Willie James Pye v. Warden, Georgia Diagnostic Prison ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 18-12147
____________________
WILLIE JAMES PYE,
Petitioner-Appellant,
versus
WARDEN, GEORGIA DIAGNOSTIC PRISON,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 3:13-cv-00119-TCB
____________________
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2 Opinion of the Court 18-12147
Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN,
ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, LUCK, LAGOA, and
BRASHER, Circuit Judges. *
NEWSOM, Circuit Judge, delivered the opinion of the Court, in
which WILLIAM PRYOR, Chief Judge, and BRANCH, LUCK, LAGOA,
and BRASHER, Circuit Judges, joined.
JORDAN, Circuit Judge, filed an opinion concurring in the judg-
ment, in which ROSENBAUM, Circuit Judge, joined.
JILL PRYOR, Circuit Judge, filed a dissenting opinion, in which
WILSON, Circuit Judge, joined.
NEWSOM, Circuit Judge:
More than a quarter century ago, Willie James Pye was con-
victed by a Georgia jury of having kidnapped, robbed, gang-raped,
and viciously murdered Alicia Yarbrough. The jury recommended
that Pye be sentenced to death for his crimes, and the trial judge so
sentenced him. Having exhausted his state post-conviction reme-
dies, Pye filed a federal habeas corpus petition, arguing, as relevant
here, that his trial counsel rendered him constitutionally ineffective
assistance in connection with the sentencing phase of his trial. The
district court denied relief, but a panel of this Court reversed and
vacated Pye’s death sentence, holding that the state court’s rejec-
tion of his ineffective-assistance-of-counsel claim was based on an
* Judge Grant is recused.
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18-12147 Opinion of the Court 3
unreasonable determination of the facts and involved an unreason-
able application of clearly established federal law. See Pye v. War-
den, Ga. Diagnostic Prison, 853 F. App’x 548, 570–71 (11th Cir.),
reh’g en banc granted, 9 F.4th 1372 (11th Cir. 2021); 28 U.S.C.
§ 2254(d).
We granted rehearing en banc to decide whether the state
court’s decision that Pye is not entitled to relief on his ineffective-
assistance claim warrants deference under the Antiterrorism and
Effective Death Penalty Act (AEDPA). Because the state court rea-
sonably concluded that Pye was not prejudiced by any of his coun-
sel’s alleged deficiencies in connection with his sentencing proceed-
ing, we affirm the district court’s denial of Pye’s petition and re-
mand to the panel for further proceedings.
I
A
The Georgia Supreme Court’s decision on direct appeal re-
counts the grisly facts of Pye’s crimes:
Pye had been in a sporadic romantic relation-
ship with the victim, Alicia Lynn Yarbrough, but, at
the time of her murder, Ms. Yarbrough was living
with another man, Charles Puckett. Pye and two
companions, Chester Adams and Anthony Freeman,
planned to rob Puckett because Pye had heard that
Puckett had just collected money from the settlement
of a lawsuit. Pye was also angry because Puckett had
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signed the birth certificate of a child whom Pye
claimed as his own.
The three men drove to Griffin[, Georgia] in
Adams’ car and, in a street transaction, Pye bought a
large, distinctive .22 pistol. They then went to a party
where a witness observed Pye in possession of the
large .22. Just before midnight, the three left the party
and drove toward Puckett’s house. As they were
leaving, a witness heard Pye say, “it’s time, let’s do it.”
All of the men put on the ski masks which Pye had
brought with him, and Pye and Adams also put on
gloves.
They approached Puckett’s house on foot and
observed that only Ms. Yarbrough and her baby were
home. Pye tried to open a window and Ms. Yar-
brough saw him and screamed. Pye ran around to the
front door, kicked it in, and held Ms. Yarbrough at
gunpoint. After determining that there was no
money in the house, they took a ring and a necklace
from Ms. Yarbrough and abducted her, leaving the in-
fant in the house. The men drove to a nearby motel
where Pye rented a room using an alias. In the motel
room, the three men took turns raping Ms. Yar-
brough at gunpoint. Pye was angry with Ms. Yar-
brough and said, “You let Puckett sign my baby’s
birth certificate.”
After attempting to eliminate their fingerprints
from the motel room, the three men and Ms.
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Yarbrough left in Adams’ car. Pye whispered in Ad-
ams’ ear and Adams turned off onto a dirt road. Pye
then ordered Ms. Yarbrough out of the car, made her
lie face down, and shot her three times, killing her. As
they were driving away, Pye tossed the gloves, masks,
and the large .22 from the car. The police later recov-
ered these items and found the victim’s body only a
few hours after she was killed. A hair found on one
of the masks was consistent with the victim’s hair,
and a ballistics expert determined that there was a
90% probability that a bullet found in the victim’s
body had been fired by the .22. Semen was found in
the victim’s body and DNA taken from the semen
matched Pye’s DNA. When Pye talked to the police
later that day, he stated that he had not seen the vic-
tim in at least two weeks. However, Freeman con-
fessed and later testified for the State.
Pye v. State, 505 S.E.2d 4, 9–10 (Ga. 1998). Based on the evidence
presented, a Georgia jury found Pye guilty of malice murder, kid-
napping with bodily injury, armed robbery, burglary, and rape.
Attorney Johnny Mostiler represented Pye at both the guilt
and penalty phases of his trial. At sentencing, Mostiler—with help
from his investigator Dewey Yarbrough, who had no relation to
the victim—called eight witnesses to testify on Pye’s behalf: Pye’s
sister Pam Bland, sister Sandy Starks, brother Ricky Pye, father Ern-
est Pye, niece Chanika Pye, nephew Dantarius Usher, sister-in-law
Bridgett Pye, and family friend Lillian Buckner. While Mostiler
elicited some testimony about Pye’s impoverished upbringing—
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for instance, that his childhood home lacked running water and
heat—Pye’s witnesses mainly testified to his good moral character
and asked the jury to show mercy by declining to impose a death
sentence. The State, meanwhile, presented evidence of Pye’s rep-
utation for violence in the community, earlier crimes and alterca-
tions with Alicia Yarbrough, and the aggravating circumstances of
the murder. The State also argued Pye would pose a danger to
prison staff were he to remain incarcerated. The jury recom-
mended a death sentence, which the trial court imposed, and the
Georgia Supreme Court affirmed. See id. at 14.
B
Pye filed a petition for post-conviction relief in the Butts
County Superior Court. He raised numerous grounds, including,
as relevant here, that Mostiler had provided constitutionally inef-
fective assistance of counsel during the sentencing phase of his trial
by failing to “conduct an adequate pretrial investigation into [Pye’s]
life, background, physical and psychiatric health to uncover and
present to the jury evidence in mitigation.” Doc. 13-31 at 13; see
Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding that an
attorney’s performance is constitutionally ineffective when he
(1) renders deficient performance (2) that prejudices the defend-
ant). The state court conducted a three-day evidentiary hearing.
In support of his petition, Pye presented affidavit testimony from
27 witnesses, 24 of whom testified about matters relevant to his
ineffective-assistance-at-sentencing claim. Many of these affiants
asserted (1) that Pye’s childhood was marked by significant
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poverty, abuse, and neglect—mitigating circumstances that, Pye
argues, his trial counsel failed to present at sentencing—and (2) that
they would have been willing to testify to these facts had they been
asked to do so at the time of sentencing but were never contacted
by Pye’s trial team. Two corrections officers who had known Pye
during an earlier period of incarceration provided affidavit testi-
mony that Pye was not a dangerous inmate. Pye also offered testi-
mony from mental-health experts that he suffered from frontal-
lobe brain damage that impaired his ability to plan and control his
impulses—damage, they said, that was potentially caused by fetal
alcohol syndrome.
The State’s response to Pye’s petition, as relevant here, in-
cluded testimony from Dewey Yarbrough. Yarbrough testified
that he and Mostiler investigated Pye’s background in preparation
for trial but found Pye’s family generally unwilling to cooperate in
his defense or to help pursue other leads. The State also called its
own mental-health expert, who testified that the facts of Pye’s
crime, which involved significant premeditation and planning,
weren’t consistent with frontal-lobe impairment or fetal-alcohol
syndrome—though he acknowledged that Pye had cognitive defi-
cits that would have affected his ability to function in the commu-
nity.
The Butts County court denied relief on all counts. The
court concluded that Mostiler’s performance at sentencing wasn’t
constitutionally deficient and that, even if it was, it didn’t prejudice
Pye. With respect to evidence of Pye’s childhood of poverty and
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abuse, the court concluded that any failure to investigate and pre-
sent this evidence wasn’t prejudicial. In so holding, the court em-
phasized (1) credibility concerns regarding the affidavit testimony
presented at the state post-conviction proceedings; (2) evidence of
Pye’s family’s unwillingness to cooperate in his defense at the time
of trial; (3) the minimal connection between Pye’s background and
the crimes he committed; (4) Pye’s age at the time of his crimes;
and (5) the extensive aggravating evidence presented by the State
at sentencing. See Doc. 20-40 at 64–67. With respect to Pye’s men-
tal-health evidence, the court credited the testimony of the State’s
expert that Pye was not as impaired as his witnesses suggested. Id.at 63–64. And with respect to Pye’s evidence of his behavior in
prison and lack of future dangerousness, the court concluded that
disciplinary reports in Pye’s prison records indicated “a history of
insubordination, aggressiveness and propensity for violence to-
ward those in authority” that negated any reasonable probability
that testimony like that offered by the corrections officers during
state post-conviction proceedings would have affected the out-
come of sentencing. Id. at 61–62. The Georgia Supreme Court
summarily denied Pye a certificate of probable cause to appeal.
C
Pye filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 in the United States District Court for the North-
ern District of Georgia. In his amended petition, Pye alleged 16
claims for relief, including a claim that Mostiler provided ineffec-
tive assistance during the penalty phase of the trial by failing to
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conduct an adequate mitigation investigation. The district court
rejected Pye’s ineffective-assistance claim, reviewing the state
court’s decision deferentially under AEDPA. As to Strickland’s de-
ficient-performance prong, the district court emphasized that
Mostiler and Yarbrough had visited Pye’s home more than once
and obviously knew about his childhood living conditions. The
court held that Pye had failed to “rebut the theory that counsel
could have reasonably determined that a strategy of humanizing
[Pye], highlighting the fact that [he] did not have a violent reputa-
tion, and begging for mercy would be preferred to attempting to
provide excuses for [his] crimes because he had led a difficult life.”
On prejudice, the district court concluded that while Pye had
demonstrated an impoverished upbringing and that there was
some evidence of “fighting by and among [his] family members,”
he hadn’t “presented evidence that he was subjected to regular and
brutal beatings, sexual abuse, or conditions so severe that the state
had to step in and remove [him] and his siblings from the home or
that his parents were charged with neglect,” as might overcome
the aggravating evidence and thus undermine confidence in his
sentence. Pye timely appealed.
A three-judge panel of this Court reversed the district court
and vacated Pye’s death sentence in an unpublished opinion. Pye,
853 F. App’x 548. The panel held that the district court erred in
rejecting Pye’s sentencing-phase Strickland claim because the state
court’s conclusions as to both deficient performance and prejudice
were based on unreasonable factual determinations and involved
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10 Opinion of the Court 18-12147
unreasonable applications of Strickland—and therefore weren’t en-
titled to AEDPA deference. Id. at 563, 567. Engaging in de novo
review, the panel held that Mostiler’s performance at sentencing
was deficient because he failed (1) to conduct a sufficient investiga-
tion into the potentially mitigating circumstances of Pye’s back-
ground—specifically, his childhood history of extreme poverty and
abuse; (2) to obtain a mental-health evaluation of Pye or otherwise
uncover his mental deficiencies; and (3) to attempt to rebut the
State’s argument about Pye’s future dangerousness. Id. at 563–65.
The panel concluded that these deficiencies were prejudicial not-
withstanding the aggravating evidence that the State presented at
sentencing, and thus concluded that Pye was entitled to habeas re-
lief. Id. at 570–71.
The State filed a petition for rehearing en banc, which pre-
sented a single issue: whether the panel’s review “of the state
court’s determination that the petitioner failed to establish preju-
dice at the sentencing phase” conflicts with Eleventh Circuit and
Supreme Court precedent. App. Doc. 59 at 1. After this Court
voted to rehear the case en banc, we issued a briefing notice that
framed the issue somewhat more generally: whether the state
court’s decision that Pye’s trial counsel “did not render constitu-
tionally ineffective assistance during the penalty phase of trial” was
contrary to or an unreasonable application of clearly established
federal law or based on an unreasonable determination of the facts.
App. Doc. 62 at 1. Pye’s opening en banc brief focused almost ex-
clusively on the prejudice prong of Strickland’s two-part test,
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noting that because “the [state] did not seek rehearing of” the
panel’s deficient-performance holding, it had abandoned that issue.
En Banc Br. of Appellant at 70 n.20. The State’s brief in response
addressed only prejudice but said, in a footnote, that it had focused
on prejudice because “it [was] easier to do so in this case” and that
it was “not conceding that trial counsel’s performance was defi-
cient.” En Banc Br. of Appellee at 39 n.8.
Given the State’s failure to seek rehearing on or brief the
merits of the deficient-performance issue, we won’t consider
whether the district court erred in holding that the state court’s
conclusion as to deficient performance at sentencing was reasona-
ble and entitled to deference. Instead, we will assume that
Mostiler’s performance was deficient and evaluate only the state
court’s conclusion that Pye was not prejudiced by these alleged de-
ficiencies.
II
A
We review de novo a district court’s denial of habeas relief
on an ineffective-assistance-of-counsel claim, which presents a
mixed question of law and fact. See Connor v. Sec’y, Fla. Dep’t of
Corr., 713 F.3d 609, 620 (11th Cir. 2013).
When a state court has adjudicated a habeas petitioner’s
claim on the merits, we review its decision under AEDPA’s “highly
deferential” standards. Davis v. Ayala, 576 U.S. 257, 269 (2015).
Under those standards, we may not grant the writ unless the state
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court’s “adjudication of the claim . . . (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). To
meet the “unreasonable application” standard, “a prisoner must
show far more than that the state court’s decision was merely
wrong or even clear error.” Shinn v. Kayer, 141 S. Ct. 517, 523
(2020) (per curiam) (quotation marks omitted). The decision must
be “so obviously wrong that its error lies beyond any possibility for
fairminded disagreement.” Id. (quotation marks omitted). When
it comes to factual determinations, “[s]tate court fact-findings are
entitled to a presumption of correctness unless the petitioner re-
buts that presumption by clear and convincing evidence.” Conner
v. GDCP Warden, 784 F.3d 752, 761 (11th Cir. 2015); see 28 U.S.C.
§ 2254(e)(1). Overall, “[a] state court’s determination that a claim
lacks merit precludes federal habeas relief so long as fairminded ju-
rists could disagree on the correctness of the state court’s decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation marks
omitted).
When the final state court decision on the merits doesn’t
come with reasons—as here, where the Georgia Supreme Court
summarily denied Pye a certificate of probable cause to appeal the
denial of his habeas petition—the federal court must “‘look
through’ the unexplained decision to the last related state-court
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decision that does provide a relevant rationale” and “presume that
the unexplained decision adopted the same reasoning.” Wilson v.
Sellers, 138 S. Ct. 1188, 1192 (2018).
B
Before diving into the merits, we pause to clarify three
points about AEDPA’s standard of review. 1
1
First, despite some lingering confusion—including among
the parties here—it’s not (any longer) the law that a federal court
should decline to defer to a state court’s factual determinations if it
concludes that those findings “lacked . . . fair support in the record.”
Rose v. McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011) (quotation
omitted). Unlike this case, Rose involved a habeas petition filed
“before the effective date of [AEDPA],” so it applied “pre-AEDPA
law.” Id. at 1240. The pre-AEDPA version of the federal habeas
statute “provided that factual findings of a state court were pre-
sumed to be correct unless ‘the Federal court on consideration of
the record as a whole concludes that such factual determination is
not fairly supported by the record.’” Fugate v. Head, 261 F.3d 1206,
1 It seems clear enough that our dissenting colleagues don’t much like AEDPA,
whose “abstruse language,” they say, leaves much to “imagination and rumi-
nation.” Dissenting Op. at 12. Not to put too fine a point on it, but the statute
is what it is and says what it says. Congress passed it, and President Clinton
signed it. See U.S. Const. art. I, § 7. It is now our job to apply it according to
its terms.
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1215 n.11 (11th Cir. 2001) (emphasis added) (quoting 28 U.S.C.
§ 2254(d)(8) (1994)). In AEDPA, Congress eliminated and replaced
the fair-support-in-the-record standard. Under the amended stat-
ute, a state court’s factual determinations are “presumed to be cor-
rect,” and the petitioner has the burden of proving otherwise “by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
2
Second, even if a petitioner successfully carries his burden
under § 2254(e)(1)—showing by clear and convincing evidence that
a particular state-court factual determination was wrong—he does
not necessarily meet his burden under § 2254(d)(2): Even if the
state court made a clearly erroneous factual determination, that
doesn’t necessarily mean the state court’s “decision” was “based
on” an “unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” Id. § 2254(d)(2).
Depending on the importance of the factual error to the state
court’s ultimate “decision,” that decision might still be reasonable
“even if some of the state court’s individual factual findings were
erroneous—so long as the decision, taken as a whole, doesn’t con-
stitute an ‘unreasonable determination of the facts’ and isn’t ‘based
on’ any such determination.” Hayes v. Sec’y, Fla. Dep’t of Corr.,
10 F.4th 1203, 1224–25 (11th Cir. 2021) (Newsom, J., concurring)
(quoting 28 U.S.C. § 2254(d)(2)); see also Miller-El v. Cockrell, 537
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U.S. 322, 341 (2003) (noting that subsections (e)(1) and (d)(2) are
“independent requirements”). 2
3
Third, although the Supreme Court’s decision in Wilson in-
structs us to “review[] the specific reasons given by the state court
and defer[] to those reasons if they are reasonable,” 138 S. Ct. at
1192, we are not required, in assessing the reasonableness of a state
2 The dissent vehemently objects to our explanation of the “interplay” be-
tween §§ 2254(d)(2) and (e)(1)—not, to be clear, to the merits of our explana-
tion, but to the fact that we have offered it at all. Calling our decision to ad-
dress those sections’ relationship “irregular[],” “wrong,” and “odd at best,” the
dissent equates our discussion to a “‘takeover of the appeal.’” Dissenting Op.
at 33 (quoting United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579, 1581
(2020)); see also Concurring Op. at 1 (citing Sineneng-Smith, 140 S. Ct. at
1579–80). We respectfully disagree. This case doesn’t remotely present the
situation that the Supreme Court confronted in Sineneng-Smith or that this
Court recently debated in United States v. Campbell, 26 F.4th 860 (11th Cir.
2022) (en banc). Those cases considered the questions whether and under
what circumstances it is appropriate for an appellate court to consider sua
sponte a discrete legal issue, claim, or defense that the parties haven’t squarely
presented. Here, by contrast, in elaborating on the relationship between §§
2254(d)(2) and (e)(1), we are simply explaining how two adjacent statutory
provisions interact—in short, how the law works. And of course, once “an
issue or claim is properly before the court”—as Pye’s entitlement to relief un-
der 28 U.S.C. § 2254 plainly is—“the court is not limited to the particular legal
theories advanced by the parties, but rather retains the independent power to
identify and apply the proper construction of governing law.” Kamen v. Kem-
per Fin. Servs., 500 U.S. 90, 99 (1991); cf. Babb v. Sec’y, Dep’t of Veterans Affs.,
992 F.3d 1193, 1208 & n.9 (11th Cir. 2021) (doubting that “the correct stand-
ard” is an issue subject to ordinary forfeiture rules).
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16 Opinion of the Court 18-12147
court’s reasons for its decision, to strictly limit our review to the
particular justifications that the state court provided. Rather, in or-
der to “give appropriate deference to [the state court’s] decision,”
id., having determined the reasons for the state court’s decision, we
may consider any potential justification for those reasons. If, as
here, the “specific reason[]” for a state court’s decision to deny ha-
beas relief was that the petitioner wasn’t prejudiced by his counsel’s
deficient performance, we can, in evaluating whether that “reason
[was] reasonable,” id., consider additional rationales that support
the state court’s prejudice determination. We have so held repeat-
edly, both before and since Wilson. See, e.g., Whatley v. Warden,
Ga. Diagnostic & Classification Ctr., 927 F.3d 1150, 1178 (11th Cir.
2019) (“[O]ur review is not limited to the reasons the [state court]
gave in its analysis.”), reh’g en banc denied, 955 F.3d 924 (11th Cir.
2020); id. at 1182 (“[W]e are not limited to the reasons the [state
court] gave and instead focus on its ‘ultimate conclusion.’” (citation
omitted)); Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d
1335, 1350 (11th Cir. 2019) (“We have explicitly rejected the prop-
osition that a state court decision involves an unreasonable appli-
cation of federal law and is not entitled to deference unless that
court’s opinion on its face ‘shows its work’ by explicitly mentioning
‘all relevant circumstances’ that the defendant argues in support of
relief.” (citation omitted)); Lee v. Comm’r, Ala. Dep’t of Corr., 726
F.3d 1172, 1223 (11th Cir. 2013) (“Under Supreme Court and our
Circuit precedent, a state court’s written opinion is not required to
mention every relevant fact or argument in order for AEDPA def-
erence to apply. . . . [W]e still examine what other ‘implicit
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18-12147 Opinion of the Court 17
findings’ the state court could have made in its denial of a federal
claim.”); cf. Butts v. GDCP Warden, 850 F.3d 1201, 1232 (11th Cir.
2017) (deferring to a state court’s “ultimate conclusion” under
AEDPA despite the court’s “unreasonable finding” regarding what
happened at the sentencing hearing).
Both Pye and our dissenting colleagues assert that Wilson
prohibits us from considering justifications that support the reasons
underlying the state court’s decision but that, for whatever reason,
the state court didn’t explicitly memorialize in its written opinion.
For reasons we will explain, we disagree.
Given the vigor with which the dissent presses its Wilson-
based argument—and the fact that it is, for all practical purposes,
the lone basis on which the dissent sidesteps AEDPA deference—
it’s worth explaining our position in some detail. The dissent stren-
uously—and stridently—insists that because the Butts County Su-
perior Court issued a written opinion, we are obliged by Wilson to
limit our review not just to the “reasons” for that court’s decision—
as relevant here, that Pye wasn’t prejudiced by Mostiler’s allegedly
deficient performance—but also, at an even more granular level,
to the particular justifications that the court provided to support
those reasons. Indeed, the dissent goes so far as to assert that our
contrary view is a “[n]onsense” “gambit” that “nullifi[es]” Wilson.
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18 Opinion of the Court 18-12147
Dissenting Op. at 16, 18. Respectfully, we don’t think so. Here’s
why. 3
With a promise to return to Wilson in short order, we begin
with first principles. Put simply, our approach is the one that
AEDPA’s plain language requires. With respect to “any claim that
was adjudicated on the merits in State court”—which Pye’s ineffec-
tive-assistance claim indisputably was—the statute focuses exclu-
sively on the reasonableness of the state court’s “decision.” In par-
ticular, it states that a petitioner “shall not be granted” relief unless
the state court’s “adjudication of the claim . . . resulted in a deci-
sion” that was either contrary to or involved an unreasonable ap-
plication of federal law or was based on an unreasonable determi-
nation of the facts. 28 U.S.C. § 2254(d)(1)–(2) (emphasis added).
AEDPA’s text couldn’t be any clearer: A federal habeas court is
3 A brief preface:The dissent nitpicks our terminology, deploying dictionaries
as if we were engaged in statutory or contractual interpretation. See Dissent-
ing Op. at 17. But, of course, everyone recognizes the difference between
macro-level reasons and their constituent rationales—what we’ve called justi-
fications. And to be clear, that distinction is hardly “nonsense.” Id. at 18. The
law is shot through with similar gradations, and the fact that lines can be tough
to draw doesn’t eliminate our responsibility to draw them. See, e.g., Yee v.
City of Escondido, 503 U.S. 519, 534 (1992) (distinguishing between “claim[s]”
and their constituent “argument[s]”); Kamen v. Kemper Fin. Servs., Inc., 500
U.S. 90, 99 (1991) (distinguishing between “issue[s]” and constituent “theo-
ries”). What the dissent never does is convincingly explain why a federal court
should be limited on habeas review to the precise explanation offered by the
state court—in every jot and tittle, right down to the last syllable.
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18-12147 Opinion of the Court 19
tasked with reviewing only the state court’s “result[ing] deci-
sion”—not the constituent justifications for that decision.
