; Demetra Holsey, one of Holey’s younger sisters; and Angela Holsey, one
of his older sisters. They provided additional information about Holsey’s limited
intelligence and his troubled, abusive childhood.
Rosa Ingram attested in her affidavit that Holsey “definitely couldn’t care
for himself” and that he “needed a lot of guidance and supervision.” Parks
attested that she began living with her aunt, Holsey’s mother, in the summer of
1980 and, during that time, Holsey’s mother seemed uninterested in her son.
Henry Holsey, Jr. attested that Holsey “always used simple words, and kept
to simple topics” and “learned things really slowly or not at all.” He also noted
that Angela, the sister, “was a fighter[;] [s]he would fight in a minute and she
would fight anyone.”
45
Linda Ingram attested that Holsey’s mother “had very limited skills and
simply couldn’t cope with all the responsibilities of being a mother and providing
for a family.” She stated that she had once told a psychologist who was evaluating
Holsey’s mother that “she probably was mildly retarded seeing as how she has
always depended on Regina, [Ingram], and . . . her younger daughter Lisa to
manage a lot of basic things because she simply couldn’t do them herself.”
Without explanation, Holsey’s collateral counsel attached to Ingram’s affidavit the
psychologist’s September 28, 2000 evaluation of Holsey’s mother, which had
concluded that she was mildly retarded.
Holsey’s sister Demetra attested in her affidavit that she and her sister Lisa
(who did not share the same father with Holsey, Reeves, and Angela) “were THE
priority to” Holsey’s mother: they “always had better clothes and toys” and they
“got more food than the others did at meal times, too.” Holsey’s sister Angela’s
affidavit described growing up in their household. She said that their mother often
“used all of her breath to embarrass and degrade [Holsey] . . . , especially in front
of other people.” She would call him a “‘sissy boy’ and tell him he was going to
grow up to be one of the ‘gals.’” According to Angela, she also “called [him]
‘monkey’ and ‘crybaby’ and yelled an endless stream of obscenities . . . .” Angela
stated that their mother “would hit [them] for any reason or no reason.” She said,
46
“[Holsey] and I were smacked with anything our mother could find, and it was
brutal. We were hit all the time, usually with an electrical cord or watering hose . .
. . If she had the curling iron close by, she’d plug it in and burn us with it.”
e. Former Girlfriends
Holsey’s collateral counsel submitted the deposition testimony and
affidavits of three of Holsey’s former girlfriends: Mary Jackson, the girlfriend
Holsey told to pick him up in a blue Jeep after he murdered Deputy Robinson
while in a red car; Belinda Hawkins; and Louvenia Melchor. They provided
information about Holsey’s intelligence level. Jackson testified in her deposition
that Holsey communicated better with her four-year-old son than he did with
adults. Hawkins testified at deposition that Holsey was “responsible” but “had a
mind like a child” and “felt like child’s play was more important to him than, you
know, being serious.” And Melchor attested in her affidavit that she had broken
up with Holsey because, in her view, he could not “handle the adult
responsibilities of being in a serious relationship” and did not have “the smarts of
a grown man.”
f. Friends and Neighbors
Collateral counsel submitted the affidavits of Donald Foster, Mary Havior,
Catherine Harris, Essie Anderson, Sandra Francis, Joseph Trawick, and Bertha
47
Simmons. All of them were Holsey’s friends or neighbors. Foster and Havior
provided information about Holsey’s intelligence level. Foster, a friend who had
known Holsey since they were teenagers, attested in his affidavit that Holsey “was
just slow in the head” and did not “have the smarts necessary to make his way on
his own.” Havior attested that Holsey had attended her church during the year
before he murdered Deputy Robinson, and she recounted how “he could not read
along in the hymn book and sing with the rest of the congregation.”
Harris, Anderson, Francis, Trawick, and Simmons told the court about
physical abuse that Holsey suffered at the hands of his mother. For example,
Harris, a long-time friend of Holsey’s mother, attested in her affidavit that “it
didn’t take anything more than a whim to come over [Holsey’s mother] before . . .
. she’d have a belt or a curling iron in her hand and go to whacking [Holsey].”
And Anderson, who lived in Holsey’s neighborhood during the 1970s and early
1980s, attested that Holsey’s mother was “mean and cruel to her . . . kids” and
“[a]rmed with old shoes, belts, [or] extension cords . . . would wail on [Holsey]
until he had welts and abrasions all over his body.” She also described in her
affidavit how Holsey’s home was “filthy and dirty with roaches, old garbage and
the stench of urine.”
In her affidavit, Francis, who went to school with Holsey, provided more
48
details and referred to Holsey’s home as “the Torture Chamber.” Her affidavit
stated that Holsey “regularly took beatings . . . in plain view and earshot of
everyone else living” in the neighborhood. She attested that Holsey’s mother
often “dragged [him] by the arm out into their corner yard and went to lashing at
him with an extension cord all the while cursing and yelling at the top of her
lungs,” calling him “vile” names like “butthole,” “motherfucker,” “sissy ass,”
“stupidhead,” “dumbo,” and “retardate.” She remembered seeing Holsey “running
for his life and not caring that he was covered in red welts and wounds.”
g. Coworkers
Holsey’s collateral counsel submitted the affidavits of two former
coworkers: Ferrlando Jones, who had testified at the sentencing phase of the trial,
and Marion Wingate, who had not. Jones was the assistant manager of the
Milledgeville Pizza Hut where Holsey had worked for a time, and in his affidavit,
he stated that Holsey “came to work and tried his best every shift” but “was way
behind most folks when it came to smarts.” Wingate is a former supervisor at
Seaboard Farms, a chicken processing company where Holsey worked in the early
1990s. He attested in his affidavit that none of the tasks the company assigned
Holsey were hard or required much thinking.
49
h. Others
Holsey’s collateral counsel also submitted the affidavits of Kenneth
Simmons, the man Holsey stabbed at the Soul Master’s Lounge in 1992; and
Scotty Simmons, Kenneth Simmons’ brother. Each of the Simmons brothers
attested that Holsey had a rough childhood, with Scotty Simmons noting that
Holsey’s mother “used to tear into [Holsey] and beat him to a pulp when he was
just a little kid.”
They also submitted the affidavits of Hugh Tucker, Lelia Powell, and Susan
Martin, all of whom attested to Holsey’s intelligence level. Tucker is a former
supervisor at the Youth Development Center, and his affidavit stated that Holsey
“was very limited intellectually”; “not capable of . . . abstract reflection”; “lacked
the maturity, insight and sophistication typical of his peers”; and “used language
like that of a child in grade school rather than what was expected of a fifteen year
old.” Powell ran the Powell Attention Home, a home for children in need of
special placement outside of their family homes, where Holsey stayed for several
weeks in 1980. In her affidavit, she described Holsey as “a slow, simple-minded
boy who was way behind the other boys his age.” Martin is an investigator who
worked for Holsey’s trial lawyers during his trial, and she attested that, to her,
Holsey “was a fairly slow and simple-minded young man.”
50
3. Department of Corrections Records
Holsey’s collateral counsel also introduced into evidence his official
Georgia Department of Corrections records. A February 1984 diagnostic summary
in those records reports that Holsey completed the ninth grade and scored within
the “dull normal range of general intelligence” on the department’s Culture Fair
test.15 The summary notes that Holsey “does not appear to be in need of
specialized MH/MR treatment services . . . [although he] could benefit from
routine counseling services relating to development of internal controls over his
behavior, control of anger, and aggressive behaviors, and history of significant
substance abuse.” It also notes that Holsey’s basic academic levels were too low
for him to be placed in vocational training. A 1989 parole review summary, which
is in the same set of records, states that: “Since his arrival [in prison] Holsey has
made a satisfactory adjustment. He has an average performance rating and is
15
Holsey also submitted the deposition testimony and affidavit of Dr. Herbert Eber, a
psychologist who from 1974 until 1990 or 1991 “ran the processing part” of the Department of
Corrections’ diagnostic center. In his affidavit, Dr. Eber stated that Holsey took a modified
Culture Fair intelligence test in 1984 but that the results of that test “cannot be used as a measure
of intelligence” to diagnose mental retardation. He explained that the Department of Corrections
does not employ a psychologist to administer the Culture Fair test, the test is not timed, the
modified test does not take into account reading skills, and that “the norms used to evaluate the
maximum potential IQ at the Georgia Diagnostic and Classification Center were not the norms
produced by the [Culture Fair] test’s publisher.” Instead, Dr. Eber had developed the norms
using a research study of Georgia prisoners, and the test that Holsey was given had been revised
“to better suit [the] purposes related to vocational and prison rehabilitation.”
51
presently enrolled in school at 8.3 grade level.”
Holsey’s Department of Corrections records contain a 1985 disciplinary
report from the Georgia Industrial Institute, where he was an inmate during the
1980s. According to that report, Holsey “jumped on” another inmate “because he
said something about [Holsey’s] gambling game.” Holsey broke the inmate’s
front teeth, bloodied his nose, and gave him “several knots on his head.” Another
report in the records shows that in 1988 Holsey and another inmate “jumped on”
Billy McGriff and Henry Lewis, injuring McGriff. That 1988 report states that
“Holsey . . . like[s] to intimidate new inmates.”16
The Department of Corrections records also contain a December 1992
offender profile report. That report states that Holsey potentially has an
“Antisocial Personality” and that his “psychological profile suggests a very high
risk for being assaultive and/or otherwise violent.” It adds that Holsey “currently
16
In an attempt to explain away those disciplinary reports, Holsey’s collateral counsel
submitted the affidavits of three people with whom Holsey had served time at the Georgia
Industrial Institute: Billy McGriff, Rothman Lewis, and Henry Williams. McGriff attested in his
affidavit that Holsey did not like to fight, which made him a target for prison thugs. Lewis
attested in his affidavit that Holsey did not start fights in prison and did all he could to avoid
fighting. He also said that Holsey had a “rough time of it in prison . . . because he was slow in
the head.” In his affidavit Williams attested that the Georgia Industrial Institute was a violent
prison where an inmate was required to fight to protect himself. He did note that he himself had
an altercation with Holsey at the prison, but said that it was “out of character” for Holsey.
52
is functioning in the average range of intelligence.”17
B. The State’s Evidence
The State called two witnesses at the evidentiary hearing to testify about
Holsey’s level of intelligence—Dr. Thomas Sachy and Chief Deputy Sheriff
Howard Sills—and it submitted the affidavits of eight others who had some
knowledge about Holsey’s intelligence. The State also introduced arrest records
and an FBI identification record showing that Holsey had been arrested in 1982
for simple battery, in 1983 for theft by shoplifting, and in 1990 for carrying a
concealed weapon.18
17
The report does contain this apparently standard disclaimer:
THIS COMPUTER GENERATED REPORT SHOULD BE VIEWED WITH
CAUTION. IT MAY NOT ACCURATELY DESCRIBE THIS OFFENDER.
THESE STATEMENTS ARE BASED ON THE BEHAVIORS AND
HISTORIES OF PERSONS WITH SIMILAR TEST SCORES, INTERVIEW
RESPONSES, AND PERSONAL CHARACTERISTICS. THE DIAGNOSTIC
AND TREATMENT SUGGESTIONS BELOW SHOULD BE CONSIDERED
AS HYPOTHESES WHICH SHOULD BE CONFIRMED OR RULED OUT
FOLLOWING EXAMINATION BY THE DIAGNOSTIC STAFF OR OTHER
PERSONNEL.
18
The State also submitted two affidavits from Julius Roberson. Roberson lived across
the street from Holsey during the 1970s and early 1980s. In his first affidavit, which is dated
March 28, 2002, Roberson attested that “[Holsey’s mother] was outright violent toward
[Holsey]” and that “[i]t was gut wrenching for me to see and hear how [she] treated [Holsey] . . .
and know what incredible abuse they had to endure on an almost daily basis.” He said that he
often saw Holsey’s mother whip “him with extension cords, old hoses, or thin branches.” He
also attested that Holsey was a “slow learner[],” “empty-headed,” and “naive.”
But in his second affidavit, dated August 20, 2003, Roberson contradicted much of what
53
1. The Witnesses
The State’s first witness on the subject of Holsey’s intelligence was Dr.
Sachy, whom the court recognized as an expert in forensic psychiatry. He testified
that the State had hired him to evaluate whether Holsey is mentally retarded. He
told the court that in conducting his evaluation he had reviewed “the other
psychologists’ reports” and a variety of documents, including “many depositions
and affidavits of family members and people who worked [with Holsey]” and
Holsey’s “school records, etc.” He also personally interviewed Holsey.
Based on his evaluation, Dr. Sachy concluded that Holsey does not meet
he had attested to in his first affidavit. He explained that an investigator on Holsey’s collateral
legal team had interviewed him and months later returned to his house with a typed affidavit and
read parts of it to him. In his second affidavit, Roberson attested that he felt like the investigator
was rushing him, and he had signed that first affidavit without reading it himself. And Roberson
explained that if the investigator had read all of that first affidavit to him, he would not have
signed it. He stated that the first affidavit “contains many things that [he] did not say and several
things that [he] told [the investigator] were not true.” For example, he had never said that Holsey
was a “slow learner[]”; “empty-headed”; or “naive.” He also attested that Holsey’s mother “was
fair when she disciplined her kids,” but in the first affidavit the investigator had tried to paint a
“totally different” and inaccurate picture. And he stated that he had specifically told the
investigator that he had never seen Holsey “whipped with branches, cords, and hoses.”
As the Georgia Supreme court noted, “[t]he record is not developed on the issue of
possible intentional misconduct” of the investigator or anyone on Holsey’s legal team but we,
like the Georgia Supreme Court, find the allegations contained in Roberson’s second affidavit
troubling. Holsey III, 642 S.E.2d at 61 n.2. Those allegations also illustrate the sometimes
limited value of affidavits submitted by potential mitigation witnesses who did not testify in the
trial or in the evidentiary hearing during the state collateral proceeding. We have observed
before that affidavits submitted by habeas petitioners attacking their death sentences are
sometimes “artfully drafted.” Putman v. Head, 268 F.3d 1223, 1245 n.19 (11th Cir. 2001).
54
“the criteria for mental retardation.” Instead, he has borderline intellectual
functioning. Dr. Sachy performed a neurological evaluation on Holsey and found
that he did not show any signs of neurological deficit. For example, Holsey did
not have “the soft, physical signs of craniofacial abnormalities or other physical
abnormalities consistent with mental retardation.”
Dr. Sachy also based his conclusion that Holsey is not mentally retarded, in
part, on testimony at the trial. For example, the evidence showed that on the night
of the murder, Holsey had asked his girlfriend to pick him up in a blue Jeep
instead of in her maroon car. The significance of that is that Holsey knew the
police would be looking for a car that was red, the color of the getaway vehicle.
He also told his girlfriend that he wanted to monitor a police scanner at his
mother’s house. Dr. Sachy testified that “[t]hose two points . . . are actually fairly
sophisticated, cognitive patterns of someone who has forethought and intact levels
of forethought that . . . would be beyond the range of someone with significant [or
even mild] mental retardation.” Dr. Sachy also found it important that in
telephone conversations conducted while he was in prison, Holsey used “a lot of
very high level, abstract words.”19
19
Dr. Cunningham, one of Holsey’s expert witnesses who testified at the evidentiary
hearing, criticized Dr. Sachy’s conclusions. His stated that the absence of physical abnormalities
is not inconsistent with a mild mental retardation diagnosis. He took the position that relying on
55
Dr. Sachy also testified that mental retardation indicators can overlap with
symptoms of antisocial personality disorder. He explained:
And they can be [easy to mix up], in the fact that someone may think
someone with mental retardation is doing poor in school or they’re
not there at school or are they just slow, when in reality they have
antisocial [personality disorder], they just don’t fit in well. They
don’t enjoy school. They have a tendency to break the rules. And,
really, they’re on the road to . . . potential for later criminal activity.
It can look the same initially . . . .
He testified that a history of fighting and committing aggravated assaults is more
indicative of antisocial personality disorder than mental retardation. He explained
that a history of “successful armed robberies or doing fairly well at them” is
indicative of antisocial personality disorder and not mental retardation; successful
armed robberies are “much more difficult for someone with real mental
retardation.”
The State also called as a witness at the evidentiary hearing Howard Sills,
the former Chief Deputy Sheriff of Baldwin County and the officer who had
arrested Holsey for Deputy Robinson’s murder. Sills testified that he knew Holsey
someone’s use of vocabulary is not an accepted way of diagnosing mental retardation. He also
testified that, “Holsey is deficient when you systematically evaluate [him]. Now, the armchair
kind of things that I may pull out, about an interaction with a girlfriend or about the criminal
justice system, those are not a substitute nor do they negate the systematic measures that are
undertaken.” Although Dr. Cunningham did not otherwise address Dr. Sachy’s reliance on
Holsey’s interaction with his girlfriend after he murdered Deputy Robinson, he did testify that
there was nothing in Dr. Sachy’s report that would cause him to change his opinion that Holsey is
mentally retarded.
56
before the arrest because Holsey had been an inmate in the Baldwin County Jail.
Based on his interaction with him, Holsey “was certainly not well educated, but
[he] never detected anything that [he] would have personally noticed as being
mental illness.” Instead, Holsey “was conversant and articulate, for his education”
and completed his jail chores satisfactorily.
2. The Affidavits
The State submitted the affidavits of seven current or former employees of
the Baldwin County Sheriff’s Office who knew Holsey from his time as an inmate
at the county’s jail: Jewel Hardage, Jerome Saulsbury, Carolyn Moss, Cathy
Alexander, Sonia Harris, Betty Johnson, and Elbert Webb. In their affidavits, they
attested that Holsey was “intelligent” and “ordinary,” and he was an inmate who
understood and followed instructions.
The State also submitted the affidavit of Evelyn Luton, the attorney who
represented Holsey after he stabbed Kenneth Simmons and shot at Scotty
Simmons in 1992. She attested that, although Holsey’s “language was unpolished,
there was no doubt in [her] mind after talking with him that he understood his
situation and had no problems comprehending the choices available to him.”
