Scotty Garnell Morrow v. Warden, Georgia Diagnostic Prison , 886 F.3d 1138 ( 2018 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10311
________________________
D.C. Docket No. 2:12-cv-00051-WBH
SCOTTY GARNELL MORROW,
Petitioner - Appellant,
versus
WARDEN, GEORGIA DIAGNOSTIC PRISON,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 27, 2018)
Before WILSON, WILLIAM PRYOR, and NEWSOM, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
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Scotty Garnell Morrow, a Georgia prisoner convicted and sentenced to death
for the murders of Barbara Young and Tonya Woods, appeals the denial of his
petition for a writ of habeas corpus, 28 U.S.C. § 2254. Morrow contends that we
should vacate his sentence on the grounds that his trial attorneys provided
ineffective assistance when they failed to uncover and introduce mitigating
evidence from Morrow’s childhood and when they failed to hire an independent
crime-scene expert to corroborate Morrow’s account of the murders. We disagree.
The Supreme Court of Georgia reasonably concluded that Morrow’s attorneys
were not deficient for failing to uncover mitigating evidence and that the attorneys’
failure to hire an independent crime-scene expert did not prejudice Morrow. We
affirm.
I. BACKGROUND
We divide this background in four parts. We begin with the facts of the
crime. Next, we explain counsel’s preparations for trial. Then, we describe
Morrow’s trial and sentencing. We then provide an overview of the state and
federal habeas proceedings.
A. The Crime
On December 29, 1994, Scotty Garnell Morrow murdered Barbara Young
and Tonya Woods, and he severely injured LaToya Horne. Humphrey v. Morrow
(“Morrow III”), 717 S.E.2d 168, 171–72 (Ga. 2011). Young was Morrow’s
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girlfriend, and Morrow repeatedly abused her. Id. at 171. On December 6 of the
same year, Morrow struck Young; on December 9, he abducted, beat, and raped
her twice; and on December 24, Young told a neighbor that “Morrow was going to
kill her.” Id.
On the day of the murders, Morrow and Young argued over the telephone
before Morrow, armed with a handgun, went to Young’s house, id. at 172, which
was occupied by Young, Woods, Horne, and two children, id. at 171–72. Morrow
entered the house and found the three women in the kitchen. Id. at 172. He argued
with Woods before shooting her “in her abdomen, severing her spine and
paralyzing her.” Id. He then shot Horne in the arm. Id. Young fled into the
bedroom, but Morrow pursued her and kicked open the bedroom door. Id. As they
struggled, the gun discharged and “likely injur[ed]” Young. Id. She then ran into
the hallway, but Morrow again caught her. Id. Forensic evidence presented by the
state, id. at 177, suggested that Morrow “smashed her head into the bedroom’s
doorframe, leaving behind skin, hair, and blood,” before he executed her with a
single shot to the head, id. at 172. The bullet passed through Young’s left palm,
suggesting that she was “attempt[ing] to shield her head.” Id. Morrow disputes this
account and argues that “the blood and hair found on the doorframe in the hallway
were deposited there by . . . Young’s wounded hand, not by Morrow striking her
head against the door jamb.” Regardless, after Young died, Morrow returned to the
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kitchen and either reloaded or unjammed his pistol. Id. He murdered Woods by
shooting her in the “head at close range, and he shot . . . Horne in the face and
arm.” Id. Horne survived, but suffered permanent injuries. Id. Morrow then fled the
scene after cutting the telephone line. Id.
B. The Attorneys’ Pretrial Preparations
In 1995, the trial court appointed Harold Walker Jr. and William Brownell
Jr. to represent Morrow, and in March of the same year a grand jury indicted
Morrow for two counts of malice murder and several lesser offenses. Walker and
Brownell decided to pursue mitigating evidence to support their theory that the
crime was an out-of-character outburst by an otherwise “good man.” They met
with Morrow “almost right away” and probed “his general life history.” They
repeatedly discussed Morrow’s childhood with Morrow’s sister and mother. And
they hired an investigator, Gary Mugridge, who interviewed, among others,
Morrow’s sister, mother, father, former girlfriend, former co-workers, and bishop.
Although Mugridge lacked specific experience with capital investigations, he had
40 years of investigative experience and “literally reported everything he did back
to [counsel].”
The attorneys hired two psychologists. The first, Dr. Dave Davis,
interviewed Morrow about his personal and family history. Davis learned that
Morrow’s father “battered” his mother, that Morrow “[got] in trouble with school,”
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and that Morrow had been in several “serious [romantic] relationships,” “ha[d]
always been heterosexual, [had] beg[u]n intercourse at age 16, and ha[d] had
sexual relations with about thirty women.” Davis reported that Morrow was
“cooperative,” that a “[g]ood rapport was established,” and that Morrow was
“responsive and spontaneous.” The second psychologist, Dr. William Buchanan,
saw Morrow four times, and the attorneys met several times with Buchanan.