Consistent with the statutory text, the Supreme Court unan-
imously held in Harrington v. Richter, 562 U.S. 86, that a state
court’s decision rejecting a petitioner’s post-conviction claim is en-
titled to AEDPA deference even “when state-court relief is denied
without an accompanying statement of reasons”—e.g., in a “one-
sentence summary order.” Id. at 92, 96. 4 Notably, in so holding,
the Court emphasized § 2254(d)’s “terms”: “There is no text in the
statute requiring a statement of reasons. The statute refers only to
a ‘decision,’ which resulted from an ‘adjudication.’” Id. at 98. And
“determining whether a state court’s decision resulted from an un-
reasonable legal or factual conclusion does not require that there
be an opinion from the state court explaining the state court’s rea-
soning.” Id. Even “[w]here a state court’s decision is unaccompa-
nied by an[y] explanation” at all, the Court explained, “the habeas
petitioner’s burden still must be met by showing there was no rea-
sonable basis for the state court to deny relief.” Id. “AEDPA de-
mands,” the Court concluded, that the federal court determine
what “arguments or theories” either “supported or . . . could have
4Justice Ginsburg concurred in the judgment. See 562 U.S. at 113–14 (Gins-
burg, J., concurring in the judgment).
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20 Opinion of the Court 18-12147
supported . . . the state court’s decision.” Id. at 102 (emphasis
added). 5
Consistent with both AEDPA’s plain language and the logic
of the Supreme Court’s decision in Richter, this Court has long
(and consistently) held that where, as here, a state court rejects a
petitioner’s claim in a written opinion accompanied by an explana-
tion, the federal habeas court reviews only the state court’s “deci-
sion” and is not limited to the particular justifications that the state
court supplied. See, e.g., Parker v. Sec’y for Dep’t of Corr., 331
F.3d 764, 785 (11th Cir. 2003) (“[W]e review the state court’s ‘deci-
sion’ and not necessarily its rationale.”); Gill v. Mecusker, 633 F.3d
1272, 1288–93 (11th Cir. 2011) (“[T]he statutory language focuses
on the result, not on the reasoning that led to the result.”); What-
ley, 927 F.3d at 1178 (“[O]ur review is not limited to the reasons
the Court gave in its analysis.”). Our decisions in that respect are
part and parcel of our recognition that “overemphasis on the lan-
guage of a state court’s rationale would lead to a grading papers
approach that is outmoded in the post-AEDPA era.” Jones v. Sec’y,
Fla. Dep’t of Corr., 834 F.3d 1299, 1311 (11th Cir. 2016) (quotation
5 This language from the Supreme Court’s unanimous decision in Richter—
from which the Court didn’t recede in Wilson—constitutes a full answer to
the dissent’s charge that we have somehow “miss[ed] half of the text and con-
text” of § 2254(d). Dissenting Op. at 20. It is telling—and more than a little
ironic—that the dissent simultaneously criticizes us both for engaging §
2254(d)’s full text—including its “based on” clause—and for ignoring it. Com-
pare id. at 20 with id. at 32–33.
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18-12147 Opinion of the Court 21
marks omitted); see also Meders, 911 F.3d at 1350 (noting that “a
line-by-line critique of the state court’s reasoning” is “not the
proper approach”).
And to be clear, ours is hardly an outlier view; rather, it rep-
resents the overwhelming consensus position. Surveying courts
across the country, the Fifth Circuit recently summarized that
“most of the courts of appeals” have held that even where a state
court rejects a petitioner’s claim in a reasoned decision, the federal
“habeas court must defer to a state court’s ultimate ruling rather
than to its specific reasoning.” Sheppard v. Davis, 967 F.3d 458, 467
n.5 (5th Cir. 2020) (collecting cases so holding from the First, Sec-
ond, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits); accord,
e.g., Holland v. Rivard, 800 F.3d 224, 236–37 (6th Cir. 2015) (“[I]t is
the decision of the state court, not its reasoning, to which AEDPA
deference applies.”).
And indeed, given Richter, that’s the only rule that makes
any sense at all. On the dissent’s view, if a state court offers no
explanation whatsoever for its decision to deny a petitioner relief,
its decision is, per Richter, entitled to full AEDPA deference, and
the federal court should indulge any “argument[] or theor[y]” that
“could have supported” that decision. 562 U.S. at 102. But, the
dissent insists, as soon as the state court gives it the old college try
and writes an opinion, the federal court is stuck, so to speak, with
the specific justifications articulated therein. As this Court recently
explained, such a rule “would be irrational.” Meders, 911 F.3d at
1351 (observing that “[i]t would be irrational to afford deference to
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22 Opinion of the Court 18-12147
a decision with no stated explanation”—as Richter clearly re-
quires—“but not afford deference to one that states reasons, albeit
not as thoroughly as it could have”). The “irrational[ity]” of the
dissent’s position exists on at least two levels. First, and most ob-
viously—and most perversely—it would incentivize state courts to
issue unreasoned, summary decisions as a means of guaranteeing
maximum AEDPA deference. Second, as a sister circuit has ex-
plained, any state court’s written opinion is necessarily “partial”; it
will never perfectly and exhaustively capture every justification un-
derlying the court’s decision:
[E]ven if we assume that deference to the state court’s
decision is warranted only when there is some possi-
bility that the court specifically contemplated “rea-
sonable” grounds for denying relief, the issuance of a
written opinion with deficient reasoning does not
eliminate such a possibility. Just as there is more than
one way to skin a cat, there often is more than one
way to resolve an appeal, and not every possible ap-
proach makes it into an opinion.
Williams v. Roper, 695 F.3d 825, 837 (8th Cir. 2012).
The lone question, then, is whether the Supreme Court’s de-
cision in Wilson instituted an entirely new and different AEDPA
regime, whereby a federal court reviewing a state court’s (neces-
sarily partially) reasoned decision is strictly limited to the particular
justifications that the state court memorialized in its written opin-
ion. The dissent insists that it did; Wilson, the dissent says, is
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18-12147 Opinion of the Court 23
“materially indistinct” from, and thus “controls,” this case. Dis-
senting Op. at 13–15. But the dissent overreads (and thus misreads)
Wilson. As the Wilson Court itself acknowledged—and as the dis-
sent here does not dispute—it confronted only a very narrow ques-
tion: “[T]he issue before [it],” the Court said, was solely “whether
to ‘look through’ [a] silent state higher court opinion to the rea-
soned opinion of a lower court” in applying AEDPA deference. 138
S. Ct. at 1195. To be sure, the Court answered that specific ques-
tion “yes.” But just as surely, there is no indication that, in so do-
ing, the Court silently upended the existing AEDPA standard as it
applies to reasoned state-court decisions, thwarted § 2254(d)’s plain
language, and abrogated a nationwide circuit consensus. 6
6 Perhaps in an effort to camouflage the breadth of its position, the dissent
repeatedly emphasizes the similarities between the procedural postures of this
case and Wilson—in both, the dissent reminds us, a reasoned lower-court
opinion was summarily affirmed on appeal. See Dissenting Op. at 14, 19 n.16,
22–23 n.19. And to be clear, contrary to the dissent’s suggestion, see id. at 14–
16, we have followed Wilson’s holding to a T, “look[ing] through” the Georgia
Supreme Court’s summary order to the Butts County Superior Court’s deci-
sion. See supra at 12–13.
But the dissent insists—wrongly—that Wilson does so much more.
Disregarding both the Wilson Court’s own specification of the narrow issue
before it, see 138 S. Ct. at 1195, and our subsequent reaffirmation that Wilson
dealt only with the question of “which state court decision we are to look at if
the lower state court gives reasons and the higher state court does not,”
Meders, 911 F.3d at 1350, the dissent insists that Wilson changed how AEDPA
applies to all reasoned decisions, regardless of procedural posture. That’s the
only way to make sense of the dissent’s criticism of our post-Wilson decision
in Whatley, which the dissent admits “arose in a different procedural posture”
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24 Opinion of the Court 18-12147
To support its position, the dissent points to a passage in
Wilson in which it says the Supreme Court “h[eld] that AEDPA
‘requires’ a federal habeas court to look to the last reasoned state
court decision and then ‘train its attention on the particular rea-
sons—both legal and factual—why state courts rejected a state pris-
oner’s federal claims.’” Dissenting Op. at 14–15 (quoting Wilson,
138 S. Ct. at 1191–92, 1195–96 (quoting, in turn, Hittson v. Chat-
man, 135 S. Ct. 2126, 2126 (2015) (Ginsburg, J., concurring in denial
of certiorari))). But the dissent’s quotation stops short. Notably,
the Supreme Court went on, in language that the dissent omits, to
clarify that, having divined the “reasons” for the state courts’ deci-
sion, the federal court should “give appropriate deference to that
decision.” Wilson, 138 S. Ct. at 1192. Notably as well, for the latter
proposition the Court cited—as binding and with approval—its
earlier decision in Richter. See id.The dissent’s confident contention to the contrary notwith-
standing, there is simply nothing in Wilson that clearly confines a
but which it nonetheless says “conflicted with Wilson.” Dissenting Op. at 22–
23 n.19. And it’s the only way to make sense of the dissent’s criticism of our
citation to “pre-Wilson” cases that didn’t involve summary affirmances, see
id. at 26 & n.21, or its own reliance on post-Wilson cases that didn’t involve
summary affirmances, see id. at 26–30.
Bottom line: To the dissent, Wilson isn’t remotely limited to the “look
through” issue that the Supreme Court said it was tackling; rather, Wilson sub
silentio revolutionized AEDPA’s application to all state-court decisions. We
simply—but vehemently—disagree.
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18-12147 Opinion of the Court 25
federal habeas court to the precise justifications that a state court
provides in its written opinion. 7 To the extent there is any doubt
about that, our own post-Wilson precedent resolves it. For start-
ers, we recently rejected the very misreading of Wilson that today’s
dissent advocates:
Wilson was about which state court decision we are
to look at if the lower state court gives reasons and
the higher state court does not. It was not about the
specificity or thoroughness with which state courts
must spell out their reasoning to be entitled to
AEDPA deference or the level of scrutiny that we are
to apply to the reasons that they give.
Meders, 911 F.3d at 1350. 8 And even more recently, we held—and
then declined to reconsider, over the exact same Wilson-based
7The dissent also overreads Wilson’s one-paragraph discussion of Premo v.
Moore, 562 U.S. 115 (2011), to mean that, having “look[ed] through” a state
supreme court’s summary order and presumed that it adopted the lower state
court’s reasoning, “we must focus exclusively on the reasons actually given.”
Dissenting Op. at 31; see also id. at 14. But nothing in that paragraph is incon-
sistent with our approach here—or says that we must do anything. State-court
reasoning is usually reasonable—and considering only a state court’s reasons
before determining its decision to be reasonable proves little. Considering
only those reasons before determining the decision to be unreasonable—
which is what the dissent advocates here—would be a different thing alto-
gether.
8The dissent suggests that Meders held that when a state court’s justifications
are unreasonable, we must refuse AEDPA deference. See Dissenting Op. at
22–23 n.19. Put simply, we just don’t see in that decision what our dissenting
colleagues do. Moreover, and in any event, in Meders we deferred under
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26 Opinion of the Court 18-12147
objection that today’s dissent recycles—that a federal habeas
court’s “review is not limited to the reasons the [state court] gave
in its analysis.” Whatley, 927 F.3d at 1178 (“[O]ur review is not
limited to the reasons the [state court] gave in its analysis.”), reh’g
en banc denied, 955 F.3d 924. And for what it’s worth, others share
our skepticism about the dissent’s ambitious understanding of Wil-
son’s reach. See Sheppard, 967 F.3d at 467 n.5 (“[I]t is far from cer-
tain that Wilson overruled sub silentio the position—held by most
of the courts of appeals—that a habeas court must defer to a state
court’s ultimate ruling rather than to its specific reasoning.”);
Thompson v. Skipper, 981 F.3d 476, 483–84 (6th Cir. 2020) (Nal-
bandian, J., concurring) (“Federal courts have never been required
to confine their habeas analysis to the exact reasoning that the state
court wrote, and [nothing in] Wilson v. Sellers . . . compels us to
change our analysis.” (citation omitted)); id. at 484 (“[N]othing in
Wilson suggests that federal courts cannot look to any other reason
for supporting the state court[’s] decision and applying AEDPA def-
erence.”). 9
AEDPA, see 911 F.3d at 1355, so any suggestion that our decision there created
binding “law” precluding deference is a non-starter.
9 The dissent insists that several of our sister circuits have “refined their ap-
proach” in the wake of Wilson and that, in fact, the “great weight of authority”
is on its side. Dissenting Op. at 26–30. With respect, the dissent has overread
those courts’ decisions in the same way that it has overread Wilson itself. Be-
hind the cited cases’ rote quotations of Wilson’s language, one finds important
nuance that the dissent overlooks. In three of the dissent’s cases, the courts
expressly did not confine themselves to the particular justifications proffered
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18-12147 Opinion of the Court 27
by the state courts whose decisions they were reviewing, but rather consid-
ered others—the very thing the dissent insists Wilson forbids. In Coleman v.
Bradshaw, 974 F.3d 710 (6th Cir. 2020), for instance, the Sixth Circuit did not,
as Judge Nalbandian has explained, “constrain its analysis to the exact reasons
that the state court discussed.” Thompson v. Skipper, 981 F.3d 476, 485 (6th
Cir. 2020) (Nalbandian, J., concurring). So too, in Porter v. Coyne-Fague, the
First Circuit, after noting that the state court had failed to cite or discuss a key
fact, did not—as the dissent here claims Wilson requires—proceed straight to
de novo review, but rather first considered whether there was another “possi-
ble explanation of the state court’s decision.” 35 F.4th 68, 79 (1st Cir. 2022).
And in Scrimo v. Lee, the Second Circuit, after determining that “it was error
to exclude [certain w]itnesses’ testimony for [the state court’s] reason,” went
on to ask “whether the [w]itnesses’ testimony could have been excluded on
other grounds.” 935 F.3d 103, 116 (2d Cir. 2019).
The dissent’s Fourth and Seventh Circuit citations are similarly una-
vailing. In holding that a state court’s decision was reasonable, the Fourth
Circuit in Richardson v. Kornegay adopted pretty much exactly the approach
that we’ve outlined here: It defined the state court’s “particular reason” at a
relatively high level of generality—namely, that “the trial court did not abuse
its discretion”—and then distinguished that reason from its underlying “ra-
tionale,” which it said “support[ed] finding no abuse of discretion.” 3 F.4th
687, 697–98 (4th Cir. 2021) (quotation omitted). And in Winfield v. Dorethy,
the Seventh Circuit declined to decide exactly how § 2254(d) applied, instead
refusing relief on § 2254(a) grounds. See 956 F.3d 442, 455 (7th Cir. 2020).
So, after careful review of the dissent’s two-page string cite, it turns
out that just one circuit—the Ninth—has employed its sweeping rule. See
Kipp v. Davis, 971 F.3d 939, 948–60 (9th Cir. 2020). But the Ninth Circuit had
limited federal habeas courts’ review to the state courts’ specific justifications
long before Wilson was decided and has done so on a different theory than the
dissent proffers here—namely, on the ground that certain factual determina-
tions rendered the “fact-finding process itself . . . defective” rather than that
“the resulting finding[s]” were themselves substantively unreasonable. See id.at 953–55 (applying its earlier decision in Taylor v. Maddox, 366 F.3d 992, 1008
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28 Opinion of the Court 18-12147
Absent a clearer indication that Wilson “meant to strike the
widespread method of applying AEDPA without even[] mention-
ing the overhaul that would result,” id., we decline to read the Su-
preme Court’s decision as aggressively as the dissent does.
C
Back to this case: AEDPA’s deferential standard of review
governs the state court’s application of Strickland, which itself
places a demanding burden on a convicted defendant to show that
he was prejudiced by his counsel’s deficient performance. “In the
capital sentencing context, the prejudice inquiry asks whether
there is a reasonable probability that, absent the errors, the sen-
tencer . . . would have concluded that the balance of aggravating
and mitigating circumstances did not warrant death.” Shinn, 141
S. Ct. at 522–23 (quotation marks omitted). “A reasonable proba-
bility means a substantial, not just conceivable, likelihood of a dif-
ferent result.” 10 Id. at 523 (quotation marks omitted). And this
(9th Cir. 2004)). Even before Wilson, we had noted the circuit split over
whether “state court’s fact-finding procedures” can render its decision unrea-
sonable under AEDPA, and we declined to adopt the Ninth Circuit’s approach
in Taylor. See Landers v. Warden, 776 F.3d 1288, 1298 (11th Cir. 2015).
No circuit, so far as we can tell, shares the dissent’s view that Wilson
somehow changed the way AEDPA applies to reasoned state-court decisions.
10Here, because Georgia law requires jury unanimity as a prerequisite to the
imposition of capital punishment, prejudice requires a substantial likelihood
that at least one juror would have voted against the death penalty. See
O.C.G.A. § 17-10-31(c).
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18-12147 Opinion of the Court 29
probability must be sufficient for the reviewing court to determine
that counsel’s errors were “so serious as to deprive the defendant
of a fair trial . . . whose result is reliable.” Strickland, 466 U.S. at
487.
Applying AEDPA to Strickland’s prejudice standard, we
must decide whether the state court’s conclusion that Mostiler’s
performance at the sentencing phase of Pye’s trial didn’t prejudice
him—that there was no “substantial likelihood” of a different re-
sult—was “so obviously wrong that its error lies beyond any possi-
bility for fairminded disagreement.” Shinn, 141 S. Ct. at 523–24
(quotation marks omitted). So without respect to what we might
(or might not) have concluded about prejudice were we free to re-
view that issue de novo, we lack the power to grant relief so long
as the state court’s conclusion wasn’t that wrong.11
III
The state court’s conclusion that Pye wasn’t prejudiced by
any of Mostiler’s alleged deficiencies was not “contrary to” and did
not “involve[] an unreasonable application of, clearly established
Federal law,” nor was it “based on an unreasonable determination
of the facts.” 28 U.S.C. § 2254(d). While the state court might have
made some debatable calls as to the weight that it ascribed to dif-
ferent pieces of evidence—and made at least one dubious factual
11 Moreover, “because the Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a defendant has not
satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
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30 Opinion of the Court 18-12147
statement—its ultimate decision to deny relief was not “so obvi-
ously wrong that its error lies beyond any possibility for fairminded
disagreement.” Shinn, 141 S. Ct. at 523 (quotation marks omitted).
To assess whether an allegedly deficient aspect of a lawyer’s
performance was prejudicial, courts must “consider 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.” Porter v. McCollum, 558 U.S.
30, 41 (2009) (alteration adopted) (quotation marks omitted). Here,
Pye alleges multiple grounds on which Mostiler’s performance was
deficient: His failure to (a) reasonably investigate mitigation evi-
dence concerning Pye’s background, (b) discover evidence of Pye’s
mental-health issues, and (c) attempt to rebut the State’s future-
dangerousness argument by presenting evidence of Pye’s nonvio-
lent behavior in prison. Before us, Pye also argues (d) that he was
prejudiced by Mostiler’s deficient failure to introduce at sentencing
residual-doubt evidence supporting his version of the events sur-
rounding his crimes.12 Accordingly, the state court’s conclusion
12 The district court did not discuss the residual-doubt issue as it pertained to
the sentencing phase of the trial—presumably because Pye framed his argu-
ment that Mostiler should have presented more evidence supporting his ver-
sion of events primarily in terms of Mostiler’s deficient performance during
the guilt phase. See Doc. 1 at 68–72; Corrected Initial Br. of Appellant at 161–
72. Still, we will assume for argument’s sake that Mostiler’s performance was
deficient on this ground—that he should have introduced additional residual-
doubt evidence at either the guilt or sentencing phase of trial—and explain
why it still wasn’t unreasonable for the state court to conclude there is “simply
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18-12147 Opinion of the Court 31
that there was no sentencing-phase prejudice is reasonable and en-
titled to deference if its prejudice determinations with respect to
each alleged deficiency, and with respect to the deficiencies cumu-
latively, were reasonable. They were.
A
It was reasonable for the state court to conclude that
Mostiler’s failure to further investigate Pye’s difficult childhood
and present this mitigating evidence at sentencing wasn’t prejudi-
cial. The court’s prejudice determination with respect to this defi-
ciency was based on (1) its decision to discount the affidavit evi-
dence presented at the state post-conviction proceedings due to
concerns about their credibility; (2) evidence of Pye’s family’s un-
willingness to cooperate in his defense at the time of trial; (3) the
minimal connection between Pye’s background and the crimes he
committed; (4) Pye’s age at the time of those crimes; and (5) the
extensive aggravating evidence presented by the State at sentenc-
ing. Neither the court’s weighing of these factors nor its ultimate
prejudice determination was contrary to or based on an unreason-
able application of federal law, or based on an unreasonable deter-
mination of the facts.
no reasonable probability that the result of the penalty phase . . . would have
been different if the new evidence had been submitted at trial.” Doc. 20-40 at
67.
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32 Opinion of the Court 18-12147
1
First, the discounting of the affidavits. The state court ex-
pressed both (a) concerns about the credibility of the affidavits gen-
erally and (b) specific concerns based on inconsistencies that it iden-
tified in the affidavits of Curtis Pye, Ricky Pye, Lolla Mae Pye, and
Arthur Lawson. While the court’s determination that these affida-
vits contained inconsistencies might have been debatable, it wasn’t
“clear[ly] and convincing[ly]” erroneous. 28 U.S.C. § 2254(e)(1).
Nor—after giving effect to the presumptive correctness of the state
court’s assessment of the affidavits’ inconsistencies, see id.—was it
unreasonable for the state court to view the “affidavit evidence al-
leging abuse and deprivation,” taken as a whole, “with caution.”
Doc. 20-40 at 66.
The state court read the affidavits of Curtis, Ricky, and Lolla
Mae Pye as stating that Mostiler didn’t speak with them at all be-
fore trial—whereas contemporaneous billing records show that
Mostiler in fact met with all three. Pye argues that these affidavits
are best read to assert only that Mostiler didn’t talk to the affiants
about Pye’s childhood. So, the argument goes, the affidavits
weren’t inconsistent with the record, the presumption is rebutted,
and it was thus unreasonable for the state court to discredit them.
We disagree. However debatable, the state court’s interpretation
of these affidavits was not clearly and convincingly erroneous.
Starting with Pye’s brother Curtis, he testified in his affidavit
about his family’s impoverished circumstances and his parents’ al-
coholism and fighting, and concluded his affidavit as follows:
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18-12147 Opinion of the Court 33
No one talked to me about any of this before Willie
James’s trial. Johnny Mostiler and his assistant
Dewey know me. Mr[.] Mostiler represented me be-
fore. He didn’t get in touch with me or ask me any
questions about the house Willie James was raised in
or what he was like as a child. If he had, I would have
said all the things I’ve said in this statement, and I
would have testified to all these things if he had asked
me to.
Doc. 16-24 at 83. The state court’s quotation of this passage used
ellipses in a way that made it seem like Curtis definitively stated
that Mostiler didn’t speak to him at all before trial: “No one talked
to me . . . before Petitioner’s trial. Johnny Mostiler and his assistant
Dewey know me . . . He didn’t get in touch with me.” Doc. 20-40
at 65 (omissions in original). But without regard to whether the
state court’s interpretation of this affidavit was the most natural, it
wasn’t clearly and convincingly erroneous. That is particularly so
given the fact that Curtis stated, disjunctively, that Mostiler didn’t
either “get in touch with me” or “ask me any questions about the
house.” Moreover, if Curtis meant to convey only that Mostiler
didn’t talk to him about Willie’s childhood, it’s unclear why he
would have said that “Johnny Mostiler and his assistant Dewey
know me”—a statement that would make most sense if Mostiler
had failed to contact Curtis at all. Given this entirely plausible in-
terpretation of Curtis’s affidavit—with which, tellingly, the dissent
doesn’t squarely contend, see Dissenting Op. at 39–40—the state
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34 Opinion of the Court 18-12147
court’s factual finding that Curtis’s affidavit contradicted the record
evidence was not clearly and convincingly erroneous.
Turning, then, to Ricky Pye’s affidavit. It stated, in pertinent
part, that—
The investigator, a man named Dewey, came by the
house and talked to my dad about the charges against
Willie. He didn’t ask about Willie James and how he
came up, or how we all were raised. Dewey never
spoke to me about those things. . . . I took the stand
to testify later on in the trial. No one talked to me
about my testimony before I went. I never spoke to
Mr. Mostiler about what to say, and he didn’t meet
with me or ask me any questions before my turn for
testimony. I knew who he was because he repre-
sented me before that.”