C. The State Collateral Court’s Decision
After the evidentiary hearing, the state collateral court concluded that
57
Holsey’s trial lawyers had failed to properly prepare and present mitigating
evidence of Holsey’s limited intelligence and troubled, abusive childhood. Holsey
II, No. 2000-V-604, at 82. The court also concluded that Holsey was prejudiced
by that failure. Id. at 80. “In light of this lack of any significant preparation or
presentation” of mitigating evidence, the court reasoned, “no one can seriously
believe that [Holsey] received the constitutional guarantees of the Sixth
Amendment right to effective assistance of counsel.” Id. at 83–84. For that
reason, the court granted a writ of habeas corpus with respect to Holsey’s death
sentence, vacating that sentence and ordering that Holsey receive a new trial of the
sentencing phase only. Id. at 84.
D. The Appeal
The State appealed the state collateral court’s grant of habeas relief. The
Geogia Supreme Court unanimously reversed that grant and reinstated Holsey’s
death sentence. Holsey III, 642 S.E.2d at 59. The court did “accept, for the
purposes of this analysis,” that Holsey had shown that his trial lawyers had
performed deficiently by not properly preparing and presenting mitigating
evidence of his limited intelligence and troubled, abusive childhood. Id. at 62.
The court nonetheless concluded that Holsey had failed to show prejudice, “that
‘there is a reasonable probability . . . that, but for counsel’s unprofessional errors,
58
the result of the proceeding would have been different.’” Id. at 60 (quoting Smith
v. Francis, 325 S.E.2d 362, 363 (Ga. 1985)).
The Georgia Supreme Court explained its conclusion that Holsey’s had
failed to show a reasonable probability of a different result despite the witnesses,
affidavits, and documents his collateral counsel presented in the evidentiary
hearing:
The additional evidence Holsey has presented in his habeas
proceedings, some of it contradicted by the [State’s] evidence, is
largely cumulative of evidence presented at trial, which highlighted
Holsey’s limited intelligence, his troubled and abusive home life, his
positive contributions at home and elsewhere, and his mother’s and
sister’s mental health issues. Having reviewed both the habeas record
and the trial record, including the trial testimony of two of Holsey’s
sisters and of other witnesses, the trial deposition testimony of
Clifford Holsey, Jr., and the non-testimonial material entered into
evidence at trial, this Court concludes that introduction of Holsey’s
new evidence at his trial would not have had an impact on the jury’s
sentencing deliberations sufficient to help sustain a successful
ineffective assistance of counsel claim regarding the sentencing
phase.
Id. at 61–62 (citation omitted).
III. THE DISTRICT COURT’S DECISION
After the Georgia Supreme Court reversed the state collateral court’s grant
of habeas relief, Holsey filed a 28 U.S.C. § 2254 petition for a writ of habeas
corpus. He raised ten claims, including the only one at issue in this appeal: that
59
his trial lawyers rendered ineffective assistance at the sentencing phase by not
presenting enough mitigating circumstances evidence about his limited
intelligence and troubled, abusive childhood.
The district court denied the petition. Holsey IV, No: 3:07-cv-129(CDL), at
27. In doing so, it concluded that the Georgia Supreme Court had not
unreasonably determined that the additional mitigating circumstances evidence
Holsey’s collateral counsel presented in the state court’s evidentiary hearing was
largely cumulative of the evidence Holsey’s trial lawyers presented at the
sentencing phase. Id. at 23. The court reasoned that Holsey’s trial lawyers “did,
during the sentencing portion of the trial, present evidence of [his] limited
intelligence, his abusive home life, his positive contributions to his sisters, and his
sister and mother’s mental health problems.” Id. Also, relying on the largely
cumulative nature of the additional mitigating circumstances evidence, much of
which it found had been contradicted by the State’s evidence, the district court
concluded that the Georgia Supreme Court’s decision that Holsey had not shown
prejudice was not an unreasonable application of clearly established federal law.
Id. at 25–27.
IV. DISCUSSION
Holsey contends that the district court erred in denying his 28 U.S.C. § 2254
60
habeas corpus petition and should have ruled that his trial lawyers’ performance at
the sentencing phase was ineffective under Strickland v. Washington, 466 U.S.
688,
104 S. Ct. 2052 (1984). He argues that those lawyers did not properly prepare
and present enough available mitigating evidence about his limited intelligence
and his troubled, abusive childhood and that, if they had done so, his sentence
would have been different. In reviewing a district court’s denial of a § 2254
habeas petition, we review only for clear error the court’s factfindings but review
de novo the court’s application of the law to those facts. Johnson v. Sec’y, Dep’t
of Corr.,
643 F.3d 907, 929 (11th Cir. 2011).
To succeed on his ineffective assistance of counsel claim, Holsey has the
burden of showing two things under Strickland. Id. at 928. First, he must show
that his counsel’s performance was deficient, which means that it “fell below an
objective standard of reasonableness” and was “outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 688, 690, 104 S.Ct.
at 2064, 2066; accord Johnson, 643 F.3d at 928; Allen v. Sec’y, Fla. Dep’t of
Corr., 611 F.3d 740, 751 (11th Cir. 2010); Smith v. Sec’y, Dep’t of Corr.,
572
F.3d 1327, 1349 (11th Cir. 2009). Courts must review counsel’s actions in a
“highly deferential” manner and “must indulge a strong presumption that
counsel’s conduct” was reasonable. Strickland, 466 U.S. at 689, 104 S.Ct. at
61
2065. To overcome that strong presumption of reasonableness, Holsey must show
that “‘no competent counsel would have taken the action that his counsel did
take.’” Johnson, 643 F.3d at 928 (quoting Chandler v. United States, 218 F.3d
1305, 1315 (11th Cir. 2000) (en banc)).
The second thing that Holsey must show is that he was prejudiced by his
counsel’s deficient performance, which means “that, but for his counsel’s deficient
performance, there is a reasonable probability that the result of the proceeding
would have been different.” Id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. at
2068). To find that there is a reasonable probability of a different result “our
confidence in the outcome must be undermined by counsel’s deficient
performance.” Id. at 929 (citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).
In addition to the Strickland two-step showing, Holsey’s ineffective
assistance of counsel claim is governed by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. § 2254(d).
Under AEDPA, a federal court may not grant a petitioner habeas relief on any
claim that was “adjudicated on the merits” in state court unless the state court’s
decision was: “(1) . . . contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States; or (2) . . . was based on an unreasonable determination of the facts in light
62
of the evidence presented in the State court proceeding.” Id.; accord Johnson, 643
F.3d at 929; Allen, 611 F.3d at 744–45; Hammond v. Hall, 586 F.3d 1289, 1306
(11th Cir. 2009). A state court’s application of clearly established federal law or
its determination of the facts is unreasonable only if no “fairminded jurist” could
agree with the state court’s determination or conclusion. Harrington v. Richter, —
U.S. —,
131 S. Ct. 770, 786 (2011); accord Yarborough v. Alvarado,
541 U.S. 652,
664,
124 S. Ct. 2140, 2149 (2004). In our en banc decision in Hill we phrased this
standard “more simply and maybe a little more clearly: if some fairminded jurists
could agree with the state court’s decision, although others might disagree, federal
habeas relief must be denied.” 662 F.3d at 1346; accord Sochor v. Sec’y Dep’t of
Corr.,
685 F.3d 1016, 1028 (11th Cir. 2012) (“In other words, we may issue a writ
of habeas corpus only where there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with precedents of the Supreme
Court of the United States.” (quotation marks and alterations omitted)).
AEDPA does not impose a complete bar on the relitigation in federal court
of claims already rejected in state proceedings. Harrington, 131 S.Ct. at 786;
accord Hill, 662 F.3d at 1345. Instead, “[i]t 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 th[e] Court’s precedents. It goes no farther.”
63
Harrington, 131 S.Ct. at 786. As the Supreme Court has emphasized:
Section 2254(d) reflects the view that habeas corpus is a “guard
against extreme malfunctions in the state criminal justice systems,”
not a substitute for ordinary error correction through appeal. Jackson
v. Virginia, 443 U.S. 307, 332, n.5,
99 S. Ct. 2781, 2796 n.5 (1979)
(Stevens, J., concurring in judgment). 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 786–87.
“If this standard is difficult to meet, that is because it was meant to be.” Id.
at 786. It was designed to be difficult in order “to ensure that state-court
judgments are accorded the finality and respect necessary to preserve the integrity
of legal proceedings within our system of federalism.” Martinez v. Ryan, — U.S.
—, 132 S. Ct. 1309, 1316 (2012). The Supreme Court gave this explanation:
Federal habeas review of state convictions frustrates both the States’
sovereign power to punish offenders and their good-faith attempts to
honor constitutional rights. It disturbs the State’s significant interest
in repose for concluded litigation, denies society the right to punish
some admitted offenders, and intrudes on state sovereignty to a
degree matched by few exercises of federal judicial authority.
Harrington, 131 S.Ct. at 787 (citation and quotation marks omitted); accord
Calderon v. Thompson, 523 U.S. 538, 555–56,
118 S. Ct. 1489, 1500–01 (1998).
For those reasons, “it will be a rare case in which an ineffective assistance of
64
counsel claim that was denied on the merits in state court is found to merit relief in
a federal habeas proceeding.” Johnson, 643 F.3d at 910–11.
A.
Because the Georgia Supreme Court denied Holsey’s ineffective assistance
of counsel claim based on Strickland’s prejudice step, we review with ADEPA
deference its holding that Holsey was not prejudiced by his trial lawyers’ alleged
deficiencies at the sentencing phase. See Kokal v. Sec’y, Dep’t of Corr., 623 F.3d
1331, 1345–46 (11th Cir. 2010). Like the Georgia Supreme Court, we will assume
for present purposes that Holsey’s trial lawyers rendered deficient performance
within the meaning of Strickland in regard to the sentencing phase. We will also
assume that an attorney rendering constitutionally effective performance would
have presented at the sentencing phase the evidence that Holsey’s trial lawyers
actually did present at that phase plus all of the additional evidence that his
collateral counsel submitted in the state collateral court.
Those two assumptions do not affect the outcome of this case because
Holsey has not shown that the Georgia Supreme Court’s holding that he was not
prejudiced by his counsel’s assumed deficient performance was based on an
unreasonable determination of the facts or is an unreasonable application of
clearly established federal law. Holsey has not shown that no fairminded jurist
65
could have concluded, as all seven Justices of the Georgia Supreme Court did, that
he has failed to carry his burden of showing that if the additional evidence had
been presented there is a reasonable probability of a different sentencing result.
Holsey has not shown that the evidence on the prejudice question is so one-sided
in his favor that the answer is, as the Supreme Court has phrased it, “beyond any
possibility for fairminded disagreement.” Harrington, 131 S.Ct. at 787. He has
not shown that the Georgia Supreme Court’s determination of the prejudice issue
was so unjustified that it “was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Id. at 786–87;
accord Bobby v. Dixon, — U.S. —, 132 S. Ct. 26, 27 (2011) (per curiam).
B.
Holsey’s first contention is that the Georgia Supreme Court’s holding that
he did not show prejudice was based on an unreasonable determination of the
facts. See Appellant Br. 18–28. He argues that it was objectively unreasonable
for the court to characterize the evidence of his limited intelligence and troubled,
abusive childhood that he presented in the state collateral court as “cumulative” of
the evidence he presented at the sentencing phase. Appellant Br. 18. About his
limited intelligence, he argues that the jury at the sentencing phase “merely hear[d]
an undefined label like ‘borderline mentally retarded,’” but the evidence presented
66
at the evidentiary hearing actually explained the deficits that he faced and
provided “qualitatively superior information about [his] . . . mental capacities.”
Appellant Br. 24. About his troubled, abusive childhood, he argues that the jury at
the sentencing phase did not hear sufficient “detail about his upbringing.”
Appellant Br. 22.
Holsey mischaracterizes the conclusion of the Georgia Supreme Court. The
court did not describe the evidentiary hearing evidence as “cumulative” of the
evidence presented at the sentencing phase but instead characterized it as “largely
cumulative.” See Holsey III, 642 S.E.2d at 61–62. There is a difference.
“Cumulative” may mean “completely cumulative” or it may not, but “largely
cumulative” does not mean “cumulative.” Instead “largely cumulative” means
“chiefly cumulative,” “mostly cumulative,” or “more cumulative than not.” See
Random House Webster’s Unabridged Dictionary 1084 (2d ed. 2001); cf. Lanfear
v. Home Depot, Inc., 679 F.3d 1267, 1277 (11th Cir. 2012) (“Primarily does not
mean exclusively; primarily exclusively means primarily.”).
We have some serious doubt about treating as a factfinding to be reviewed
under 28 U.S.C. § 2254(d)(2) the Georgia Supreme Court’s conclusion that the
additional evidence at the evidentiary hearing was “largely cumulative” of the
evidence presented at the sentencing phase. The “largely cumulative” conclusion
67
does not seem to be a factfinding or a “determination of the facts” that is subject to
review under that statutory provision; it seems to be a conclusion in the nature of
an application of law to fact. At the very least, it is not a finding or determination
of the historical facts of the case. See Am. Civil Liberties Union of Fla., Inc. v.
Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1206 (11th Cir. 2009) (explaining
that historical facts are the “who, what, where, when, and how of the
controversy”). Instead, the term “largely cumulative” seems more of a way of
conveying that there was not enough of a difference between the evidence
presented during the sentencing phase and the evidence presented in the collateral
evidentiary hearing to establish a reasonable probability of a different result.
In Cooper v. Secretary, Department of Corrections, 646 F.3d 1328, 1349
(11th Cir. 2011), however, we did state that the Florida Supreme Court’s
conclusion that the petitioner’s collateral hearing evidence in that case was
“cumulative to that presented at sentencing” was an unreasonable determination of
the facts under § 2254(d)(2). Cooper, though, appears to be an outlier. We could
not find any other decision where we have analyzed a state court’s conclusion
about the cumulative nature of evidence as a determination of the facts under §
2254(d)(2). Our “unreasonable determination of the facts” analysis in cases other
than Cooper has involved determinations of historical facts. See, e.g., Rhode v.
68
Hall, 582 F.3d 1273, 1282–83 (11th Cir. 2009) (reviewing under § 2254(d)(2)
whether counsel was personally involved in the investigation of mitigation
evidence); Carroll v. Sec’y, Dep’t of Corr.,
574 F.3d 1354, 1368–69 (11th Cir.
2009) (reviewing under § 2254(d)(2) whether the defendant was mentally
retarded); Whisenhant v. Allen,
556 F.3d 1198, 1208 (11th Cir. 2009) (reviewing
under § 2254(d)(2) whether a judge knew that a motion was not properly served).
Our Cooper decision also appears to conflict with the Supreme Court’s
decision in Cullen v. Pinholster, — U.S. —, 131 S. Ct. 1388 (2011). In Cullen the
Supreme Court held that the petitioner had not shown that the state supreme court
unreasonably applied clearly established federal law, in part, because the Supreme
Court decided that the additional mitigation evidence in the state habeas
proceedings “largely duplicated the mitigation evidence at trial.” Id. at 1409. The
Supreme Court decided for itself that the additional evidence presented in the state
collateral proceeding “largely duplicated” the evidence that had been presented at
trial. Because federal appellate courts, including the Supreme Court, are not
factfinders, see Pullman-Standard v. Swint,
456 U.S. 273, 291–93,
102 S. Ct. 1781,
1791–92 (1982); United States v. Noriega,
676 F.3d 1252, 1263 (11th Cir. 2012);
United States v. Fulford,
662 F.3d 1174, 1181 (11th Cir. 2011), the Supreme
Court’s “largely duplicated” determination in Cullen is not a factfinding; if it
69
were, the Supreme Court would not have made it because appellate courts do not
make factfindings. So, Cullen indicates that this Court in Cooper should not have
treated the “cumulative” determination as a factfinding and that the Georgia
Supreme Court’s “largely cumulative” determination in this case probably is not a
factfinding.20
Nonetheless, the State in this case does not contend that we should not treat
that determination as a factfinding for purposes of § 2254(d)(2), and doing so does
not affect the result. So we will assume, as Holsey argues, that the determination
was one of fact subject to review under § 2254(d)(2).21 We will not, however, be
deciding whether it would have been reasonable to find that the additional
collateral hearing evidence was “cumulative” of the trial and sentencing phase
evidence because that is not what the Georgia Supreme Court said. It said “largely
20
The dissenting opinion misconstrues our statements about the Cullen decision. See
Dissenting Op. 120 n.5. We are not saying that § 2254(d)(2) applies only to a subset of
factfindings. Instead, we are pointing out that the Supreme Court and this Court have held that
federal appellate courts, of which the Supreme Court is one, do not find facts. It follows that
when the Supreme Court determined in Cullen that the evidence presented in the state collateral
proceeding “largely duplicated” the evidence at the sentence proceeding, the Court was not
finding facts but applying law to fact. And because the Supreme Court’s “largely duplicated”
determination in Cullen was an application of law to fact, it follows that the Georgia Supreme
Court’s “largely cumulative” determination in this case was also an application of law to fact. It
is as simple as that.
21
The dissenting opinion falsely accuses us of disregarding the Cooper decision. See
Dissenting Op. 118. While we believe that decision is wrong on the question of whether
“cumulative” is a factfinding or an application of law to fact, we treat it as correct and binding
and explain why this case is distinguishable. See infra pp. 88–89.
70
cumulative,” and we will review for reasonableness that determination, not
Holsey’s pruned down revision of it.
C.
As the Supreme Court has observed, “[t]he term ‘unreasonable’ is no doubt
difficult to define.” Wood v. Allen, — U.S. —, 130 S. Ct. 841, 849 (2010).
Despite that difficulty, the Court has explained “that a state-court factual
determination is not unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.” Id. Instead, “if some
fairminded jurists could agree with the state court’s decision, although others
might disagree,” the state court’s decision is not unreasonable. Hill, 662 F.3d at
1346. To be unreasonable, the error in the state court’s finding must be so clear
that there is no possibility for “fairminded disagreement.” Harrington, 131 S.Ct. at
786–87. AEDPA “demands that state-court decisions be given the benefit of the
doubt.” Renico v. Lett, — U.S. —,
130 S. Ct. 1855, 1862 (2010) (quotation marks
omitted); accord Morton v. Sec’y, Fla. Dep’t of Corr, — F.3d —, No. 11–11199,
2012 WL 2332758, slip op. at 14–15 (11th Cir. June 20, 2012).
To determine whether the Georgia Supreme Court’s “largely cumulative”
determination was an unreasonable one, we compare the trial evidence with the
evidence presented during the state postconviction proceedings. In doing so, we
71
keep in mind that the United States Supreme Court, this Court, and other circuit
courts of appeals generally hold that evidence presented in postconviction
proceedings is “cumulative” or “largely cumulative” to or “duplicative” of that
presented at trial when it tells a more detailed version of the same story told at trial
or provides more or better examples or amplifies the themes presented to the jury.