Buchanan testified that “Morrow was cooperative and honest” in their sessions.
Morrow shared other sexual details with Buchanan, including that he “was picked
up with a transvestite” in 1992 and that his son had been molested. But Morrow
never told Buchanan that he had been sexually abused.
The attorneys’ investigation revealed that Morrow had spent “a lot of [his]
youth . . . in the New York [and] New Jersey area” before moving to the south as
an older teenager. They learned that Morrow had struggled in school, had
undergone psychological testing, had experienced “blackouts as a child,” and had a
“big brother mentor through the school.” And they discovered that “Morrow’s
childhood life was not ideal” because “he saw his mother physically abused, saw
his family members emotionally abused . . . [and] was made fun of by . . . other
children.”
This investigation led the attorneys to “believ[e] [they] had [found]
everything” and that Morrow had not experienced sexual or extreme physical
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abuse in the light of his and his family’s statements. They also saw little reason to
doubt the truthfulness and completeness of these accounts because the family
offered candid responses to their questions. For example, Morrow’s mother freely
discussed “how her husband beat her in front of [the] children,” and counsel
learned that Morrow was subject to “some physical abuse” such as “intense
spanking[s].” Although the attorneys found the mother “difficult in terms of
providing information” and perceived that she gave “the same answers over and
over again,” they determined that she was honest and never “hostile or unwilling to
help.” And Walker later testified that he “never got the feeling [Morrow] was
trying to mislead [them].”
The attorneys encountered a few “dead ends,” such as when they
unsuccessfully attempted to reach out to officials at Morrow’s childhood school
and Morrow’s childhood mentor. They also declined to send Mugridge to New
York and New Jersey to further explore Morrow’s childhood. And the attorneys
did not hire a social worker to help with the investigation because they concluded
that doing so was unnecessary in the light “of what . . . Buchanan was doing and
the mitigation evidence that . . . Mugridge was finding.” They also did not retain a
forensic expert to rebut the state investigator’s forensic account of the crime.
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C. The Trial and Sentencing
At trial, Morrow testified that his victims had verbally provoked the assault
and gave a less-brutal description of the murders. He asserted that Woods was
standing upright and taunting him when he fired the first shot. He also gave an
account of his struggle with Young that conflicted with evidence presented by the
state that “Young’s forehead likely was injured when her head struck a
doorframe.” Id. at 177. And he disputed that he reloaded his gun mid-rampage. The
prosecutor underscored the discrepancies between Morrow’s testimony and the
physical evidence and repeatedly accused Morrow of lying to evade responsibility.
By all accounts, Morrow was a poor witness. Walker later recalled that the
“cross-examination was a disaster” because Morrow failed to show “remorse and
shame” and “was as flat on the stand as [he had] ever seen him.” The jury
convicted Morrow on all charges.
At sentencing, trial counsel depicted Morrow as an otherwise peaceful man
who “snapped” after a lifetime of “rejection” and “emotional difficulty.” Morrow
did not testify because he “was firm in . . . not wanting to testify again” and his
attorneys thought his earlier trial testimony “was a disaster.” They instead
presented fourteen witnesses, including Morrow’s mother and sister, who testified
that Morrow had seen his father abuse his mother, that he had visited psychiatrists,
that he “was a little slow in some things,” that he “was picked on in school,” and
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that he was spanked as a child “with a strap in front of his classmates.” Buchanan
testified that Morrow suffered from several emotional disorders and frailties and
that Morrow had “a suspicious, mistrustful[,] . . . [and] impulsive” nature. The jury
recommended a sentence of death after finding five aggravating factors, including
that the murders were “outrageously vile, horrible[,] or inhuman in that [they]
involved torture and depravity of mind.” Morrow v. State (“Morrow I”), 532
S.E.2d 78, 82 (Ga. 2000). The Supreme Court of Georgia affirmed on direct
appeal, id. at 89, and the Supreme Court of the United States denied certiorari,
Morrow v. Georgia (“Morrow II”), 532 U.S. 944 (2001).
D. The State and Federal Habeas Proceedings
On post-conviction review in the Superior Court of Butts County, Georgia,
Morrow raised two claims for relief relevant to this appeal. First, he argued that
trial counsel was ineffective for failing to uncover evidence of childhood abuse.
Second, he contended that trial counsel was ineffective for failing to retain an
independent crime-scene expert who would have confirmed his version of the
murders and rebutted aggravating details that the prosecution highlighted.
Morrow introduced new evidence of childhood trauma that trial counsel
failed to uncover. He asserted that he had been raped by an older youth who often
visited Morrow’s family. In support of this allegation, Morrow introduced new
statements he made to a different psychologist and evidence that he began to wet
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the bed and have behavioral problems at school around that time. And other
children from Morrow’s childhood, whom trial counsel had failed to interview,
submitted affidavits declaring that the rapist had sexually assaulted another child.