Doc. 16-24 at 99–100. Whether or not the best reading, the state
court’s interpretation of Ricky’s affidavit as suggesting that
Mostiler didn’t speak to him at all before his testimony wasn’t
clearly and convincingly erroneous. Ricky said that Dewey talked
to “[his] dad”—not him—and his statement that he knew who
Mostiler was because Mostiler had represented him before suggests
that he didn’t meet Mostiler again in the context of preparing for
Willie’s trial. Moreover, Ricky’s statement that “[n]o one talked to
me about my testimony before I went” suggests—or at the very
least could reasonably be read to suggest—that he didn’t speak to
Mostiler at all before his testimony. (Again, the dissent offers no
response to this plausible interpretation of Ricky’s affidavit. See
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18-12147 Opinion of the Court 35
Dissenting Op. at 40.) So, given the fact that Mostiler did speak to
Ricky for an hour about a month before trial, the state court’s find-
ing that Ricky’s affidavit testimony contradicted the record evi-
dence was not clearly and convincingly erroneous.
Next, Pye’s mother, Lolla Mae. As relevant here, she testi-
fied by affidavit as follows: “No one took the time to talk to me
about all anything before Willie’s trial. Nobody ask me all about
how I grew up, how I came to be married to Ernest, and how I
raised Willie and my other children.” Doc. 16-24 at 97. The state
court read this statement as suggesting that no one from Willie’s
trial team spoke to her at all—contradicting Dewey Yarbrough’s
testimony and Mostiler’s billing records that reflect their meeting
with her. While the phrase “all anything” is unusual and could re-
flect a typographical error, the most natural correction of such an
error would simply be to remove the word “all.” That would leave
the statement, “No one took the time to talk to me about anything
before Willie’s trial.” And if “all anything” wasn’t a typo but just a
nonstandard turn of phrase, then the statement could plausibly be
interpreted to suggest that Mostiler and Yarbrough didn’t speak to
Lolla Mae at all. So again, the state court’s interpretation of Lolla
Mae’s statement and its resulting finding of an inconsistency was
not clearly and convincingly erroneous.
Finally, the affidavit of social worker Arthur Lawson. The
state court questioned Lawson’s credibility because, while he ini-
tially testified that he had observed Lolla Mae intoxicated when she
was pregnant, he later submitted another affidavit to “clarify [this]
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36 Opinion of the Court 18-12147
inaccurate statement” with the explanation that he had “no direct
knowledge” that Pye’s mother drank during pregnancy. Doc. 20-
40 at 65. He had simply presumed that she did so based on general
indications that she’d been drinking. See Doc. 20-6 at 17. If we
were evaluating Lawson’s testimony de novo, we might not view
this clarification as a particularly negative reflection on his affida-
vit’s credibility. But the state court didn’t say that it was discount-
ing Lawson’s affidavit completely, and its finding that the correc-
tion diminished Lawson’s credibility was not clearly and convinc-
ingly erroneous, nor was it in any way unreasonable for the court
to give some weight in its prejudice determination to the fact that
Lawson needed to correct an earlier inaccurate statement.
Despite these reasonable credibility concerns with some of
the affidavits, Pye argues that it was unreasonable to discount all of
the affidavits based on perceived credibility issues with just a few
of them. It’s true that for many of the affidavits that speak to Pye’s
childhood neglect and abuse, neither the state court nor the State
have offered specific reasons to doubt their truth besides the gen-
eral concern with “artfully drafted” affidavit testimony collected
many years after trial. And in Porter v. McCollum, the Supreme
Court held, with respect to evidence adduced from deposition tes-
timony taken during habeas proceedings, that it was “unreasonable
to discount to irrelevance the evidence of [the petitioner’s] abusive
childhood, especially when that kind of history may have particular
salience for a jury evaluating [the petitioner’s] behavior in his rela-
tionship with [the victim].” 558 U.S. at 43.
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18-12147 Opinion of the Court 37
But here, there’s no indication (and the dissent has pointed
to none) that the state court discounted the contents of the affida-
vits “to irrelevance”—the court merely stated that it “reviewed the
Petitioner’s affidavit evidence with caution.” Doc. 20-40 at 66 (em-
phasis added). And “when the mitigating weight given to the post-
conviction evidence is unclear, ‘we must presume that state courts
know and follow the law.’” Evans v. Sec’y, Dep’t of Corr., 703 F.3d
1316, 1329–30 (11th Cir. 2013) (quoting Woodford v. Visciotti, 537
U.S. 19, 24 (2002)). That presumption isn’t defeated here because
the Supreme Court hasn’t defined a standard that courts must fol-
low in weighing the credibility of affidavit evidence produced in
habeas proceedings. So, the state court’s decision to view the affi-
davit evidence “with caution” was neither contrary to nor an un-
reasonable application of clearly established federal law.
Nor was the state court’s finding that the affidavits had been
artfully drafted clearly and convincingly erroneous. For one thing,
the court identified material inconsistencies in the affidavits pro-
vided by Curtis, Ricky, and Lolla Mae Pye and Arthur Lawson. For
another, there was substantial uniformity across the affidavits in
terms of the language used to describe both Mostiler’s alleged fail-
ure to discuss Pye’s background with the affiants and the affiants’
willingness to testify at sentencing had they been asked—a uni-
formity that could plausibly suggest artful drafting of the sort that
might create reasonable credibility concerns. See Waters v.
Thomas, 46 F.3d 1506, 1513–14 (11th Cir. 1995) (“[T]he existence
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38 Opinion of the Court 18-12147
of [habeas] affidavits, artfully drafted though they may be, usually
proves little of significance.”). 13
Ultimately, even if—presuming the correctness of the state
court’s factfinding—we might have given the affidavit testimony
more weight in a prejudice analysis, it wasn’t unreasonable for the
state court to discount the affidavits, to some degree, based on the
inconsistencies it found in several of them and general concerns
about after-the-fact artful drafting applicable to all of them. 14 And
13 Although the dissent acknowledges that the state court could determine that
the affidavits indicated artful drafting, it seems to suggest that there was no
“evidence” here to support such a determination. Dissenting Op. at 43. But
even aside from the fact that “the affidavits themselves,” id. at 43 n.33, con-
tained sufficient evidence—for instance, the conspicuously parallel phrasing—
the dissent offers no support for its insinuation that extrinsic corroborating
evidence is required, nor are we aware of any. See, e.g., Nejad v. Attorney
Gen., State of Ga., 830 F.3d 1280, 1284–92 (11th Cir. 2016) (holding that the
absence of documentary proof to corroborate a witness’s testimony didn’t
constitute the sort of clear and convincing evidence necessary to reject a state
court’s credibility determination). To the contrary, federal habeas courts do
require robust evidence—which is lacking here—before disturbing a state
court’s credibility determinations. 28 U.S.C. § 2254(e)(1).
14 Another factor that supports the state court’s conclusions about the affida-
vits’ credibility is the lack of corroborating evidence in the contemporaneous
records—particularly regarding whether Pye was subject to regular physical
abuse. The State argues, and Pye doesn’t really dispute, that there is no men-
tion of him being abused in two decades’ worth of records from the Georgia
Department of Human Resources and Division of Family & Children Services
or in his school records. This fact, on balance, supports the state court’s deci-
sion to view the affidavit evidence with caution, regardless of whether the
court said as much in its written opinion. See supra Part II.B.3.
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18-12147 Opinion of the Court 39
the state court’s reasonable concerns about the affidavits’ credibil-
ity properly played a role in the court’s overall prejudice analysis:
Doubt about the affidavits’ credibility equates to reasonable uncer-
tainty about (1) the truth of their depiction of Pye’s childhood as
abusive and destitute, (2) whether the affiants actually would have
testified to such mitigating factors at sentencing years earlier, and
therefore (3) whether there was a substantial likelihood that
Mostiler’s failure to fully investigate Pye’s background affected the
outcome of sentencing.
2
Second, Pye’s family’s unwillingness to cooperate at trial. In
order for Mostiler’s alleged failure to adequately investigate Pye’s
background to have resulted in prejudice, Pye’s family would have
had to have been willing (1) to cooperate during Mostiler’s pretrial
investigation, (2) to take the stand during sentencing, and (3) to tes-
tify frankly about the extreme neglect and abuse that Pye allegedly
suffered in their home. If, contrary to what the affidavits said years
later, Pye’s family was less than fully cooperative at the time of sen-
tencing, it would undermine Pye’s contention that he was preju-
diced. It was not unreasonable for the state court to consider the
“evidence suggesting [Pye’s] family’s unwillingness to cooperate”
as weighing against a finding of prejudice. Doc. 20-40 at 67. That
evidence included (1) a contemporaneous memo from Mostiler’s
files noting that Pye’s brothers didn’t respond to his phone calls,
see Doc. 19-11 at 93; and (2) Dewey Yarbrough’s state post-convic-
tion testimony that Pye’s family “w[as] not willing to work with
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40 Opinion of the Court 18-12147
[them],” “didn’t put any effort forth on any of the contacts” he
made with them, Doc. 19-11 at 24, and wasn’t willing to help him
pursue leads, Doc. 14-41 at 85–86. Of course, some of Pye’s family
did testify at sentencing. But that doesn’t mean that it was unrea-
sonable for the state court to consider the family’s general uncoop-
erativeness as undermining any argument about prejudice.
3
Third, the lack of “nexus” between Pye’s background and
his crimes. 15 It wasn’t clearly and convincingly erroneous for the
state court to find, nor was it unreasonable for it to weigh in its
prejudice analysis the fact, “that there is little, if any, connection
between [Pye’s] impoverished background and the premeditated
and horrendous crimes in his case.” Doc. 20-40 at 66. Citing Ten-
nard v. Dretke, 542 U.S. 274 (2004), and Williams v. Taylor, 529
U.S. 362, 367–68 (2000), Pye argues that the state court’s decision
in that respect was unreasonable because the Supreme Court “has
rejected a causal nexus requirement in order for penalty phase evi-
dence to mitigate a capital crime” and has “given full weight to
strikingly similar mitigation despite its lack of bearing upon the
crime.” En Banc Br. of Appellant at 45–47. But Tennard held that
mental-capacity evidence, in particular—not just any background
evidence—can be mitigating regardless of nexus. 542 U.S. at 287.
And while Pye is correct that the Supreme Court has decided in
15 The dissent offers no response to our assessment of the state court’s decision
in this respect.
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18-12147 Opinion of the Court 41
individual cases, like Williams, that the failure to present back-
ground evidence was prejudicial despite a lack of nexus to the de-
fendant’s crimes, those cases do not establish a per se rule that the
degree of connection between background and crime can never
play any role in a court’s prejudice analysis.
And indeed, such a rigid rule would contradict the com-
monsense prejudice standard, which assesses the likelihood that
counsel’s failures changed the outcome of sentencing: Background
circumstances that are closely linked to the defendant’s crime are
naturally more likely to influence jurors than those that aren’t.
Here, the state court reasonably concluded that Pye’s childhood
poverty and neglect aren’t strongly connected to his crimes of
gang-rape and murder 16—and this factor could properly have
played a role in the court’s overall prejudice evaluation. Moreover,
16 Pye also argues that his childhood abuse—“the extreme domestic violence”
that he experienced—would have had “particular salience for a jury evaluat-
ing” his relationship with Alicia. En Banc Br. of Appellant at 47. Even if Pye
is right, that wouldn’t mean the state court’s finding with respect to Pye’s
childhood poverty was clearly and convincingly erroneous (or that the use of
that finding in its prejudice determination was unreasonable): The state court
mentioned only Pye’s “impoverished background,” not the history of domes-
tic violence that Pye allegedly suffered—so it’s unclear whether and to what
extent the connection between Pye’s alleged history of abuse and his crimes
played in the court’s prejudice analysis. As already explained, the court may
well have reasonably discounted the credibility of the affidavits alleging that
Pye was abused or the likelihood that any witnesses would have testified to
that abuse at sentencing—and for that reason didn’t proceed to consider the
link between domestic abuse and Pye’s murder of his ex-girlfriend.
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42 Opinion of the Court 18-12147
given that it’s unclear from the court’s opinion the extent to which
the court relied on this “nexus” factor in its prejudice analysis, “we
must presume that [the] state court[] kn[e]w and follow[ed] the
law.” Evans, 703 F.3d at 1329–30 (quotation marks omitted).
4
Fourth, Pye’s age at the time of the crime. It wasn’t unrea-
sonable for the state court to give less mitigating weight to evi-
dence about Pye’s childhood because he was 28 years old when he
committed his crimes. It’s true that in Porter, the Supreme Court
held that it was “unreasonable to discount to irrelevance the evi-
dence of [the petitioner’s] abusive childhood” even though he was
54 years old at the time of the trial. 558 U.S. at 37, 43. But Pye
overreads Porter when he claims that it makes the state court’s
treatment of Pye’s age “patently unreasonable.” En Banc Br. of
Appellant at 52 (quoting Pye, 853 F. App’x at 566). Neither Pye nor
the dissent points to anything in Porter that explicitly forbids courts
from considering age as one factor among many in their prejudice
analyses—just as the state court did here. Cf. Evans, 703 F.3d at
1329–30 (noting that we must presume that state courts “know and
follow the law” when determining what mitigating weight to give
to post-conviction evidence). Regardless of whether we would
read Porter de novo as signaling that habeas courts generally
shouldn’t weigh age heavily in their prejudice analyses, it wasn’t
contrary to or an unreasonable application of “clearly established
Federal law,” 28 U.S.C. § 2254(d)(1), for the state court to consider
Pye’s age as a factor weighing against prejudice.
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18-12147 Opinion of the Court 43
Moreover, as just explained with respect to “nexus,” a per se
prohibition on the consideration of a defendant’s age in the preju-
dice analysis would make little sense given that standard’s require-
ment that we determine the likely impact of the unpresented evi-
dence on the jury: Childhood neglect and abuse are certainly more
likely to influence the jury if the defendant was barely an adult at
the time of the crime than if he was significantly older. We do not
interpret Porter as abrogating our precedents treating a defendant’s
age at the time of his crime as an appropriate factor for a court to
consider (among others) when conducting a Strickland prejudice
analysis. See, e.g., Tompkins v. Moore, 193 F.3d 1327, 1337 (11th
Cir. 1999) (noting that “where there are significant aggravating cir-
cumstances and the petitioner was not young at the time of the
capital offense, evidence of a deprived and abusive childhood is en-
titled to little, if any, mitigating weight” (quotation marks omit-
ted)); Bolender v. Singletary, 16 F.3d 1547, 1561 (11th Cir. 1994); cf.
Francis v. Dugger, 908 F.2d 696, 703 (11th Cir. 1990) (per curiam)
(noting that “the fact that [the defendant] was thirty-one-years old”
when he committed the crime weighed in favor of finding that trial
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44 Opinion of the Court 18-12147
counsel made a reasonable “decision not to investigate family
childhood background”). 17
17 In discussing Pye’s age at the time of his crimes, the state court made two
points. First, it offered the strange—and likely clearly erroneous—summary
that “trial counsel could have reasonably decided, given the heinousness of
this crime and the overwhelming evidence of [Pye’s] guilt, that remorse was
likely to play better than excuses.” Doc. 20-40 at 66 (emphasis added). All here
agree that Mostiler’s strategy at sentencing had nothing to do with “remorse”;
it was focused instead on asking the jury for mercy. Second, and more
broadly, the state court emphasized that “‘evidence of a deprived and abusive
childhood is entitled to little, if any, mitigating weight’ when the defendant is
‘not young’ at the time of the offense.” Id. at 67 (citing Tompkins v. Moore,
193 F.3d 1327, 1337 (11th Cir. 1999)).
The state court’s “remorse”-based statement—nestled in a sub-justifi-
cation of a larger justification—doesn’t undermine the reasonableness of the
state court’s overall rejection of Pye’s ineffective-assistance claim, or even ren-
der the court’s constituent no-prejudice determination unreasonable. Per-
spective is critical. The state court offered at least five justifications for its de-
termination that Mostiler’s failure to introduce evidence of Pye’s childhood
wasn’t prejudicial: because of (i) that evidence’s unreliability; (ii) the seeming
unwillingness of the family to testify to it; (iii) its lack of nexus to Pye’s crime;
(iv) Pye’s age; and (v) the aggravated nature of the rape-murder at issue.
Within the state court’s discussion of one of those five justifications—pertain-
ing to Pye’s age—one of its two sub-justifications was mistaken. With respect,
the “remorse” issue is a sideshow—the proverbial flea on the hair of the tail of
the dog.
There is no indication—none—that the state court’s single misstate-
ment regarding remorse “resulted in” a “decision” that was “based on” unrea-
sonable determination of the facts. 28 U.S.C. § 2254(d)(2); see supra Part
II.B.2.
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18-12147 Opinion of the Court 45
5
Fifth, and finally, the aggravating factors. 18 The state court
found especially relevant the “extensive evidence presented in ag-
gravation by the State during sentencing.” Doc. 20-40 at 67. That
conclusion was far from unreasonable. The mitigating evidence
not presented as a result of counsel’s deficient performance must
be weighed “against the evidence in aggravation.” Porter, 558 U.S.
at 41. We’ve repeatedly held that even extensive mitigating evi-
dence wouldn’t have been reasonably likely to change the outcome
of sentencing in light of a particularly heinous crime and significant
aggravating factors. See, e.g., Windom v. Sec’y, Dep’t of Corr., 578
F.3d 1227, 1251 (11th Cir. 2009) (per curiam) (noting that given the
strength of the State’s case “and the nature of the crimes them-
selves,” the state court didn’t “unreasonably apply Strickland when
it found that the available mitigating evidence, taken as a whole,
did not outweigh the aggravating nature of [the defendant’s]
crimes” (citing Payne v. Allen, 539 F.3d 1297, 1318 (11th Cir.
2008))); Suggs v. McNeil, 609 F.3d 1218, 1232 (11th Cir. 2010) (ex-
plaining that significant aggravating facts are “difficult to over-
come” and holding that a state supreme court’s prejudice decision
wasn’t unreasonable).
Here are the aggravating factors that the jury heard about
Pye at sentencing: He had previously struck Alicia in the back with
18 The dissent offers no response to our assessment of the state court’s decision
in this respect.
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46 Opinion of the Court 18-12147
a gun, had been arrested for burglary, and had a “very bad” repu-
tation for violence in the community. He enlisted two accomplices
to kidnap Alicia—leaving an infant he thought was his alone at her
home—and drive her to a motel room where the three men each
raped her at gunpoint. Pye, 505 S.E.2d at 8–10. Then, they took
her out onto a dirt road, where Pye ordered her to lie face-down
on the ground, before he shot her in the back twice, after which
she begged him not to shoot her in the head. Despite the oppor-
tunity to show mercy, Pye shot her in the head anyway. Alicia took
between 10 and 30 minutes to die, during which time she would
have been conscious almost until the end, “crawl[ing] . . . in the
dark” and “alone.” Doc. 13-11 at 88–89. It wasn’t unreasonable for
the state court to weigh these aggravating factors heavily in its eval-
uation of whether the presentation of additional mitigating evi-
dence about Pye’s background would have changed a juror’s vote
for the death sentence. 19
* * *
The state court’s task in conducting its Strickland prejudice
analysis was to assess probabilities—to determine, by weighing the
aggravating and mitigating evidence, whether there was a “sub-
stantial” likelihood that the outcome of sentencing would have
been different had Mostiler conducted a more complete investiga-
tion into Pye’s background. Shinn, 141 S. Ct. at 523. In doing so,
19Our concurring colleagues have likewise (and quite sensibly) emphasized
the extremely aggravated nature of Pye’s crime. See Concurring Op. at 2–3.
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18-12147 Opinion of the Court 47
the court discounted, to some extent, the affidavit testimony that
it received, and factored in the competing evidence that Pye’s fam-
ily was generally uncooperative at the time of the trial, the tenuous
connection between the mitigating evidence and Pye’s crimes, and
Pye’s age when he committed those crimes. None of these choices
individually resulted in a decision that was contrary to or involved
an unreasonable application of clearly established federal law, or
was based on an unreasonable determination of the facts. And it
wasn’t “so obviously wrong [as to be] beyond any possibility for
fairminded disagreement,” id. (quotation marks omitted), for the
state court to conclude that on balance, given the significant aggra-
vating evidence, there wasn’t a substantial likelihood that the jury
would have voted for anything less than death even had Mostiler
conducted a constitutionally adequate investigation into Pye’s
background.
B
We next consider whether the state court’s conclusion that
Pye wasn’t prejudiced by Mostiler’s failure to obtain a mental-
health evaluation of Pye or present mental-health evidence at sen-
tencing was either based on an unreasonable determination of the
facts or contrary to or an unreasonable application of clearly estab-
lished federal law. See 28 U.S.C. § 2254(d). It was not.
To begin, in determining the facts, it was not clearly and
convincingly erroneous (or unreasonable more generally) for the
state court to view the evidence of Pye’s alleged brain damage as
conflicting and to question the severity of the condition it reflected.
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48 Opinion of the Court 18-12147
One of Pye’s experts at the state habeas proceeding, Dr. Eisenstein,
found that Pye had frontal-lobe impairment and brain damage—
which suggested to him that Pye had an impaired ability to plan
and control his impulses. But the State’s expert, Dr. King, testified
that the facts of the crime, which involved significant premedita-
tion and planning, were inconsistent with frontal-lobe impairment.
The reason, he said, is because individuals with frontal-lobe dam-
age have significant “disinhibition of responses and impulses in all
areas” and “wouldn’t choose out a particular victim at a particular
time and then engage in premeditation, goal directedness, trying to
cover [their] tracks.” Doc. 14-44 at 69. Dr. King testified that the
tests conducted by Dr. Eisenstein weren’t sophisticated enough “to
identify that particular kind of specific brain damage,” id. at 68, and
he expressed skepticism of the suggestion—made by another of
Pye’s experts, Dr. Pettis—that Pye might have had a “failure to
thrive” or “fetal alcohol syndrome,” id. at 72–73. Still, Dr. King
agreed that even though Pye didn’t meet the threshold for mental
retardation, he had cognitive “deficits in a number of areas” that
would have “affect[ed] his ability . . . to function in the commu-
nity.” Id. at 80. While the state court didn’t explicitly make a fac-
tual finding about Pye’s alleged brain damage, it would have been
reasonable for it to find that, given the testimony presented, he had
cognitive deficits but not frontal-lobe impairment or fetal-alcohol
syndrome.
It was reasonable for the state court to conclude based on
these facts that there wasn’t a substantial probability that the
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18-12147 Opinion of the Court 49
presentation of mental-health evidence would have changed the
outcome of Pye’s sentencing. While Pye may be correct in arguing
that the only reasonable factual conclusion based on the evidence
presented at the state habeas proceeding is that he has cognitive
deficits, that doesn’t mean that it was unreasonable for the state
court to find that no prejudice resulted from the failure to present
this mental-health evidence at sentencing. Given the fact that Pye
had sufficient mental faculties to “plan a robbery,” “le[a]d two fel-
low co-defendants in the kidnapping, rape, and murder of his for-
mer girlfriend,” “attempt[] to avoid detection by authorities
through disposal of the murder weapon and accessories,” and “fab-
ricate[] an alternative sequence of events,” Doc. 20-40 at 62, and in
light of the aggravating factors already described, the jury could
well have been unmoved even if Mostiler had obtained a mental-
health evaluation and presented an expert’s testimony about Pye’s
cognitive defects. It wasn’t unreasonable for the state court to find
that there wasn’t a substantial likelihood of a different sentencing
outcome.20
20 Pye also points to statements in records from his first prison stint that he
seemed “unstable,” reported that he heard voices calling his name, exhibited
a “flat affect” and a “rather fragile composure,” and displayed “elements of
psychotic withdrawal” and “depression . . . severe enough to suggest consid-
eration of chemotherapy.” En Banc Br. of Appellant at 49–50 (quoting Doc.
15-19 at 12–16). Pye faults the state court for not considering this evidence in
its prejudice analysis. See id. at 50 (citing Pye, 853 F. App’x at 567). But under
AEDPA, we do not assess “whether the state court considered and discussed
every angle of the evidence”: “There is no text in [§ 2254(d)] requiring a
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50 Opinion of the Court 18-12147
The state court’s prejudice determination regarding the
mental-health evidence also didn’t contradict or unreasonably ap-
ply clearly established federal law. There is no per se rule that the
failure to present evidence of a defendant’s cognitive defects at sen-
tencing is prejudicial for purposes of the Strickland ineffective-as-
sistance analysis. While Pye cites Porter, that case noted that “it
was not reasonable to discount entirely the effect” that the defend-
ant’s mental-health expert’s testimony might have had on the jury.