See, e.g., Cullen, 131 S.Ct. at 1409–10 (“The ‘new’ evidence largely duplicated
the mitigation evidence at trial. School and medical records basically substantiate
the testimony of [the petitioner]’s mother and brother. Declarations from [the
petitioner]’s siblings support his mother’s testimony that his stepfather was
abusive and explain that [the petitioner] was beaten with fists, belts, and even
wooden boards.” (emphases added)); Wong v. Belmontes, 558 U.S. 15,
130 S. Ct.
383, 387–88, (2009) (per curiam) (holding that “[s]ome of the [additional
mitigating] evidence was merely cumulative of the humanizing evidence [the
petitioner] actually presented” because “[t]he sentencing jury was . . . well
acquainted with [the petitioner’s] background and potential humanizing features”
(quotation marks omitted)); Boyd v. Allen,
592 F.3d 1274, 1297–98 (11th Cir.
2010) (finding that much of the evidence presented by the petitioner during
postconviction proceedings “was in some measure cumulative” of the trial
evidence because “much (although not all) of the ‘new’ testimony introduced at
72
the post-conviction hearing would simply have amplified the themes already
raised at trial” (emphasis added)); Rhode, 582 F.3d at 1287 (“At best, the evidence
would have been cumulative, providing more information about [the petitioner]’s
bad childhood and early exposure to drugs and alcohol.” (emphasis added));
Robinson v. Moore, 300 F.3d 1320, 1347 (11th Cir. 2002) (“[M]ost of the new
mitigation evidence is cumulative of the nonstatutory mitigating circumstances
presented during resentencing. . . . While the additional mitigation witnesses
procured by [the petitioner’s habeas] counsel could have presented the
resentencing jury and trial judge with more details, or different examples, of these
aspects of [the petitioner’s] life, these aspects of his life were nonetheless known
to the resentencing jury and trial judge.” (emphases added)); Riley v. Wainwright,
778 F.2d 1544, 1549–51, 1551 n.14 (11th Cir. 1985) (describing as “largely
cumulative” the forensic evidence that the petitioner claimed should have been
presented at sentencing because that forensic evidence would have only
“buttress[ed]” the points made by other witnesses); Jackson v. Bradshaw,
681 F.3d
753, 769–70 (6th Cir. 2012) (holding that evidence presented during collateral
proceedings was “largely cumulative” of evidence presented during sentencing
because the collateral evidence provided only a “larger pool of information of the
same type already offered” at sentencing); Beuke v. Houk,
537 F.3d 618, 645–46
73
(6th Cir. 2008) (holding that the petitioner’s collateral evidence was “largely
cumulative” of the evidence presented at trial because it concerned the same
“subject matter [as] the evidence actually presented at sentencing”); Paul v. United
States, 534 F.3d 832, 842–43 (8th Cir. 2008) (holding that “[m]uch of the new
[collateral] evidence cited by [the petitioner] [was] largely cumulative of evidence
that was presented . . . at the penalty phase of the trial” although the collateral
evidence might have provided “more detail about [the petitioner]’s difficult and
abusive childhood or his compassionate character”); Buckner v. Polk,
453 F.3d
195, 207 (4th Cir. 2006) (“To the extent that the Maxwell and Coleman affidavits
provide new detail of the stories of [the petitioner]’s brother’s death and his
father’s alcoholism, we conclude that this new detail is largely cumulative.”);
Hedrick v. True,
443 F.3d 342, 353 (4th Cir. 2006) (“The evidence that [the
defendant] had received low scores on intelligence tests administered at an early
age is largely cumulative of testimony from Dr. Hawk and [the defendant]’s
mother during the sentencing phase that he had learning troubles in his
youth . . . .”); Baldwin v. Maggio,
704 F.2d 1325, 1334 (5th Cir. 1983) (holding
that a petitioner was not prejudiced by his counsel’s failure to present “largely
cumulative” evidence from several witnesses because “[t]heir testimony would
have served only to corroborate the portrait of the man sketched by” other
74
witnesses who had testified at sentencing).
The evidence presented at the sentencing phase of Holsey’s trial and during
the collateral evidentiary hearing all goes to one of two chapters of his mitigating
circumstances story. One chapter is about his limited intelligence and the other is
about his troubled, abusive childhood growing up poor in a home with an absentee
father, a mentally challenged, abusive mother, and a violent, mentally challenged
sister. Holsey contends, however, that in the state collateral court he told a more
detailed version of both those chapters of his story than his trial lawyers told at the
sentencing phase of his trial. He argues that those additional details render the
Georgia Supreme Court’s “largely cumulative” conclusion unreasonable. We will
compare the chapters separately, turning first to a comparison between the
sentencing phase and state collateral court evidence about Holsey’s limited
intelligence, and then to a comparison of the evidence about his troubled
upbringing.
1.
At the sentencing phase, Holsey’s trial lawyers informed the jury that he is a
man of limited intelligence. They told that story primarily through the testimony
of Holsey’s sister Regina Reeves who was a Deputy United States Marshal. She
testified that Holsey performed poorly in school, and was usually assigned to the
75
next grade level instead of actually passing into that grade level, and he dropped
out of school before finishing the tenth grade. The jury learned from his school
records, which Reeves read to them, that Holsey was “a weak student” and “very
slow” and a “poor worker” who “need[ed] help from home” but never got that
help. Reeves also read to the jury part of Holsey’s Youth Development Center
records, which said that Holsey “functions in the borderline mental retardation
range of intelligence,” and she told the jury that another part of those records
described how a then fifteen-year-old Holsey was functioning academically at only
a third-grade level. Also, one of Holsey’s trial lawyers told the jury in her closing
statement that Holsey is “borderline mentally retarded,” a point she reiterated by
telling the jury that he “was just assigned [to grades] for school.”
In the state postconviction proceedings, Holsey presented additional
evidence that told a more detailed version of the limited-intelligence story that his
trial lawyers had put before the jury in the sentencing phase. Holsey called two
psychologists to testify at the evidentiary hearing: Dr. Cunningham and Dr.
Toomer. Each psychologist testified that in his opinion Holsey is mildly mentally
retarded, which means he suffers from what Dr. Cunningham described as a
“catastrophic disability,” although the DSM-IV does not describe it that way, see
supra p. 29 n.7. Holsey also submitted the deposition testimony of two other
76
psychologists—Dr. Einhorn, whom the State had hired to evaluate Holsey, and Dr.
Shapiro who had been hired by Holsey’s trial lawyers before the trial. Those two
experts testified that Holsey is not mentally retarded but instead functions in the
borderline mental retardation range, which is what the jury had heard during the
sentencing phase. Dr. Shaprio added in his deposition testimony that someone in
the borderline mental retardation range is in approximately the bottom fifth
percentile of intelligence. (During its presentation at the same hearing the State
called as an expert witness Dr. Sachy, a psychiatrist, who agreed with Dr. Einhorn
and Dr. Shaprio that Holsey is not mentally retarded but instead functions in the
borderline mental retardation range.)
In the state collateral proceedings, Holsey also submitted the deposition
testimony and affidavits of several witnesses who testified or attested that Holsey
has limited intelligence. Three of Holsey’s former teachers explained that he
“wasn’t a very good student”; displayed an “obvious slowness”; suffered serious
intellectual limitations; could “barely read”; “just wasn’t playing with a full deck”;
and “didn’t have any smarts going for him.” Family members explained that he
“definitely couldn’t care for himself”; “needed a lot of guidance and supervision”;
“learned things really slowly or not at all”; and was not very smart. Holsey’s
friends and former neighbors told the state collateral court that he “was just slow
77
in the head”; did not “have the smarts necessary to make his way on his own”; and
did not have “the smarts of a grown man.” One of Holsey’s former coworkers told
the court that “he was way behind most folks when it came to smarts.” Others said
that he “was very limited intellectually”; “not capable of abstract reflection”; and
was “a slow, simple-minded boy.”22
(We will save for later a discussion of the contrary evidence in the form of
lay testimony that the State presented at the evidentiary hearing on the question of
Holsey’s intelligence. See infra p. 99 n.24.)
As our comparison shows, the limited-intelligence evidence that Holsey
presented during the state postconviction proceedings concerned the same “subject
matter [as] the evidence actually presented at sentencing,” Beuke, 537 F.3d at
645–46, and primarily was a more detailed retelling of the limited-intelligence
story his trial lawyers told the jury at the sentencing phase. Most of that additional
evidence “basically substantiate[ed]” or “support[ed]” the testimony of Reeves and
the facts in the records put before the jury while she was testifying about Holsey
not being intelligent, performing poorly in school, and functioning in the
22
To contradict those depositions and affidavits, at the state postconviction evidentiary
hearing, the State called Howard Sills, the former Chief Deputy Sheriff Baldwin County, and
submitted the affidavits of eight others. Sills’ testimony and the affidavits described Holsey as
an ordinary, intelligent person.
78
borderline mentally retarded range. See Cullen, 131 S.Ct. at 1435. In other
words, the evidence presented in the state collateral court provided a “larger pool
of information of the same type already offered,” Bradshaw, 681 F.3d at 770, and
merely “amplified the themes [of]” his sentencing phase evidence, Boyd, 592 F.3d
at 1298, by expanding on and providing more details and different examples about
his limited intelligence, see Robinson, 300 F.3d at 1347. For that reason, a
reasonable jurist could determine, as the Georgia Supreme Court did, that the
additional evidence about Holsey’s limited intelligence was “largely cumulative”
of the evidence presented at trial.
The state collateral court did hear some evidence about Holsey’s limited
intelligence that may not have been cumulative, specifically the testimony of two
psychologists who diagnosed him as mildly mentally retarded and Dr. Shapiro’s
explanation of borderline mental retardation. That some of the limited-
intelligence evidence presented in the state collateral court was not cumulative
does not mean that the Georgia Supreme Court’s conclusion that the state
collateral limited-intelligence evidence was “largely cumulative” was an
unreasonable determination of the facts. It wasn’t unreasonable. As we have just
described, most of the evidence presented about limited intelligence in the state
collateral court was cumulative of the evidence presented at trial. And “mostly” is
79
“largely.” See Roget’s Super Thesaurus 339 (4th ed. 2010) (stating that “mostly”
is a synonym for “largely”).
Our decision in Herring v. Secretary, Department of Corrections, 397 F.3d
1338 (11th Cir. 2005), is instructive. In Herring, the petitioner argued, among
other things, that his trial counsel was deficient and he was prejudiced because his
counsel did not “introduce two psychological reports that diagnosed him as
suffering from retardation and other organic neurological disorders.” Id. at 1351.
We held that the petitioner had not shown prejudice because, among other things,
the reports were “cumulative” of the petitioner’s mother’s trial testimony that he
had a low IQ and a learning disability. Id. Similar to the jury in Herring, the jury
at the sentencing phase in this case heard that Holsey has limited intelligence,
functions in the borderline mental retardation range, and performed poorly in
school. Some expert testimony diagnosing Holsey with mild mental retardation
(contradicted by other expert testimony that he is not mentally retarded) or
explaining the term “borderline mental retardation” does not alter the cumulative
nature of the rest of the additional evidence about Holsey’s limited intelligence.
2.
We now turn to a comparison of the evidence at the sentencing phase and
state collateral hearing concerning Holsey’s troubled, abusive childhood. At the
80
sentencing phase, the jury heard about Holsey’s troubled, abusive childhood from
both Clifford Holsey and Regina Reeves and from Holsey’s Youth Development
Center records. Clifford told the jury that (1) Holsey grew up in a “rough” home
that was infested with cockroaches; (2) Holsey’s mother neglected, abused, and
“walked all over” him; (3) Holsey’s mother would curse at, “scold[,] and . . . beat”
her son; and (4) she often left her children alone at night because she worked
nights at Clifford’s club.
Holsey’s sister, Reeves, testified about his troubled, abusive childhood. She
told the jury that “things were horrible” for Holsey growing up. She recounted
that their mother often beat her three oldest children—Reeves, Angela, and
Holsey—which motivated Reeves to escape from their mother’s cruelty by leaving
home at age seventeen. Reeves also read to the jury part of Holsey’s Youth
Development Center records stating that Holsey “has no supervision at home.”
She further explained that their mother was often absent and had once been
hospitalized for psychiatric issues and that Holsey never really knew their father.
Holsey, she said, “more or less” grew up on the streets. She also told the jury
about how Angela, who was a major influence on Holsey, was a violent person
who had been hospitalized several times for mental issues.
A summary of a Youth Development Center home evaluation, which was
81
contained in the records that were put into evidence at the sentencing phase,
informed the jury that Holsey’s mother “ha[d] no idea how to control [him]
without resorting to excessive punishment.” In her closing statement, one of
Holsey’s trial lawyers highlighted Holsey’s troubled, abusive “home life,” noting
that he “grew up by himself.” She told that jury that he “had nothing that every
child deserves to have. He was deprived of everything.”
In the state evidentiary hearing, Holsey’s collateral counsel presented
evidence that provided the court with more details about Holsey’s troubled,
abusive childhood than the jury had heard at the sentencing phase. Reeves
testified in more detail about the verbal, emotional, and physical abuse Holsey had
suffered while growing up. She told the court that Holsey had grown up in a
“horrible” economic situation and that he did not always have enough to eat. She
said that their mother was rarely home because she worked day and night, and
when she was home she favored his two younger sisters over Holsey, Reeves, and
Angela.
Reeves provided details about how their mother verbally and physically
abused Holsey. She testified that their mother would curse at and humiliate him,
telling him that “he was just like his no-good-ass daddy” and that “he was going to
be a punk and a sissy.” Their mother also told Holsey that he had a “can’t talk
82
ass” and that he could not “talk worth a shit.” Reeves provided the state collateral
court with examples of the physical abuse Holsey suffered, telling the court that
their mother would beat him with an extension cord, shoes, and a broom and
would sometimes hold his head under the bathtub faucet. Reeves also said that
their mother would beat Holsey because he wet the bed until he was thirteen years
old and that Holsey had once seen his mother beat Angela until she was
unconscious.
Holsey’s collateral counsel also submitted depositions and affidavits that
provided more details about his troubled, abusive childhood. Family members,
friends, and neighbors told how his mother verbally abused him, calling him
things like a “buck teeth mother fucking monkey[]”; a “‘sissy boy’”; and a “‘cry
baby.’” They also told the court that his mother made fun of his limited
intelligence, saying things like: “Can you read any of the words in this book
boy?” and “‘What’s wrong with your head anyway.” She also would call him a
“motherfucker,” “sissy ass,” “stupidhead,” “dumbo,” and “retardate.” Holsey’s
sister Demetra told the court that his mother made distinctions between her
children, treating her two youngest daughters the best.
Family, friends, and neighbors described the severity of the abuse Holsey
suffered at the hands of his mother. A former neighbor told the court that his
83
mother was “mean and cruel to her . . . kids,” and others told the court that his
mother would beat him for any reason or no reason at all. According to the
depositions and affidavits, “while cursing and yelling at the top of her lungs,” she
repeatedly unleashed “brutal” beatings on him, using extension cords, belts, a
washer/dryer hose, shoes, a hot curling iron, or “anything else she found handy.”
During these violent outbursts, Holsey’s mother would “tear into [him] and beat
him to a pulp.” A friend even recounted that she had seen Holsey “running for his
life and not caring that he was covered in red welts and wounds.”
Others told the court that Holsey’s childhood home was disgusting. His
mother’s niece said that it “was always filthy and stunk with the smell of urine and
rotting food,” and a former neighbor said his home was “filthy and dirty with
roaches, old garbage and the stench of urine.”
As this comparison of the evidence presented at the sentencing phase and at
state collateral court’s evidentiary hearing shows, the state collateral court was not
the first court to hear about Holsey’s troubled, abusive childhood. Although the
court heard more details about that childhood during the evidentiary hearing, the
jury at the sentencing had heard about his troubled, abusive upbringing too. Like
the evidence Holsey presented in the evidentiary hearing about his limited
intelligence, the evidence he presented during the hearing about his troubled,
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abusive childhood “basically substantiate[ed]” and “support[ed]” the story that
Holsey’s trial lawyers had put before the jury about how he grew up poor in a
filthy home, with a mentally challenged, absentee mother who, when she was
around, beat him and verbally abused him. See Cullen, 131 S.Ct. at 1435.
The evidence presented during the collateral evidentiary hearing concerned
the same “subject matter [as] the evidence actually presented at sentencing.”
Beuke, 537 F.3d at 645–46. The collateral evidence provided a “larger pool of
information of the same type already offered,” Bradshaw, 681 F.3d at 770, which
“amplified the themes [of]” the story that was told to the jury, Boyd, 592 F.3d at
1298, by providing “more information,” Rhode, 582 F.3d at 1287, “more details,”
and “different examples” of Holsey’s troubled, abusive childhood, Robinson, 300
F.3d at 1347. But the basic story of his troubled, abusive childhood was
“nonetheless known to the . . . jury” when it sentenced him to death for the malice
murder of Deputy William Robinson. Robinson, 300 F.3d at 1347. Because the
evidence Holsey presented in the state collateral court about his troubled, abusive
childhood was largely cumulative of the evidence he presented at trial, it was not
unreasonable for the Georgia Supreme Court to describe it as largely cumulative.
At least, fairminded jurists could disagree about whether it was. See Harrington,
131 S.Ct. at 786.
85
Two decisions, one from the Supreme Court and one from this Court,
support our conclusion about this. The first is the Supreme Court’s decision in
Cullen. In that case, “[t]he mitigating evidence [at trial] consisted primarily of the
penalty-phase testimony of [the petitioner’s mother]” who testified, among other
things, that the petitioner’s stepfather was “abusive, or nearly so.” Cullen, 131
S.Ct. at 1408–09. Declarations of the petitioner’s siblings submitted during
postconviction proceedings provided new and graphic details about that abuse,
including that the petitioner’s “stepfather beat him several times a week” with his
fists, belts, and “at least once with a two-by-four board.” Id. at 1424 (Sotomayor,
J., dissenting); accord id. at 1410 (majority op.). Even so, the Supreme Court held
that the “‘new’ evidence” of the abuse suffered by the petitioner “largely
duplicated the mitigation evidence [of abuse] at trial” because it “support[ed] his
mother’s testimony that his stepfather was abusive and explain[ed] that [the
petitioner] was beaten with fists, belts, and even wooden boards.” Id. at 1409–10.