But these affidavits did not allege that Morrow had been raped.
Morrow also asserted that he was bullied and tormented by other children,
and he submitted supporting affidavits from his sister and from Lemon Green Jr., a
child who lived with his family. Morrow’s sister asserted that Morrow “got beat up
a lot by [older children]” and that Morrow was frequently bullied at school. Green
recalled only that the older children “pick[ed] on” and “push[ed] . . . around”
Morrow and that Morrow “took the treatment he got ok most of the time.”
Morrow alleged that his mother’s boyfriend frequently beat Morrow with a
belt when Morrow was ten years old, and he introduced new statements from
himself and his sister about these facts. He also offered new affidavits from friends
and extended family members whom trial counsel had failed to interview:
Morrow’s aunt corroborated that Morrow reported the beatings to her, the
boyfriend’s son asserted that Morrow “t[old] [him] about how [the boyfriend]
would beat him,” and Morrow’s cousin stated that the boyfriend “used to hit”
Morrow.
Morrow faulted trial counsel for failing to uncover this mitigating evidence.
He asserted that known “red flags,” such as the domestic violence experienced by
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his mother, his childhood visits to a psychologist, and his troubles in school and
with bullies should have alerted counsel to the existence of more evidence.
Morrow concluded that this information would have come to light had counsel
obtained his school records, interviewed his childhood mentor, sent Mugridge to
New York and New Jersey, and hired a social worker to help with the
investigation. And Buchanan, one of the original psychologists, averred that, had
he “been provided even some fraction of [the new evidence], [he] would have
elicited much of the remainder of the information from . . . Morrow himself.”
Morrow also presented testimony from a crime-scene expert who
corroborated Morrow’s marginally less gruesome account of the murders. The
expert testified that Woods was standing, not sitting, when Morrow first shot her,
that Morrow did not strike Young’s head against a doorframe, and that Morrow did
not reload his gun mid-rampage. Morrow argued that this evidence would have
convinced the jury that the crime was less aggravated and that Morrow’s testimony
was honest.
The superior court granted relief on both claims and vacated Morrow’s death
sentence, but the Georgia Supreme Court reversed and reinstated the sentence.
Morrow III, 717 S.E.2d at 171, 179. On the question of inadequate investigation,
the Georgia Supreme Court determined that the attorneys were not deficient
because “they reasonably relied on Morrow and his immediate family members to
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reveal . . . information” about Morrow’s past. Id. at 175. It underscored that
“counsel met repeatedly with Morrow, his mother, and his sister, and [that] the
record makes clear that counsel discussed Morrow’s childhood background with
[his family] extensively.” Id. at 173. “Contrary to Morrow’s argument . . . that trial
counsel ignored information from the years during Morrow’s childhood when he
lived in New York and New Jersey,” the Georgia Supreme Court ruled that counsel
made reasonable inquiries about this period of Morrow’s life. Id. It gave particular
attention to the new assertion of rape and “note[d] that Morrow never reported any
such rapes pre-trial to his counsel or to the mental health experts who questioned
him about his background, including his sexual history.” Id. at 176. The Georgia
Supreme Court also explained that the attorneys hired an investigator, “closely
monitored the investigator’s progress,” and “had Morrow examined by a
psychiatrist” whose “report indicated a sexual history that was unremarkable,
except perhaps for the fact of Morrow’s promiscuity with women.” Id. at 173. And
it determined that “[c]ounsel and their investigator made reasonable attempts to
contact [Morrow’s childhood mentor].” Id. at 174.
The Georgia Supreme Court also reversed the superior court and held that
the failure to uncover mitigating evidence did not prejudice Morrow because the
new evidence was duplicative or unpersuasive. Id. at 173, 175–77. Regarding
Morrow’s assertion that his extended family was “unkind to him and his sister and
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disciplined them harshly and that the other children in the home bullied him,” it
found “this new testimony to be less than compelling . . . because testimony was
actually presented at trial about how Morrow had been bullied often as a child and
had been punished by his mother for not standing up for himself and for
misbehaving.” Id. at 175. Regarding Morrow’s assertion of rape, the Georgia
Supreme Court reasoned that “recent allegations about the rapes would not have
been given great weight by the jury” because the “only direct evidence . . . was
[Morrow’s] own statement to a psychologist.” Id. at 176. And regarding Morrow’s
allegation that he was beaten by his mother’s boyfriend, the Georgia Supreme
Court explained that “testimony at trial . . . show[ed] that the boyfriend had been
abusive to Morrow’s mother and had once cruelly mocked Morrow when he
attempted to defend his mother with a baseball bat.” Id. at 176. And it pointed out
that the new evidence “was somewhat inconsistent regarding the degree of
harshness involved.” Id. at 176 n.4.