558 U.S. at 43 (emphasis added). And here, “[n]othing in the opin-
ion” of the state court “suggests that the mitigating effect of [Pye’s]
mental health problems was ‘discount[ed] entirely.’” Evans, 703
F.3d at 1330 (quoting Porter, 558 U.S. at 43). Porter didn’t create a
per se rule that the failure to present evidence of brain damage or
cognitive defects is always prejudicial; rather, it held only that in
statement of reasons.” Lee, 726 F.3d at 1211 (quotation marks omitted); see
supra Part II.B.3. Here, the state court’s overall prejudice determination with
respect to Pye’s mental-health evidence was reasonable notwithstanding the
unaddressed mental-health information in his prison records. As the district
court correctly noted, the mitigation value of Pye’s psychological state when
he went to prison for the first time—years before he killed Alicia—was low
because “it is not at all surprising that someone who had just arrived at a state
prison to begin serving a ten-year sentence would be depressed and confused.”
Doc. 68 at 66. Moreover, the same intake form also confirmed that Pye had
“no history of mental health treatment and did not show overt signs of severe
depression, anxiety, or perceptual disturbance.” Id. (citing Doc. 15-19 at 11,
Doc. 19-11 at 94). So, a fairminded habeas jurist could conclude that, even if
these records had been presented to the trial jury, they wouldn’t have been
substantially likely to make a difference.
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18-12147 Opinion of the Court 51
that case, given that particular petitioner’s brain damage, the fail-
ure to present mental-health evidence was prejudicial. 558 U.S. at
43–44; see also Richter, 562 U.S. at 101 (explaining that in evaluat-
ing whether a state court’s application of federal law was unreason-
able, “[t]he more general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations”); Knowles, 556
U.S. at 123 (noting that Strickland is a “general standard”). And the
petitioner in Porter, in contrast to Pye, presented largely unrebut-
ted evidence that he had PTSD from his military service that “could
manifest in impulsive, violent behavior,” “suffered from an ex-
treme mental or emotional disturbance,” and “was substantially
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52 Opinion of the Court 18-12147
impaired in his ability to conform his conduct to the law.” 558 F.3d
at 36. 21
Moreover, in addition to there being no per se rule of preju-
dice based on unpresented mental-health evidence, “we have held
that ‘the indication of brain damage . . . can often hurt the defense
as much or more than it can help.’” Evans, 703 F.3d at 1329 (quot-
ing Haliburton v. Sec’y, Dep’t of Corr., 342 F.3d 1233, 1244 (11th
Cir. 2003)); see Haliburton, 342 F.3d at 1244 n.30 (noting defense
attorney’s testimony that presenting evidence of a defendant’s
21 Nor do the other cases that Pye cites, see En Banc Br. of Appellant at 59–60,
establish a rule that the failure to present evidence of any sort of brain damage
or cognitive deficiency is necessarily prejudicial. While Jefferson v. GDCP
Warden noted that “evidence of brain damage . . . profoundly change[s] the
character of the penalty phase of the proceedings by fundamentally transform-
ing [the defendant’s] sentencing profile,” it noted only that this sort of evi-
dence “may establish prejudice.” 941 F.3d 452, 483 (11th Cir. 2019) (emphasis
added). Moreover, Jefferson is distinguishable because it applied a stricter pre-
AEDPA standard of review to the state court’s decision. Id. at 455. Nor is
Sears v. Upton, 561 U.S. 945 (2010) (per curiam), directly analogous to Pye’s
case. There was “clear and compelling evidence” in that case that the peti-
tioner had “pronounced frontal lobe pathology” and was “among the most
impaired individuals in the population in terms of ability to suppress compet-
ing impulses.” Id. at 949–50 (quotation marks omitted). Finally, unlike Pye,
the defendant in Rompilla v. Beard, suffered from “organic brain damage, an
extreme mental disturbance significantly impairing several of his cognitive
functions,” which was likely caused by fetal-alcohol syndrome and substan-
tially impaired his capacity to “appreciate the criminality of his conduct or to
conform his conduct to the law.” 545 U.S. 374, 392 (2005) (quotation marks
omitted).
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18-12147 Opinion of the Court 53
abusive background and brain damage can counterproductively
“paint a picture of Frankenstein” for the jury); cf. Windom, 578
F.3d at 1249 (holding that it “was not objectively unreasonable” for
the state post-conviction court to find no prejudice where there
was overwhelming evidence of premeditation, despite counsel’s
“failure to investigate and present a mental health mitigation de-
fense”).
Given the conflicting evidence about the extent of Pye’s
mental-health issues and the lack of clearly established federal law
requiring a finding of prejudice based on the failure to present evi-
dence of cognitive deficits, the state court’s conclusion on this issue
was not “so obviously wrong [as to be] beyond any possibility for
fairminded disagreement.” Shinn, 141 S. Ct. at 523 (quotation
marks omitted).
C
We must next determine whether it was unreasonable for
the state court to conclude that Pye suffered no prejudice as a result
of Mostiler’s failure to rebut the State’s argument about his future
dangerousness in prison. It was not.
Pye’s argument rests largely on the state post-conviction tes-
timony of two corrections officers—Ellenberg and Pittman—who
supervised Pye during his prior incarceration as part of a youthful-
offender program. See En Banc Br. of Appellant at 50–51 (citing
Doc. 16-24 at 49, 70–71). But even assuming the truth of these of-
ficers’ testimony—that they didn’t consider Pye a security concern
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54 Opinion of the Court 18-12147
and that he was less dangerous than most inmates they encoun-
tered—it was reasonable for the state court to conclude that this
sort of evidence wouldn’t have been substantially likely to change
the outcome of sentencing for three reasons: (1) prison records
show evidence of Pye’s insubordination and aggressiveness; (2) Pye
became increasingly violent after his first incarceration; and (3) fur-
ther evidence that Pye wasn’t a violent person would have been
cumulative. 22
First, the prison records. It was not clearly and convincingly
erroneous for the state court to conclude that these records indi-
cated that Pye had a “history of insubordination, aggressiveness
and propensity for violence toward those in authority.” Doc. 20-
40 at 61. Had Mostiler presented testimony from corrections offic-
ers about Pye’s behavior during his initial period of incarceration,
the State likely would have presented later prison records, which
contained at least 15 disciplinary reports, including those pertaining
to fights with other inmates and instances of insubordination cate-
gorized as “High”- and “Greatest”-level offenses. For instance, on
October 12, 1989, Pye “became hostile and aggressive” toward cor-
rections officers after being removed from his dorm. Doc. 15-20 at
22 The state court didn’t expressly discuss Factors (2) and (3), but in assessing
whether a state court’s reasons for its decision were reasonable—here,
whether it was reasonable for the state court to conclude that Pye wasn’t prej-
udiced by Mostiler’s failure to present evidence about his behavior in prison—
we can consider additional rationales that support the state court’s conclu-
sions. See supra Part II.B.3.
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18-12147 Opinion of the Court 55
18. After he was instructed to assume the shakedown position,
“Pye came off the wall in an aggressive manner” while shouting,
“[m]other fucker get your hands off me”—leading to officers wres-
tling him to the floor as he struggled with them. Id. at 16, 19.
Pye disputes the state court’s characterization of his prison
behavior, arguing that there’s no record indicating that he was ever
violent toward prison personnel. See En Banc Br. of Appellant at
51. He describes one incident in which he fought with another in-
mate as being mere horseplay that didn’t result in any injuries and
asserts that the prison found him not guilty of assault in connection
with another incident in which he fought an inmate. Id.; see Docs.
15-19 at 51; 15-20 at 8. But Pye doesn’t dispute that his prison rec-
ords contain many instances of insubordination.
Overall, Pye hasn’t rebutted by clear and convincing evi-
dence that his prison records “indicate a history of insubordination,
aggressiveness and propensity for violence toward those in author-
ity.” Doc. 20-40 at 61. It may be debatable whether one should
infer from Pye’s October 12, 1989 incident with prison staff and his
altercations with other inmates that Pye had a history of “aggres-
siveness and propensity for violence toward those in authority.”
But Pye has not rebutted the presumption of correctness that
AEDPA affords to state-court determinations of fact. See 28 U.S.C.
§ 2254(e)(1). And it wasn’t unreasonable for the state court to rely
on this characterization of Pye’s prison records in assessing
whether Mostiler’s failure to offer testimony rebutting the State’s
future dangerousness argument was prejudicial.
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56 Opinion of the Court 18-12147
Second, the mitigating value of the officers’ testimony. Tes-
timony from witnesses like Ellenberg and Pittman about Pye’s be-
havior in prison likely would have had minimal value in swaying
the sentencing jury. Ellenberg and Pittman knew Pye only during
his incarceration in the youthful-offender program at Lee Arren-
dale Correctional Facility for several years in the late 1980s. But
Pye admits that when he aged out of that program and was trans-
ferred to Frank Scott Correctional Institute 23 in 1988, “[h]is behav-
ior became agitated and he incurred disciplinary reports for insub-
ordination.” Doc. 43 at 63. So, even if Officers Ellenberg and
Pittman had testified at Pye’s sentencing, they wouldn’t have been
able to speak to Pye’s behavior at Frank Scott, and the State could
have painted a picture of Pye as a man who became increasingly
troubled and violent as he got older. And, of course, at the time of
sentencing, the jury had just concluded—contrary to the officers’
testimony that Pye was generally nonviolent—that Pye had vio-
lently raped and murdered Alicia Yarbrough. Thus, there is little
chance that the officers’ testimony would have swayed any mem-
ber of the jury: Even if Pye was generally nonviolent when he was
incarcerated as part of a youthful-offender program years earlier,
that says little about how dangerous he would be during a future
23While Pye’s brief in support of his habeas petition referred to this facility as
“Robert Scott State Prison,” the state court and the contemporaneous discipli-
nary reports in the record refer to the institution as “Frank Scott Correctional
Institute.” Compare Doc. 43 at 63, with Docs. 20-40 at 61; 15-20 at 17.
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18-12147 Opinion of the Court 57
period of incarceration after he had become progressively more
troubled and been convicted of rape and murder.
Third, cumulativeness. During sentencing, Pye’s sister and
father both testified that he was not violent, and several other wit-
nesses testified about his kindness. This testimony would have
served as a counterweight to the State’s argument about Pye’s fu-
ture dangerousness. Further evidence from corrections officers as
to Pye’s nonviolent nature would have been at least partially cu-
mulative. See Cullen v. Pinholster, 563 U.S. 170, 200 (2011). The
fact that the jury heard some testimony that Pye was generally non-
violent further supports the reasonableness of the state court’s con-
clusion that Pye wasn’t prejudiced by Mostiler’s failure to discover
and present testimony like that offered by Ellenberg and Pittman
at the state post-conviction proceedings.
Together, these factors make it unlikely that the corrections
officers’ testimony would have changed the outcome of Pye’s sen-
tencing. At the very least, it wasn’t unreasonable for the state court
to conclude that there wasn’t a “substantial likelihood” that the
presentation of such testimony would have resulted in a different
sentence. Shinn, 141 S. Ct. at 524.
D
Finally, Pye contends that he was prejudiced by Mostiler’s
failure to present evidence of Alicia Yarbrough’s cocaine habit—
including evidence that she had cocaine in her system the night she
died—and testimony from Linda Lyons that Alicia called Pye on
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58 Opinion of the Court 18-12147
the night of her murder. See En Banc Br. of Appellant at 62–68.
Pye frames this as residual-doubt evidence that he says would have
supported his story that Alicia voluntarily met him at the motel to
trade sex for drugs—negating the aggravating circumstances of the
rape and kidnapping committed alongside Alicia’s murder—and
that it could have persuaded the jury not to impose the death sen-
tence. But even if Mostiler should have presented this additional
evidence supporting Pye’s version of events during the guilt or pen-
alty phase of trial, it was reasonable for the state court to conclude
that his failure to do so wasn’t prejudicial.
To begin, it wasn’t clearly and convincingly erroneous for
the state court to find that Lyons’s post-conviction affidavit testi-
mony was unreliable. In this affidavit, Lyons—Alicia’s friend and
neighbor—said that Alicia called a local motel from Lyons’s house
and that Lyons heard her ask for Pye’s room and arrange for some-
one to pick her up—presumably to get drugs. See Doc. 16-24 at 66.
The state court pointed out the inconsistency between this state-
ment and what Lyons told a police investigator about 12 hours af-
ter seeing Alicia for the last time: Lyons heard Alicia call “some-
one” at a local motel and “ask for room #27,” and Alicia told the
“unknown party” on the other end of the line that she “was going
to call the police on them for selling drugs out of the motel.” Doc.
12-9 at 3. The lack of positive identification of the person Alicia
was calling and Alicia’s threat to call the police on that person—a
relevant fact not reported in Lyons’s post-conviction affidavit, see
Doc. 16-24 at 66—are significant differences between Lyons’s initial
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18-12147 Opinion of the Court 59
story and the affidavit she prepared years later for the state habeas
proceedings. Given these discrepancies, it wasn’t clearly and con-
vincingly erroneous for the state court to find that Lyons’s habeas
affidavit testimony was unreliable.
Even if Lyons’s affidavit testimony is weighed alongside the
additional evidence of Alicia’s cocaine use that Pye says Mostiler
should have presented, there still isn’t a substantial likelihood that
this evidence would have changed the outcome of sentencing.
That’s because Pye’s version of events, in addition to being only
weakly supported by Lyons’s unreliable affidavit, is implausible in
light of the evidence produced at trial. As the state court noted,
within about 24 hours of the crime, Georgia investigators exam-
ined the residence where Alicia had been living with Charles Puck-
ett. They found that the front door had been forced open, with the
door, door jamb, and locking mechanisms “broken and shattered
from a violent force initiated from the exterior” as though the door
had been “kicked open.” Doc. 12-2 at 108–09. That finding was
consistent with the testimony of Pye’s co-defendants Anthony
Freeman and Chester Adams that Pye kicked in Alicia’s door when
he forced himself into the home, but inconsistent with the story
that Pye now says he could have told to raise residual doubt—that
Alicia willingly went to Pye’s motel to get drugs. Pye’s explanation
that Alicia kicked in her own door is implausible. And Pye would
have had little reason to murder Alicia if she had gone willingly to
his motel room to exchange sex for drugs, but every reason to kill
her if he’d kidnapped, robbed, and raped her. At the very least, it
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60 Opinion of the Court 18-12147
wasn’t unreasonable—“so obviously wrong [as to be] beyond any
possibility for fairminded disagreement,” Shinn, 141 S. Ct. at 523
(quotation marks omitted)—for the state court to conclude that in
light of this competing evidence, testimony from Lyons and addi-
tional proof of Alicia’s cocaine use wouldn’t have created residual
doubt substantially likely to change the outcome of sentencing.
E
Even if the state court’s prejudice determination as to each
ground of allegedly deficient performance was reasonable, we
must still decide whether its conclusion as to the cumulative prej-
udice, constituted an unreasonable application of Strickland. See
Strickland, 466 U.S. at 694–96; United States v. Blakey, 14 F.3d 1557,
1561 (11th Cir. 1994) (discussing cumulative effect of counsel’s er-
rors). This question asks whether it was reasonable for the state
court to conclude that there was no substantial likelihood that at
least one juror would have voted against imposing the death pen-
alty had Mostiler not committed all the errors that Pye alleges (and
we assume) that he committed—i.e., if Mostiler had conducted a
more thorough investigation of Pye’s background and presented
additional evidence of his neglected and (possibly) abusive child-
hood, discovered and presented evidence of Pye’s cognitive defi-
ciencies, offered testimony about Pye’s generally nonviolent be-
havior when he was previously incarcerated, and introduced addi-
tional residual-doubt evidence. But even considering Mostiler’s al-
leged deficiencies cumulatively, it wasn’t unreasonable for the state
court to conclude that Pye has failed to establish prejudice: The
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18-12147 Opinion of the Court 61
extensive aggravating circumstances of Pye’s crimes weighed heav-
ily in favor of the jury imposing a death sentence, and the difficul-
ties already described, which prevent Pye from establishing preju-
dice with respect to any individual deficiency—including
§ 2254(e)(1)’s presumption of correctness, credibility concerns with
the habeas affidavits, conflicting mental-health evidence, and min-
imally relevant and conflicting evidence regarding Pye’s behavior
in prison—could also, to a fairminded jurist, preclude him from es-
tablishing cumulative prejudice.
No precedent applying AEDPA to state-court prejudice de-
terminations compels a different result. While Pye argues that the
background evidence that Mostiler should have presented parallels
the evidence in Williams v. Taylor, 529 U.S. 362 (2000), and Romp-
illa v. Beard, 545 U.S. 374 (2005), those cases “offer no guidance
with respect to whether a state court has unreasonably determined
that prejudice is lacking” because the Supreme Court “did not ap-
ply AEDPA deference to the question of prejudice in those cases.”
Pinholster, 563 U.S. at 202. And even if those precedents were in-
structive, the balance of aggravating and mitigating factors is sig-
nificantly different in Pye’s case. Pye’s crimes against Alicia could
reasonably be considered more aggravated than the robbery and
murder that the petitioner in Williams committed. 529 U.S. at 367–
68. In addition, Pye’s argument comparing his background to the
petitioner’s in Williams also assumes the truth of the affidavits pre-
sented at his state post-conviction proceeding. But see supra Part
III.A.1. In Rompilla, there were significant aggravating factors—
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62 Opinion of the Court 18-12147
the murder was committed by torture during a felony and the de-
fendant had a significant history of violent felony convictions—and
the petitioner’s background was characterized by abuse and ne-
glect similar to what Pye alleges. 545 U.S. at 378, 391–92. But in
that case, unlike here, there was credible contemporaneous evi-
dence in the petitioner’s file (which his attorneys hadn’t examined)
that suggested that he was schizophrenic and had a third-grade
level of cognition, and later testing showed “an extreme mental dis-
turbance . . . likely caused by fetal alcohol syndrome.” Id. at 391–
92. Thus, the mitigating evidence in Rompilla was significantly
stronger than the evidence presented here. Lastly, in Porter, the
mitigating evidence that defense counsel failed to present was also
significantly stronger than what Pye has presented: Had counsel
performed competently, the jury would have heard about the pe-
titioner’s “heroic military service in two of the most critical—and
horrific—battles of the Korean War” and his “struggles to regain
normality upon his return from war,” including PTSD that could
“manifest in impulsive, violent behavior.” 558 U.S. at 36, 41.
Given the reasonableness of the state court’s weighing of the
evidence and the lack of contrary precedent, AEDPA requires us to
defer to that court’s cumulative-prejudice conclusion because it
wasn’t contrary to or an unreasonable application of the Supreme
Court’s precedents, based on an unreasonable determination of the
facts, or “so obviously wrong that its error lies beyond any possi-
bility for fairminded disagreement.” Shinn, 141 S. Ct. at 523 (quo-
tation marks omitted); see 28 U.S.C. § 2254(d).
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18-12147 Opinion of the Court 63
IV
In conclusion, a brief word about today’s dissent—which
like so (so, so, so) many before it, is framed around an extended
allusion to Lewis Carroll’s Alice-based novels. See Parker B. Pot-
ter, Jr., Wondering About Alice: Judicial References to Alice in
Wonderland and Through the Looking Glass, 28 Whittier L. Rev.
175 (2006) (noting that, as of almost 20 years ago, some 1000 judi-
cial opinions had referenced Carroll’s works). What the dissent
lacks in originality, it more than makes up for in spice. It accuses
us of all manner of things—peddling “[n]onsense,” Dissenting Op.
at 18, “bury[ing]” unreasonable legal conclusions and factual find-
ings, id. at 3, 35, “nullif[ying]” Supreme Court precedent, id. at 16,
and “invent[ing]” reasons to “prop up” the state court opinion, id.
at 24. Respectfully, none of those things are true.
Our dissenting colleagues’ objections notwithstanding, the
fact is that the standard embodied by 28 U.S.C. § 2254, as amended
by AEDPA, is “difficult to meet . . . because it was meant to be.”
Richter, 562 U.S. at 102. While AEDPA “stops short of imposing a
complete bar on federal-court relitigation of claims already rejected
in state proceedings,” we have authority to grant relief only “where
there is no possibility fairminded jurists could disagree that the
state court’s decision conflicts with [the Supreme Court’s] prece-
dents.” Id. 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 ap-
peal.” Id. at 102–03 (quotation marks omitted). The rationale for
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64 Opinion of the Court 18-12147
this principle is well established: “Under AEDPA, state courts play
the leading role in assessing challenges to state sentences based on
federal law.” Shinn, 141 S. Ct. at 526. “Federal habeas review of
state convictions frustrates both the States’ sovereign power to
punish offenders and their good-faith attempts to honor constitu-
tional rights.” Richter, 562 U.S. at 103 (quoting Calderon v.
Thompson, 523 U.S. 538, 555–56 (1998)). 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.” Id. (quoting Harris v. Reed, 489 U.S. 255, 282 (1989)
(Kennedy, J., dissenting)).
Put simply, we have the power to overturn a state court’s
decision on the merits of a petitioner’s habeas claim only in rare
circumstances. Pye has not shown that this is one of them.
The district court’s denial of habeas relief with respect to
Pye’s ineffective-assistance-of-counsel-at-sentencing claim is
AFFIRMED and the case is REMANDED to the panel for proceed-
ings consistent with this opinion.
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18-12147 JORDAN, J., Concurring 1
JORDAN, Circuit Judge, joined by ROSENBAUM, Circuit Judge, con-
curring in the judgment:
I join Parts I and II of Judge Jill Pryor’s dissent (with the ex-
ception of the last paragraph on page 30). But despite reservations
with the majority opinion, I concur in the judgment denying Mr.
Pye habeas relief, and write to explain why.
In deciding this appeal, the majority resolves an important
issue of first impression in our circuit—the relationship between 28
U.S.C. §§ 2254(d)(2) and 2254(e)(1)—in a single paragraph. This
issue is of significant complexity, as evidenced by the literature dis-
cussing the caselaw and the different interpretive approaches that
exist. See, e.g., Randy Hertz & James S. Liebman, 1 Fed. Habeas
Corpus Prac. & Proc. § 20.2[c] (7th ed. & 2020 update); Brian R.
Means, Postconviction Remedies § 28.3 (June 2021 update); Justin
F. Marceau, Deference and Doubt: The Interaction of AEDPA
§ 2254(d)(2) and (e)(1), 82 Tul. L. Rev. 385, 396–440 (2007). We did
not ask the parties to address this issue, and they did not brief it. In
the absence of adversarial presentation, I would not decide it here.
See United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579–81
(2020).
Like the panel, and as set forth in Judge Jill Pryor’s dissent, I
think the state court made a number of significant and unreasona-
ble factual determinations. See Pye v. Warden, 853 F. App’x 548,
562–63, 566–67 (11th Cir. 2021); Jill Pryor Dissent at 35–49. I would
conduct plenary review as to the prejudice prong of Strickland v.
Washington, 466 U.S. 668, 687 (1984), and deny relief because Mr.
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2 JORDAN, J., Concurring 18-12147
Pye has not made the requisite showing. See Berghuis v. Thomp-
kins, 560 U.S. 370, 390 (2010) (“Courts can . . . deny writs of habeas
corpus under § 2254 by engaging in a de novo standard when it is
unclear whether AEDPA deference applies because a habeas peti-
tioner will not be entitled to a writ of habeas corpus if his or her
claim is rejected on de novo review[.]”).
To show prejudice under Strickland, Mr. Pye must demon-
strate “a reasonable probability that, but for his counsel’s ineffec-
tiveness, the jury would have made a different judgment,” and be-
cause Georgia law requires a unanimous jury recommendation of
death the focus is on whether one juror would have come to a dif-
ferent conclusion. See Andrus v. Texas, 140 S. Ct. 1875, 1886
(2020). Although the reasonable probability standard does not re-
quire Mr. Pye to show that his counsel’s performance more likely
than not affected the outcome, the likelihood of a “different result
must be substantial, not just conceivable.” Harrington v. Richter,
562 U.S. 86, 111–12 (2011).
Each capital case, and every capital defendant, is different.
Generalizations, at least when it comes to the prejudice determina-
tion, are therefore difficult to make. For me, this is one of those
cases in which the totality of the new mitigating evidence—taking
into account some of its limitations and its partly contested na-
ture—does not satisfy the reasonable probability standard. When
juxtaposed against the brutality and cruelty of the premeditated
kidnapping, gang rape, and murder of Ms. Yarbrough—whose
child Mr. Pye claimed was his—after her plea for mercy, I do not
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18-12147 JORDAN, J., Concurring 3
believe there is a substantial likelihood that one juror would have
made a different recommendation as to punishment. In other
words, there is not a reasonable probability that one juror would
have “concluded that the balance of aggravating and mitigating cir-
cumstances did not warrant death.” Strickland, 466 U.S. at 695. Cf.