If, as the Supreme Court held, the additional evidence in Cullen “largely
duplicated” the evidence at the trial in that case, id. at 1409, the additional
evidence in this case was “largely cumulative” of the evidence at the trial in this
case. Or at least fairminded jurists could so find, as the five Justices who joined
that part of the Supreme Court’s Cullen decision did. See Harrington, 131 S.Ct. at
86
786.
The second decision that supports our conclusion is the Sochor case. There,
we held that the evidence of “childhood trauma” Sochor presented in the state
collateral evidentiary hearing was cumulative of the evidence that had been
presented on his behalf at trial. Sochor, 685 F.3d at 1031–32. We explained that
“[a]lthough Sochor presented evidence during the [state collateral] evidentiary
hearing that he suffered severe beatings and head injuries as a child and young
adult,” the sentencing judge and jury had heard essentially the same story. Id. at
1031. For example, his “sister testified during the penalty phase that Sochor’s
father . . . once ‘got ahold of Sochor’s hair, and he kept banging his head against
the wall.’” Id. (alteration omitted). And Sochor’s father testified at the penalty
phase that his mother (not the father) had once “lost her temper and beat Sochor,
then banged his head against the wall.” Id. (alteration and quotation marks
omitted). We held that evidence was “substantially similar,” id. at 1032, to
Sochor’s siblings’ testimony at the evidentiary hearing “that their father had
brutally beaten Sochor when he was a child,” id. at 1023, including his sister’s
testimony that “their father usually beat one of the children when he came home
from work and that Sochor was his favorite target,” id.
If, as we held, the additional evidence in Sochor was “substantially similar”
87
to the evidence at the trial in that case, the additional evidence in this case was
“largely cumulative” to the evidence at the trial in this case. Or at least fairminded
jurists could so find. Reeves’ evidentiary hearing testimony and the depositions
and affidavits Holsey submitted do bolster Reeves’ and Clifford Holsey’s
sentencing phase testimony, and the facts from the records that were introduced at
trial, by adding details about the beatings and verbal abuse that Holsey suffered.
But those additional details tell the same story that Holsey’s trial lawyers told at
the sentencing phase.
The largely cumulative nature of Holsey’s collateral hearing evidence about
his childhood is different from the nature of the collateral hearing evidence that we
described in Cooper. There we held that a Florida Supreme Court “cumulative”
finding was an unreasonable determination of the facts because the evidence
presented in the state collateral court did not tell the same story as the evidence
presented at trial. See Cooper, 646 F.3d at 1353. In Cooper, the petitioner’s
mother had testified at sentencing that the extent of the childhood abuse inflicted
on the petitioner “was the emotional abuse of his father not being involved in his
life and getting whipped by a belt, sometimes leaving marks” and of seeing his
father physically abuse her. Id. Evidence at the state collateral evidentiary
hearing, however, showed that the defendant had suffered “horrible abuse” at the
88
hands of his father, id., including being “beaten, punched, and kicked” from the
time “he was barely out of diapers,” id. at 1342.
The Florida Supreme Court found that the petitioner’s collateral challenge
evidence was “cumulative to that presented at sentencing,” holding that “a
substantial part of the information regarding [his] disadvantaged childhood was
presented at [his] trial” through his mother’s testimony. Id. at 1353 (quotation
marks omitted). We held that was an unreasonable determination of the facts
because his mother’s testimony “did not begin to describe the horrible abuse”
suffered by the defendant at the hands of his father. Id. Instead, his mother’s trial
testimony only told the jury about the petitioner’s absentee father occasionally
whipping him with a belt. Id. That was a different story—not just a less detailed
one—than the habeas story about the “horrible abuse” that the petitioner actually
did suffer. Id. In contrast to the additional evidence presented in the state
collateral hearing in Cooper, Holsey’s additional evidence told largely the same
story as his sentencing phase evidence, although it did add details and bolster that
evidence.
For these reasons, we conclude that the Georgia Supreme Court’s
determination that the evidence Holsey’s collateral counsel presented in the
evidentiary hearing was largely cumulative of the evidence that his trial lawyers
89
had presented during the sentencing phase of his trial was not an unreasonable
determination of fact under § 2254(d)(2).
D.
Holsey’s last contention is that the Georgia Supreme Court was wrong to
decide that he did not carry his burden of establishing that he was prejudiced by
his trial lawyers’ deficient performance at the sentencing phase of his trial.
Prejudice, of course, means “ a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. at
2069. And a reasonable probability, in turn, means “a probability sufficient to
undermine confidence in that outcome.” Johnson, 643 F.3d at 935 (quoting Porter
v. McCollum, — U.S. —, 130 S. Ct. 447, 455–56 (2009)) (alterations and some
quotation marks omitted). In determining whether a petitioner has carried his
burden of showing prejudice from his trial counsel’s failure to present all the
mitigating circumstance evidence that his collateral counsel presented, courts must
“evaluate the totality of the available mitigation evidence—both that adduced at
trial, and the evidence adduced in the habeas proceeding—and reweigh it against
the evidence in aggravation.” Callahan v. Campbell,
427 F.3d 897, 936 (11th Cir.
2005) (alterations and quotation marks omitted); accord Johnson, 643 F.3d. at 935.
90
It is not enough for a habeas petitioner to convince a federal court that he
was prejudiced by the failure to present the additional mitigating circumstance
evidence, that there is a reasonable probability of a different result if it had been
presented. Under the unreasonable application clause of 28 U.S.C. § 2254(d)(1),
he must establish more because the question for a federal habeas court is “whether
the state court’s application of clearly established federal law was objectively
unreasonable,” Williams, 529 U.S. at 409, 120 S.Ct. at 1521, and an “unreasonable
application of federal law is different from an incorrect application of federal
law,” id. at 410, 120 S.Ct. at 1522. Once again, a state court’s application of
federal law is unreasonable only if no “fairminded jurist” could agree with the
state court’s conclusion. Harrington, 131 S.Ct. at 786; see also Yarborough, 541
U.S. at 664, 124 S.Ct. at 2149; Hill, 662 F.3d at 1346. “[I]f some fairminded
jurists could agree with the state court’s decision, although others might disagree,
federal habeas relief must be denied.” Hill, 662 F.3d at 1346. So, to prevail,
Holsey must establish that no fairminded jurist could conclude that he was not
prejudiced by his trial lawyers’ failure at the sentencing phase to present the
additional evidence of his limited intelligence and his troubled, abusive childhood
that his collateral counsel presented in the state collateral court. See id. Holsey
91
contends that he has done that, but we disagree.23
To begin with, “[t]his is not a case where the weight of the aggravating
circumstances or the evidence supporting them was weak.” Sochor, 685 F.3d at
1030 (alteration omitted); accord Kokal, 623 F.3d at 1347. Not at all. There was,
and is, substantial evidence of aggravating circumstances, which makes it more
difficult to establish prejudice under Strickland. See Sochor, 685 F.3d at 1030–33
(holding that a petitioner did not establish the prejudice prong of Strickland in part
because there was strong evidence of the aggravating circumstance that the murder
was “especially heinous, atrocious, and cruel”); Rose v. McNeil, 634 F.3d 1224,
1242 (11th Cir. 2011) (holding that a petitioner did not establish the prejudice
prong of Strickland in part because there was “substantial evidence in
aggravation”); Callahan, 427 F.3d at 938 (holding that strong aggravation
23
Holsey also argues that the Georgia Supreme Court’s evaluation of the mitigating
evidence he presented at the evidentiary hearing was specifically contrary to the Supreme Court’s
application of the Strickland standard in Williams v. Taylor. That contention lacks merit. In
Williams, the Court held that the Virginia Supreme Court’s conclusion that the petitioner had not
established prejudice was an unreasonable application of Strickland because the state court “did
not entertain [the] possibility” that “[m]itigating evidence unrelated to dangerousness may alter
the jury’s selection of penalty, even if it does not undermine or rebut the prosecution’s death-
eligibility case.” Id. at 398, 120 S.Ct. at 1516. The Georgia Supreme Court did not make the
same mistake in Holsey’s case. Nothing in its opinion suggests that it “rested its prejudice
determination on the fact that [Holsey’s] mitigating evidence did not undermine or rebut the
evidence supporting the aggravating circumstance[s].” Williams v. Allen, 542 F.3d 1326, 1344
(11th Cir. 2008). Instead, the court explicitly examined the totality of Holsey’s available
mitigation evidence and weighed it against the evidence of aggravation. After doing so, the court
concluded that the available mitigation evidence did not undermine its confidence in the jury’s
death sentence recommendation. See Holsey III, 642 S.E.2d at 61–62.
92
“demonstrates the burden a defendant faces when trying to overcome . . . harsh
aggravating factors with mitigating evidence”); Kokal, 623 F.3d at 1347–48
(finding that the Florida Supreme Court’s holding that a petitioner had not shown
prejudice was not an unreasonable application of Strickland in part because “the
aggravating circumstances . . . are especially powerful”); Rutherford v. Crosby,
385 F.3d 1300, 1316 (11th Cir. 2004) (“A third reason why the Florida Supreme
Court’s decision that [the petitioner] had not established prejudice is not
objectively unreasonable is that this is not a case where the weight of the
aggravating circumstances or the evidence supporting them was weak.”);
Crawford v. Head,
311 F.3d 1288, 1321 (11th Cir. 2002) (finding no prejudice in
part because of the “strength of the evidence both of [the petitioner’s] guilt and of
the aggravating circumstances”); Hall v. Head,
310 F.3d 683, 706 (11th Cir. 2002)
(holding “that the state court’s calculus as to prejudice was [not] an unreasonable
one” in part “because the aggravating evidence is strong”); cf. Williams, 542 F.3d
at 1343 (“Further supporting a finding of prejudice is the fact that this case is not
highly aggravated.”).
The jury in this case found four statutory aggravating circumstances: (1)
Holsey murdered a deputy sheriff, see Ga. Code Ann. § 17-10-30(b)(8); (2) he
murdered the deputy sheriff while trying to avoid arrest, see id. § 17-10-30(b)(10);
93
(3) he murdered the deputy sheriff while committing armed robbery, see id. §
17-10-30(b)(2); and (4) he murdered the deputy sheriff after he had already been
convicted of a capital felony—the 1983 armed robbery of a Milledgeville
convenience store, see id. § 17-10-30(b)(1).
In addition to those statutory aggravating circumstances, the jury heard
evidence about Holsey’s long history of violence against others. When he was
fourteen years old, Holsey brought a butcher knife to school, put it to a
schoolmate’s throat, and hit that schoolmate in the face. When he was eighteen
years old, Holsey robbed a Milledgeville convenience store by smashing the store
clerk’s face with a brick. For that violent behavior, Holsey pleaded guilty to and
was convicted of armed robbery with serious bodily injury. Then, when Holsey
was twenty-six years old, and while still on parole for his first armed robbery
conviction, he stabbed a man four times and tried to shoot another person. For
that violent behavior, he pleaded guilty to and was convicted of three more crimes:
two counts of aggravated assault and one count of possession of a firearm by a
convicted felon. The jury heard about all of those violent crimes during the
sentencing phase. And, of course, it heard extensive evidence during the trial
about how Holsey, when he was thirty years old, robbed yet another convenience
store and, while fleeing, murdered Deputy Will Robinson. Holsey’s extensive,
94
escalating history of violence against others, which began at least as early as age
fourteen when he put a knife to a schoolmate’s throat and continued throughout
his life, culminating at age thirty in the murder of Deputy Robinson, is a “highly
prejudicial aggravating circumstance.” Frazier v. Bouchard, 661 F.3d 519, 533
(11th Cir. 2011); cf. Cummings v. Sec’y for Dep’t of Corr.,
588 F.3d 1331,
1368–69 (11th Cir. 2009) (holding that “details of [the petitioner’s] three prior
violent felony convictions” was “damaging testimony”).
In addition to all of the aggravating circumstances evidence that was before
the jury, the evidence that came in at the state collateral hearing included more
reasons for the jury to give Holsey a death sentence. First, his Department of
Corrections records, which Holsey himself put into evidence at the evidentiary
hearing, establish that he committed at least one violent act while in prison. While
incarcerated in 1985, he “jumped on” another inmate, breaking that inmate’s teeth,
bloodying his nose, and bruising his head. See Cummings, 588 F.3d at 1368–69
(holding that evidence of the petitioner’s “repeated involvement in violent
incidents while in prison” is “damaging”). Second, the State introduced evidence
at the hearing showing that Holsey had been arrested in 1982 for battery, in 1983
for theft by shoplifting, and in 1990 for carrying a concealed weapon.
Finally, it came out during the evidentiary hearing that Dr. Sachy, the
95
State’s expert witness, and Dr. Shapiro, the psychologist Holsey’s trial lawyers
had hired to evaluate him, were of the opinion that Holsey’s history of getting in
fights, committing aggravated assaults and armed robberies, skipping school and
running away from home, and bringing a knife to school and putting it to another
student’s throat evidenced an antisocial personality disorder. Although Holsey
was never formally diagnosed as having antisocial personality disorder, the
testimony of those two experts, and other evidence corroborating what they said,
would have been additional aggravating evidence because it indicates that, formal
diagnosis or not, Holsey does have an antisocial personality disorder. And that is
“a trait most jurors tend to look disfavorably upon” and evidence of which “is not
mitigating but damaging.” Kokal, 623 F.3d at 1349 (quotation marks omitted);
Suggs v. McNeil, 609 F.3d 1218, 1231 (11th Cir. 2010) (describing as “potentially
aggravating” evidence suggesting that the defendant has an antisocial personality
disorder). The State could have put that damaging testimony before the jury
through either or both of those experts if Holsey’s trial lawyers had called Dr.
Cunningham to testify for him, as Holsey’s collateral counsel insist they should
have. See generally Cullen, 131 S.Ct. at 1410 (explaining that if a petitioner calls
an expert witness to testify at the sentencing phase it “open[s] the door to rebuttal
by a state expert”).
96
Evidence corroborating Dr. Sachy’s and Dr. Shaprio’s opinions was
admitted during the sentencing phase. For example, there was a psychiatric
evaluation that concluded Holsey suffered a “behavioral/personality disorder,
which includes . . . [an] antisocial component.” That evaluation noted that Holsey
had, albeit barely, “as many antisocial behaviors as must be present in childhood
histories of adults who are diagnosed as having antisocial personality disorders.”
There was also an offender profile report in the Department of Corrections
records, which Holsey himself introduced at the evidentiary hearing, that states
that he potentially has an “Antisocial Personality” and his “psychological profile
suggests a very high risk for being assaultive and/or otherwise violent.”
In addition to the substantial evidence of aggravating circumstances present
in this case, as we have already discussed at some length, the evidence that Holsey
presented at the evidentiary hearing about his limited intelligence and his troubled,
abusive childhood was largely cumulative of the evidence his trial lawyers
presented at the sentencing phase. The additional evidence he presented in the
state collateral proceeding mostly substantiated, supported, and supplemented the
themes of Clifford Holsey’s and Reeves’ trial testimony by providing more details
and more examples of his limited intelligence and troubled, abusive childhood.
See supra pp. 75–90. The cumulative nature of that evidence weakens its
97
usefulness to Holsey on the prejudice inquiry. See, e.g., Cullen, 131 S.Ct. at 1409
(holding that the petitioner did not establish prejudice in part because “[t]he ‘new’
evidence largely duplicated the mitigation evidence at trial”); Wong, 130 S.Ct. at
387–88 (holding that the petitioner did not establish prejudice in part because
“[s]ome of the [additional mitigating] evidence was merely cumulative of the
humanizing evidence [the petitioner] actually presented; adding it to what was
already there would have made little difference”); Sochor, 685 F.3d at 1031
(holding that a petitioner did not establish prejudice in part because “[m]ost of the
. . . mitigating evidence that [he] produced in the evidentiary hearing was
cumulative of evidence produced at the guilt and penalty phases of the trial”);
Boyd, 592 F.3d at 1298 (holding that a petitioner did not establish prejudice in
part because “much . . . of the ‘new’ testimony introduced at the post-conviction
hearing would simply have amplified the themes already raised at trial”);
Robinson, 300 F.3d at 1347 (holding that the Florida Supreme Court’s holding
that a petitioner had not shown prejudice was not unreasonable in part because
“most of the new mitigation evidence is cumulative of the nonstatutory mitigating
circumstances presented during resentencing”); Stewart v. Dugger, 877 F.2d 851,
856 (11th Cir. 1989) (observing that additional character witnesses “would not
have had an effect on [the jury’s] verdict” because “[s]uch testimony would have
98
merely been cumulative”).
As we have also discussed, Holsey did present some evidence of his limited
intelligence during the postconviction proceedings that might not have been
cumulative, such as the testimony of Dr. Cunningham and Dr. Toomer that Holsey
was mildly mentally retarded, which Dr. Cunningham called a “catastrophic
disability,” and the testimony of Dr. Shapiro explaining that someone functioning
in the borderline mental retardation range is in approximately the bottom fifth
percentile of intellectual functioning. But the potentially mitigating effect of Dr.
Cunningham’s and Dr. Toomer’s testimony is weakened because it is contradicted
by the testimony of three other mental health experts—Dr. Sachy, Dr. Shaprio, and
Dr. Einhorn.24 All three of those experts testified that Holsey is not mentally
retarded but instead functions in the borderline mental retardation range, which is
information the jury heard at the sentencing phase. And although the jury did not
hear evidence that someone with borderline mental retardation functions in
approximately the bottom fifth percentile of intelligence, it did hear evidence that
a psychosocial evaluation of Holsey done by two mental health professionals
24
Also, much of the nonexpert evidence that Holsey presented at the evidentiary hearing
about his limited intelligence—that is, the depositions and affidavits from his family, friends,
neighbors, teachers, coworkers, and others—was contradicted or counterbalanced by the State’s
evidence about Holsey’s intelligence level. See supra pp. 56–57, 78 n.22.
99
when Holsey was fifteen years old had concluded that he was functioning
academically at a third-grade level. And it did hear evidence that Holsey was a
“very slow,” “weak student” and that when he was fifteen years old he scored a 70
on an IQ test.
Finally, this is not a case where the additional evidence presented in the
state collateral proceeding “adds up to a mitigation case that bears no relation” to
the mitigation case “actually put before the jury.” Rompilla v. Beard, 545 U.S.