The Georgia Supreme Court also held that Morrow suffered “no substantial
prejudice” from counsel’s failure to hire a forensic expert. Id. at 177. Although it
acknowledged that the new “evidence . . . [that] Woods was standing rather than
sitting when Morrow shot her” “would have tended at trial to confirm Morrow’s
version [of events],” it concluded that this information “would not have had a
significant impact on the jury in light of the fact that the evidence was clear that
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Morrow began shooting simply because he was upset by what [she] had said to
him rather than because of any threat he sensed.” Id. The Georgia Supreme Court
also underscored that the surviving victim’s testimony at trial was “consistent with
Morrow’s” version of events, leading it to doubt the marginal value of an
additional expert account. Id. Regarding Morrow’s contention that the expert
would have testified that Young’s head wound occurred not “when her head struck
a doorframe during the struggle” but when a bullet “grazed her forehead,” the
Georgia Supreme Court determined that the jury would “favor the testimony of the
State’s experts” and that, “even if the jury chose to believe . . . Morrow’s new
expert, that version would not be significantly mitigating[] because it still depicts
Morrow as having struggled with [Young] for the gun in the bedroom, chasing her
as she fled into the hallway, grabbing her by her hair as she lay helpless on the
floor, and shooting her in the head.” Id. Regarding Morrow’s argument that the
expert would have testified that Morrow unjammed instead of reloaded his gun
before executing Woods, the Georgia Supreme Court determined that “the
testimony would have been essentially cumulative of similar testimony from an
expert for the State” and that, “regardless of whether Morrow was clearing a jam in
his gun or reloading, it is clear that he was taking active steps to prepare his gun to
continue his murderous rampage.” Id.
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The district court denied Morrow a writ of habeas corpus, but it granted a
certificate of appealability on the question of mitigating evidence. And we granted
a certificate of appealability on the failure to hire an independent expert.
II. STANDARD OF REVIEW
“We review de novo the denial of a petition for a writ of habeas corpus.”
Williamson v. Fla. Dep’t of Corr., 805 F.3d 1009, 1016 (11th Cir. 2015). We may
not grant relief on “any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim” either “(1) resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). “When deciding that issue, we review one decision: ‘the last state-court
adjudication on the merits.’” Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d
1227, 1232 (11th Cir. 2016) (en banc) (emphasis added) (quoting Greene v. Fisher,
565 U.S. 34, 40 (2011)). This narrow evaluation is highly deferential, for “[a] state
court’s determination that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). We also must presume that “a determination
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of a factual issue made by a State court [is] correct,” and the petitioner “ha[s] the
burden of rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
III. DISCUSSION
Morrow raises two issues for our review. First, he argues that the Georgia
Supreme Court unreasonably determined that his attorneys were not deficient for
failing to uncover mitigating evidence of childhood hardships and that he suffered
no prejudice. Second, he argues that the Georgia Supreme Court unreasonably
determined that the attorneys’ failure to retain an independent crime-scene expert
did not prejudice Morrow. We consider and reject each argument in turn.
A. The Georgia Supreme Court Reasonably Determined that Trial Counsel
Was Not Deficient for Failing To Uncover Mitigating Evidence and that Morrow
Suffered No Prejudice.
When a petitioner alleges that he received ineffective assistance of trial
counsel, Strickland v. Washington, 466 U.S. 668 (1984), he must first establish
“that counsel’s performance was deficient” by “showing that counsel made errors
so serious that counsel was not functioning as the counsel guaranteed . . . by the
Sixth Amendment . . . [and] fell below an objective standard of reasonableness.”
Williams v. Taylor, 529 U.S. 362, 390–91 (2000) (internal citations and quotation
marks omitted). Counsel’s failure to “conduct an adequate background
investigation,” Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328, 1351 (11th Cir.
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2011), or to pursue “all reasonably available mitigating evidence” can satisfy this
standard, Wiggins v. Smith, 539 U.S. 510, 524 (2003) (emphasis omitted) (citation
omitted). For example, we have identified deficient performance when counsel
failed to “thoroughly question[] [the petitioner] about his childhood and
background” and spoke with only one family member immediately before the
sentencing stage despite knowing that the petitioner “had a bad childhood.”
Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 932 (11th Cir. 2011). Counsel also
performs deficiently when he briefly investigates tales of abuse only to believe the
abuser’s “denial without checking with any other family member[s] [who are]
ready, willing, and able to testify that [the petitioner is] telling the truth about his
abusive upbringing.” Id.; see also Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d
1248, 1263–64 (11th Cir. 2016) (explaining that a deficient attorney “had almost
no meaningful contact with [the petitioner] or his family” and had brushed off “a
series of attempts [by the petitioner’s mother] to contact [counsel]”). And counsel
must not overlook “evidence of . . . abuse” that “was documented extensively in
[available] records.” Newland v. Hall, 527 F.3d 1162, 1206 (11th Cir. 2008)
(quoting Callahan v. Campbell, 427 F.3d 897, 935 (11th Cir. 2005)); see also
Rompilla v. Beard, 545 U.S. 374, 383–84 (2005).