Krawczuk v. Secretary, 873 F.3d 1273, 1297–98 (11th Cir. 2017)
(“[U]nder de novo review, we readily conclude that Krawczuk
failed to establish a reasonable probability that, had he presented
the above mitigating evidence [abandonment, isolation, lack of su-
pervision, neuropsychological damage, mental disorders, emo-
tional and physical abuse, depression symptoms, and sexual abuse
by strangers on one occasion] the outcome of the proceedings
would have been different. . . . In reaching this conclusion, we
weigh the totality of the mitigating evidence against the aggravat-
ing factors, considering the substantial weight due to aggravation
in light of the brutal nature of [the] murder. . . . Krawczuk’s cruelty
and premeditation make it unlikely that he would have received a
different sentence.”).
The Strickland prejudice analysis is, of course, a predictive
human endeavor based on a hypothetical construct. See Evans v.
Secretary, 703 F.3d 1316, 1334 (11th Cir. 2013) (en banc) (Jordan, J.,
concurring). But it is the framework the Supreme Court has given
us, and the one we must apply.
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18-12147 JILL PRYOR, J., Dissenting 1
JILL PRYOR, Circuit Judge, joined by WILSON, Circuit Judge, dis-
senting:
When she stepped through the looking glass, Alice found a
world of opposites, nonsense, and “impossible things.” 1 Walking
toward a thing is best accomplished by walking away from it.2
Time runs backwards. Alice can read “Jabberwocky” only by view-
ing it through a mirror, and, even so, finds it “rather hard to under-
stand.”3 As the author of the panel opinion in this case, which ap-
plied the familiar legal standards set forth in the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), I feel as though I too
have stepped through the looking glass. But what happened during
Alice’s time through the looking glass was a dream. This, case, un-
fortunately, is not.
Willie James Pye was convicted of an aggravated crime. He
brutally raped and murdered his former girlfriend. Despite over-
whelming evidence to the contrary, Mr. Pye maintained his inno-
cence and insisted on a defense strategy focused on proving it.
When Mr. Pye’s family members understandably were uncooper-
ative in helping him try to prove the unprovable in the guilt phase
of his trial, Mr. Pye’s lawyer, Johnny Mostiler, and investigator,
Dewey Yarbrough, largely gave up on attempting to rally the
1 Lewis Carroll, Through the Looking Glass 47 (2022).
2 Id. at 15.
3 Id. at 10.
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2 JILL PRYOR, J., Dissenting 18-12147
family members for the penalty phase, to save their client’s life.
The majority opinion does not defend trial counsel’s performance,
so I will not go on about his shortcomings in this case. Suffice it to
say that after presenting a meager case in opposition of the death
penalty, Mr. Mostiler gave a canned closing argument that his op-
posing counsel anticipated and rebutted, to disastrous result.
Rather than defending trial counsel’s performance, the ma-
jority opinion concludes that Mr. Pye has failed to show preju-
dice—or, more precisely, that the state habeas court’s determina-
tion that he hadn’t shown prejudice was not, in AEDPA’s terms,
“contrary to” and did not “involve[] an unreasonable application
of, clearly established Federal law”; nor was it “based on an unrea-
sonable determination of the facts.” 28 U.S.C. § 2254(d). In federal
habeas, that is checkmate. But in reaching its conclusion, the ma-
jority opinion makes two moves that do not belong on any chess
board this side of the mirror. So I dissent.
The majority opinion’s first move is to declare that federal
courts may find that a reasoned state court decision withstands
AEDPA deference by turning to justifications the state court never
even hinted at. This is the opposite of what the Supreme Court has
instructed, and the majority’s attempt to wiggle out from under
Supreme Court precedent is unconvincing. The majority opinion
supports its declaration with a half-baked textual analysis. And it
relies on cases holding—uncontroversially—that a state court’s de-
cision is not unreasonable just because it did not address and reject
each one of a petitioner’s arguments and pieces of evidence
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18-12147 JILL PRYOR, J., Dissenting 3
supporting his claims. To turn this unremarkable principle into
support for its holding, the majority must refract the light shed by
these cases beyond what the laws of nature allow.
Second, the majority opinion holds—on an issue of first im-
pression in this Court that was never briefed or argued by the par-
ties—that a state court’s findings of fact may be clearly erroneous
but not sufficiently important to meet the “unreasonable” AEDPA
standard. Even if we assume for argument’s sake that this holding
is correct, when combined with the majority opinion’s disregard of
Supreme Court precedent requiring us to review exclusively the
reasons the state habeas court actually gave, the holding creates a
practically impossible path to relief for habeas petitioners. If federal
courts can bury unreasonable findings under an avalanche of new
reasons the state court never gave, then unreasonable findings will
virtually never be important enough to satisfy the majority’s test.
In Part I, I describe what happened in this case. Although the
majority opinion mostly gets the facts right, I will highlight some
nuances that, I think, the majority opinion has missed. In Part II, I
describe habeas review under AEDPA and explain the majority
opinion’s major errors in describing AEDPA deference. In Part III,
using the proper AEDPA analysis, I examine the state habeas
court’s decision and conclude that de novo review of the prejudice
to Mr. Pye’s defense is warranted. In Part IV, I demonstrate why,
on a de novo review, Mr. Pye has shown prejudice. In Part V, I
conclude by summarizing the majority’s errors and the impact they
will have unless the Supreme Court sets us right again.
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4 JILL PRYOR, J., Dissenting 18-12147
I. BACKGROUND
As the majority opinion recounts, the facts of Mr. Pye’s
crime are indeed aggravated. Mr. Pye had dated the victim, Alicia
Lynn Yarbrough, on and off for a time.4 When the crime was com-
mitted, however, Ms. Yarbrough was living with another man,
Charles Puckett, and their infant. Mr. Pye and two associates, Ches-
ter Adams and Anthony Freeman, drove to the home of Ms. Yar-
brough and Mr. Puckett, apparently intending to rob Mr. Puckett.
Mr. Pye was angry that Mr. Puckett had signed the birth certificate
of Ms. Yarbrough’s child, whom Mr. Pye believed was his child.
When they arrived, Mr. Puckett was not at home; Mr. Pye forcibly
took Ms. Yarbrough from the home, leaving the infant behind. The
three men drove to a hotel and rented a room, where each man
repeatedly raped Ms. Yarbrough. The men eventually took Ms.
Yarbrough from the hotel room, put her into Mr. Adams’s car, and
drove away from the hotel. At Mr. Pye’s direction, Mr. Adams
pulled the car onto a dirt road. Mr. Pye ordered Ms. Yarbrough out
of the car, made her lie face down, and shot her three times as she
begged for her life. She died of the wounds. Mr. Freeman confessed
and implicated the other two men.
The trial court appointed Mr. Mostiler, the county public de-
fender, to represent Mr. Pye. Mr. Mostiler was assisted by Mr. Yar-
brough. Mr. Pye maintained his innocence, despite the
4 Ms. Yarbrough was not related to investigator Dewey Yarbrough.
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18-12147 JILL PRYOR, J., Dissenting 5
overwhelming evidence of his guilt, and testified in his own de-
fense. The jury found him guilty.
At the trial’s penalty phase, the State presented testimony
from three witnesses who collectively spoke about Mr. Pye’s pre-
vious conviction and incarceration for burglary, reputation for vi-
olence about a decade before the murder, and a previous violent
altercation involving Ms. Yarbrough. Mr. Mostiler presented testi-
mony from eight lay witnesses: Mr. Pye’s sister Pam Bland, sister
Sandy Starks, brother Ricky Pye, father Ernest Pye, 15-year-old
niece Cheneeka Pye,5 nephew Dontarious Usher, 6 sister-in-law
Bridgett Pye, and family friend Lillian Buckner. These witnesses
testified that Mr. Pye was of good moral character and asked the
jury for mercy on his behalf. Ernest Pye testified that Mr. Pye had
the makings of a normal childhood: he “liked to play basketball,
liked to play with kids,” was “always smil[ing,]” and was never
known to fight. Doc. 13-11 at 48. 7 Some of the witnesses said Mr.
Pye and Ms. Yarbrough seemed to have a good relationship.
5 I use the spelling “Cheneeka” here because it is used in Ms. Pye’s postcon-
viction affidavit. At trial, the court reporter spelled her name “Chanika” with-
out confirming on the record the correct spelling. See Doc. 13-11 at 51.
6 Here, too, I use the spelling reflected in Mr. Usher’s postconviction affidavit.
At trial, the court reporter spelled his name “Dantarius” without confirming
on the record the correct spelling. See Doc. 13-11 at 59.
7 “Doc.” numbers refer to the district court’s docket entries.
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6 JILL PRYOR, J., Dissenting 18-12147
Mr. Mostiler asked a couple of the witnesses about Mr. Pye’s
early life. Ms. Starks testified that she and her siblings were raised
in a house with no “running water in the bathroom” and only a
“wooden heater.” Id. at 67. But Ms. Bland testified that the family
“had a four-bedroom” home. Id. at 30. And Ms. Starks told the jury
that, above all, the family “had love.” Id. at 67.
In closing, the prosecutor—who had tried several capital
cases against Mr. Mostiler—anticipated what Mr. Mostiler would
say to the jury in defense of Mr. Pye’s life, down to the letter. He
told the jury Mr. Mostiler would quote from William Shake-
speare’s The Merchant of Venice, “the quality of mercy is not
strained,” and from the Bible’s Beatitudes, “blessed are the merciful
for they shall obtain mercy.” Id. at 83. Mr. Mostiler did exactly that,
revealing that he had not bothered to tailor his argument to
Mr. Pye’s case.
The prosecutor also relied on some old tricks. As he had in
previous cases he had tried against Mr. Mostiler, he told the jury
that, if left in prison for life, Mr. Pye would “for sure kill a guard to
get out.” Id. at 86–87. Even though Mr. Mostiler well knew that the
prosecutor had used this argument in previous cases, Mr. Mostiler
had nothing prepared to refute the prosecutor’s assertion. He
simply told the jury that Mr. Pye wouldn’t kill a prison guard. A
classic “just trust me” with nothing to back it up.
The jury did not just trust Mr. Mostiler. After finding four
statutory aggravating factors, the jury unanimously recommended
a sentence of death, which the trial court imposed.
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18-12147 JILL PRYOR, J., Dissenting 7
After Mr. Pye’s convictions and sentence were upheld on di-
rect appeal, he sought postconviction relief in state court. This en
banc proceeding is concerned with only one of Mr. Pye’s postcon-
viction claims: that his trial counsel rendered ineffective assistance
in failing to investigate and present mitigating evidence at the pen-
alty phase of his trial, including evidence of his family background,
mental health challenges, and cognitive impairment, as well as ev-
idence to “counter the State’s evidence of aggravated culpability.”
Rompilla v. Beard, 545 U.S. 374, 380–81 (2005). 8
To prove his claim in state court, Mr. Pye was required to
demonstrate that trial counsel’s performance fell “below an objec-
tive standard of reasonableness,” taking into account prevailing
professional norms, and that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S.
668, 688, 694 (1984). Mr. Pye presented evidence of deficient per-
formance and resulting prejudice, but because the majority opinion
assumes Mr. Mostiler performed deficiently, I do not recount the
evidence relating solely to that element and instead focus on
Mr. Pye’s evidence that went to the state habeas court’s prejudice-
prong reasoning.
8 Although the majority opinion addresses Mr. Pye’s argument that trial coun-
sel also should have leaned more heavily on residual doubt, see Maj. Op. at 30
n.12, I do not address it here because in my view Mr. Pye is entitled to relief
even without it.
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8 JILL PRYOR, J., Dissenting 18-12147
At the postconviction evidentiary hearing, Mr. Yarbrough
testified about the defense team’s work on Mr. Pye’s case. He tes-
tified that the primary focus of the defense was to prove Mr. Pye’s
innocence, a strategy Mr. Pye insisted upon. Mr. Yarbrough testi-
fied that Mr. Pye told him “to go out and contact his family mem-
bers,” and so he contacted four or five of them, including Mr. Pye’s
mother, father, and two to three siblings. Doc. 19-11 at 23. Mr. Yar-
brough testified that the family “didn’t put any effort forth on any
of the contacts I made with them.” Id. at 24. He recalled one family
member saying “that [Mr. Pye] got himself into this, [and] he can
get himself out of it.” Id. When asked to explain “[h]ow. . . the lack
of family involvement affect[ed the] investigation,” Mr. Yarbrough
clarified that the family was unhelpful “as far as helping prove [Mr.
Pye’s] innocence.” Id. at 24–25 (emphasis added); see id. at 25
(“[T]hey were not willing to . . . put the effort forward to prove
what I was trying to prove that I was told to try to prove by Wil-
lie.”). Mr. Yarbrough recounted: “I can remember thinking, and I
want to say this was during, right before the sentencing phase, you
know, I just don’t care about going back over there and trying to
get them here.” Id. at 25 (emphasis added).
At the hearing, habeas counsel offered undisputed evidence
that Mr. Pye is of low intellectual functioning, bordering on intel-
lectual disability. 9 They also offered undisputed evidence that
9 As the state habeas court explained, “[i]t is undisputed among the mental
health professionals who have evaluated [Mr. Pye] that [his] intellectual
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18-12147 JILL PRYOR, J., Dissenting 9
Mr. Pye has suffered from depression for nearly all his life. And
counsel offered undisputed evidence through affidavits that
Mr. Pye experienced a traumatic childhood and adolescence, dur-
ing which physical and emotional abuse, extreme parental neglect
and endangerment, and abject poverty pervaded his daily life, as
well as a resulting troubled adulthood. Finally, habeas counsel in-
troduced evidence that Mr. Pye previously had adapted well to car-
ceral life and had been trusted by prison staff.
The state habeas court denied Mr. Pye’s habeas petition,
concluding, as relevant here, that he failed to show that any defi-
cient performance by Mr. Mostiler prejudiced him. The court
found that evidence of low intellectual functioning would not have
swayed the jury. The court noted the affidavit testimony rebutting
the State’s contention of future dangerousness but emphasized that
Mr. Pye’s corrections records showed several instances of insubor-
dination and aggression. The court thus found no reasonable prob-
ability that Mr. Pye’s resulting sentence would have been different
had the jury heard positive testimony about his adaptation to
prison.
functions are in the low to borderline range.” Doc. 20-40 at 18. The majority
opinion also discusses dueling witness testimony about the presence and se-
verity of brain damage. See Maj. Op. at 7, 47–53. I do not discuss that testi-
mony here because I believe Mr. Pye is entitled to relief even without the con-
tested evidence of brain damage.
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10 JILL PRYOR, J., Dissenting 18-12147
The state habeas court also concluded that trial counsel’s
failure to investigate and present evidence of Mr. Pye’s family back-
ground did not cause prejudice. The majority opinion characterizes
the state habeas court’s conclusion as based on five reasons: (1) the
state habeas court’s “decision to discount the affidavit evidence pre-
sented at the state post-conviction proceedings due to concerns
about their credibility”—specifically, supposed “artful drafting”;
(2) “evidence of Pye’s family’s unwillingness to cooperate in his de-
fense at the time of trial”; (3) “the minimal connection between
Pye’s background and the crimes he committed”; (4) “Pye’s age[,
28,] at the time of those crimes”; and (5) “the extensive aggravating
evidence presented by the State at sentencing.” Maj. Op. at 31, 37.
The majority opinion’s identification of the fourth reason is correct
but incomplete—the state habeas court found because Mr. Pye
“was 28 years old at the time of these crimes, trial counsel could
have reasonably decided, given the heinousness of this crime and
the overwhelming evidence of Petitioner’s guilt, that remorse was
likely to play better than excuses.” Doc. 20-40 at 66; see Maj. Op. at
44 n.17 (acknowledging the court’s “remorse” finding). Add the
court’s reasoning that Mr. Pye’s evidence of (6) low intellectual
functioning and (7) lack of future dangerousness would not have
swayed the jury, and we can see that the state habeas court supplied
seven total reasons for its no-prejudice determination.10 And so,
10 Do I think we need to take a tally of a state court’s reasons? No. I do so here
only to compare the state habeas court’s reasoning with the majority opinion,
which adds reasons that the state habeas court did not give. Because the
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18-12147 JILL PRYOR, J., Dissenting 11
the state habeas court denied Mr. Pye relief from his death sen-
tence.
After the Supreme Court of Georgia denied Mr. Pye a certif-
icate of probable cause to appeal the state habeas court’s order, Mr.
Pye filed a federal habeas petition. Focusing primarily on prejudice,
the district court rejected the petition but granted Mr. Pye a certif-
icate of appealability on the claim we address today. After briefing,
and with the benefit of oral argument, a panel of this Court—of
which I was a member—held that the state habeas court’s rejection
of Mr. Pye’s ineffective-assistance-of-counsel claim was contrary to
and involved an unreasonable application of clearly established fed-
eral law and was based on unreasonable factual determinations in
light of the state court record. See 28 U.S.C. § 2254(d). On de novo
review, we concluded that Mr. Pye had shown deficient perfor-
mance and prejudice and, therefore, was entitled to habeas relief.11
universe AEDPA tasks us with reviewing is more limited than what the ma-
jority opinion describes, I use numbers to define precisely what we should be
reviewing.
11 Our opinion, which was not listed for publication, set out no new law. Ra-
ther, it simply applied precedent to the facts of the case. See 11th Cir. R. 35-3
(“[E]rror asserted in the panel’s misapplication of correct precedent to the facts
of the case[] are matters for rehearing before the panel but not for en banc
consideration.”). As I will explain in the next section, the majority opinion has
used this case not, as it professes, to “clarify” AEDPA’s application, Maj. Op.
at 13, but to narrow even further the nearly impossible path to relief available
to a state prisoner in federal habeas.
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12 JILL PRYOR, J., Dissenting 18-12147
II. AEDPA
AEDPA was enacted in 1996 in part to streamline the federal
review of state prisoners’ habeas petitions, but in practice the stat-
ute has done anything but. 12 Its abstruse language also has left
much to the imagination and rumination of jurists and litigants
alike throughout the more than quarter of a century it has been in
place.
The basics, though, are simple enough. AEDPA bars federal
courts from granting habeas relief to a petitioner on a claim that
was adjudicated on the merits in state court unless the state court’s
adjudication of the claim “(1) resulted in a decision that was con-
trary to, or involved an unreasonable application of, clearly estab-
lished 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).
These standards are, we all agree, “highly deferential.” Burt v.
12 See Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in
State Criminal Justice, 84 N.Y.U. L. REV. 791 (2009) (criticizing the costliness
and inefficiency of federal habeas review of state criminal cases); Nancy J.
King, Fred L. Cheesman II & Brian J. Ostrom, Final Technical Report: Habeas
Litigation in U.S. District Courts, NAT’L CTR. STATE CTS. 59 (2007),
https://www.ojp.gov/pdffiles1/nij/grants/219559.pdf (analyzing the statis-
tics of all federal habeas cases and explaining that the “[o]verall disposition
time per case has increased on average since AEDPA” (emphasis in original)).
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18-12147 JILL PRYOR, J., Dissenting 13
Titlow, 571 U.S. 12, 18 (2013). 13 The majority and I disagree, how-
ever, on how that “highly deferential” review should be conducted.
Several years ago, our Court fractured over how to apply
AEDPA’s highly deferential standard in a case materially indistinct
from this one: a case in which a Georgia state habeas court issued
a reasoned decision and the Supreme Court of Georgia declined to
issue a certificate of probable cause to appeal. A majority of our en
banc Court borrowed a standard from a Supreme Court case that
applied AEDPA’s deferential review in the absence of any reasoned
state court decision, Harrington v. Richter. Applying Richter’s
standard, the majority held that in conducting AEDPA review we
were not limited to the reasons the state habeas court supplied; in-
stead, the Court could imagine what theories supported or “could
have supported” the state court’s denial of habeas relief and exam-
ine whether “it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with” clearly estab-
lished federal law. Wilson v. Warden, 834 F.3d 1227, 1235 (11th Cir.
2016) (en banc) (majority opinion) (quoting Harrington v. Richter,
562 U.S. 86, 102 (2011)). But see id. at 1247–49 (Jill Pryor, J., dissent-
ing) (explaining why Richter’s standard did not apply and arguing
we should follow Premo v. Moore, 562 U.S. 115 (2011), an AEDPA
case in which the Supreme Court had looked through an
13 We review de novo a district court’s rejection of habeas relief on an inef-
fective-assistance-of-counsel claim. Pope v. Sec’y, Fla. Dep’t of Corr., 752 F.3d
1254, 1261 (11th Cir. 2014).
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14 JILL PRYOR, J., Dissenting 18-12147
unreasoned decision to a reasoned one and examined the “particu-
lar reasons why the state court rejected the claim on the merits”
(internal quotation marks omitted)).
The Supreme Court overruled our en banc decision, holding
that AEDPA “requires” a federal habeas court to look to the last
reasoned state court decision and then “train its attention on the
particular reasons—both legal and factual—why state courts re-
jected a state prisoner’s federal claims,” and then “defer[] to those
reasons if they are reasonable.” Wilson v. Sellers, 138 S. Ct. 1188,
1191–92 (2018) (emphasis added) (internal quotation marks omit-
ted); see id. at 1195–96 (“[W]e focus[] exclusively on the actual rea-
sons given by the lower state court, and we defer[] to those reasons
under AEDPA.” (emphasis added) (citing Premo, 562 U.S. at 132)).
The Court, noting that “Richter did not directly concern the issue
before [it]—whether to ‘look through’ the silent state higher court
opinion to the reasoned opinion of a lower court in order to deter-
mine the reasons for the higher court’s decision,” held that “Richter
does not control here.” Id. at 1195. Without a doubt, then, the
Court rejected Richter’s approach in cases with reasoned decisions.
Wilson controls this case. Here, as there, a reasoned Georgia
state court decision was followed by an unreasoned denial from the
Supreme Court of Georgia of a certificate of probable cause to ap-
peal. Here, as there, we must “train [our] attention on the particu-
lar reasons—both legal and factual”—why the state habeas court
rejected Mr. Pye’s ineffective-assistance-of-counsel claim and “de-
fer[] to those reasons” only, I repeat, only “if they are reasonable.”
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18-12147 JILL PRYOR, J., Dissenting 15
Id. at 1191–92. Wilson commands us to review a limited uni-
verse—the state habeas court’s seven reasons, which I described
above. So our task in this appeal consists of three steps: (1) look at
these seven reasons, (2) defer to them if they are reasonable, and
(3) if they are not, conduct a de novo review.
Reading the majority opinion, you would at first think the
majority and I agree about Wilson’s direct application to this case.
See Maj. Op. at 12–13. Turn the page, though, and the majority
opinion veers into another world entirely, one where “things go
the other way.”14 Despite Wilson’s clear dictate that we examine
the particular reasons the state habeas court actually provided “and
defer[] to those reasons if they are reasonable,” Wilson, 138 S. Ct.
at 1192 (emphasis added), and the majority’s apparent acceptance
of this rule, see Maj. Op. at 15, the majority opines that we can
“consider any potential justification” for the state court’s decision.
Maj. Op. at 16 (emphasis added). In other words, according to the
majority we can examine what “could have supported” the state
court’s decision. Richter, 562 U.S. at 102. This violates step 1,
above. And then, the majority says, AEDPA deference applies
“only [to] the state court’s resulting decision—not [to] the constit-
uent justifications for that decision.” Maj. Op. at 18–19 (emphasis
in original) (alteration adopted) (internal quotation marks omit-
ted). This violates steps 2 and 3, above. All of it violates Wilson.
14 Carroll, supra note 1, at 4.
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16 JILL PRYOR, J., Dissenting 18-12147
This feels like déjà vu. Compare Wilson, 834 F.3d at 1247–49
(Jill Pryor, J., dissenting), with id. at 1235–36 (majority opinion),
overruled sub nom. by Wilson, 138 S. Ct. at 1195–96. 15 How does
the majority opinion attempt to justify its nullification of Wilson?
In a two-part gambit.
First, the majority opinion sidesteps Wilson’s dictate that we
focus exclusively on the reasons a state court supplied by imagining
two categories of support for a state-court decision: reasons and
justifications. Reasons, the majority says, are high-level determina-
tions like “the petitioner wasn’t prejudiced by his counsel’s defi-
cient performance.” Maj. Op. at 16. Justifications, the majority says,
are something more granular—like why the petitioner was not
prejudiced. So, the majority surmises, it can marshal new justifica-
tions in support of a state habeas court’s disposition because
15 Or, even, déjà vu of déjà vu, because Wilson was not the most recent occa-
sion when I argued, unsuccessfully, to my colleagues that the Supreme Court
had already resolved an issue for us, only to have the Supreme Court overturn
and once again remind us what it has said. Compare Ovalles v. United States,
905 F.3d 1231, 1283 (11th Cir. 2018) (en banc) (Jill Pryor, J., dissenting) (ex-
plaining that the Supreme Court had already said that the “language” used in
18 U.S.C. § 924(c)’s residual clause “require[d]” a categorical approach (quot-
ing Leocal v. Ashcroft, 543 U.S. 1, 7 (2004))), with id. at 1242, 1244 (majority
opinion) (stating that the Supreme Court hadn’t “provide[d] a detailed expla-
nation” when it said in Leocal that the § 924(c)’s language “requires” a cate-
gorical approach, and holding that a conduct-based approach applied instead),
abrogated by United States v. Davis, 139 S. Ct. 2319, 2328 (2019) (reiterating
that “It’s not even close; the statutory text [of § 924(c)’s residual clause] com-
mands the categorical approach” (citing Leocal, 543 U.S. at 7)).