374, 393,
125 S. Ct. 2456, 2469 (2005). In the four recent cases where the
Supreme Court has held that a petitioner established prejudice based on his trial
counsel’s failure to present enough mitigating evidence at the sentencing phase,
the evidence presented during the postconviction proceedings told a different story
than the story told to the jury at trial.
In Porter, for example, “[t]he judge and jury at Porter’s original sentencing
heard almost nothing that would humanize Porter or allow them to accurately
gauge his moral culpability.” 130 S.Ct. at 454 (emphasis added). But there was
powerful mitigating evidence available on those two topics, including “(1) Porter’s
heroic military service in two of the most critical—and horrific—battles of the
Korean War, (2) his struggles to regain normality upon his return from war, (3) his
childhood history of physical abuse, and (4) his brain abnormality, difficulty
100
reading and writing, and limited schooling.” Id. Because the sentencing judge
and jury “heard absolutely none of that evidence, evidence which might well have
influenced the jury’s appraisal of Porter’s moral culpability,” the Court held that
Porter had established that he was prejudiced by his trial counsel’s failure to
present the evidence and that no fairminded jurist could disagree. Id. 454–56
(emphasis added) (alteration and quotation marks omitted).
The Supreme Court similarly held in Rompilla that a petitioner had
established prejudice when the mitigating evidence he introduced in
postconviction proceedings “add[ed] up to a mitigation case that bears no relation
to the few naked pleas for mercy actually put before the jury.” 545 U.S. at 374,
393, 125 S.Ct. at 2456, 2469. And in Wiggins v. Smith, 539 U.S. 510, 535,
123
S. Ct. 2527, 2542 (2003), the Court held that a petitioner had established prejudice
when his trial counsel presented no evidence of his life history although there was
“powerful” mitigating evidence available, including that the defendant
“experienced severe privation and abuse in the first six years of his life while in
the custody of his alcoholic, absentee mother”; that he suffered “physical torment”
in foster care; and that he had “diminished mental capacities.” Finally, in
Williams, the Court held that a petitioner had established prejudice when the
mitigation evidence at trial described the petitioner as a “nice boy” and nonviolent,
101
but evidence adduced during the postconviction proceedings graphically described
the petitioner’s childhood, “filled with abuse and privation,” and provided
evidence that he was “borderline mentally retarded.” 529 U.S. at 369, 398, 120
S.Ct. at 1500, 1515 (quotation marks omitted.)
We have relied on similar reasoning in cases where we have held that a
petitioner established prejudice. In Cooper, we held that the petitioner had
established prejudice when the trial evidence told the jury that “the extent of the
abuse inflicted on Cooper was the emotional abuse of his father not being
involved in his life and getting whipped by a belt, sometimes leaving marks,”
which “did not begin to describe the horrible abuse testified to by Cooper’s
brother and sister” at the collateral evidentiary hearing or even mention the serious
physical abuse the petitioner’s brother inflicted on him. 646 F.3d at 1353. And as
we explained in Johnson when we held that the petitioner had established
prejudice:
The picture [that Johnson’s trial lawyer] painted for the jury was of
Johnson having cold and uncaring parents, something in the nature of
the “American Gothic” couple. With a reasonable investigation,
though, he could have painted for the jury the picture of a young man
who resembled the tormented soul in “The Scream.” There is nothing
wrong with a Grant Wood approach, if that is all one has to use, but
an Edvard Munch approach would have been far more likely to sway
the jury to sympathy for Johnson.
102
643 F.3d at 936. The contrast between an “American Gothic” type story and “The
Scream” type story in our Johnson case and in the Supreme Court’s Porter,
Rompilla, Wiggins, and Williams cases is not present here.
To be sure, some of the additional evidence that Holsey’s collateral counsel
presented would have been helpful to Holsey during the sentencing phase of his
trial. But at this stage of the case, after the state court has adjudicated his claim on
the merits, that helpful evidence is not helpful enough. Holsey must show more
than that the evidence would have been helpful. He must show that the evidence
would have been so helpful that every reasonable jurist, without exception, would
have concluded that there is a reasonable probability that the sentence would have
been different if the jury had heard all of the aggravating circumstances evidence
and all of the mitigating circumstances evidence. He must show not only that the
Georgia Supreme Court’s contrary conclusion is wrong but that it is so wrong that
no fairminded jurist could reach that conclusion. See Harrington, 131 S.Ct. at
786; Yarborough, 541 U.S. at 664, 124 S.Ct. at 2149; Hill, 662 F.3d at 1346;
Sochor, 685 F.3d at 1028. He must show that the Georgia Supreme Court’s
conclusion was an “extreme malfunction[] in the state criminal justice system[]”
that is so “well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 131 S.Ct. at 786–87. Holsey
103
has not shown us that. He has not carried his burden. He has not cleared the high
hurdle that § 2254(d)(1) puts in his way.
Given the strong evidence of multiple aggravating circumstances, including
Holsey’s extensive, escalating history of violence, the largely cumulative nature of
the additional evidence Holsey’s collateral counsel presented in the state collateral
proceedings, and the weakened mitigating value of the potentially noncumulative
evidence that they presented, a fairminded jurist could agree with the Georgia
Supreme Court that Holsey was not prejudiced by his trial lawyers’ assumed
deficiencies at the sentencing phase. See Harrington, 131 S.Ct. at 786;
Yarborough, 541 U.S. at 664, 124 S.Ct. at 2149; Hill, 662 F.3d at 1346; Sochor,
685 F.3d at 1028. For that reason, we conclude that the Georgia Supreme Court
did not unreasonably apply Strickland when it held that he was not entitled to
relief.25
V.
For the reasons we have discussed, we AFFIRM the district court’s denial
of Holsey’s 28 U.S.C. § 2254 habeas corpus petition.
25
We do not address whether we would have concluded under a de novo standard that
there was no prejudice, just as the dissenting opinion does not address whether it would have
concluded under § 2254(d)(1)’s standard that the Georgia Supreme Court’s determination that
there was no prejudice was “contrary to, or an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
104
Edmondson, Circuit Judge, concurring in the judgment:
I stand with Judge Carnes about the correct judgment in this appeal:
AFFIRM the District Court’s judgment to deny habeas corpus relief to the state
prisoner petitioner. I -- very respectfully -- do not join in Judge Carnes’s erudite
opinion. I stress that it is not because the opinion says something that I am sure is
wrong or I am sure is even likely wrong. I agree with much of the opinion, at
least. But the opinion says a lot and says more than I think is absolutely needed.
In my experience, longish opinions always present a strong possibility of
error lurking somewhere in the text. That the opinion writer is a skilled and
careful judge does not eliminate the risk. Furthermore, no one wishes to join in an
opinion that they do not understand fully. It is hard, time-consuming, painstaking
work for the panel’s other judges to check long opinions, line by line, cited case
by cited case. (Of course, always other cases are awaiting decision and also
demand the judges’ time and attention.)1 Moreover, long opinions, even if correct
1
It seems to me that the incidence of long opinions has been on the rise in the last decade
or, at least, more are coming across my desk. I should say that I, broadly speaking, do not agree
that the length of an opinion necessarily reflects the thought, labor, and care that has been
invested by judges in their endeavor to decide the case correctly. The shorter opinions often
reflect the greater study and thought leading up to the ultimate decision. Mark Twain touched on
a related idea: “If you want me to give you a two-hour presentation, I am ready today. If you
want only a five-minute speech, it will take me two weeks to prepare.” Nevertheless, that some
cases might truly demand long opinions, I do not doubt. And I believe I understand why Judge
Carnes has gone longer in this case.
105
in every detail, generally make it harder for readers to separate a holding from
dicta (or less than dicta: words only of explication and nothing more). The
confusion of holding and dicta makes correctly deciding future cases more
difficult, when judges are looking back for precedents.2 Sometimes, the oddest
bits are lifted out of opinions -- especially the longer ones (often words as to some
peripheral point) -- and later quoted flatly as law: as if someone was quoting a
statute. So, I feel more comfortable today just focusing briefly on my own view of
a vital point.
Georgia’s Supreme Court decision is entitled to deference. In the context of
the Georgia Supreme Court’s opinion, I do not recognize the phrase, “largely
cumulative,” as really a “determination of fact” within the meaning of the
AEDPA; I see the words as merely a part of an appellate court’s report on how its
decision was thought through and reached. As such, the “largely cumulative”
phrase, in itself, is insignificant to me, although the ultimate decision Georgia’s
Supreme Court reached on prejudice is significant. For background, see Evans v.
Sec’y, Dep’t of Corr., 681 F.3d 1241, 1272 n. 4 (Edmondson, J., dissenting)
(vacated for rehearing en banc). Furthermore, I do not recognize anything done in
2
Longer opinions, simply by virtue of their length, burden the Bar whose members try to
stay current with the Court’s thinking. Also, I worry that long opinions are generally less able to
be fully understood by the public than are shorter opinions: some loss in transparency.
106
Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328 (11th Cir. 2011), as holding
something to the contrary to my view today or as controlling of this case. Unlike
this case, Cooper is a case which significantly involved truly erroneous fact
findings (arguably including the word “cumulative”) about a past event: the
specific content of Defendant’s mother’s trial testimony -- findings made by the
state habeas court which were later approved by the state appellate court.
Given the full record, I believe the deference we are commanded to give by
the AEDPA to the decision of Georgia’s supreme court compels an affirmance
today. By the way, the pertinent state court decision that is due our deference is
this decision: that the full evidentiary record before the state supreme court did not
show the prejudice required by Strickland. Objectively reasonable jurists might
disagree about prejudice on this record;3 but to me, a determination that Petitioner
did not show the required prejudice is within the outside border of the range of
reasonable.
3
For the sake of argument only, I assume today that the performance of Petitioner’s trial
counsel fell short under the Strickland standard.
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BARKETT, Circuit Judge, dissenting:
For the reasons stated in my dissent in Hill v. Humphrey, 662 F.3d 1335,
1365-78 (11th Cir. 2011) (en banc), I continue to believe that Georgia’s
requirement that defendants prove mental retardation beyond a reasonable doubt is
unconstitutional under Atkins v. Virginia,
536 U.S. 304 (2002).
I also believe that the Georgia Supreme Court’s “decision” that the
ineffectiveness of counsel did not prejudice Holsey is “based on an unreasonable
determination of the facts,” see 28 U.S.C. § 2254(d)(2) (2006), and therefore, we
must conduct a de novo review. See Cooper v. Sec’y, Dep’t of Corr., 646 F.3d
1328 (11th Cir. 2011); Jones v. Walker,
540 F.3d 1277, 1288 n.5 (11th Cir. 2008)
(en banc). A de novo review compels the conclusion that the omission of
evidence describing the nature and extent of Holsey’s abusive childhood along
with evidence of his mental retardation prejudiced him at the sentencing phase of
his trial in violation of Strickland v. Washington,
466 U.S. 668 (1984).
More specifically and as demonstrated below, the Georgia Supreme Court’s
determination that the extensive evidence offered on collateral review was “largely
cumulative” is unreasonable in light of the sparse—almost non-existent—evidence
of childhood abuse and mental retardation presented in Holsey’s trial. See 28
U.S.C. § 2254(d)(2). At trial, a brief mention was made of the fact that Holsey
108
was beaten, without any further explanation or description. The jury never learned
that throughout his childhood he was subjected to abuse so severe, so frequent,
and so notorious that his neighbors called his childhood home “the Torture
Chamber.” Likewise, with reference to his status as borderline mentally retarded,
a diagnosis that is undisputed by the state’s expert witnesses, the jury heard only
that a report listed him as borderline mentally retarded without any testimony to
explain the extent and consequences of his condition. Only one juror’s vote was
necessary to impose a life sentence.1 The record here demonstrates that “both the
nature and the extent of the abuse the petitioner suffered” would have affected the
probability that “at least one juror” would have voted for a sentence less than
death, see Wiggins v. Smith, 539 U.S. 510, 535, 536 (2003) (emphasis added), and
the mitigating evidence describing the behavioral and cognitive impact of
Holsey’s borderline retardation would have influenced “the jury’s appraisal of his
moral culpability,” see Williams v. Taylor,
529 U.S. 362, 398 (2000).
With reference to de novo review, trial counsel was so deficient that
confidence in the outcome of Holsey’s sentencing is undermined and he is entitled
1
See Ga. Code Ann. § 17-10-31(c) (“If the jury is unable to reach a unanimous verdict as
to sentence, the judge shall dismiss the jury and shall impose a sentence of either life
imprisonment or imprisonment for life without parole.”); Humphrey v. Morrow, 717 S.E.2d 168,
173 (Ga. 2011) (“Georgia's death penalty laws . . . provide for an automatic sentence less than
death if the jury is unable to reach a unanimous sentencing verdict . . . .”).
109
to a new sentencing hearing. Rather than conduct an investigation that could lead
to the discovery and presentation of the important mitigating evidence delineated
below, Holsey’s lead defense lawyer drank a quart of vodka every night of
Holsey’s trial while also preparing to be sued, criminally prosecuted, and
disbarred for stealing client funds. He admitted during collateral proceedings that,
at the time he was preparing for Holsey’s capital murder trial, he “probably
shouldn’t have been allowed to represent anybody” due to his condition. The
Georgia trial court, which is the only court to have presided over the receipt of live
testimony and evidence on collateral review, held that “no one can seriously
believe that [Holsey] received the constitutional guarantees of the Sixth
Amendment right to effective assistance of counsel.” The mitigating evidence
which should have been presented would have created a reasonable probability
that “at least one juror” would have voted for a sentence less than death, see
Wiggins, 539 U.S. at 535, 536, even weighed against the aggravating factors
presented. I amplify each of these points below.
I. The Mitigating Evidence of Childhood Abuse is Not “Largely Cumulative”
of the Sentencing-Phase Testimony
The brief mention of abuse at the sentencing phase came from two
witnesses: Holsey’s sister, Regina Reeves, and Clifford Holsey, who is not related
110
to Wayne Holsey.2 Regina Reeves’ testimony made a brief, passing reference to
Holsey while explaining her own move out of her mother’s house as she
approached her majority. She explained why she left home at the age of seventeen
to “live with friends.”
Q: And what caused you to leave home?
A: We were having—I felt that I was—that we were having a lot of
problems. I hated it there. Things were bad. I was a mother, you know,
by the time I left home. I had my daughter when I was 17. I graduated
from high school when I was 17. I didn’t feel that I was, you know,
treated well, that I was appreciated. And I felt that I could do better, you
know, somewhere else because I just felt that things were horrible there.
Q: And what about being there was so horrible? . . . .
A: Okay. I was tired of taking beatings. I don’t think it was, you know,
so horrible that we didn’t, you know, have anything. A lot of people
didn’t have anything. But I always felt that you could be—not have
more than anybody else but still get treated better than what we were.
Q: And when you say you were tired of taking beatings, who beat y’all?
A: My mother. (Witness crying)
Q: Did she beat all the children?
A: The oldest three mostly.
Q: That was you and Wayne and Angela?
A: (Witness nods affirmatively.) Yes.
Counsel asked Regina no further questions about beatings or abuse and this was
the totality of testimony from any family member about abuse.3
2
Holsey goes by his middle name, “Wayne,” but is also referred to by several witnesses
by his first name, “Robert.”
3
The majority refers to a two-page “home evaluation” created by a social worker at
Georgia’s Youth Development Center, which Holsey attended when he was fifteen years old.
See Majority op. at 81-82. The report contains a two-sentence summary of the social worker’s
“impressions” of Holsey’s mother, in which the social worker states his “doubts as to her ability
111
Clifford Holsey, who was called to describe a bar fight involving Holsey,
stated during cross examination that Wayne Holsey’s mother “would scold . . . and
beat” the children, but admitted that he had never actually seen her beat them. He
simply stated:
Well, I think Wayne came up the best that he could. I think he was
neglected from his mother. She, you know, kind of like—came up kind
of like child abuse. And she just didn’t see about them, you know, kind
of walked all over them a little bit, and done everything.
Regina and Clifford’s testimony can hardly be characterized as having
“highlighted” Holsey’s history of abuse, as the Georgia Supreme Court
determined. See Schofield v. Holsey, 642 S.E.2d 56, 61-62 (Ga. 2007). It hardly
comports with the “Torture Chamber” described by Holsey’s neighbors and family
members at the collateral review hearing. Holsey’s sister testified on collateral
review, but not at trial, that Wayne Holsey was beaten with extension cords, shoes,
broom handles, or whatever objects their mother could find, leaving permanent
to cope with Angela and Robert [Holsey],” and that Holsey’s mother “loves and cares for [the
children] a great deal, but she has no idea how to control them without resorting to excessive
punishment.” The report also includes positive commentary on Holsey’s mother’s “parental
commitment,” including that “she is willing to give Robert all the encouragement that he needs”
and that “[s]he foresees no problems with Robert and his sister, Angela, returning from the
Youth Development Center at the same time.” Taken in the context in which it was presented to
the jury and given the equivocal nature of the social worker’s assessment of Mary Holsey, this
document cannot reasonably be characterized as “highlighting” Holsey’s abusive background,
much less as “largely cumulative” of the evidence introduced by collateral counsel, especially
when there is no indication that trial counsel ever made the jury aware of the report's assessment
of Mary Holsey’s parenting ability. See Schofield v. Holsey,
642 S.E.2d 56, 61-62 (Ga. 2007).
112
scars on his body. His mother punished him by holding his head under water
while he cried and struggled to breathe. The beatings would spill out of the house
and into the yard and the street, as people from the neighborhood stood by,
watching. These beatings would occur for any reason or no reason at all, or, as
Regina put it on collateral review, but not at trial, when her mother “felt that the
house wasn’t clean,” was “just frustrated,” “jealous,” or “you know, just about
anything.”
Holsey wet the bed until he was thirteen years old, and Regina testified on
collateral review, but not at trial, that on occasion his mother stayed up at night so
that, when she heard the urine leaking to the floor through Holsey’s thin mattress,
she could beat him out of his sleep with an extension cord. She beat him when he
went across the street to pick blackberries. Even eating meals, such as there were,
became an opportunity for abuse, as Holsey’s mother punished him for asking for
more food by forcing him to eat chicken bones. Regina told the judge on
collateral review that abuse of this magnitude happened “daily [or] every other
day.”