Nevertheless, “omissions are inevitable.” Stewart v. Sec’y, Dep’t of Corr.,
476 F.3d 1193, 1209 (11th Cir. 2007) (quoting Chandler v. United States, 218 F.3d
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1305, 1313 (11th Cir. 2000) (en banc)). And “the reasonableness of a defense
attorney’s investigation . . . [depends] heavily [on] the information provided by the
defendant” because “[c]ounsel’s actions are usually based . . . on informed
strategic choices made by the defendant and on information supplied by the
defendant.” Newland, 527 F.3d at 1202 (quoting Strickland, 466 U.S. at 691).
Indeed, “when a petitioner (or family members petitioner directs his lawyer to talk
to) does not mention a history of physical abuse, a lawyer is not ineffective for
failing to discover or to offer evidence of abuse as mitigation.” Stewart, 476 F.3d
at 1211 (alterations adopted) (quoting Van Poyck v. Fla. Dep’t of Corr., 290 F.3d
1318, 1325 (11th Cir. 2002)); see also Williams v. Head, 185 F.3d 1223, 1237
(11th Cir. 1999) (“An attorney does not render ineffective assistance by failing to
discover and develop evidence of childhood abuse that his client does not mention
to him.”). Counsel also need not interview every conceivable witness because
“there comes a point at which evidence from more distant relatives can reasonably
be expected to be only cumulative.” Bobby v. Van Hook, 558 U.S. 4, 11 (2009); see
also id. (“[I]t [is] not unreasonable for . . . counsel not to identify and interview
every other living family member . . . .”). And even if counsel is aware of some
childhood hardships, he is not automatically deficient for failing to discover other
abuse that his client conceals. See, e.g., id. at 11; Anderson v. Sec’y, Fla. Dep’t of
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Corr., 752 F.3d 881, 906 (11th Cir. 2014); Stewart, 476 F.3d at 1197–98, 1211,
1215–16.
Morrow contends that his counsel failed “to learn about Morrow’s life
during [his] formative years” and overlooked evidence that he was raped, beaten,
bullied, and mistreated as a child. He underscores that counsel “exclusively” relied
on “[i]nterviews with Morrow, his mother[,] and his sister,” failed “to obtain
school records that documented, inter alia, Morrow’s visit to a child psychiatrist,”
and failed to interview “Morrow’s ‘big brother’ figure in New Jersey . . . [after]
Morrow’s sister could not provide a telephone number.” And he contends that
counsel ignored “glaring red flags,” such as the abuse suffered by Morrow’s
mother, his troubles at school, his “personality disorder,” his childhood visits to a
psychologist, and evidence that he was “beat up” at school. Morrow also
complains that his counsel failed to “retain a licensed clinical social worker”
despite having the funds to do so.
The Georgia Supreme Court reasonably concluded that trial counsel
conducted an adequate investigation. Counsel made inquiries that would have
uncovered the new mitigating evidence were it not for the silence of Morrow and
his family. On the issue of rape, the Georgia Supreme Court found “that Morrow
never reported any such rapes pre-trial to his counsel or to the mental health
experts who questioned him about his background, including his sexual history.”
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Morrow III, 717 S.E.2d at 176. Walker later testified that he “certainly” knew that
sexual abuse “is of such [a] crucial nature to a defense that you want to move
heaven and earth to go find it” and that this was “the type of question that [he was]
sure [he] would have asked of [Morrow’s] family or of [Morrow].” But Morrow
and his family failed to mention the rape. And counsel subjected Morrow to
several psychological interviews that extensively probed Morrow’s family and
sexual history but turned up no evidence of abuse. Cf. Wiggins, 539 U.S. at 523
(pointing out that deficient counsel arranged for an incomplete psychological
interview that “revealed nothing . . . of [the] petitioner’s life history” (emphasis
added)).
We fail to understand what else counsel could have done to uncover the
rape. Morrow and the alleged rapist are the only witnesses to the rape, and Morrow
does not contend that he reported the assault, so any further inquiry would have
been fruitless without Morrow’s cooperation. And counsel had no reason to doubt
Morrow’s honesty. Morrow shared intimate details about his sexual history and
even revealed that his son had been molested. Walker later testified that he “never
got the feeling [Morrow] was trying to mislead [the attorneys],” and Buchanan
averred that “Morrow was cooperative and honest.” Morrow’s “forthcoming
description[]” of his personal history entitled his “attorney[s] to believe that
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[Morrow] was not withholding any potentially mitigating circumstances.”
Anderson, 752 F.3d at 906.