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18-12147 JILL PRYOR, J., Dissenting 17
justifications are different from reasons, and Wilson said only that
we must examine the state court’s reasons.
This distinction between reasons and justifications is nonex-
istent in the caselaw, and that should come as no surprise. Justifica-
tions are not different from reasons, they are reasons. Black’s Law
Dictionary defines “justification” as “[a] lawful or sufficient reason
for one’s acts or omissions.” Justification, Black’s Law Dictionary
(11th ed. 2019) (emphasis added). Merriam-Webster defines the
term to mean “the showing in court of a sufficient lawful reason
why a party charged or accused did or failed to do that for which
he is called to answer,” or “something that constitutes such a rea-
son.” Justification, Merriam-Webster Unabridged (emphasis
added). The Oxford-English Dictionary defines “justification” as
“The action of or result of showing something to be just, right, or
reasonable; vindication. Also: the grounds on which this is done; a
justifying circumstance; a good reason.” Justification, Oxford-Eng-
lish Dictionary (emphasis added).
So if a federal court is tasked with reviewing only the state
court’s reasons, so too is it tasked with reviewing only its justifica-
tions. They are one and the same.
Second, the majority opinion casts aside, or diminishes to
meaninglessness, its admission that “Wilson instructs us to ‘re-
view[] the specific reasons given by the state court and defer[] to
those reasons if they are reasonable.’” Maj. Op. at 15 (quoting Wil-
son, 138 S. Ct. at 1192). Now, the majority opines, “only” the deci-
sion, id. at 18–19 (emphasis in original)—the “you win or you lose”
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18 JILL PRYOR, J., Dissenting 18-12147
on the claim—gets AEDPA deference. Maybe the majority is shift-
ing gears altogether, arguing—inconsistently with its reasons ver-
sus justifications nonsense—that we do not defer to reasons at all,
only to decisions. I think, though, that the majority is saying some-
thing more—that even if we review a state court’s reasons, and
even if those reasons represent an “unreasonable application of fed-
eral law” or an “unreasonable determination of the facts,” 28 U.S.C.
§ 2254(d)(1), (2), the state court’s decision nonetheless is worthy of
deference so long as we can imagine theories that “‘could have sup-
ported’” the decision. Maj. Op. at 19–20 (emphasis in original)
(quoting Richter, 562 U.S. at 102). Or, put another way, the major-
ity opines that although we can focus “‘exclusively on the actual
reasons given by the lower state court, and . . . defer[] to those rea-
sons under AEDPA” if they are reasonable, if the actual reasons
given are unreasonable, then we should revert to Richter, imagine
reasons that would support the ultimate decision, and hold fast to
AEDPA deference. Wilson, 138 S. Ct. at 1195–96; see Maj. Op. at
25 n.7. Either way, I’m confounded.
If the majority opinion is correct, then Wilson’s look-
through rule does no work. Whether the majority is saying that we
defer only to the ultimate decision of the lower state court, or that
we defer to the ultimate decision despite any wrong-beyond-fair-
minded-disagreement reasoning, examining a state court’s reason-
ing would be a meaningless, make-work exercise. That is because
we could always skip that step and start making up reasons to sup-
port the state court’s decision. This Court’s en banc majority in
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18-12147 JILL PRYOR, J., Dissenting 19
Wilson would have been correct because federal courts would
have no need to train their attention on a state court’s reasons
when they could just imagine their own, perhaps better, reasons
why a claim would fail. In the same vein, the Supreme Court would
have had no occasion to take the case, and Wilson would not exist.
That seems to be the world the majority is living in, as it
clings to Richter16 and expressly relies on the Court’s reasoning in
that case, see Maj. Op. at 19–20 (reviving the “could have sup-
ported” standard)—a case that simply “does not control” here. Wil-
son, 138 S. Ct. at 1195. 17 And there is more. The majority opinion
16 Recently, in a concurring opinion in a federal habeas case, Judge Newsom
opined that “there may also be some tension between Richter and the
Court’s . . . more recent decision in” Wilson, “which—albeit in a different con-
text—seemed to privilege a state court’s ‘reasons’ over its ‘decision.’” Hayes
v. Sec’y, Fla. Dep’t of Corr., 10 F.4th 1203, 1215 n.1 (11th Cir. 2021) (Newsom,
J., concurring). Although at the time he wrote his concurrence in Hayes Judge
Newsom explained that he would “leave for another day and for those higher
on the food chain” how to resolve the tension he perceived between Supreme
Court decisions, id., it appears that now he has decided we as an inferior Court
can overlook the Supreme Court’s discussion and rejection of Richter not in a
“different context,” but in the very same context we have here. Id.17 Contrary to the majority opinion’s characterization of my position, see Maj.
Op. at 23–24, I do not suggest Wilson held that a state court’s decision is not
entitled to AEDPA deference and that somehow only the reasons in support
of that decision are. That view of Wilson cannot be squared with Richter. Ra-
ther, Wilson says that when a state court provides reasons, we give AEDPA
deference to its decision by examining whether the reasons supporting the de-
cision were reasonable. When a state court provides no reasons, we have no
reasons to review, and Richter’s rule controls.
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20 JILL PRYOR, J., Dissenting 18-12147
gives short shrift to the entirety of § 2254(d). The majority empha-
sizes that AEDPA asks whether a state court’s adjudication of a
claim “resulted in a decision.” Maj. Op. at 18. From there, the ma-
jority extrapolates that only—or regardless of flaws in a decision’s
reasoning—a court’s “resulting decision” should receive deference.
The majority’s reading misses half of the text and context. Here is
the rest of the story. Under subsection (d), we cannot grant a writ
of habeas corpus on a claim a state court decided on the merits “un-
less the adjudication of the claim . . . resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly es-
tablished Federal law,” or “resulted in a decision that was based on
an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)
(emphasis added). In tasking federal courts with determining
whether a decision involved, or was based on, certain egregious
errors, the statute directs us to examine how, or why—that is to
say, the reasons, if any, for the decision. And those reasons should
rule the day “unless” they were “unreasonable,” id.—that is, unless
they are unworthy of the deference the statute confers upon them.
If the how and the why were unreasonable, the “unless” of the stat-
ute is satisfied, no further deference is authorized or warranted.
Nor, to be clear, do I suggest that we can never consider reasons supporting a
state habeas court’s decision that the state court did not provide. If we conduct
a de novo review of the record, either by assuming that standard applies or
after concluding that the state court’s decision does not withstand AEDPA def-
erence, then we may marshal our own reasons why a petitioner is not entitled
to relief.
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18-12147 JILL PRYOR, J., Dissenting 21
This is what Wilson says in instructing federal courts to “de-
fer[] to [a state court’s] reasons if they are reasonable.” Wilson,
138 S. Ct. at 1191–92 (emphasis added). If they are not, the Su-
preme Court’s body of AEDPA cases shows, we are “free to pro-
vide habeas relief.” 18 See, e.g., Wiggins v. Smith, 539 U.S. 510, 534
(“In deferring to counsel’s decision not to pursue a mitigation case
despite their unreasonable investigation, the Maryland Court of
Appeals unreasonably applied Strickland. Furthermore, the court
partially relies on an erroneous factual assumption. The require-
ments for habeas relief established by 28 U.S.C. § 2254(d) are thus
satisfied.”).
Building on the shaky foundation of its feeble reasons-ver-
sus-justifications distinction, outdated view of Richter’s scope, and
partial textual analysis, the majority seeks to buttress its defer-
ence-at-every-turn holding with our previous decisions. But those
decisions stand only for the wholly unremarkable principle that a
state court’s decision that otherwise is reasonable is not unreason-
able simply because it fails to discuss every fact or argument a pe-
titioner advances. Maj. Op. at 16–17 (citing Lee v. Comm’r, Ala.
18 Wiggins v. Smith, 539 U.S. 510, 542 (2003) (Scalia, J., dissenting) (character-
izing the Court’s earlier decision in Williams v. Taylor, 529 U.S. 362 (2000):
“Williams had surmounted § 2254(d)’s bar to habeas relief because we held
that the Virginia Supreme Court’s analysis with respect to . . . preju-
dice . . . was both ‘contrary to,’ and ‘an unreasonable application of,’ our
clearly established precedents,” so the Court was “free to provide habeas re-
lief . . . .” (emphasis omitted)).
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22 JILL PRYOR, J., Dissenting 18-12147
Dep’t of Corr., 726 F.3d 1172 (11th Cir. 2013)); Meders v. Warden,
Ga. Diagnostic Prison, 911 F.3d 1335 (11th Cir. 2019)). It does not
follow from this principle, however, that we can rely on and give
deference to reasons never mentioned by the state habeas court to
conclude that the decision withstands AEDPA deference. The for-
mer merely reflects that we do not “engage[] in a line-by-line cri-
tique of the state court’s reasoning.” Meders, 911 F.3d at 1350. The
latter violates Wilson. See id. at 1349 (“[Wilson’s holding] does not
mean we are to flyspeck the state court order or grade it. What it
means is we are to focus not merely on the bottom line ruling of
the decision but on the reasons, if any, given for it.” (emphasis
added)). 19
19 No matter how many times the majority opinion says so, Meders does not
support its reading of Wilson. The language from Meders the majority opinion
cites, see Maj. Op. at 16, 21–22, 25, all concerned this same simple idea: that
we do not flyspeck a state court’s opinion. And, of course, how we did things
before the Supreme Court decided Wilson in 2018, see Maj. Op. at 16–17, 20–
21 (citing cases that pre-date Wilson), does not answer how we do things in
light of Wilson.
The majority opinion also relies heavily on this Court’s post-Wilson decision
in Whatley v. Warden, 927 F.3d 1150 (11th Cir. 2019). There, in a case that
arose in a different procedural posture than this case and Wilson, a panel stated
that “our review is not limited to the reasons the [state] [c]ourt gave in its
analysis,” id. at 1178, and that we “instead focus on [the state court’s] ultimate
conclusion,” id. at 1182 (internal quotation marks omitted). The Whatley
panel never mentioned Wilson. Nor did it mention this Court’s earlier post-
Wilson decision in Meders, 911 F.3d at 1349, where we correctly applied Wil-
son. My former colleague Beverly Martin asked this Court to rehear Whatley
en banc because it conflicted with Wilson and Meders. See Whatley v.
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18-12147 JILL PRYOR, J., Dissenting 23
The majority opinion quotes our decision in Lee v. Commis-
sioner for the proposition that we may “examine what other ‘im-
plicit findings’ the state court could have made in its denial of a
federal claim.” Lee, 726 F.3d at 1223; see Maj. Op. at 16–17. Di-
vorced from the context of the lengthy Lee opinion, this language
may seem alluring. But in Lee, a case we decided before the Su-
preme Court decided Wilson, the petitioner argued that the state
postconviction court’s decision involved an unreasonable applica-
tion of clearly established law “because that opinion did not men-
tion or discuss every relevant fact or argument he offered in sup-
port of his . . . claim.” Lee, 726 F.3d at 1210–11. We held, as we
have numerous times before and since, that a state court is not re-
quired to show its work. Id. at 1211–12. We further explained that
there may be some “implicit findings” of a state court “which,
though unstated, are necessary to that ruling.” Id. at 1217 (empha-
sis added) (internal quotation marks omitted). Those necessary im-
plicit findings, we said, “are entitled to deference under § 2254(d).”
Id. (internal quotation marks omitted). We gave as an example a
Batson challenge: if we know from the record that defense counsel
failed to rebut the prosecutor’s race-neutral explanation for a strike
Warden, 955 F.3d 924, 924–27 (11th Cir. 2020) (Martin, J., dissenting from de-
nial of reh’g en banc). She was right. In any event, because Whatley conflicted
with Meders, under our prior panel precedent rule, only Meders is good law
on this point. See United States v. Levy, 379 F.3d 1241, 1245 (11th Cir. 2004)
(“[W]here there is conflicting prior panel precedent, we follow the first in
time.”).
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24 JILL PRYOR, J., Dissenting 18-12147
and that the trial court ultimately ruled the strike proper, we can
infer “that the trial court implicitly found the prosecutor’s race-
neutral explanations to be credible, thereby completing step three
of the Batson inquiry.” Id. at 1220 (internal quotation marks omit-
ted). That necessary finding, though implicit, is entitled to AEDPA
deference. Id.
The majority opinion extrapolates from Lee that it can con-
sider unlimited reasons unstated by state habeas courts. But even
setting aside the illogic of this extrapolation—that because we
should not flyspeck state court opinions, we can violate Wilson’s
express dictates—the reasons the majority opinion invents to prop
up the state habeas court’s decision were in no way “necessary” to
the state habeas court’s ruling. See, e.g., Maj. Op. at 38 n.14 (citing
the supposed lack of evidence corroborating affidavit testimony, a
reason the state habeas court did not provide and that is not neces-
sary to its rejection of the affidavits), 53–54 & n.22 (holding that it
was reasonable for the state habeas court to conclude that evidence
to rebut future dangerousness would not have been substantially
likely to change the outcome of Mr. Pye’s sentencing “for three
reasons,” two of which the state habeas court did not mention, and
were not necessary to the state court’s conclusion). Thus, they are
not “implicit findings” of the type Lee contemplated. To read Lee
any more broadly—that is, to read Lee to permit what the majority
opinion undertakes—is to violate Wilson.
The majority opinion laments that Wilson’s rule as I see it
“would incentivize state courts to issue unreasoned, summary
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18-12147 JILL PRYOR, J., Dissenting 25
decisions as a means of guaranteeing maximum AEDPA defer-
ence.” Maj. Op. at 22. Ironically, the en banc majority in Wilson
resisted the look-through rule on the opposite ground, that it “does
nothing less than impose an opinion-writing standard.” Wilson,
834 F.3d at 1238–39. Setting that aside, “the matter is empirical,”
and the majority opinion has no data to back up its concern. Wil-
son, 138 S. Ct. at 1197. But to the extent such an incentive exists, it
has existed since the Supreme Court decided Richter in 2011. See
Richter, 562 U.S. at 99 (“The issuance of summary dispositions in
many collateral attack cases can enable a state judiciary to concen-
trate its resources on the cases where opinions are most needed.”).
Further, state courts stand to be reversed by more than one court,
and on direct review it seems a state court’s incentive would be to
show its work. Even as it pertains to federal review, I trust that state
court judges will value thoroughness for the parties’ and the pub-
lic’s sake. And setting aside unsupported empirical matters, defer-
ring to the reasons a state court supplied “is more likely to respect
what the state court actually did” than deferring to reasons the
court never supplied and perhaps never even considered. Wilson,
138 S. Ct. at 1197. 20
20 The majority opinion also notes that “any state court’s written opinion is
necessarily ‘partial.’” Maj. Op. at 22. Undoubtedly. But this is just another way
to say that a court is not required to discuss every fact or argument. It does
not answer the question here, which is how we apply AEDPA deference to
“what the state court actually did.” Wilson, 138 S. Ct. at 1197.
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26 JILL PRYOR, J., Dissenting 18-12147
Lastly, the majority says my position conflicts with “the
overwhelming consensus position” of our sister circuits. Maj. Op.
at 21. In support, the majority opinion cites a recent Fifth Circuit
case collecting (the majority fails to mention) pre-Wilson decisions
of the First, Second, Sixth, Seventh, Eighth, and Tenth Circuits, as
well as one from our Court. Sheppard v. Davis, 967 F.3d 458, 467
n.5 (5th Cir. 2020). 21 Of course, we are obliged to follow Wilson,
as intervening Supreme Court precedent, not decisions that pre-
dated it.
Just as importantly, the majority opinion fails to
acknowledge that several of these circuits, and others whose deci-
sions Sheppard did not cite, have refined their approach in the wake
of Wilson. See, e.g., Porter v. Coyne-Fague, 35 F.4th 68, 74–75 (1st
Cir. 2022) (citing Wilson’s requirement that federal courts defer to
the “specific reasons” given by the state court, examining those rea-
sons, concluding that they did not withstand AEDPA deference,
and applying de novo review) 22; Scrimo v. Lee, 935 F.3d 103, 111–
21 To be sure, the Fifth Circuit, pre-Wilson, applied the rule the majority ap-
plies today. In Sheppard, the Fifth Circuit assumed without deciding that Wil-
son overruled its prior precedent. 967 F.3d at 467–68. The majority opinion
does not mention this nuance, either.
22 The majority opinion correctly notes that in Porter the First Circuit “con-
sidered whether there was another ‘possible explanation of the state court’s
decision.’” Maj. Op. at 26–27 n.9 (quoting Porter, 35 F.4th at 79). But that was
only because, as the court noted at the outset, the “relevant passages of the
state court’s opinion are terse to the point of obscuring the precise mechanics
of its reasoning” and because of their ambiguity could be read in two different
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18-12147 JILL PRYOR, J., Dissenting 27
12 (2d Cir. 2019) (“consider[ing] the rulings and explanations of the
trial judge,” citing Wilson)23; Coleman v. Bradshaw, 974 F.3d 710,
719 (6th Cir. 2020) (citing Wilson and stating that “AEDPA requires
this court to review the actual grounds on which the state court
ways. Porter, 35 F.4th at 77. The court nevertheless concluded that “the state
court decision—depending on how it is read—either unreasonably applies Bat-
son’s second step or is premised on an unreasonable determination of the
facts,” so “there is no need to identify which of these roads the state court
traveled because both of them lead to the same destination.” Id. “Either way,
the state supreme court’s decision is not entitled to deference under AEDPA.”
Id. The Porter court evaluated the state court’s reasoning under both alterna-
tive readings of that reasoning before proceeding to de novo review. That is
not at all akin to the approach the majority opinion advances here.
23 The majority opinion’s rebuttal to my citation of Scrimo misses the mark
as well. The majority opinion suggests that in its effort to determine whether
the state court’s order withstood AEDPA deference, the Second Circuit in
Scrimo looked for other reasons why the state court may have excluded chal-
lenged testimony. See Maj. Op. at 26–27 n.9. Not so. The Scrimo court asked
“whether the [w]itnesses’ testimony could have been excluded on other
grounds” because a negative answer to that question was essential to meet the
petitioner’s burden on federal habeas to prove that the trial court’s exclusion
of the testimony had a substantial and injurious effect or influence on the
jury’s verdict. Scrimo, 935 F.3d at 115–16 (citing Brecht v. Abrahamson,
507 U.S. 619, 638 (1993)). The state trial court ruling that the Second Circuit
was reviewing had not addressed whether the error was harmless, so no
AEDPA deference applied to the harmlessness determination. See Brown v.
Davenport, 142 S. Ct. 1510, 1517 (2022) (requiring a federal habeas petitioner
to satisfy Brecht and AEDPA only “[a]fter a state court determines that an er-
ror at trial did not prejudice a criminal defendant”).
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28 JILL PRYOR, J., Dissenting 18-12147
relied”) 24; Winfield v. Dorethy, 956 F.3d 442, 454 (7th Cir. 2020)
(“Having found the state court’s ‘specific reasons’ for denying
24 The majority opinion notes that one Sixth Circuit judge in a later opinion
characterized the Coleman decision as not “constrain[ing] its analysis to the
exact reasons the state court discussed.” Maj. Op. at 26–27 n.9 (quoting
Thompson v. Skipper, 981 F.3d 476, 485 (6th Cir. 2020) (Nalbandian, J., con-
curring)). Judge Nalbandian’s reading of Coleman, for which he did not secure
a majority, does not convince me that Sixth Circuit does not share my view of
Wilson.
In Coleman, the petitioner pursued a Brady claim based on the prosecution’s
alleged failure to disclose exculpatory evidence that another person, Sapp,
had confessed to the murder for which Coleman had been convicted. Cole-
man, 974 F.3d at 716. In support, Coleman pointed to a letter from Sapp in
which he admitted to a killing and an affidavit Coleman’s postconviction
counsel prepared for Sapp in which Sapp admitted to killing the victim. Id. at
717. The state court in Coleman rejected the petitioner’s Brady claim be-
cause the affidavit lacked credibility and the letter, which did not name the
victim, was too indefinite to be material. Id. at 718. Reviewing the state
court’s decision, the Coleman panel first concluded that the state habeas
court “reasonably determined that the Sapp letter was not material.” Id. at
719. This was precisely the reason the state court had employed as to the let-
ter.
Second, addressing the affidavit, the Coleman panel noted, as a preliminary
matter, that “Coleman does not contend that the state should have disclosed
the Sapp affidavit.” Id. The affidavit was not Brady material because it was
prepared by Coleman’s counsel. Rather, the affidavit was “evidence of al-
leged Brady evidence (i.e., evidence of Sapp’s [] confession).” Id. The panel
then addressed the state court’s determination “that the Sapp [a]ffidavit
lacked any credibility” and “the necessary implication . . . that Coleman
failed to establish that Sapp’s [] confession ever occurred.” Id.
The Coleman panel’s preliminary observation that the affidavit was not itself
Brady evidence was merely a point of clarification (that the evidence
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18-12147 JILL PRYOR, J., Dissenting 29
relief, the next question is whether that explanation was reasonable
thereby requiring our deference.” (citing Wilson, 138 S. Ct. at
1188)) 25; see also Richardson v. Kornegay, 3 F.4th 687, 697–98 (4th
Cir. 2021) (“Sitting as a federal habeas court, we must identify ‘the
particular reasons—both legal and factual—why state courts re-
jected a state prisoner’s federal claims.’ And the particular reason
for rejecting this claim was that the trial court did not abuse its dis-
cretion in excluding [the expert witness’s] testimony.” (quoting
Wilson, 138 S. Ct. at 1191–92)) 26; Kipp v. Davis, 971 F.3d 939,
allegedly was evidence of Brady material, not Brady material itself); it was
not a reason why the state court reasonably rejected Coleman’s Brady claim.
And the panel’s observation that if the affiant was not credible, then what he
professed was not true, is the same kind of necessary “implicit finding[]” our
Court has long swept within the purview of AEDPA deference. See Lee,
726 F.3d at 1217.
In sum, Coleman does not suggest that a federal court may marshal any rea-
sons that “could have supported” a state court’s decision in deferring to that
decision.
25 The Seventh Circuit in Winfield did not, as the majority opinion says, “de-
cline[] to decide exactly how § 2254(d) applied.” Maj. Op. at 26–27 n.9. The
court said exactly how § 2254(d) applied, in the language I have quoted above.
Rather, the court accepted for the sake of argument that the district court cor-
rectly concluded that AEDPA deference did not apply, holding that the district
court erred on a different ground. Winfield, 956 F.3d at 455.
26 Contrary to the majority’s claim that Richardson supports going beyond
the reasons a state court articulates, see Maj. Op. at 26–27 n.9, in Richardson
the Fourth Circuit hewed not only to the state court’s “particular reason”—
no abuse of discretion in excluding the expert’s testimony—but also to the
state court’s “rationale supporting finding no abuse of discretion,” which the
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30 JILL PRYOR, J., Dissenting 18-12147
948–60 (9th Cir. 2020) (reviewing whether the stated reasons of a
state habeas court were reasonable, concluding they were not, ap-
plying de novo review, and granting petitioner relief) 27. Respect-
fully, then, the great weight of authority is not at all in the majority
opinion’s favor. 28 Quite to the contrary.
Richardson court enumerated and discussed, without seeking reasons outside
the scope of the state court’s order. Richardson, 3 F.4th at 697–98.
27 The majority’s suggestion that although the Ninth Circuit “has employed
[my] sweeping rule,” it has done so for an entirely different reason, Maj. Op.
at 26–28 n.9, overlooks the most basic of points: Wilson has subsumed pre-
Wilson reasoning. The Ninth Circuit has recognized as much. See Kipp,
971 F.3d at 953 n.10 (“The Warden argues that there were several additional
[reasons why the state court’s decision was correct] . . . but we may look only
to the reasoning of the California Supreme Court.” (citing Wilson, not a pre-
vious line of Ninth Circuit cases)).