Members of Holsey’s extended family and community also came forward to
testify to the notoriety of the abuse inflicted on Holsey. Bertha Ingram, Holsey’s
adult cousin, testified to witnessing Holsey’s mother beat him with the pointed end
113
of her high-heeled shoes and other household objects, burn him with a curling
iron, and lock him in a closet. She corroborated Reeves’ testimony that abuse on
this scale occurred on a daily basis, testifying that “it was a rare evening” when
these beatings would not occur for reasons as trivial as Holsey opening the
refrigerator to look for food.
Essie Anderson, a friend of Holsey’s mother who worked at the local
hospital and visited the apartment regularly, stated that the abuse was well known
throughout the neighborhood, and reflected that “we were all guilty for letting
Mary [Holsey’s mother] get away with the way she mistreated her kids, but we
were all so scared of her ourselves.” When Anderson tried to intervene, Holsey’s
mother would shout at her “I’ll kill him if I want to. These are MY kids.”
Neighbor Catherine Harris recalled going to Holsey’s apartment when he was a
child and watching Holsey’s mother attack him and his sister with a belt or curling
iron “while they tried to squat down in a corner and curl up in a little ball to fend
off her blows.” Another neighbor, Sandra Francis, recounted the times she had
watched out the window and shook with fear while Holsey’s mother beat him in
the yard, and that after these beatings, “it wasn’t uncommon for [Holsey] to curl
up in the bushes outside the Housing project office . . . and sleep there until
morning.”
114
The Georgia Supreme Court’s decision that Holsey was not prejudiced by
the omission of this evidence was based on its determination that Holsey’s original
sentencing hearing “highlighted” Holsey’s abusive history such that his collateral
evidence was “largely cumulative” of what was introduced at trial. However, this
determination is unreasonable in light of the facts contained in this record. See §
2254(d)(2). Because the Georgia Supreme Court’s “decision” that Holsey was not
prejudiced at sentencing was “based on” an unreasonable factual determination,
we owe it no deference. See Jones, 540 F.3d at 1288 n.5; see also Callahan v.
Campbell, 427 F.3d 897, 927 n.26 (11th Cir. 2005) (emphasizing that § 2254(d)(2)
applies where “‘the adjudication of the claim . . . resulted in a decision that was
based on an unreasonable determination of the facts’”) (emphasis in original)
(quoting § 2254(d)(2)); Harvey v. Warden,
629 F.3d 1228, 1252 (11th Cir. 2011)
(applying § 2254(d)(2) to state court’s factual determinations underpinning its
conclusion that the petitioner was not prejudiced under Strickland).
In Cooper v. Secretary, Dep’t of Corrections, 646 F.3d 1328 (11th Cir.
2011), we likewise concluded that a state court’s rejection of a petitioner’s
Strickland claim was based on an unreasonable factual determination under a
materially indistinguishable set of facts. In Cooper, the Florida Supreme Court
rejected Richard Cooper’s Strickland claim on the ground that “‘a substantial part
115
of the information regarding Cooper’s disadvantaged childhood was presented at
Cooper’s trial,’” and therefore “‘in large part, introduction of the evidence
proffered [on collateral review] would have been repetitive.’” See Cooper, 646
F.3d at 1348 (quoting Cooper v. State, 856 So. 2d 969, 976 (Fla. 2003)).
However, we held that the Florida Supreme Court’s conclusion that the collateral
testimony was “in large part . . . repetitive of” the sentencing phase testimony was
an unreasonable determination of the facts under § 2254(d)(2), because this
testimony omitted the “specifics of the abuse” directed against Cooper and “did
not begin to describe the horrible abuse testified to [on collateral review].” Id. at
1352-53.
Every one of the dispositive facts that led this Court in Cooper to find the
state court’s factual determinations unreasonable under § 2254(d)(2) is present in
this case. First, Holsey’s sentencing phase testimony was even less illuminating as
to the nature and extent of abuse than in Cooper, where the defendant’s mother
testified that Cooper’s father beat him with a belt, leaving marks on his body, was
“very hard” and “authoritarian” with him, and defense counsel emphasized that
Cooper’s “horrible” and “tragic” family life was “something that none of [the
jurors] ha[d] experienced.” Id. at 1337, 1339. Moreover, during proceedings
before the sentencing judge, a defense psychologist testified that Cooper had had a
116
“‘horrendous background,’” that his father was “‘exceptionally abusive, both
physically and verbally,’” and that the impact of the “terror-filled years” of abuse
his father inflicted caused Cooper to suffer lasting psychological harm. Id. at
1340.
Second, the disparity between the sentencing testimony about abuse and
what was revealed on collateral review in Holsey’s case was even greater than that
in Cooper. On collateral review, the “‘description, details, and depth of abuse’”
presented by Cooper “‘far exceeded what the jury was told’” at Cooper’s
sentencing. Id. at 1354 (quoting Johnson v. Sec’y, 643 F.3d 907, 936 (11th Cir.
2011)). Similarly, the “description, details, and depth of abuse” presented by
Holsey on collateral review “far exceeded” the sentencing testimony at Holsey’s
trial, and the abuse revealed by Holsey’s collateral evidence is certainly as
extensive and atrocious as the evidence omitted in Richard Cooper’s trial.
Finally, the erroneous characterizations of the sentencing phase testimony
about abuse are the same in both cases. In Cooper, the state court described the
“substantial part of the information” on collateral review as “in large part . . .
repetitive” of the sentencing testimony. See id. at 1348 (internal quotation marks
omitted). Likewise, the Georgia Supreme Court characterized the information
presented on collateral review as “largely cumulative” of or “highlight[ing]”
117
Holsey’s sentencing phase testimony. Based on the almost identical facts of
Cooper, the same legal conclusion is compelled here: the Georgia Supreme
Court’s characterization of the collateral evidence as largely cumulative of the
testimony at trial is an unreasonable determination of the facts under § 2254(d)(2).
The majority disparages Cooper as “an outlier.” See Majority op. at 68.
However, we have no authority to disregard a previous decision of another panel
arising from facts that, like the facts of Cooper, are materially indistinguishable
from those before us.4 See Anders v. Hometown Mrtg. Svcs., Inc., 346 F.3d 1024,
1031 (11th Cir. 2003). That rule “is not dependent upon a subsequent panel’s
appraisal of the initial decision’s correctness.” Smith v. GTE Corp.,
236 F.3d
1292, 1302 (11th Cir. 2001) (internal quotation marks omitted).
Moreover, Cooper is not an outlier and is fully consistent with our cases,
which, in applying § 2254(d)(2), have reviewed state appellate courts’ resolutions
of factual issues which are the predicates to their legal conclusions. See, e.g.,
Hardy v. Comm’r, Dep’t of Corr., 684 F.3d 1066, 1087-88 (11th Cir. 2012)
(applying § 2254(d)(2) to factual determinations underpinning decision whether
4
As demonstrated by the facts described above, I cannot agree with the majority’s
characterization of Holsey’s case as different because Cooper presented “a different story-not just
a less detailed one” than what was presented on collateral review. See Majority op. at 89. The
difference between the sentencing evidence and collateral evidence in Cooper is no greater than
the disparity between the sentencing evidence and collateral evidence at issue here.
118
defendant invoked his Miranda right to remain silent); Harvey, 629 F.3d at 1252
(applying § 2254(d)(2) to state court’s determination that defendant was not
prejudiced under Strickland by counsel’s statements in opening argument because
these statements were factually similar to statements in the defendant’s
confession); Bui v. Haley, 321 F.3d 1304, 1315-16 (11th Cir. 2003) (applying §
2254(d)(2) to appellate court’s factual determination that was “subsidiary” to a
legal conclusion). Similarly, in Cooper, as in Holsey’s case, the state court’s
characterization of evidence as cumulative was predicated on a subsidiary
determination that the two bodies of evidence being compared are factually
comparable to each other. See Harvey, 629 F.3d at 1252 (reviewing under §
2254(d)(2) a state court’s comparison of the factual content of two statements
contained in the record). The Georgia Supreme Court’s factual determination was
“subsidiary” to the ultimate legal decision that the petitioner had not shown
prejudice under Strickland, and it involved a comparison of the collateral evidence
with the trial evidence. See Bui, 321 F.3d at 1316. In both Cooper and Holsey’s
cases, the state appellate courts’ decisions that no prejudice was established were
predicated on factual determinations that were “unreasonable . . . in light of the
119
evidence presented in the State court proceeding.” See § 2254(d)(2).5 Cooper is
consistent with the cases from our circuit applying § 2254(d)(2).
Moreover, both the Supreme Court and our court have held prejudice to be
established under Strickland where the testimony presented at trial failed to
describe the “nature and extent” of childhood abuse suffered by the petitioner. If
such evidence is capable of establishing prejudice, it cannot reasonably be
dismissed as “largely cumulative” of testimony that merely mentions that the
defendant was beaten. Specifically, in Wiggins, it was precisely the “nature and
extent of the abuse [the] petitioner suffered” that led the Supreme Court to
conclude that any reasonable counsel would introduce evidence of the petitioner’s
abusive childhood due to its likely impact on the jury. See 539 U.S. at 535-37
(emphasis added). Similarly, in Williams, the Court held that the petitioner was
prejudiced by counsel’s omission of a “graphic description of [the petitioner’s]
5
The majority asserts that Cooper is in conflict with Cullen v. Pinholster, 131 S. Ct. 1388
(2011), because the majority reads Cullen as establishing that § 2254(d)(2) cannot apply to a state
court’s characterization of evidence as cumulative. See Majority op. at 69-70. However, §
2254(d)(2) applies to an appellate court’s construction and characterization of the facts in the
record, including mixed questions of law and fact. See, e.g., Harvey, 629 F.3d at 1252 (applying
§ 2254(d)(2) to state court’s comparison of factual content of two statements); Gore v. Sec’y,
Dep’t of Corr.,
492 F.3d 1273, 1297-98 (11th Cir. 2007) (applying § 2254(d)(2) to “mixed
question of fact and law” of whether defendant’s Miranda rights were “scrupulously honored”).
Moreover, Cullen does not address, let alone hold, that § 2254(d)(2) does not apply to a state
court’s characterization of evidence as cumulative, and thus, cannot conflict with Cooper. See
United States v. Kaley,
579 F.3d 1246, 1255 (11th Cir. 2009).
120
childhood” including “documents . . . that dramatically described mistreatment,
abuse, and neglect during his early childhood.” 529 U.S. at 370, 398 (emphasis
added). And in Porter v. McCollum, 130 S. Ct. 447 (2009) (per curiam), the Court
held that “it is unreasonable to discount to irrelevance the evidence of [a
defendant’s] abusive childhood.” 130 S. Ct. at 455. In each of these cases, it was
not the omission of an acknowledgment of abuse that the Court found prejudicial,
but the omission of testimony that described this abuse in sufficient detail for the
jury to understand what actually occurred.
Similarly, in Williams v. Allen, 542 F.3d 1326, 1342 (11th Cir. 2008),
notwithstanding that the defendant’s mother testified at sentencing that his father
beat him “with his fists,” “many times,” “whipped him more than he should,” and
once beat him so severely that the defendant escaped to a neighbor’s house and
called the police, see Williams, 542 F.3d at 1329, we held the defendant was
prejudiced by the omission of his sister’s account of abuse because her testimony
made clear that “the violence experienced by Williams as a child far exceeded—in
both frequency and severity—the punishments described at sentencing.” See id. at
1342 (emphasis added).
Finally, in Johnson v. Secretary, Dep’t of Corrections, 643 F.3d 907 (11th
Cir. 2011), we held that prejudice was established because of the “description,
121
details, and depth of abuse in [the defendant’s] background that were brought to
light” on collateral review. See Johnson, 643 F.3d at 936 (emphasis added). In
Johnson, counsel deficiently failed to introduce detailed evidence about how the
defendant and his siblings “huddled together in terror” when their father would
beat their mother, that their parents engaged in “knockdown, drag-out fights” that
sometimes led them to call the police, and that the defendant’s mother “beat him
more severely than the other children—sometimes with her knuckles and
sometimes with a leather strap.” Id. (internal quotation marks omitted).
Although mention was made by Clifford Holsey and Regina Reeves about
beatings, it is no less true in Holsey’s case than it was in Johnson that the
“description, details, and depth” of the abuse are what gives this evidence
mitigating value and are what was completely omitted in Holsey’s trial. Indeed,
we held in Johnson that prejudice was established in part because the evidence at
trial “was not nearly as helpful to [the defendant’s] case as it could have been” and
“misleadingly minimized the mitigating circumstances.” Id. Counsel’s failure to
present any testimony about the “nature and extent” of the abuse Holsey suffered,
Wiggins, 539 U.S. at 535, similarly misled the jury about Holsey’s background
because it “minimized the mitigating circumstances” of Holsey’s abusive history.
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The cases relied upon by the majority are inapplicable to the facts of this
case. In the cases cited by the majority, there either was descriptive evidence at
sentencing conveying the nature and extent of the abuse suffered by the petitioner,
or the mitigating evidence introduced on collateral review did not resemble the
consistent, voluminous, and unrebutted evidence of pervasive and severe abuse
that is at issue in this case. Thus, in Sochor v. Secretary, Dep’t of Corrections,
685 F.3d 1016 (11th Cir. 2012), the testimony during the petitioner’s sentencing
phase did describe, in extensive and even greater detail than the testimony on
collateral review, the abuse that the petitioner regularly suffered as a child,
including that he suffered multiple head injuries inflicted in an identical manner to
the head injury described on collateral review. See Sochor, 685 F.3d 1021-22.6 In
6
Indeed, the court in Sochor noted the original sentencing testimony as follows:
Sochor’s brother, Gary, testified that his “whole childhood was memories of nothing
but getting beat” by his parents, and that Sochor “took a lot of . . . beatings” that were
intended for Gary. Gary testified that he “remember[ed] my mother, when [his] dad
would get home, yelling at my dad to spank us for this or for that, and he would start
in with the belt, I mean a big belt, and just beat, beat, beat.” Sochor’s sister, Cathy
Cooper, testified that Sochor “had a pretty rough life” and that all of their parents’
“frustrations and everything got taken out on” Sochor. Cooper stated that their father
“used to be a boxer,” “knew how to hit,” and had a “very quick and violent temper.”
Cooper testified that “[t]here were times where literally you’d have to pull [her
father] off of” Sochor. Sochor’s father “constantly hit [Sochor] with his fist. He’d hit
him in the face, in the arms, and . . . would just be in a rage, anyplace he could hit
him.” Cooper testified that Sochor “constantly had his lips split open, black eyes,
bruises all over his body.” Cooper stated that she “remember[ed] very clearly that
[her] dad had [Sochor] down on the floor and was strattled over the top of him and
just, you know, like plummeting with his fist.” Sochor’s father “got ahold of
[Sochor’s] hair, and he kept banging his head against the wall.” Sochor “just sort of
123
Sochor, the jury was told about the kind, extent, and severity of the abuse and not
simply that beatings occurred that may or may not have even amounted to abuse.7
Likewise, in Cullen v Pinholster, 131 S. Ct. 1388 (2011), the testimony
presented on collateral review was relatively limited in scope and did not approach
a description of the scale of abuse at issue here, where not only family members
but also members of Holsey’s community stepped forward to describe the severity
and widespread notoriety of this abuse. See Cullen, 131 S. Ct. at 1409-10. The
evidence presented at the collateral hearing provided far less support than that
presented on behalf of Holsey at his collateral hearing. See Pinholster v. Ayers,
slid to the floor, and then dad just started kicking him.”
Sochor, 685 F.3d at 1022-22. Sochor’s parents also testified at the original sentencing hearing,
describing his abuse in detail. See id. at 1022.
7
Similarly, Robinson v. Moore, 300 F.3d 1320 (11th Cir. 2002), is not comparable.
Unlike Holsey’s case but like Sochor, the actual sentencing phase testimony provided an
extensive description of specific instances of abuse and the additional details only presented
other instances of abuse. Compare Robinson, 300 F.3d at 1329-30 (describing sentencing phase
testimony as explaining that the petitioner was exposed to “considerable physical abuse” such as
being beaten with a belt or switch while bound at the wrists, being forced to sit with a broom
handle between his legs while being struck by his grandfather, that neighbors observed him with
bruises and told him not to go home, and that petitioner was sexually abused by relatives and
while working in a migrant labor camp), with id. at 1338-39 (describing collateral child abuse
evidence as consisting of evidence that the defendant was also beaten with “belts, electric cords,
or whatever,” and would be beaten if he stopped picking crops for his grandfather). A holding
that a petitioner was not prejudiced by counsel’s failure to present “more details” or “different
examples” of abuse does not remotely suggest that it is reasonable to discount evidence of child
abuse where no details or examples that would enable the jury to understand the nature and
extent of this abuse were presented at sentencing.
124
590 F.3d 651, 712 (9th Cir. 2009) (en banc), (Kozinski, C.J., dissenting), rev’d,
131 S. Ct. 1388 (“[W]hat’s remarkable is how little support the family members
provide for Pinholster’s theory of extreme abuse and deprivation. . . . What’s
remarkable here is just how weak this testimony actually is.”); id. at 713 (“The
simple fact is, there’s nothing supporting the theory of abuse or deprivation, in
stark contrast to the evidence in many other cases.”) (citing Wiggins, 539 U.S. at
517; Williams, 529 U.S. at 370). Moreover, the ostensibly mitigating testimony at
issue in Cullen was undermined by the fact that the petitioner himself denied that
any abuse had actually occurred, and in fact described the purported abuse by his
stepfather as “‘discipline’ from which he ‘benefitted.’” See Pinholster v. Ayers,
525 F.3d 742, 767-68 (9th Cir. 2008), vacated en banc,
590 F.3d 651 (9th Cir.
2009), rev’d,
131 S. Ct. 1388 (2011); see also id. at 767 (“Pinholster’s primary
complaint about his step-father was that ‘he didn’t seem to want the kids
125
around.’”).8 In contrast, in Holsey’s case, the evidence of pervasive abuse is
uncontradicted.