The same analysis applies to the new evidence that Morrow was bullied in
school and beaten by his mother’s boyfriend. Counsel made reasonable inquiries
about this kind of information only to meet dead ends. As the Georgia Supreme
Court found, “counsel met repeatedly with Morrow, his mother, and his sister” and
“discussed Morrow’s childhood background with them extensively.” Morrow III,
717 S.E.2d at 173. Indeed, the witnesses who later provided the majority of the
new evidence—Morrow and his sister—were the same witnesses relied on by trial
counsel. True, new witnesses mentioned the torment in their affidavits, but
Morrow’s attorneys were entitled to focus their investigation on Morrow and his
immediate family because “it [is] not unreasonable for . . . counsel not to identify
and interview every other living family member.” Van Hook, 558 U.S. at 11. And
counsel had little reason to suspect that Morrow and his family had failed to reveal
the full details of Morrow’s childhood in the light of their “forthcoming
descriptions.” Anderson, 752 F.3d at 906. Brownell later averred that Morrow’s
sister “offered up responses to anything [he] asked” and was open about relevant
information, such as “that her father was abusive to her mother.” Although
Morrow’s mother was more “difficult in terms of providing information,” she “was
never difficult in the sense of being hostile or unwilling to help.” She also honestly
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related instances of childhood trouble, telling the attorneys “how her husband beat
her in front of her children” and that Morrow was subjected to “intense
spanking[s],” including a spanking in front of his classmates. The Georgia
Supreme Court was entitled to find that “trial counsel [did not] ignore[]
information from the [early] years [of] Morrow’s childhood.” Morrow III, 717
S.E.2d at 173.
We also disagree with Morrow that the fragments of mitigating evidence
provided by Morrow and his family were “red flags” that automatically obligated
counsel to uncover every detail of Morrow’s childhood. To the contrary, we have
explained that counsel who knew that the petitioner had a “violent early childhood
with his biological mother and her family,” Stewart, 476 F.3d at 1197, was not
deficient for failing to discover later abuse by a stepfather that the petitioner “never
informed [counsel] about,” id. at 1210; accord id. at 1215–16, and that “a
reasonable attorney” need “not necessarily . . . assume that [a petitioner is] hiding a
history of sexual abuse” based on a petitioner’s reports that he “experienced
‘[e]xtreme [f]ears,’ was ‘[a]ccident [p]rone,’ and got ‘[s]ick a [l]ot’” as a child,
Anderson, 752 F.3d at 905 (quoting Pet’r’s Br. at 31–32). Morrow’s pretrial
evidence that revealed a history of corporal punishment, bullying, struggles in
school, and abuse directed against his mother gave counsel little reason to
disbelieve Morrow and his family and to conduct a scorched-earth investigation,
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especially because Morrow’s sister also stated that Morrow’s life was “pretty
good.” Morrow III, 717 S.E.2d at 174. And counsel took additional steps to shore
up their knowledge. Mugridge interviewed dozens of potential witnesses, and the
attorneys—admittedly unsuccessfully—sought out Morrow’s school records and
childhood mentor. This “extensive preparation” suggests diligence. Stewart, 476
F.3d at 1216. Although Mugridge failed to travel to New York and New Jersey, we
are not convinced that further investigation of peripheral information would have
uncovered details of Morrow’s childhood that came to light only by virtue of
Morrow and his family’s untimely willingness to “mention [the] history of . . .
abuse.” Id. at 1211 (quoting Van Poyck, 290 F.3d at 1325).
Morrow’s complaint that counsel failed to hire a social worker fails for
similar reasons. A social worker would have been of little use in the light of the
primary witnesses’ refusals to talk, and we have explained that a “failure to utilize
a social worker [is not] per se ineffective.” Newland, 527 F.3d at 1206. Indeed,
counsel was entitled to determine that extra help was unnecessary because “of
what . . . Buchanan was doing and the mitigation evidence that . . . Mugridge was
finding.” See Van Hook, 558 U.S. at 19 (“[G]iven all the evidence [counsel]
unearthed from those closest to [the petitioner’s] upbringing and the experts who
reviewed his history, it was not unreasonable for his counsel not to identify and
interview every other living family member . . . .”). Morrow underwent five
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psychological interviews, and Mugridge spoke with dozens of witnesses. Morrow
also fails to establish that contemporary “prevailing professional norms” in
Georgia dictated hiring a social worker for capital cases. Newland, 527 F.3d at
1184 (quoting Strickland, 466 U.S. at 688).
Even if counsel performs deficiently, a petitioner also must establish that he
suffered prejudice by showing “that counsel’s errors were so serious as to deprive
[him] of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. In
circumstances where counsel failed to present mitigating evidence, the petitioner
must establish “a reasonable probability that at least one juror would have struck a
different balance,” Wiggins, 539 U.S. at 537, in the light of “the totality of the [old
and new] mitigation evidence . . . [and] evidence in aggravation,” Porter v.