28 The Third Circuit has not cited Wilson in a precedential opinion. But in
unpublished opinions, it has applied Wilson the way I do here. See, e.g., Gibbs
v. Admin’r N.J. State Prison, 814 F. App’x 686, 689–91 & n.6 (3d Cir. 2020)
(unpublished) (citing Wilson and deferring only to the two reasons why the
state habeas court concluded counsel had not performed deficiently and the
one reason why it concluded there was no prejudice: (1) that either counsel
was unaware of allegedly biased jurors until after trial and so did not defi-
ciently fail to object during voir dire; (2) or, alternatively, if counsel knew of
the biased jurors, those jurors could have been an advantage to the defense
and so any failure to object during voir dire was strategic; and (3) the allega-
tions of bias were too vague to amount to sufficient evidence of bias). The
same can be said of the Tenth Circuit. See Straub v. Goodrich, 842 F. App’x
263, 267–69 (10th Cir. 2021) (unpublished). The Eighth Circuit has not cited
Wilson in any reported case.
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18-12147 JILL PRYOR, J., Dissenting 31
This side of the mirror, Wilson holds true: as a federal court
constrained by AEDPA, we must focus exclusively on the reasons
actually given by the state habeas court and defer to those reasons,
and those reasons alone, under AEDPA. If those reasons are “that
wrong,” Maj. Op. at 29 (emphasis in original), then the decision is
unworthy of AEDPA deference. 29
29 And no, I do not seek to “camouflage the breadth” of my position on def-
erence to the reasons a state court supplied. See Maj. Op. at 23–24 n.6. Nor do
I “insist[] that Wilson changed how AEDPA applies to all reasoned decisions,
regardless of procedural posture,” or that “Wilson sub silentio revolutionized
AEDPA’s application to all state-court decisions.” Id. Wilson expressly (not
sub silentio) reminded us (rather than revolutionized) how AEDPA applies to
reasoned decisions, characterizing the inquiry as “straightforward”:
Deciding whether a state court’s decision “involved” an unrea-
sonable application of federal law or “was based on” an unrea-
sonable determination of fact requires the federal habeas court
to train its attention on the particular reasons—both legal and
factual—why state courts rejected a state prisoner’s federal
claims, and to give appropriate deference to that decision.
This is a straightforward inquiry when the last state court to
decide a prisoner’s federal claim explains its decision on the
merits in a reasoned opinion. In that case, a federal habeas
court simply reviews the specific reasons given by the state
court and defers to those reasons if they are reasonable. We
have affirmed this approach time and time again.
Wilson, 138 S. Ct. at 1191–92 (emphasis added) (internal quotation marks and
citations omitted). Applying that logic to a reasoned decision layered beneath
an unreasoned one, Wilson confirmed that the approach it had affirmed “time
and time again” applied in the “look through” context. Id. at 1192. It is the
Richter “could have supported” approach that is the exception to the rule,
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32 JILL PRYOR, J., Dissenting 18-12147
Before leaving my discussion of AEDPA, I echo Judge Jor-
dan’s concerns about the majority opinion’s “clarif[ication],” Maj.
Op. at 13, of the interplay between § 2254(d)(2), which permits a
federal court to grant a state prisoner a writ of habeas corpus if the
relevant state court decision was “based on an unreasonable deter-
mination of the facts in light of the evidence presented in the State
court proceeding,” and § 2254(e)(1), which provides, “In a proceed-
ing instituted by an application for a writ of habeas corpus by a per-
son in custody pursuant to the judgment of a State court, a deter-
mination of a factual issue made by a State court shall be presumed
to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” See
Jordan Concurring Op. at 1. Despite the Supreme Court’s having
repeatedly dodged the question of the precise interplay between
the two statutes, a split among the circuits in how to interpret
them, and no briefing or argument from either party on the ques-
tion, the majority opinion—citing to a concurrence written by its
author—declares that habeas relief is warranted only if a petitioner
proves both (1) by clear and convincing evidence that at least one
individual state court fact-finding was erroneous and (2) that the
because it applies only when there is no reasoned decision to look to. It is hard
to imagine how the Supreme Court could have been any clearer. Would we
expect it to have thought to specify that we are not free to add “justifications”
of our own devising to the “particular” and “specific reasons” to which we
defer if reasonable? I think not. The majority opinion’s attempt to overcom-
plicate the inquiry smacks of obfuscation.
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18-12147 JILL PRYOR, J., Dissenting 33
error or errors were important enough that the state court’s deci-
sion was based on the finding or findings and was unreasonable as
a result. See Maj. Op. at 14–15 (citing Hayes v. Sec’y, Fla. Dep’t of
Corr., 10 F.4th 1203, 1224–25 (11th Cir. 2021) (Newsom, J., concur-
ring)).
Given the irregularity of deciding an issue of such im-
portance without any notice to or briefing by the parties, this
should strike anyone paying attention as odd at best. See United
States v. Sineneng-Smith, 140 S. Ct. 1575, 1579, 1581 (2020)
(“[C]ourts normally decide only questions presented by the par-
ties. . . . No extraordinary circumstances justified the panel’s take-
over of the appeal.” (alteration adopted) (internal quotation marks
omitted)). Worse, the majority opinion uses its newly crafted rule
to deny Mr. Pye relief, even though he had no chance to argue
against it or that he should prevail under it. This is wrong.
Nevertheless, I believe Mr. Pye should prevail even if the
majority opinion’s reading of the interplay between § 2254(d)(2)
and (e)(1) is correct. So I will assume only for purposes of this dis-
sent that the majority opinion is correct on this point.30
30 The panel opinion in this case, following the lead of previous decisions of
our Court that did not define precisely the interplay between the two subsec-
tions, explained that habeas relief is unwarranted unless it is, in relevant part,
“based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding[s]” and that state court factual deter-
minations “are entitled to a presumption of correctness unless the petitioner
rebuts that presumption by clear and convincing evidence.” Pye v. Warden
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34 JILL PRYOR, J., Dissenting 18-12147
Even so, the majority opinion’s construction of the two sub-
sections of § 2254, when paired with its backwards reading of Wil-
son, produces disastrous results. That is because, instead of asking
whether any of the stated reasons supporting the state habeas
court’s decision represented a clearly erroneous finding of fact and
then asking whether those reasons were sufficiently important to
make an order “based on” them “unreasonable,” we as federal
Ga Diagnostic Prison, 853 F. App’x 548, 558 (11th Cir. 2021) (internal quota-
tion marks omitted). We elaborated that relief is not warranted unless a peti-
tioner proves that “the state court’s findings lacked even fair support in the
record.” Id. at 559 (quoting Rose v. McNeil, 634 F.3d 1224, 1241 (11th Cir.
2011)); see also, e.g., Jenkins v. Comm’r, Ala. Dep’t of Corr., 963 F.3d 1248,
1263–64 (11th Cir. 2020) (citing Rose in an AEDPA case); Smith v. Comm’r,
Ala. Dep’t of Corr., 924 F.3d 1330, 1336–37 (11th Cir. 2019) (same); Terrell v.
GDCP Warden, 744 F.3d 1255, 1268 (11th Cir. 2014) (same).
The majority opinion, pointing out that Rose applied pre-AEDPA law, rules
that in passing AEDPA Congress “eliminated and replaced the fair-support-in-
the-record standard” Maj. Op. at 14. Now, the majority opinion says, the
standard is § 2254(e)(1)’s “presumed to be correct” absent “clear and convinc-
ing evidence” standard. Id. (internal quotation marks omitted). Although cor-
rect that Rose was pre-AEDPA, the majority opinion fails to explain how
Rose’s standard, when articulated alongside the “clear and convincing” burden
of § 2254(e)(1), is materially different. If a petitioner proves that a factual de-
termination lacks any fair support in the record, how has he not also proved
by clear and convincing evidence that the factual determination was incorrect?
Put another way, if the ultimate question is whether a petitioner has “show[n]
that the state court’s decision is so obviously wrong that its error lies beyond
any possibility for fairminded disagreement,” Shinn v. Kayer, 141 S. Ct. 517,
523 (2021) (emphasis added) (internal quotation marks omitted), then how is
it different to inquire whether fair support in the record is lacking? I fail to see
the daylight between the two.
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18-12147 JILL PRYOR, J., Dissenting 35
courts can bury reasons that flunk AEDPA deference under a
mountain of unstated and un-relied-upon reasons that would with-
stand AEDPA deference. And then, even if one or a handful of the
state court’s reasons were based on clearly erroneous fact-findings,
amongst any number of made-up reasons that could have sup-
ported the state court’s decision, those findings will never be prom-
inent enough to meet the majority opinion’s test. 31
I have journeyed far only to return to where I began:
AEDPA requires that we must be highly deferential of state court
decisions. In cases such as this one, where the state habeas court
provided a reasoned decision, we review exclusively the reasons
the state habeas court gave for denying relief, deferring to those
reasons under § 2254(d). If those reasons fail § 2254(d)’s test, then
we are “unconstrained by § 2254’s deference and must undertake a
de novo review of the record.” Daniel v. Comm’r, Ala. Dep’t of
Corr., 822 F.3d 1248, 1260 (11th Cir. 2016) (internal quotation
marks omitted); see also Cooper v. Sec’y, Dep’t of Corr., 646 F.3d
1328, 1353 (11th Cir. 2011) (“When a state court unreasonably
31 Of course, where Richter’s “could have supported” standard does ap-
ply—that is, when there is no reasoned state court decision to review—federal
courts may do precisely the kind of hypothetical inquiry the majority opinion
undertakes in this case. There are reasons for this difference: the “principles of
federalism and comity that underlie federal collateral review.” Wilson,
834 F.3d at 1248 (Jill Pryor, J., dissenting). When a state court gives reasons for
denying a state prisoner postconviction relief, a federal court should not give
the back of its hand to the state court’s given reasons. When a state court does
not give reasons, a federal court has no reasons to respect, only the judgment.
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36 JILL PRYOR, J., Dissenting 18-12147
determines the facts relevant to a claim, we do not owe the state
court’s findings deference under AEDPA, and we apply the
pre–AEDPA de novo standard of review to the habeas claim.” (in-
ternal quotation marks omitted)).
In the next section, I explain why the state habeas court’s
decision was unreasonable under § 2254(d), and then in the follow-
ing section, I conduct a de novo review of the merits of Mr. Pye’s
penalty phase ineffective-assistance-of-counsel claim.
III. ANALYSIS UNDER AEDPA
Mr. Pye claims that his trial counsel was ineffective in failing
to investigate and present evidence about his traumatic childhood
and adolescence, mental health problems, and low intellectual
functioning. He also claims that his counsel failed to investigate and
present evidence to rebut the State’s claim of future dangerousness.
And, he argues, there is a reasonable probability that, had the jury
heard this evidence, at least one juror would have voted against a
death sentence. See O.C.G.A. § 17-10-31(c).
Mr. Pye was required to show that his trial counsel rendered
deficient performance and that the deficient performance preju-
diced his defense. Strickland, 466 U.S. at 686, 688, 694. Counsel’s
deficient performance causes prejudice when “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “A rea-
sonable probability is a probability sufficient to undermine confi-
dence in the outcome.” Id. In determining whether there is a
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18-12147 JILL PRYOR, J., Dissenting 37
reasonable probability of a different result, “we consider ‘the total-
ity of the available mitigation evidence—both that adduced at trial,
and the evidence adduced in the habeas proceeding’—and ‘re-
weig[h] it against the evidence in aggravation.’” Porter v.
McCollum, 558 U.S. 30, 41 (2009) (alteration in original) (quoting
Williams v. Taylor, 529 U.S. 362, 397–98 (2000)). Because AEDPA
applies to Mr. Pye’s claim, the specific question we must ask is
whether the state habeas court’s determination that he failed to
demonstrate prejudice “involved” or was “based on,” § 2254(d)(1),
(2), an “error [that] lies beyond any possibility for fairminded disa-
greement.” Shinn v. Kayer, 141 S. Ct. 517, 520 (2020) (internal quo-
tation marks omitted).
Training our attention on the reasons the state habeas court
actually supplied in its no-prejudice determination, we must re-
view these seven reasons: (1) there is no reasonable probability that
evidence of low intellectual functioning would have swayed one
juror; (2) there is no reasonable probability that evidence rebutting
the State’s case of future dangerousness would have swayed one
juror because prison records showed instances of insubordination
and aggression; and, as to evidence of Mr. Pye’s family background,
the evidence would not have swayed one juror because (3) the af-
fidavit testimony was of little value due to artful drafting;
(4) Mr. Pye’s family was unwilling to cooperate at the time of trial;
(5) there was no nexus between Mr. Pye’s background and the
crime he committed; (6) the extensive aggravating evidence; and
(7) that because Mr. Pye was 28 at the time of the crimes, the
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38 JILL PRYOR, J., Dissenting 18-12147
aggravating evidence was extensive, and the evidence of his guilt
was overwhelming, remorse was likely to play better than excuses.
Several of these reasons were an unreasonable application of
clearly established law or represented an unreasonable determina-
tion of facts in light of the state court record. See Pye v. Warden
Ga. Diagnostic Prison, 853 F. App’x 548 (11th Cir. 2021). Without
reiterating everything in the panel opinion, and because the unrea-
sonableness of three reasons in particular renders the state court’s
decision unworthy of AEDPA deference, I will limit my discussion
in this section to reasons 3, 4, and 7.
A. Value of affidavit testimony on mitigation
I begin with reason number 3. The state habeas court gave
two reasons for discounting the mitigating evidence in the affidavit
testimony Mr. Pye’s state postconviction counsel amassed. First,
the court said, postconviction affidavits usually are unpersuasive,
in part because they are artfully drafted long after the fact. Second,
the court opined that the affidavits in this case reflected artful draft-
ing because a few of them contained perceived inconsistencies. I
will take these in reverse order.
The state habeas court’s finding that the affidavits in this
case reflected artful drafting due to inconsistencies it perceived was
unreasonable in light of the record—or, as the majority sometimes
says, “clearly and convincingly erroneous.” See, e.g., Maj. Op. at
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18-12147 JILL PRYOR, J., Dissenting 39
37. 32 The state habeas court focused on four mitigation affidavits.
The first affidavit was by Mr. Pye’s brother, Curtis Pye. The court
recounted that “Curtis Pye testified . . . ‘No one talked to
me . . . before [Mr. Pye’s] trial. Johnny Mostiler and his assistant
Dewey [Yarbrough] know me . . . He didn’t get in touch with me.’”
Doc. 20-40 at 65 (purporting to quote Curtis Pye’s affidavit). “How-
ever, Mr. Mostiler’s billing records in Petitioner’s case reflect that
Mr. Mostiler interviewed Curtis Pye for one hour approximately
one month prior to trial.” Id. The ellipses are the state court’s, not
mine.
In concluding that Curtis had apparently lied in his affidavit
about his contact with Mr. Mostiler, the state habeas court omitted
with ellipses a key portion of Curtis’s testimony. Curtis did not tes-
tify that no one talked to him before Mr. Pye’s trial—the contradic-
tion the state habeas court purported to identify given
Mr. Mostiler’s billing records. Rather, after describing the Pye fam-
ily and Mr. Pye’s upbringing, he testified that “[n]o one talked to
me about any of this before Willie James’s trial. . . . [Mr. Mostiler]
didn’t get in touch with me or ask me any questions about the
house Willie James was raised in or what he was like as a child.”
Doc. 16-24 at 83 (emphasis added). After testifying about the
32 I mostly stick with the reasonable/unreasonable terminology, although I
believe that Mr. Pye has also rebutted a presumption of the facts’ correctness
by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Perhaps one day
the Supreme Court will clear up the confusion about the interplay between
28 U.S.C. §§ 2254(d) and 2254(e)(1).
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40 JILL PRYOR, J., Dissenting 18-12147
mitigating circumstances in Mr. Pye’s childhood and adolescence,
Curtis testified that no one talked to him “about any of
this”—“this” being the circumstances to which he had just testi-
fied—before trial. He again clarified that no one asked him ques-
tions about Mr. Pye’s childhood and upbringing. Reading his iso-
lated statements about contact with the defense team in context
with his entire affidavit makes clear that Curtis never denied meet-
ing with Mr. Mostiler altogether. When read “in light of the evi-
dence presented in the State court proceeding,” 28 U.S.C.
§ 2254(d)(2), as a whole—that is to say, in context with the entire
affidavit and entire factual record, see Dunn v. Reeves, 141 S. Ct.
2405, 2412 (2021)—it is to me beyond fairminded disagreement
that the state court’s finding of an inherent conflict was in error.
The second affidavit the state habeas court addressed was
Mr. Pye’s brother Ricky Pye’s. According to the state habeas court,
Ricky “testified . . . ‘I never spoke to Mostiler about what to say [at
trial], and he didn’t meet with me or ask me any questions before
my turn for testimony.’” Doc. 20-40 at 66 (alteration in original)
(quoting Ricky Pye’s affidavit). But, the court continued, “[t]he af-
fidavit makes no mention of Mr. Mostiler’s one hour interview
with him, also approximately one month prior to trial.” Id. The
state habeas court’s statements are literally true, but they lend no
evidentiary support to the court’s finding that the affidavit was mis-
leading. Ricky testified that no one talked to him “about what to
say”—what he would testify to—not that no one talked to him at
all. Doc. 16-24 at 99; see also id. at 100 (Ricky Pye testifying: “We
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18-12147 JILL PRYOR, J., Dissenting 41
had it real tough growing up and Mr. Mostiler and Dewey never
asked about that.”).
Third was the affidavit of Mr. Pye’s mother, Lolla Mae Pye.
The state habeas court found misleading her testimony that “[n]o
one took the time to talk to me about all anything before Willie’s
trial,” given that Mr. Yarbrough’s testimony and Mr. Mostiler’s bill-
ing records showed otherwise. Doc. 16-24 at 97; see Doc. 20-40 at
66. Once again, the state habeas court tore a snippet of affidavit
testimony from its context. Before the passage the state habeas
court quoted, Lolla Mae testified extensively about the mitigating
circumstances in Mr. Pye’s background. The passage in Lolla Mae’s
affidavit that immediately follows the one the state habeas court
quoted, together with her lengthy mitigation testimony, leaves no
room for doubt that Lolla Mae meant she was never asked about
mitigating circumstances:
Nobody ask me all about how I grew up, how I came
to be married to Ernest, and how I raised Willie and
my other children. I would have been willing to talk
about my life with Willie James’s lawyer or investiga-
tor, or with any doctor or psychologist working on
his case. I would have told about all the things I de-
scribed here, and testified to the jury about them if
they wanted me to.
Doc. 16-24 at 97 (emphasis added). In context, there is no mislead-
ing statement. Lolla Mae stated straightforwardly that she was not
asked about the mitigating circumstances to which she had just
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42 JILL PRYOR, J., Dissenting 18-12147
testified. The state habeas court’s finding is unreasonable in light of
the evidence before it.
The state habeas court found that the fourth affidavit, that
of social worker and truancy officer Arthur Lawson, reflected artful
drafting. Mr. Lawson initially testified: “I showed up at the home
to find [Lolla Mae] intoxicated on many visits. This was equally
true when she was pregnant.” Doc. 16-24 at 61. He later submitted
a second affidavit in which he clarified how he knew she was intox-
icated: “when I visited the home there were indications that she
had been drinking by the way she spoke and her general behavior.
This was equally true when she was pregnant.” Doc. 20-6 at 17.
Mr. Lawson’s clarification of the basis for his opinion that
Lolla Mae often was intoxicated, if indicative of anything, suggests
the very opposite of artful drafting. In tweaking his testimony,
Mr. Lawson ensured that the evidence he provided did not over-
reach the limits of his personal knowledge. In my mind it is beyond
fairminded disagreement that Mr. Lawson’s slight clarification re-
flected a desire for accurate conveyance of personal knowledge,
not artful drafting.
Based on these unreasonable findings of fact about four of
the 24 affidavits containing mitigation evidence, the state habeas
court decided to discount all of the affidavit evidence about
Mr. Pye’s family background. Doc. 20-40 at 66. Here the majority
opinion acknowledges that “for many of the affidavits that speak to
[Mr.] Pye’s childhood neglect and abuse, neither the state court nor
the State have offered specific reasons to doubt their truth besides
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18-12147 JILL PRYOR, J., Dissenting 43
the general concern with ‘artfully drafted’ affidavit testimony col-
lected many years after trial.” Maj. Op. at 36. And this is the point:
without any evidence in the record to demonstrate artful drafting,
the state habeas court could not reasonably have made a finding
that the affidavits were artfully drafted. 33 And the state habeas
court could not then have a solid foundation upon which to base
its decision to discount the evidence contained in these affidavits.
The majority opinion maintains that there was evidence of
artful drafting because “there was substantial uniformity across the
affidavits” in describing Mr. Mostiler’s failure to discuss Mr. Pye’s
background with them and their willingness to testify at sentencing
had they been asked to do so. Maj. Op. at 37. I agree that substantial
uniformity of affidavits may be evidence of artful drafting, though
the affidavits must be viewed as a whole and in context. But there
are three problems with the majority opinion’s conclusion here.
First, the state habeas court never cited the similarity between the
affidavits as a reason for finding they were artfully drafted. So, un-
der Wilson, we do not consider that reason when examining
whether the state court’s errors were beyond the realm of fair-
minded disagreement. Wilson, 138 S. Ct. at 1191–92, 1195–96.
33 I do not, as the majority accuses, suggest that “extrinsic corroborating evi-
dence” of artful drafting “is required” to make this determination. Maj. Op. at
38 n.13. The state court could have used as evidence the affidavits themselves.
But, as the majority opinion acknowledges, the state court did not point to any
such evidence.
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44 JILL PRYOR, J., Dissenting 18-12147
Second, “substantial uniformity” is a stretch. These were not
boilerplate affidavits that all recited the same statements. Compare,
e.g., Affidavit of Curtis Pye, Doc. 16-24 at 83 (“No one talked to me
about any of this before Willie James’s trial. Johnny Mostiler and
his assistant Dewey know me. Mr. Mostiler represented me before.
He didn’t get in touch with me or ask me any questions about the
house Willie James was raised in or what he was like as a child. If
he had, I would have said all the things I’ve said in this statement,
and I would have testified to all these things if he had asked me
to.”), with Affidavit of Ricky Pye, Doc. 16-24 at 99–101 (“[Mr. Yar-
brough] didn’t ask about Willie James and how he came up, or how
we all were raised. Dewey never spoke to me about those
things. . . . I took the stand to testify later on in [the penalty phase
of] the trial. No one talked to me about my testimony before I
went. I never spoke to Mr. Mostiler about what to say, and he
didn’t meet with me or ask me any questions before my turn for
testimony. . . . We had it real tough growing up and Mr. Mostiler
and Dewey never asked about that. . . . If Mr. Mostiler had asked
me about these things on the stand, I would have told the jury the
same things I’ve said here.”), and Affidavit of Lolla Mae Pye, Doc.
16-24 at 97 (“No one took the time to talk to me about all anything
before Willie’s trial. Nobody ask me all about how I grew up, how
I came to be married to Ernest, and how I raised Willie and my
other children. I would have been willing to talk about my life with
Willie James’s lawyer or investigator, or with any doctor or psy-
chologist working on his case. I would have told about all the
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18-12147 JILL PRYOR, J., Dissenting 45
things I described here, and testified to the jury about them if they
wanted me to.”).
Third, and even more to the point, we require a petitioner
seeking to substantiate an ineffective-assistance claim for failing to
investigate and present evidence of mitigation to show that trial
counsel did not contact postconviction witnesses and that the wit-
nesses would have been available to testify at the time of sentenc-
ing. See Maj. Op. at 39. If the witnesses had not included this testi-
mony, Mr. Pye’s claim necessarily would have failed. It cannot be
that simply because these two facts—lack of contact by counsel
about mitigation and availability to testify at sentencing—are pre-
sent in every postconviction witness’s affidavit, the record supports
a finding that the affidavits are artfully drafted. Otherwise, this is a
“heads I win, tails you lose” scenario that the law surely does not
countenance.
The majority opinion makes one last effort to prop up the
state habeas court’s devoid-of-context reading of the four affidavits:
it says that the affidavits “lack . . . corroborating evidence in the
contemporaneous records—particularly regarding whether Pye
was subject to regular physical abuse.” Maj. Op. at 38 n.14. As the
majority opinion acknowledges, however, the state habeas court
made no mention of any lack of corroborating evidence. 34 Because
34 The state habeas court’s failure to mention the lack of corroborating evi-
dence makes sense: there has never been a requirement that testimonial evi-
dence be corroborated by contemporaneous documentary evidence. What is
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46 JILL PRYOR, J., Dissenting 18-12147
the state habeas court did not supply this reason for its decision, we
cannot consider it in our § 2254(d) analysis. See Wilson, 138 S. Ct.
at 1191–92, 1195–96.