II. The Collateral Hearing Evidence of Mental Retardation Was Not “Largely
Cumulative” of That Presented at the Sentencing Hearing
The Georgia Supreme Court’s determination that trial testimony
“highlighted Holsey’s limited intelligence” such that his mitigating evidence was
8
Nor is the remainder of the cases cited by the majority comparable to this one. In Wong
v. Belmontes, 130 S. Ct. 383 (2009), the petitioner did not offer evidence that he was a victim of
child abuse on collateral review, only that his family “lived in a state of ‘constant strife’” that
was not directed at him. See Wong, 130 S. Ct. at 388. And the sentencing phase testimony
provided a detailed account of that violence. See Belmontes v. Ayers,
529 F.3d 834, 885 (9th
Cir. 2008) (O’Scannlain, J., dissenting), rev’d,
130 S. Ct. 383 (recounting that, at trial,
“Belmontes’s mother spoke of how Belmontes’s father used to beat her, once breaking her arm,
and another time stabbing her and of how Belmontes suffered from the departure of her second
husband and became ‘difficult to control.’”). In Boyd v. Allen,
592 F.3d 1274 (11th Cir. 2010),
we distinguished the facts of Wiggins v. Smith and Williams v. Taylor and discounted the
petitioner’s mitigating evidence because, unlike Wiggins and Williams, this evidence did not
clearly reveal that the petitioner himself was regularly exposed to abuse, and because “the
evidence [was] mixed on the impoverished conditions found in [the petitioner’s] home.” See
Boyd, 592 F.3d at 1300; see also id. at 1299-1300 (“There is also no evidence to suggest that
Boyd’s father was ever directly violent towards him, and it is unclear how much of his
stepfather’s violence was directed at Boyd himself.”). Moreover, we repeatedly emphasized
throughout our decision that discounting this limited evidence of child abuse was justified
because of the horrific nature of the petitioner’s crime, which involved the premeditated torture
and murder of two victims followed by deliberate defacement of their corpses. See id. at
1302-03, 1302 n.7. Accordingly we stressed that “in brutal torture-murder cases like this one,
this Court generally has not found Strickland prejudice, even where the petitioner’s counsel may
have performed deficiently by failing to uncover and present evidence of troubled and abusive
childhoods.” Id. at 1301. Finally, Rhode v. Hall,
582 F.3d 1273 (11th Cir. 2009) (per curiam),
did not include any claim that trial counsel was deficient in failing to introduce evidence of abuse
in the petitioner’s background, and so is not relevant to the reasonableness of the Georgia
Supreme Court’s determination that Holsey’s child abuse evidence is “largely cumulative” of his
collateral evidence. See Rhode, 582 F.3d at 1284 (summarizing evidence that petitioner alleged
counsel deficiently failed to introduce).
126
“largely cumulative” of the collateral evidence is also an unreasonable
determination of the facts as it relates to his uncontested borderline mental
retardation. The only reference to Holsey’s mental retardation during the
sentencing phase was Regina Reeves reading the words “borderline mental
retardation” from a report created when Holsey was fifteen. That testimony was as
follows:
Q: And I want you to read to the jury a portion of this
psychological testing dated 7-25-80. And, again, just read the
highlighted portion. The jury will be able to read the whole thing on this
page and the next page. This is regarding Robert.
A: It says “Robert evidenced in”—I’m sorry. “Robert evidenced
an inappropriate effect [sic] during the evaluation. He smiled
inappropriately and had difficulty maintaining thought patterns. At times
he appeared unaware of his immediate environment, and in a world of
his own.” Another paragraph says, “present testing indicates Robert
functions in the borderline mental retardation range of intelligence.”
Q: Borderline mental retardation range.
A: Yes.
As the Georgia trial court found on collateral review, and as the Georgia
Supreme Court did not dispute, Holsey’s record was “read to the jury without any
context or explanation of its significance.” Indeed, although Regina was the only
witness who had the opportunity to explain the meaning of this information during
Holsey’s sentencing, she testified on collateral review that she had never seen the
report before she was asked to read it, had not discussed this testimony with
127
counsel in advance of trial, had never heard her brother described as borderline
mentally retarded before she read those words to the jury, and had not even met
the attorney who asked her to read these words before she did so. As a result,
although the jury heard the words “borderline mental retardation” spoken during
live testimony and again, once, by counsel during closing argument, the jury had
no way of knowing what those words meant, either in general or as they relate to
Holsey.
In contrast, on collateral review, Holsey presented testimony and written
reports from four psychologists: Dr. Mark Cunningham, Dr. Jethro Toomer, Dr.
Marc Einhorn, and Dr. Michael Shapiro. Both Dr. Cunningham and Dr. Toomer
concluded that Holsey is mentally retarded. Dr. Einhorn, who was asked to
evaluate Holsey by the state, and Dr. Shapiro, who had examined Holsey in
preparation for trial, agreed at the very least that he is “in the borderline range” of
mental retardation.
In the course of explaining his evaluation of Holsey as mentally retarded,
Dr. Cunningham’s testimony related accounts given by various adults who knew
Holsey and concluded that Holsey’s adaptive behavior in the area of
communication was that of a six-year-old child. Dr. Cunningham related accounts
of Holsey’s inability to take care of his basic living needs. Holsey had “never
128
lived on his own . . . but always lived with either a woman that he was going with
or a family member.” He would give whatever money he earned to his living
companion at the time, who would pay him the money as an allowance, sometimes
reminding him how to count the money when she gave it to him. Holsey never
had a bank account, was unable to shop for groceries or clothing by himself, was
unable to use public transportation, and could not order food from a menu at a
restaurant. While working at a Pizza Hut restaurant, Holsey’s supervisors had
tried to promote him from dishwasher to pizza maker, but Holsey was unable to
follow the recipe for making the pizzas. In this area of testing, Dr. Cunningham
placed Holsey’s capacity as falling in the range of a four-year-old to six-and-a-
half-year-old child.
Holsey’s social adaptation was also years behind his biological age. Dr.
Cunningham summarized several accounts of Holsey’s social interaction in these
terms:
The description that he’s a loner is not [that he is] a loner by choice; it’s
not that he is schizoid and is uninterested in relating to others, it’s he
wants the friends, he’s just not able to relate on an adult to adult basis.
With the kids in the household he lives in, with the girlfriend’s kids, he
got along famously with them, would play with them for hours. It’s not
that he’s not interested in relating, it’s that his relationship skills and
capabilities are at a child level and that puts him out of sync as he
attempts to relate to adults.
129
Similarly, Holsey’s relationships with women in adulthood “all ultimately broke
up as they identified that they were relating to an emotional child instead of an
adult. . . . [U]ltimately they just couldn’t tolerate the experience of being in an
intimate relationship with a child.” Dr. Cunningham gauged Holsey’s social
adaptive behavior as at the level of a five-year-old child.
In terms of self-direction, Dr. Cunningham related accounts given by other
adults who knew Holsey that he was unable to direct himself toward goals as
simple as cleaning the house or even cooking a basic meal. When confronted by
another adult about his inability to perform these simple tasks, Holsey “would just
slump his shoulders and hang his head and mumble about what he couldn’t do
very well.” Testing in the area of self-direction placed Holsey at the functional
level of a four-year-old child.
Summarizing his evaluation in these and other areas, Dr. Cunningham
testified that Holsey operates, on average, at the level of an eight-year-old child in
his adaptive behavior. He testified that, whereas mental retardation requires proof
of deficits in only two of ten behavioral areas, Holsey was deficient in eight.
Moreover, Dr. Cunningham testified that Holsey’s IQ scores taken over a twenty-
three year period by the Georgia Youth Development Center (“YDC”), by Dr.
Einhorn, and by Dr. Cunningham himself, and which registered an IQ of 69, 70,
130
and 71, amounted to “an extraordinarily reliable demonstration of his actual
intellectual capability” as these scores “cluster[ed] within three points.”9 Dr.
Cunningham described Holsey’s borderline mental retardation as “a catastrophic
disability.”10
Dr. Toomer’s testimony also described Holsey’s intellectual and behavioral
capacity as lagging far behind his biological age. Dr. Toomer reported that Holsey
registered scores at a fifth- or fourth-grade level in reading, math, and spelling
tests administered as part of his assessment. Dr. Toomer’s assessment was also
9
When Dr. Shapiro performed a partial IQ test of Holsey before his trial, he obtained an
IQ score of 79, however, Dr. Shapiro nevertheless agreed with every other expert to have
examined Holsey that Holsey’s intelligence falls at least in the borderline range of mental
retardation. Moreover, as explained by Dr. Cunningham, the results of that test were not as
reliable as the tests administered by the YDC and by Drs. Cunningham, Einhorn, and Toomer,
because Dr. Shapiro administered only an incomplete subset of the tests administered on these
other occasions. The only other contrary test administered to Holsey, the Culture Fair test
administered by the Georgia Department of Corrections, was described by the psychologist who
designed the test, Dr. Herbert Eber, as “not intended to be used for psychological diagnosis” and
that those scores “have absolutely no validity for assessing IQ as defined by the DSM and are not
valid for purposes of diagnosing or ruling out mental retardation.”
10
Although the majority apparently discredits Dr. Cunningham’s description of Holsey’s
mental retardation because those precise words are not also found in the DSM-IV, see Majority
op. at 29 n.7, even Dr. Sachy, the state expert witness whose testimony the majority finds
convincing, stated during his deposition that he does not always follow the letter of the DSM-IV
in diagnosing patients. Specifically, Dr. Sachy testified that the DSM-IV is, at most, “a good
starting point for arriving at a diagnosis,” but is not to be treated as a “diagnostic bible,” and that
he disagreed with its assessments in some areas. In any event, no witness for the state questioned
the scientific basis for Dr. Cunningham’s use of the term “catastrophic disability” in relation to
borderline mental retardation.
131
consistent with Dr. Cunningham’s conclusion that Holsey lagged far behind his
age group in multiple areas of adaptive behavior.
Dr. Einhorn examined Holsey for the state, but he agreed with Holsey’s
experts that Holsey’s test results and behavioral development met all three
elements of the definition of mental retardation required by Georgia law.
Consistent with test results obtained by Drs. Cunningham and Toomer, Dr.
Einhorn’s academic testing revealed that Holsey performs at a fourth- or fifth-
grade level in reading, spelling, and arithmetic. He nevertheless opined that
Holsey was not mentally retarded because he judged Holsey’s impairments to have
been caused by “cultural deprivation” and alcohol abuse instead of mental
retardation.11 Consistent with Holsey’s experts’ assessments, however, Dr.
Einhorn testified that Holsey’s mental functioning was between “low average” and
“borderline” mental retardation. Einhorn also testified that his testing revealed no
11
However, Dr. Cunningham explained that mental retardation is not contingent upon
biological or neurological impairment, and can be the result of so-called “cultural deprivation”
because “[m]ental retardation is independent of cause. And so whether or not your hardware was
permanently stunted because you didn’t get proper nurturance as a baby, because you were
neglected or abused or were impoverished or ate lead paint or were dropped on your head . . . all
of that is called mental retardation.” Dr. Cunningham described Dr. Einhorn’s assumption that a
“cultural deficit” and “mental retardation” are mutually exclusive as “entirely inconsistent . . .
with DSM-IV and with the American Association of Mental Retardation Standards” and is “not a
professionally accepted stance or viewpoint.” Similarly, Dr. Toomer testified that “when we talk
about diagnosing mental retardation in individuals, the etiology is varied. And because . . . it is
psychosocial or what have you does not in any way diminish the existence or the likelihood of
the existence of mental retardation.”
132
signs that Holsey was malingering, or dissembling in order to appear mentally
retarded, which was also consistent with Dr. Cunningham’s assessment that
Holsey’s responses to questions were the product of genuine effort.
Dr. Shapiro, who was retained by Holsey’s trial counsel but who never
testified during Holsey’s trial or sentencing, testified on collateral review that
Holsey is “in the borderline range” of mental retardation. Like Dr. Toomer, Dr.
Shapiro testified that Holsey reads at a fourth-grade level.
Finally, even Dr. Thomas Sachy, a psychiatrist who examined Holsey on
behalf of the state, offered testimony that would have been helpful to Holsey if put
before a jury. Specifically, Dr. Sachy described mentally retarded individuals as
often incapable of keeping jobs because they are unable to perform sequenced
activities. This description was consistent with Holsey’s evidence that he is
unable to follow basic directions required to shop for groceries, cook a simple
meal, or perform jobs more sophisticated than dishwasher or truck driver.12 Dr.
Sachy identified inability to maintain adult relationships as another characteristic
12
It is not inconsistent with Holsey’s evidence that he maintained menial jobs as a
tray-loader at a chicken processing plant or as a dishwasher at a Pizza Hut restaurant because of
the extraordinarily simple, repetitive nature of both jobs. Or, as Dr. Cunningham explained, it
was not surprising that Holsey managed to keep these jobs despite his impairments because
“mentally retarded individuals, if the task is simple and routine and they have some guidance,
they’re likely to be excellent employees in that area because it fully engages them and they get a
sense of pride in doing that.”
133
feature of mental retardation, and this description was corroborative of testimony
by Holsey’s experts and former girlfriends that he was unable to interact on an
adult level. Further, Dr. Sachy acknowledged that inability to operate simple
machinery, such as a washing machine, without instructions and supervision may
be consistent with mild mental retardation, just as Holsey’s collateral testimony
revealed that Holsey was unable to operate a washing machine. Dr. Sachy
emphasized his view that the intellectual element of borderline retardation is the
most important element in diagnosing that condition, and he unequivocally
testified that Holsey’s IQ scores place him in the borderline range of mental
retardation.
Clearly, Regina Reeves’ unexplained reading of the words “borderline
mental retardation range” cannot reasonably be called “largely cumulative” of this
testimony. The cognitive and behavioral impairments that were painstakingly
explained on collateral review by the psychologists are not a matter of everyday
knowledge such that a jury will be reminded of them automatically merely by
hearing the words “borderline mental retardation” spoken. Rather, the testimony
by these experts would have enabled the jury to understand in concrete terms that
Holsey suffers from the “cognitive and behavioral impairments” that reduce the
moral culpability of mentally retarded and borderline mentally retarded offenders,
134
including Holsey’s diminished capacity “to understand and process information, to
communicate, to engage in logical reasoning, to control impulses, and to
understand the reactions of others.” Atkins v. Virginia, 536 U.S. 304, 318 (2002);
see Brownlee v. Haley,
306 F.3d 1043, 1073 (11th Cir. 2002).13
The majority refers to Regina Reeves’ sentencing phase testimony that
Holsey “performed poorly in school, and was usually assigned to the next grade
level instead of actually passing into that grade level,” that Holsey “dropped out of
school before finishing the tenth grade,” and that Holsey was “‘very slow’ and a
‘poor worker’ who ‘need[ed] help from home’ but never got that help.” Majority
op. at 75-76. However, nothing in the testimony referred to describes the depth
and severity of mental impairment that distinguishes a borderline mentally
retarded defendant from the general population. See Atkins, 536 U.S. at 319 (“If
the culpability of the average murderer is insufficient to justify the most extreme
sanction available to the State, the lesser culpability of the mentally retarded
offender surely does not merit that form of retribution.”). To say that testimony
describing Holsey as having academic difficulties that are shared by non-mentally
retarded individuals “highlighted” the effects of Holsey’s mental retardation
13
“[I]t is abundantly clear that an individual ‘right on the edge’ of mental retardation
suffers some of the same limitations of reasoning, understanding, and impulse control as those
described by the Supreme Court in Atkins.” Brownlee, 306 F.3d at 1047.
135
described on collateral review is to erase the distinction between mentally retarded
persons and those who are not. See Atkins, 536 U.S. at 310 (“‘By definition,
[mentally retarded] individuals have substantial limitations not shared by the
general population.’” (quoting Atkins v. Commonwealth, 534 S.E.2d 312, 325
(Va. 2000) (Koontz, J., dissenting))). Testimony that describes the impairments
that are unique to mentally retarded individuals is necessary to distinguish the
mentally retarded or borderline mentally retarded defendant from a defendant
whose culpability is not decreased by this incapacity. Such testimony does not, as
the majority claims, merely add “details” or elaborate on “themes” that have
already been canvassed; instead, it is essential to give recognition to the “cognitive
and behavioral impairments that make these defendants less morally culpable.” Id.
at 320. The sentencing phase testimony wholly failed to describe the effects of
Holsey’s borderline mental retardation.
III. Holsey Received Ineffective Assistance of Counsel During the Penalty
Phase of His Trial
Because the Georgia Supreme Court’s decision is founded on the
unreasonable factual determination that the sentencing phase testimony
“highlighted” Holsey’s abuse and borderline mental retardation such that his
mitigating evidence was “largely cumulative,” we must apply de novo review to
136
the prejudice component of Holsey’s Strickland claim. See § 2254(d)(2); Cooper,
646 F.3d at 1353; Jones, 540 F.3d at 1288 n.5. Moreover, because the Georgia
Supreme Court did not adjudicate the deficiency prong of Holsey’s Strickland
claim on the merits, we have no state-court adjudication of the deficiency prong to
defer to. See Rompilla, 545 U.S. at 390.
A. Deficiency
To establish that his counsel provided ineffective assistance, Holsey must
show that his counsel’s performance was objectively unreasonable according to
prevailing professional norms at the time of his trial. See Strickland, 466 U.S. at
687-88. It was well established throughout the time of counsel’s preparation that
an attorney representing a defendant in a capital case bears “‘an obligation to
conduct a thorough investigation of the defendant’s background.’” Johnson, 643
F.3d at 931 (quoting Williams, 529 U.S. at 396). However, as in Wiggins, counsel
gathered information about Holsey’s childhood from a narrow set of sources:
Holsey’s school records, records from a state juvenile rehabilitation program
where Holsey was sent when he was fifteen, and Holsey’s criminal history. See
539 U.S. at 523-34. Although assistant counsel Brenda Trammel also conducted
interviews of Holsey’s mother and three sisters, these interviews were limited to
discussing the “guilt/innocence” phase of Holsey’s trial. At the state habeas
137
hearing, neither lead counsel Andy Prince nor Trammel recalled asking Holsey
himself about his childhood. Moreover, although the abuse suffered by Holsey
was severe and the knowledge of it widespread among community members who
were available and willing to testify as mitigation witnesses, most of these
witnesses were never contacted by trial counsel. See Cooper, 646 F.3d at 1352
(noting list of witnesses who were willing to testify and not contacted). Those
individuals who were contacted simply were never asked for information about
Holsey’s upbringing. Even though counsel relied on Regina Holsey to present
evidence about Holsey’s family history, trial counsel never discussed the scope or
subject matter of Regina Holsey’s mitigation-phase testimony with her.