McCollum, 558 U.S. 30, 41 (2009) (alteration adopted) (quoting Williams, 529
U.S. at 397–98). A petitioner cannot satisfy this burden simply by pointing to new
evidence that is “weak or cumulative of the testimony presented at trial.” Ponticelli
v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271, 1296 (11th Cir. 2012); see also Cullen
v. Pinholster, 563 U.S. 170, 200–01 (2011) (finding “no reasonable probability that
. . . additional evidence . . . would have changed the jury’s verdict” when the
evidence “largely duplicated the mitigation evidence at trial” and was “of
questionable mitigating value”).
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Morrow argues that his new evidence of childhood trauma establishes a
“reasonable probability that at least one of [the] jurors would have chosen a life
sentence.” He underscores that “evidence of repeated childhood sexual assault” is
the kind of evidence that is likely to “move[]” a jury, and he contends that the
Georgia Supreme Court unreasonably discounted his evidence of “physical,
sexual[,] and emotional abuse.” Morrow also argues that the Georgia Supreme
Court “failed to engage with [the] complete evidentiary picture” because it failed
to consider the new evidence in combination with the old mitigating evidence. We
disagree.
The Georgia Supreme Court reasonably held that Morrow was not
prejudiced by the alleged shortcomings in his attorneys’ investigation. It began by
considering the new “testimony that, when Morrow was living in [New York], his
[family was] unkind to him and his sister and disciplined them harshly and that the
other children in the home bullied him.” Morrow III, 717 S.E.2d at 175. It
determined that “this new testimony [was] less than compelling . . . particularly
because testimony was actually presented at trial about how Morrow had been
bullied often as a child and had been punished by his mother for not standing up
for himself and for misbehaving.” Id. The record establishes that the jury heard
evidence that Morrow “was picked on in school” and spanked as a child, and the
Georgia Supreme Court was entitled to conclude that “cumulative” evidence on
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these points had no reasonable probability of changing Morrow’s sentence.
Ponticelli, 690 F.3d at 1296.
The Georgia Supreme Court also reasonably determined that the new
“allegations about the rapes would not have been given great weight by the jury.”
Morrow III, 717 S.E.2d at 176. It pointed out “that Morrow’s only direct evidence
of the alleged rapes . . . was his own statement to a psychologist” and that the
psychologist’s testimony” carried less weight “in light of the weaker evidence
upon which that testimony, in part, relied.” Id. (alteration adopted) (quoting
Whatley v. Terry, 668 S.E.2d 651, 659 (2008)). The Georgia Supreme Court was
entitled to give less weight to secondhand testimony. True, Morrow could have
personally testified about the rape. But the record establishes that Morrow did not
want to testify and was a poor witness, and Walker explained that Morrow’s
testimony was so “disaster[ous]” at trial that counsel declined to put him on the
stand again during sentencing. And Morrow offers no direct evidence of rape to
bolster his allegations.
The Georgia Supreme Court also reasonably determined that Morrow’s new
evidence of abuse by his mother’s boyfriend would not have changed the sentence.
Id. It explained that the jury had already heard “that the boyfriend had been
abusive to Morrow’s mother” and that “Morrow [once] attempted to defend his
mother with a baseball bat.” Id. And it underscored “that the testimony in the
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habeas court was somewhat inconsistent regarding the degree of harshness
involved.” Id. at 176 n.4. Morrow fails to rebut these factual findings with “clear
and convincing evidence,” 28 U.S.C. § 2254(e)(1), and the Georgia Supreme Court
was entitled to discount new evidence that “largely duplicated the mitigation
evidence at trial” and was “of questionable mitigating value.” Pinholster, 563 U.S.
at 200–01.
B. The Georgia Supreme Court Reasonably Determined that Counsel’s Failure
To Retain an Independent Forensic Expert Did Not Prejudice Morrow.
Morrow asserts that the Georgia Supreme Court unreasonably determined
that he was not prejudiced by his counsel’s failure to hire a crime-scene expert. He
contends that this expert would have both “independently corroborate[d]”
Morrow’s slightly less vicious account of the crime and rebutted “[t]he State’s
theme . . . that Morrow was a self-serving liar” “who was trying to minimize his
responsibility.” We again disagree.
The Georgia Supreme Court reasonably determined that three pieces of
supposedly new evidence were cumulative and unpersuasive. First, Morrow had
asserted that “the evidence at the crime scene shows that . . . Woods was standing
rather than sitting when Morrow shot her . . . [,] confirm[ing] Morrow’s version of
how the three victims were arranged in the room.” Morrow III, 717 S.E.2d at 177.
But the Georgia Supreme Court explained that this “new” evidence was redundant
because “Horne herself testified at trial in a manner consistent with Morrow’s new
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expert testimony, as she claimed that she ‘remembered [Woods] falling back in the
chair.’” Id. (alteration adopted). Second, Morrow had contended that new evidence
established that “Young’s forehead likely was [not] injured when her head struck a
doorframe during the struggle,” but instead when a “shot . . . grazed her forehead.”
Id. But the Georgia Supreme Court determined that “the jury would . . . favor the
testimony of the State’s experts upon reviewing the two contrasting accounts,” and
it explained that “Morrow actually relied on the State’s testimony showing that the
injury . . . was not from a gunshot.” Id. Third, Morrow had argued “that the
clicking sound heard by [the surviving victim] and the unspent bullet on the floor
. . . could have been the result of Morrow’s clearing a jam in his gun rather than
. . . reloading [the gun].” Id. But the Georgia Supreme Court reasoned that this
evidence was “essentially cumulative of similar testimony from an expert for the
State, which the State even highlighted in its closing argument.” Id.
We see no reason to disturb the determination that this “cumulative” and
“weak” evidence would not have influenced the jury’s assessment of Morrow.
Ponticelli, 690 F.3d at 1296. Indeed, Morrow fails to contest that the evidence was
cumulative, let alone rebut the findings with “clear and convincing evidence.” 28
U.S.C. § 2254(e)(1). In the light of these findings, the Georgia Supreme Court
reasonably concluded that Morrow had not suffered prejudice.
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Morrow’s poor performance on the stand also supports the conclusion that
further corroboration was unlikely to bolster his credibility. Walker later testified
that Morrow’s “cross-examination was a disaster,” that his “remorse and shame”
did not “come through,” and that “he was as flat on the stand as [Walker had] ever
seen him.” Walker also recalled that Morrow “apparently felt threatened[and]
crossed his arms across his chest and his face turned to the hardest scowl” so that
“[h]e looked precisely the way [the prosecutor] was hoping to portray him.”
Indeed, Morrow’s poor performance influenced the attorneys’ conclusion that they
“couldn’t risk having [Morrow testify] before the jurors again” at the penalty
phase. We fail to understand how minor corroboration of peripheral details of a
brutal crime would have influenced the jury’s assessment of Morrow.
The Georgia Supreme Court also reasonably concluded that new forensic
evidence that downplayed the brutality of the crime would have carried little
weight in mitigation and that Morrow’s new evidence would not have shifted “the
balance of aggravating and mitigating circumstances.” Strickland, 466 U.S. at 695.
The Georgia Supreme Court explained that the dispute over whether Woods “was
standing rather than sitting . . . would not have had a significant impact on the jury
in light of the fact that the evidence was clear that Morrow began shooting simply
because he was upset.” Morrow III, 717 S.E.2d at 177. It also concluded that
evidence that Morrow did not strike Young’s head against the doorframe “would
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not be significantly mitigating[] because it still depicts Morrow as having struggled
with . . . [Young] for the gun[,] . . . chasing her . . ., grabbing her by her hair as she
lay helpless . . ., and shooting her in the head.” Id. And it reasoned that evidence
that Morrow unjammed, instead of reloaded, his gun was “not . . . mitigating”
because “it [was] clear [in either scenario] that he was taking active steps to
prepare his gun to continue his murderous rampage.” Id. We cannot say that the
conclusion that the jury would have been unimpressed by a slightly different, but
similarly brutal, version of events was unreasonable.
IV. CONCLUSION
We AFFIRM the denial of Morrow’s petition for a writ of habeas corpus.
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WILSON, Circuit Judge, concurring:
In light of our mandatory deference to the Supreme Court of Georgia’s
decision under the Antiterrorism and Effective Death Penalty Act, I concur with
the result in this case. But in my estimation, the Superior Court of Butts County’s
resolution of the issues presented here was far more thorough and considerate than
the resolution reached by the Supreme Court of Georgia in its reversal of the
Superior Court’s opinion. The Superior Court undertook a searching inquiry into
Morrow’s childhood, and unequivocally found that Morrow was “the victim of a
series of rapes” while he was growing up in the New York area. It in turn
concluded that trial counsel’s failure to conduct a proper investigation into his life
there rendered their performance deficient and prejudiced the outcome of
Morrow’s case. The Superior Court also found, after a careful examination into
testimony and details about the crime scene, that trial counsel’s failure to hire an
independent crime scene expert was deficient and prejudicial to Morrow.
We should not subject a habeas petitioner to death if he has not been
accorded the thorough review of an ineffective assistance of counsel claim that is
contemplated under our Constitution. See U.S. Const. amend. VI (“In all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.”). I fear that, in Morrow’s case, the result we have
reached is based on the Supreme Court of Georgia’s unwillingness to grapple with
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the intricacies of his case. Namely, here we are faced with the short shrift trial
counsel gave not only to Morrow’s time in New York and New Jersey and the
sexual abuse that occurred there, but also to the thought of hiring a crime scene
expert that supported Morrow’s version of the crimes. It is hard to ignore that
there could have been a recognizable impact on at least one member of the jury.
Therefore, I concur in the result only.
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