Moreover, “the information that trial counsel did acquire would have led a
reasonable attorney to investigate further” and to discover the pervasive abuse in
Holsey’s background. See Williams, 542 F.3d at 1340. During the course of
counsel’s preparation for trial, Holsey’s four sisters and his mother provided
counsel with responses to a questionnaire posing generic questions about their
knowledge of Holsey and his background. Several of these questionnaires
contained vivid references to the abuse and poverty in Holsey’s childhood. In
particular, Regina Holsey’s questionnaire reported that Holsey “was beaten with
various cords, sticks, switches, brooms, shoes,” and had been “choked” and “held
138
under water.” Although counsel received these forms in advance of Holsey’s trial,
counsel did not discuss these obvious indications of abuse in their interviews with
Holsey or his sisters. See Johnson, 643 F.3d at 932 (“No reasonable attorney
[having been notified of abuse] would fail to interview members of his client’s
family who were readily available and could corroborate or refute the allegations
of abuse.”). Nothing in the record indicates that counsel chose to cut off their
investigation into Holsey’s childhood in light of signs that this inquiry would be
fruitless or would lead to the discovery of adverse evidence. See Wiggins, 539
U.S. at 525 (finding performance deficient absent indications that further research
would be useless).
Like counsel’s inadequate investigation of Holsey’s childhood abuse,
counsel’s investigation of Holsey’s mental condition was deficient in failing to
discover readily available evidence of his borderline retardation, in ignoring
prominent leads that should have sparked further inquiry, and in lacking any
strategic basis to forgo this investigation. Lead counsel Andrew Prince testified at
the collateral evidentiary hearing that, prior to Holsey’s sentencing, he had read
the report from which Regina read at Holsey’s trial, which revealed that Holsey, as
a fifteen-year-old, functioned at a third-grade level and had an IQ of 70. The
report also referred to Holsey as having a “borderline mental retardation range” of
139
intelligence and as exhibiting behavior that denoted “a prepsychotic disturbance.”
Indeed, lead counsel noted in his preparation materials that Holsey was
“borderline mentally retarded.” Moreover, assistant counsel Trammel testified at
the evidentiary hearing that she noticed that Holsey was extremely slow from the
first time she met him, and Prince documented Holsey’s demeanor as “rather
psychotic.” Trammel also reviewed Holsey’s school records and shared her notes
with lead counsel Prince, in which she summarized Holsey’s school performance
as “pitiful.” Further, Regina Holsey’s questionnaire, which was submitted to
counsel well in advance of trial, specifically referred to a paternal uncle who was
mentally retarded and to mental health problems experienced by Holsey’s mother
and two of his sisters. As the Georgia habeas court found, however, and as the
Georgia Supreme Court did not dispute, Prince admitted that he never considered
presenting any mental retardation evidence at either phase of trial. This is not
surprising given his own testimony that he was drinking heavily during this time
and the malpractice suit and criminal charges concerning his theft of client funds.
Based upon the mental health records that were available to Prince, “any
reasonably competent attorney would have realized” that pursuing additional
information about Holsey’s mental deficiency “was necessary to making an
informed choice” about mitigation strategy. See Wiggins, 539 U.S. at 525.
140
However, Brenda Trammel, who was ostensibly in charge of mitigation, testified
that by the time she joined the case, Prince had already decided that mental health
issues were not going to be pursued or presented.14 This record gives no
indication that Prince’s failure to pursue apparent leads into Holsey’s mental
incapacity was a matter of “reasoned strategic judgment;”instead, every indication
is that this defect in preparation “resulted from inattention” alone. Id. at 526.
B. Prejudice
To satisfy the prejudice standard of Strickland, Holsey must show “a
reasonable probability that . . . the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not warrant death” if
mitigating evidence of his childhood abuse and mental retardation had been
introduced. See Strickland, 466 U.S. at 695. Because Georgia requires that the
death penalty may be imposed only by a unanimous jury verdict,15 Holsey need
14
Prince obtained funds from the court to pay for a psychological assessment by Dr.
Michael Shapiro, but, as in Ferrell v. Hall, counsel’s use of Dr. Shapiro was “unjustifiably and
unreasonably circumscribed.” 640 F.3d 1199, 1227 (11th Cir. 2011). Prince used Dr. Shapiro
only to assess competency to stand trial and did not inquire about mental limitations relevant to
mitigation. Shapiro testified that counsel provided him with only a two-page summary of
Holsey’s personal and family history. Dr. Shapiro created no report of his findings, and did not
make any diagnosis as to Holsey’s mental condition in advance of trial. Whether or not counsel
ever discussed Shapiro’s examination with him, the limited evidence of counsel’s interaction
with Dr. Shapiro reveals that Shapiro’s investigation of Holsey’s mental condition was, at best, a
“sharply limited inquiry.” Id.
15
See supra n. 1.
141
only show a “reasonable probability that at least one juror would have struck a
different balance” between aggravating and mitigating factors. Wiggins, 539 U.S.
at 537. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome” of Holsey’s original sentencing proceeding.
Strickland, 466 U.S. at 694. The likelihood of a different outcome must be
“substantial,” but Holsey need not show that his counsel’s errors “more likely than
not altered the outcome.” Harrington v. Richter, 131 S. Ct. 770, 791 (2011)
(internal quotation marks omitted).
As detailed above, “[t]his is not a case in which the new evidence would
barely have altered the sentencing profile” presented to the sentencing jury.
Porter, 130 S. Ct. at 455 (internal quotation marks omitted). Holsey’s mitigating
evidence is precisely the potent combination of child abuse and borderline mental
retardation that was held to establish prejudice in Williams v. Taylor. See 529
U.S. at 398. Moreover, neither of the state’s expert witnesses, Drs. Sachy and
Einhorn, disputes that Holsey is borderline mentally retarded, both witnesses agree
with Holsey’s experts that he was not “malingering” or faking the effects of
retardation, and no witness has called into question Holsey’s evidence that he was
the victim of severe abuse throughout his childhood and adolescence. Therefore,
Holsey’s mitigating evidence is especially strong because it is “consistent,
142
unwavering, compelling, and wholly unrebutted.” Ferrell v. Hall, 640 F.3d 1199,
1234 (11th Cir. 2011).
This is not a case where the aggravating factors so clearly outweighed the
mitigating circumstances that there is no substantial probability that one juror
would have weighed them differently. The jury’s sentence of death was based on
four statutory aggravating circumstances. The first of these factors was based on
Holsey’s prior conviction for armed robbery when he was eighteen years old, in
which he robbed a convenience store using a brick. The remaining three were
derived from the immediate circumstances of Holsey’s crime: that the shooting of
Deputy Robinson occurred while Holsey fled the scene of a robbery, that it
occurred in order to evade arrest, and that Deputy Robinson was a peace officer in
the line of duty. See Ga. Code Ann. § 17-10-30(b)(2), (8), (10). In addition, the
state presented evidence of the non-statutory aggravating circumstances that
Holsey had stabbed a man in a barroom fight and that, as Holsey attempted to flee
the barroom fight, a man handed him a rifle with which he shot at a pursuer.
However, these aggravating circumstances were weakened by defense
evidence at trial and would have been further diminished by the evidence
presented on collateral review. As to the three statutory aggravators relating to the
crime itself, the Supreme Court and our circuit both have held mitigating evidence
143
of child abuse and mental impairment like Holsey’s to create a reasonable
probability of outweighing evidence of crimes that were far more aggravated than
this one. In Rompilla, the Supreme Court held that mitigating evidence of abuse
and mental infirmity created a reasonable probability of outweighing aggravating
evidence of murder involving torture, a simultaneous felony, and a history of
violent crime including rape at knifepoint. See 542 U.S. at 378, 392-93; id. at 402
(Kennedy, J., dissenting). In Williams, the Court held that omitted mitigating
evidence of abuse and borderline retardation may have outweighed a robbery and
murder that was aggravated by the defendant’s subsequent “violent assaults on
elderly victims” and arson committed while in prison. See 529 U.S. at 368-69,
398. Likewise, in Cooper, we held that mitigating evidence of child abuse alone,
without mental impairment, created a reasonable probability of outweighing
evidence of the crime, which was an “extremely aggravated triple homicide”
involving the execution-style murder of restrained victims. See 646 F.3d at
1338-41, 1353-56. And in Johnson, we held that mitigating child abuse evidence
alone, without mental impairment, created a reasonable probability of outweighing
evidence of the defendant’s murder of two victims and five separate aggravating
circumstances, including that the murders were committed “in a cold, calculated,
and premeditated manner.” See 643 F.3d at 917.
144
The murder involved in this case was “no more brutal than the murder[s] in
th[ese] case[s].” Id. at 937. And the culpability associated with this murder
would have been diminished by the collateral expert testimony describing the
effect of Holsey’s borderline retardation on his limited capacity “to understand and
process information, to learn from experience, to engage in logical reasoning, or to
control impulses.” Atkins, 536 U.S. at 320. Similarly, as to the fourth
aggravating factor of Holsey’s prior conviction at the age of eighteen, the weight
of this aggravating circumstance would have been reduced by the collateral
testimony describing the extent of the abuse that Holsey suffered throughout his
adolescence, as well as his borderline mental retardation. See Jackson v. Herring,
42 F.3d 1350, 1369 (11th Cir. 1995) (holding that aggravating evidence of murder
would have been diminished by “[e]vidence showing the genesis of [the
defendant’s] irrational rage through an abusive upbringing”).
Regarding the non-statutory aggravating evidence regarding the barroom
fight, Kenneth Simmons, the person who was stabbed, testified that he “had words
with” Holsey about a fight between Holsey and Simmons’ cousin that occurred
earlier that night. According to Simmons, Holsey, otherwise unprovoked, then
stabbed him in the back with a knife. Simmons testified that he could not
remember what he and Holsey had said to each other. In contrast, four witnesses
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who were present on the night of the bar fight testified that Holsey did not start the
fight and stabbed Simmons only after Simmons had bludgeoned Holsey in the
back of the head with a brick, causing Holsey to bleed profusely from the head.
Lucille Kendrick testified that Holsey was dancing with her when Simmons came
up from behind Holsey and hit him in the back of the head with an object in his
hand, and Holsey started bleeding from the head. Holsey pushed Kendrick away
from him, leaving some of his blood on her shirt, and started fighting Simmons.
Similarly, Clifford Holsey, the owner of the bar who is not a relative of
Wayne Holsey, consistently described Kenneth Simmons and Simmons’ cousin,
Scottie Simmons, as the aggressors in the fight. Specifically, Clifford Holsey
testified that Simmons, his cousin, and an accomplice were coming from another
club to Clifford’s bar to attack Holsey. When Simmons arrived, Clifford Holsey
went outside to meet him and his companions and told them not to interfere with
Holsey, who was already inside the bar with his girlfriend, because “he is not
bothering anybody. Wayne is not going to bother you if you don’t bother him.”
However, Simmons “slipped out from around me and went on inside the place,”
and once inside he “went in there and jumped on Wayne. And Wayne had to
defend himself because Scottie [Simmons] and his family were going to attack
him.”
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Further, Belinda Hawkins, Holsey’s girlfriend who was with him on the
night of the altercation, testified that Simmons and two others had come to the
club to attack Wayne because of an incident that had occurred earlier that night.
She remembered Holsey coming to her in the bar with blood running from his
head. She asked him what happened, and Holsey told her Simmons had hit him
with a brick from behind. Like Clifford Holsey and Lucille Kendrick, she testified
that Wayne Holsey did not start the fight. Finally, all of this testimony was
corroborated by Regina Reeves, who testified at trial that Holsey had “three holes
in his head” as a result of the bar fight, one on the temple, and two on the back
side of his head, all of which required stitches. Bertha Simmons, who is not
related to Kenneth or Scottie Simmons, testified that she did not know who started
the fight but did see Holsey stab Kenneth Simmons four times.
We cannot say that a reasonable jury would weigh the evidence of the bar
fight heavily against Holsey. Rather, the weight of the testimony showed that
Simmons attacked Holsey first from behind and that Simmons came to the bar
with two companions for the specific purpose of assaulting Holsey. The weight of
the testimony revealed that Holsey stabbed Simmons in the midst of a fight that
started after Simmons inflicted a serious head wound on Holsey.
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As for the evidence that Holsey fired a rifle at Kenneth’s cousin, Scottie
Simmons, the aggravating weight of this testimony was diminished by Scottie
Simmons’ admission that he was pursuing Holsey in order to attack him as Holsey
left the bar. Moreover, Holsey’s experts testified on collateral review that Holsey
is prone to follow the instructions from others as a consequence of his mental
retardation, and Holsey fired the rifle at Simmons only after a third person handed
the rifle to Holsey and instructed him on how to cock, aim, and fire it as Simmons
approached. See Ferrell, 640 F.3d at 1234 (holding prejudice established in part
where “evidence of [the petitioner’s] mental illness measurably weakens the
aggravating circumstances” by providing an explanation for the petitioner’s
conduct); Hardwick v. Crosby, 320 F.3d 1127, 1185 (11th Cir. 2003)
(“[P]sychiatric mitigating evidence not only can act in mitigation, it also could
significantly weaken the aggravating factors.”) (internal quotation marks omitted).
Although the majority claims that testimony from defense psychologists
would have led to introduction of testimony by Dr. Shapiro and Dr. Sachy that
Holsey’s conduct “evidenced an antisocial personality disorder,”16 neither doctor
gave an opinion that Holsey exhibited this disorder. At most, Dr. Sachy opined,
hypothetically and in the abstract, that aggravated assault, fighting, and successful
16
Majority op. at 96.
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armed robbery were each individually more consistent with antisocial personality
than with mental retardation. However, Dr. Sachy made no diagnosis, and gave no
opinion, about Holsey, and made no conclusions based on any review of Holsey’s
conduct in particular. For his part, Dr. Shapiro repeatedly refused to make an
antisocial personality diagnosis or to give any opinion about antisocial personality
disorder based on the information available to him, despite counsel for the state’s
persistent questioning.
Furthermore, many aspects of Dr. Sachy’s testimony would have been
undermined on cross examination or rebutted by Holsey’s experts. Specifically,
although Dr. Sachy testified that Holsey does not show signs of “gross
neurological disfunctioning” or physical abnormality, and that Holsey’s cognitive
functioning was “grossly intact,” he admitted on cross examination that none of
these features is necessarily correlated with mental retardation. In addition, Dr.
Sachy readily admitted that, because he is a psychiatrist and not a psychologist, he
was unable to criticize any of the testing conducted by Drs. Cunningham and
Toomer, and even Dr. Einhorn, all of which registered scores falling within the
range of mental retardation.
Moreover, Holsey’s expert Dr. Cunningham was prepared to offer
persuasive criticism of Dr. Sachy’s assessment that would have pointed out flaws
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in his methodology and, overall, described it as relying on scientifically and
statistically inappropriate, selective information. In particular, Dr. Sachy testified
that his opinion was based on Holsey’s physical appearance 17 and on Holsey’s use
of words that Dr. Sachy deemed “complex,” which he explained were the “single
most significant thing” that he relied upon to form his diagnosis.18 However, Dr.
Sachy admitted that his opinion that these words are contraindicative of mental
retardation was based on his own subjective judgment rather than on any normed
survey, such as the testing that formed the basis of Holsey’s experts’ opinions.
Asked to justify his reliance on vocabulary as a measure of mental retardation, Dr.
Sachy stated, “what separates us from lower animals than our language skills
[sic]? . . . I mean, people say when you open your mouth that’s when other people
find out you’re stupid.” At several other points, Dr. Sachy related his view that
Holsey’s conduct during his crime was not indicative of mental retardation in part
because the conduct was not “stupid” or was “non-silly.” He also stated that, in
17
In response, Dr. Cunningham testified that abnormal physical characteristics are
generally indicative only of severe mental retardation and not relevant to Holsey’s contention that
he is mildly mentally retarded.
18
The words or statements that Dr. Sachy identified were the words “forbidden”
(pronounced by Holsey as “forbidded”), “subpoena,” “animosity,” “coverup,” and the phrases
“unconditional love,” “don’t know if I’m coming or going,” “things happen for a reason,” and
“my life is at stake.”
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conducting his assessment, he was “looking for . . . blatant, silly, juvenile,
mentally retarded . . . ways of behaving that make a person dysfunctional. . . . I
think people used to call them [mentally retarded people] simple . . . That was the
terminology at the time. And I just did fail to find that in the record, anything
significant indicating a real simplicity.” This testimony corroborates Dr.
Cunningham’s criticism that Dr. Sachy relied on scientifically inappropriate
anecdotes, including stereotypes about mentally retarded persons, rather than on a
statistically or scientifically valid method by which to assess mental retardation.
Dr. Cunningham testified that Dr. Sachy’s reliance on vocabulary is not an
appropriate basis on which to diagnose mental retardation because, whereas
“systematic assessment of vocabulary is one of ten or eleven subtests in the full
scale IQ test, . . . unsystematic subjective evaluation is not at all a reliable way of
diagnosing mental retardation.” Therefore, excluding a diagnosis of mental
retardation based on anecdotal evidence of vocabulary “would be an
extraordinarily inappropriate application to make.” In contrast, neither Dr. Sachy
nor Dr. Einhorn offered any criticism of the methodology and assessments
conducted by Drs. Cunningham and Toomer. Introducing Holsey’s mitigating
evidence of child abuse and borderline retardation would not have led to the
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introduction of significant aggravating evidence beyond what the jury heard
during Holsey’s original sentencing. 19
Because we must presume that the jury evaluating the evidence is acting
“reasonably, conscientiously, and impartially,” see Strickland, 466 U.S. at 695, I
cannot believe that one juror hearing all of the mitigating evidence would not
credit Holsey’s experts and lay witnesses and find Holsey to be either fully
mentally retarded or borderline mentally retarded and so diminished in his
cognitive and behavioral capacity as to be either ineligible for or undeserving of
the death penalty. When combined with Holsey’s evidence of his horrific child
abuse, none of which was presented to his sentencing jury, there is a substantial
probability that one juror would not have voted in favor of the death penalty had
this evidence been introduced by competent counsel. See Wiggins, 539 U.S. at
537; Williams, 529 U.S. at 398. Accordingly, the Sixth Amendment requires that
Holsey receive a new sentencing hearing.
19
The majority references Holsey’s arrests in 1982 and 1983 for simple battery and
shoplifting, and in 1990 for carrying a concealed firearm, however, both of the earlier arrests
occurred during Holsey’s abuse- and poverty-stricken adolescence, and the 1990
concealed-weapon charges were dropped. And although Holsey’s prison records reflect some
disciplinary violations, the records also contain mitigating statements about his conduct, such as
those from his activity counselor that Holsey “appears honestly interested in staying out of any
trouble” and “is a quiet individual [who] appears to stay pretty much to himself.”
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