B. Willingness of Mr. Pye’s family to cooperate with trial coun-
sel
As reason 4, the state habeas court found that “the family
was not cooperative with the defense team during the pre-trial in-
vestigation.” Doc. 20-40 at 64. From that finding, the court sur-
mised that counsel did what he could with what little he had. Thus,
more, numerous details, including Mr. Pye’s severe poverty, neglect, low in-
tellectual functioning, and mental health challenges, were in fact corroborated
by contemporaneous documentary evidence. See, e.g., Doc. 15-12 at 10–11
(third grade record stating that Mr. Pye’s “major causes of absences” were “ill-
ness, no shoes, missed the bus”); Doc. 15-14 at 49 (Department of Family and
Children Services record from 1972, when Mr. Pye was about seven, noting
that Mrs. Pye had requested food and clothing for the family). There also were
at least suggestions that Mr. Pye was suffering from something more serious
than neglect. For example, in third grade, his teacher observed that he was
“fearful and unhappy.” Doc. 15-12 at 11. Another teacher noted that Mr. Pye’s
sister, Pam, had “a very difficult home situation.” Doc. 16-13 at 60. Yet another
teacher noted that Mr. Pye’s brother Andrew was “often troubled and upset
about conditions at home.” Doc. 16-14 at 7. That there were not more con-
temporaneous documents is no surprise to me. Mr. Pye grew up poor and
Black in rural Georgia in the 1970s. Common sense tells us that the relative
scarcity of law enforcement and governmental records was due to the family’s
circumstances in the time and place in which Mr. Pye was raised.
And, finally, in this case the testimonial evidence cross-corroborated: nearly
every story in the affiants’ testimony was corroborated by another affiant’s
testimony.
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18-12147 JILL PRYOR, J., Dissenting 47
the court concluded, Mr. Pye had not shown prejudice because trial
counsel “did learn, to some extent, of the family’s impoverished
circumstances” and presented those facts through Mr. Pye’s sisters.
Id. It is of course true that trial counsel had some limited awareness
of the family’s poverty and hinted at it in the penalty phase. But the
state habeas court’s factual premise that Mr. Pye’s family members
were uncooperative in the mitigation investigation finds no sup-
port in the record. Seven of Mr. Pye’s family members testified at
the penalty phase, so it cannot be that the entire family was unco-
operative when it came to sentencing. Further, every family-mem-
ber affiant testified under penalty of perjury that he or she would
have been willing to speak to the defense team about mitigation
before trial, and nothing in Mr. Yarbrough’s testimony about the
family’s uncooperativeness in proving Mr. Pye’s innocence called
that testimony into question.
In concluding otherwise, the majority opinion cites record
evidence that, it says, renders the state court’s finding reasonable.
First, the majority opinion points to an undated memo from
Mr. Mostiler’s file noting that “Willie’s brothers did not respond to
my phone calls.” See Maj. Op. at 39 (citing Doc. 19-11 at 93). We
know from the record, however, that Mr. Pye’s brother Ricky Pye
cooperated with the defense because he testified at the penalty
phase. Plus, the very next sentence in Mr. Mostiler’s memo was:
“Willie’s sister Pam Bland is a good witness.” Doc. 19-11 at 93. And
we know Ms. Bland cooperated with the defense because she, too,
testified at the penalty phase. In context, then, Mr. Mostiler’s
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48 JILL PRYOR, J., Dissenting 18-12147
undated note—which contains no information about the duration
or timing of the noted condition and contradicts other evidence in
the record when read as the state habeas court read it—offers no
support for the state habeas court’s sweeping finding that Mr. Pye’s
family was unwilling to cooperate in mounting a case in mitigation.
Second, the majority opinion says, Mr. Yarbrough testified
that the family members were uncooperative. See Maj. Op. at 39–
40. Again, in context, Mr. Yarbrough’s testimony does not support
the state court’s finding as it relates to a case in mitigation because
Mr. Yarbrough specified that the family was uncooperative in
“helping prove [Mr. Pye’s] innocence,” Doc. 19-11 at 24–25, 35 not
in the investigation of mitigating circumstances. By Mr. Yar-
brough’s own testimony, he simply didn’t “care” about trying to
get Mr. Pye’s family members to testify during the penalty phase.
Id. at 25. The record unmistakably demonstrates that any failure to
marshal family support in the penalty-phase investigation and
presentation was due not to the family’s unwillingness to cooper-
ate but rather to Mr. Yarbrough’s lack of care.
To sum up on reason 4, the affidavit testimony Mr. Pye in-
troduced in postconviction proceedings about the family’s willing-
ness to cooperate if only they had been contacted and adequately
prepared about a mitigation case based on Mr. Pye’s family
35 Of course the family could not help the defense team prove Mr. Pye’s in-
nocence—he committed the crime.
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18-12147 JILL PRYOR, J., Dissenting 49
background directly contradicted the supposed evidence that the
family was uncooperative. Thus, Mr. Pye has shown by clear and
convincing evidence that the state habeas court’s finding—a find-
ing that the court found to be “especially” important, Doc. 20-40 at
67—was unreasonable. 36
C. Remorse as the best strategy given Mr. Pye’s age
As its seventh reason, the state habeas court found that be-
cause Mr. Pye “was 28 years old at the time of the[] crime[], trial
counsel could have reasonably decided, given the heinousness of
this crime and the overwhelming evidence of [his] guilt, that re-
morse was likely to play better than excuses.” Doc. 20-40 at 66. But
there is no evidence in the record—none—that Mr. Mostiler at-
tempted to or did offer Mr. Pye’s remorse to the jury as a reason
not to sentence Mr. Pye to death. Quite to the contrary. Remorse
would have been utterly inconsistent with the defense strategy be-
cause Mr. Pye testified in his own defense at trial and denied that
he had been present for the rape and murder. At the penalty phase,
most of the defense witnesses stated their belief that Mr. Pye was
innocent. Mr. Mostiler never mentioned remorse in his closing ar-
gument. Thus, the state habeas court’s conclusion that
Mr. Mostiler employed a strategy of remorse which likely played
36 Arguably, considering the prominence the state habeas court gave this un-
reasonable finding, the state habeas court’s decision was “based on” it,
28 U.S.C. § 2254(d)(2), and so de novo review is appropriate without even ex-
amining the court’s other findings.
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50 JILL PRYOR, J., Dissenting 18-12147
better to the jury than excuses was unreasonable in light of the rec-
ord. Indeed, even the majority admits this finding was “likely
clearly erroneous.” Maj. Op. at 44 n.17.
Acknowledging the state habeas court’s error, the majority
opinion downplays the import of the clearly erroneous finding by
characterizing it as a “sideshow” to the more important age-related
determination—a “statement” (that remorse was likely to play bet-
ter than excuses) “nestled in a sub-justification” (that given Mr.
Pye’s age, evidence of his guilt, and the heinousness of the crime,
remorse was likely to play better than excuses) “of a larger justifi-
cation” (that Mr. Mostiler’s failure to introduce evidence of Mr.
Pye’s childhood was not prejudicial). Id. The state court’s “state-
ment,” however, cannot be teased out from its “sub-justification.”
It’s all one sentence, one thought: when a person is not young
when he commits a crime, mitigating evidence from his childhood
and adolescence is entitled to little weight; thus, remorse was the
better strategy. The remorse “statement” is the conclusion of this
thought. It is not a sideshow; rather, it is part and parcel of the main
event. And the main event—what the majority terms a “sub-justi-
fication” for the no-prejudice “larger justification,” was unreasona-
ble. In Porter v. State, 788 So. 2d 917 (Fla. 2001), the Florida Su-
preme Court addressed an ineffective-assistance-of-counsel claim
by a prisoner on the state’s death row. In rejecting the claim, the
court explained that because the defendant was not young at the
time of his crime, “evidence of a deprived and abusive childhood is
entitled to little, if any mitigating weight when compared to the
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18-12147 JILL PRYOR, J., Dissenting 51
aggravating factors.” Id. at 924 (emphasis added) (quoting Bolender
v. Singletary, 16 F.3d 1547, 1561 (11th Cir. 1994)). Thus, “[a]ny
presentation of this factor would therefore have been insignifi-
cant.” Id. After this Court upheld that determination as reasonable,
see Porter v. Att’y Gen., 552 F.3d 1260, 1270 (11th Cir. 2008) (citing
Bolender, 16 F.3d at 1561), the Supreme Court reversed, conclud-
ing that the Florida Supreme Court’s analysis was unreasonable,
see Porter, 558 U.S. at 41.
In Mr. Pye’s case the state habeas court cited cases, all pre-
dating the Supreme Court’s decision in Porter, for the proposition
that “‘evidence of a deprived and abusive childhood is entitled to
little, if any, mitigating weight’ when the defendant is ‘not young’
at the time of the offense.” Doc. 20-40 at 67 (quoting Tompkins v.
Moore, 193 F.3d 1327, 1337 (11th Cir. 1999), and Housel v. Head,
238 F.3d 1289, 1295 (11th Cir. 2001), which cited Tompkins); see id.
at 67 (also citing Francis v. Dugger, 908 F.2d 696, 703 (11th Cir.
1990), Mills v. Singletary, 63 F.3d 999, 1025 (11th Cir. 1995), and
Bolender v. Secretary, 16 F.3d at 1561). These cases all stood for the
same proposition: evidence of a deprived and abusive childhood is
entitled to “little, if any” (as stated in Tompkins and Dugger), or
“insignificant” (as stated in Bolender, cited in Mills) weight when a
defendant commits a crime a decade or so after reaching adult-
hood. These are the same cases the majority opinion now cites to
conclude that the state habeas court’s treatment of Mr. Pye’s age
was reasonable. See Maj. Op. at 43–44.
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52 JILL PRYOR, J., Dissenting 18-12147
But these are the very same reasons—indeed, based on the
very same cases—that the Supreme Court held to be unreasonable
in Porter. Thus, the state habeas court’s finding was unreasonable
under clearly established Supreme Court precedent. Porter, 558
U.S. at 41. 37
* * *
The state habeas court’s numerous consequential unreason-
able determinations reflect an “extreme malfunction[] in the state
criminal justice system.” Reeves, 141 S. Ct. at 2411 (alteration
adopted) (internal quotation marks omitted). Even under the ma-
jority opinion’s reading of the interplay between 28 U.S.C.
§ 2254(d)(2) and I(1)—and without the majority opinion’s nullifica-
tion of Wilson—it is clear to me that the state court’s errors were
of sufficient importance that we can say without difficulty that its
ultimate decision was “based on” them. Thus, I would hold that
the state court’s decision does not withstand AEDPA deference,
and that we should apply de novo review.
37 The majority opinion points out that there isn’t “anything in Porter that
explicitly forbids courts from considering age as one factor among many in
their prejudice analyses.” Maj. Op. at 42. That is true enough, but in this case
the state habeas court did not consider age as a factor. Instead, it repeated pre-
cisely the mistake that the Supreme Court corrected in Porter.
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18-12147 JILL PRYOR, J., Dissenting 53
IV. DE NOVO REVIEW
Typically, once AEDPA deference is pierced, I would begin
my de novo review 38 by explaining why Mr. Mostiler rendered de-
ficient performance during the penalty phase. But because the ma-
jority opinion assumes deficient performance, I refer to our panel
opinion for our analysis. See Pye, 853 F. App’x at 560–65.
That leaves prejudice. Here we ask, “whether the entire
postconviction record, viewed as a whole and cumulative of miti-
gation evidence presented originally, raised a reasonable probabil-
ity that the result of the sentencing proceeding would have been
different if competent counsel had presented and explained the sig-
nificance of all the available evidence.” Debruce v. Comm’r, Ala.
Dep’t of Corr., 758 F.3d 1263, 1275 (11th Cir. 2014) (internal quo-
tation marks omitted). Postconviction counsel produced evidence
that Mr. Pye suffered severe physical and emotional abuse, neglect,
endangerment, and privation as a child. Counsel produced evi-
dence that Mr. Pye began displaying symptoms of depression early
in his childhood, depression that followed him into adulthood.
Counsel produced evidence that Mr. Pye’s intellectual capacity is
low, bordering on intellectually disabled. This “consistent, unwa-
vering, compelling, and wholly unrebutted” evidence, Ferrell v.
38 Although we disagree on whether Mr. Pye is entitled to relief, I note Judge
Jordan’s and Judge Rosenbaum’s agreement that the state habeas court’s deci-
sion is not entitled to AEDPA deference and so our review should be de novo.
See Jordan Concurring Op. at 1.
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54 JILL PRYOR, J., Dissenting 18-12147
Hall, 640 F.3d 1199, 1234 (11th Cir. 2011), “paints a vastly different
picture” of Mr. Pye leading up to the crime than the evidence Mr.
Mostiler presented to the jury, Debruce, 758 F.3d at 1276. Even in
the face of the aggravated crime Mr. Pye committed, and the ag-
gravating evidence presented in the penalty phase, I would con-
clude, as did the panel, that there is a reasonable probability that at
least one juror would have voted for a sentence less than death had
the jury heard what we now know about Mr. Pye. See Wiggins,
539 U.S. at 536.
First, the new mitigating evidence. Had Mr. Mostiler ade-
quately investigated and presented a case in mitigation of the death
penalty, the jury would have heard that Mr. Pye was raised in ab-
ject poverty by parents who managed to feed and clothe their
10 children by the slimmest of margins. The family lived in a kind
of poverty rarely witnessed in the United States, occupying a small
four-room house with makeshift walls to separate the sleeping ar-
eas and no indoor plumbing or central heating.
The jury would have heard that Mr. Pye suffered from ex-
treme neglect. At the time of Willie’s birth, his mother Lolla Mae
struggled as the sole provider for her six children. Her husband
Ernest, whom people called “Buck,” was incarcerated and working
on a chain gang. Lolla Mae took whatever work she could get,
working all the way up until Willie’s birth and then resuming
working immediately afterward. Whether to go to one of her jobs
or out drinking (which she did even while pregnant), Lolla Mae
typically left Willie alone with his siblings all day. This left the older
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18-12147 JILL PRYOR, J., Dissenting 55
children—the oldest only 10 years old—to care for the younger
ones. The youngest children, Willie included, would spend the day
outside in the dirt, often crying all day because the older children
lacked the skills necessary to care for infants and toddlers. Willie
had little to eat, consuming watered-down milk as an infant and
primarily bread and gravy through childhood. With no money for
it, he received virtually no medical care.
The jury would have heard how the Pye home reflected this
neglect. According to a police officer, “[t]he conditions were filthy
and the rooms in total disarray every time we entered.” Doc. 16-24
at 22. Mr. Lawson, the school’s social worker, observed that the
condition of the house was “deplorable.” Id. at 62. “The house was
never clean; piles of filth, scraps and garbage were strewn every-
where.” Id. at 62. On one visit, finding the home “so unsanitary”
that it created a risk to “the health of the children”—specifically,
“the small children had not been bathed and there was spoiled food
sitting around”—Mr. Lawson reported the Pye home to the De-
partment of Family and Children Services (DFACS). Id. at 61–62.
DFACS did not intervene.
The jury would have heard that Mr. Pye was raised in a
home rife with alcohol abuse and domestic violence. Lolla Mae and
Buck drank excessively. Buck, in fact, was notorious around town
for his drinking and violent behavior, and Willie and his siblings
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56 JILL PRYOR, J., Dissenting 18-12147
were ostracized from the community because of the family’s noto-
riety. 39
Buck was extremely physically violent; “calls [to law en-
forcement] about violence in the Pye home were constant.”
Doc. 16-24 at 20. Buck would hit Lolla Mae and throw things at her
in front of the children. On at least one occasion, he attacked Lolla
Mae with a knife; on another occasion, he hit her over the head
with a bottle. Lolla Mae also was violent toward Buck, sometimes
threatening him with a knife.
The jury would have heard that Mr. Pye experienced fre-
quent and often severe physical and emotional abuse at the hands
of his father and mother. “Beatings and tirades were [Buck’s] only
interaction with his children.” Id. at 60. His verbal assaults were
“downright cruel”: he called the children “worthless” and used
“every foul expletive he could manage.” Id. at 21–22. “Willie defi-
nitely got the worst of his father’s nasty comments.” Id. at 26. Buck
“would tell Willie that he was so stupid that he just couldn’t be his
kid.” Id. Buck would say “that Willie was born because [Lolla Mae]
was messing around while he was in prison, and that he was sick of
looking at a kid that belonged to some other guy.” Doc. 16-25 at 2.
39 Buck and Lolla Mae bought alcohol with their individual meager earnings
and from the government assistance check the family received because of their
son Ernest Pye, Jr.’s disability. “It was general knowledge in the [community]
that Junior . . . limped because his father hit him with a tire iron while he was
still recovering from a broken hip and the hip never healed properly.” Doc.
16-24 at 73.
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18-12147 JILL PRYOR, J., Dissenting 57
Buck “would tell the rest of [the Pye] kids that there was stuff
wrong with Willie [], and that [they] shouldn’t pay attention to
him, all with Willie standing right in front of him.” Id. Buck also
“beat the devil out of [the] children,” and “Willie definitely got the
worst of [those] violent outbursts.” Doc. 16-24 at 26, 60. Lolla Mae
beat the children too, and although the school’s social worker Mr.
Lawson counseled her about the abuse, she did not stop.
The jury would have learned that as the older Pye boys
reached their teenage years, they too began to drink excessively
and engage in physical violence, beating their father when he was
drunk and abusive. When police responded to calls at the Pye
house, what they found “was absolute chaos,” id. at 20, with brawl-
ing between Willie’s parents and older siblings. For their part,
“[t]he younger kids would head for the hills when the fighting
started,” often hiding in a clearing in the woods near the home. Id.
at 22. Willie was one of the children who ran and hid. As he got
older, he tried to play the role of peacemaker, “pull[ing] [his] par-
ents apart” when they fought. Id. at 36. In response, Buck would
“blast Willie right across the head and he’d go flying.” Doc. 16-25
at 2.
The jury would have heard that as a child Mr. Pye “took the
comments about not belonging to [his] father hard.” Id. “He was
quieter and took things to heart. The most important thing to Wil-
lie was to be like everyone else, and [Buck] was constantly telling
him that he wasn’t.” Id. When he got upset, Willie “would find any
place he could . . . be alone—the bed, the woods, under the porch.
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58 JILL PRYOR, J., Dissenting 18-12147
Then he’d lie down and curl up and just stare at nothing.” Id. If a
sibling tried to talk to him, he would act like no one was there. Id.
The jury would have learned that Mr. Pye struggled in
school because of the home life he experienced and because of his
borderline intellectual functioning. Willie often was absent from
school because he lacked basic necessities at home: shoes and a
place warm enough to dress. When Willie attended school, he per-
formed poorly—in some instances in the lowest one percentile—
and attended classes for slow learners. He tried hard but could not
succeed, and he left school before the end of junior high. Willie was
teased by his peers at school, both because he was behind academ-
ically and because he lacked adequate clothing—what little he
wore often was shared with his many siblings, was seasonally inap-
propriate, and was dirty.
The jury would have been informed that Mr. Pye’s low in-
tellectual functioning was documented into adulthood. After being
convicted of burglary and sentenced to prison, notes from the
prison psychologist indicated that “[i]ntellectually, [Mr. Pye] is
probably in the low average range but his test scores are signifi-
cantly lower”—for example, he was reading and writing at a
fourth-grade level. Doc. 15-19 at 12–13. The psychologist opined
that Mr. Pye “may need special ed help, probably in the learning
disabled area.” Id. at 11. Mr. Pye asked to be given job training for
barbering, but he failed the aptitude test for it. The records stated
that Mr. Pye “[a]ppears to need educational upgrading and adjust-
ment prior to retesting.” Id. at 14.
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18-12147 JILL PRYOR, J., Dissenting 59
The jury would have heard that, unsurprisingly, Mr. Pye
was depressed. Again, as a child Willie would run away from his
family and disassociate. Even as he reached adulthood, he contin-
ued to experience long depressive episodes. While Mr. Pye was
serving time for his burglary conviction, the prison psychologist in-
dicated that he was “very depressed,” “severe enough” to warrant
medication and “more counse[l]ing than the average.” Doc. 15-19
at 11, 13, 16. When Mr. Pye left prison in 1990, his depressive epi-
sodes continued, and, it seems, worsened.
Also of his previous incarceration, the jury would have
heard that the prison in which Mr. Pye was first housed, Lee Arren-
dale Correctional Facility, was dangerous. “New inmates could ex-
pect to be terrorized upon arrival by the guys that were already
there. Most were either physically or sexually assaulted, or both.”
Doc. 16-24 at 50. Mr. Pye, “a smaller guy” who came across as
“very weak,” “confused,” and “vulnerable,” was considered by
prison staff “to be at risk for victimization.” Doc. 15-19 at 9, 11, 70.
Indeed, a former cellmate of Mr. Pye’s recalled being told that Mr.
Pye was raped when he first arrived at the prison.
The jury would have heard that despite the environment
and the trauma it brought, officials at Lee Arrendale considered
Mr. Pye to be generally trustworthy and not an escape or safety
risk. The psychologist opined that Mr. Pye was “[n]ot likely to be
violent or potentially dangerous” and was “very unlikely to be-
come a predator”; she found “[n]o evidence of escape.” Doc. 15-19
at 9, 11. A psychological report indicated that Mr. Pye “should be
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60 JILL PRYOR, J., Dissenting 18-12147
able to adapt to average security arrangements.” Id. at 15. The psy-
chologist’s prediction was correct: Mr. Pye made a notably positive
impression on some of the staff he encountered. Guards who pro-
vided postconviction testimony regarded Mr. Pye as “completely
respectful . . . in a way that most of the inmates were not.” Doc.
16-24 at 49. “He was never menacing, never made any threatening
remarks, never did anything but joke around and take care of his
assigned work.” Id. These guards had “no reservations about [Mr.
Pye] working throughout the dorm area, even during times when
he was not closely supervised.” Id. at 71. He even helped the guards
“keep the rest of the unit safe” by disclosing knowledge of other
prisoners’ weapons or plans for disruption—likely at enormous
personal risk to himself. Id. at 49. Had trial counsel adequately in-
vestigated Mr. Pye’s previous conviction, he would have un-
earthed this evidence, and the jury would not have heard, unrebut-
ted, the prosecution’s argument that Mr. Pye would kill a prison
guard to escape.
Finally, had trial counsel adequately investigated and pre-
sented a case in mitigation of the death penalty, the jury would not
have heard, without the correct context, that Mr. Pye was raised in
a “four bedroom house” or that the family “had love” to offset the
lack of modern conveniences. The jury would not have heard, de-
void of the context of the abuse he meted out, Mr. Pye’s father’s
brief testimony about Willie’s supposedly unremarkable child-
hood.
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18-12147 JILL PRYOR, J., Dissenting 61
The wealth of mitigating evidence the jury would have
heard had Mr. Mostiler not rendered deficient performance is pre-
cisely the kind of mitigating evidence the Supreme Court and this
Court have held can demonstrate prejudice. See Rompilla, 545 U.S.
at 390, 393 (finding prejudice based on mitigating evidence that
Rompilla had low intellectual functioning, “was reared in [a] slum
environment”; his parents “were both severe alcoholics who drank
constantly” his “mother drank during her pregnancy” his “father,
who had a vicious temper, frequently beat [his] mother”; his “par-
ents fought violently, and on at least one occasion his mother
stabbed his father”; he “was abused by his father who beat him
when he was young”; “he was subjected to yelling and verbal
abuse”; the family “had no indoor plumbing in the house, he slept
in the attic with no heat, and the children were not given clothes
and attended school in rags”); see also Porter, 558 U.S. at 33–34
(“Porter routinely witnessed his father beat his mother,” his “father
was violent every weekend, and by his siblings’ account, Porter
was their father’s favorite target, particularly when Porter tried to
protect his mother”; Porter “attended classes for slower learners
and left school when he was 12 or 13”); Wiggins, 539 U.S. at 516–17
(“[P]etitioner’s mother, a chronic alcoholic, frequently left Wiggins
and his siblings home alone for days.”); Williams, 529 U.S. at 396(“Williams was borderline [intellectually disabled] and did not ad-
vance beyond sixth grade in school”; “prison officials . . . described
Williams as among the inmates least likely to act in a violent, dan-
gerous or provocative way” (internal quotation marks omitted));
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62 JILL PRYOR, J., Dissenting 18-12147
Ferrell, 640 F.3d at 1234 (petitioner was “especially” targeted for
abuse by his father). 40
40 The majority opines that the cases in which the Supreme Court has granted
habeas relief presented mitigating circumstances that were “significantly
stronger” than those present in Mr. Pye’s case. Maj. Op. at 62. Respectfully,
the majority is hair-splitting.
In Rompilla, for example, the Supreme Court noted that a constitutionally ad-
equate investigation into Mr. Rompilla’s prior conviction would have led
counsel to discover:
Rompilla’s parents were both severe alcoholics who drank
constantly. His mother drank during her pregnancy with
Rompilla, and he and his brothers eventually developed seri-
ous drinking problems. His father, who had a vicious temper,
frequently beat Rompilla’s mother, leaving her bruised and
black-eyed, and bragged about his cheating on her. His parents
fought violently, and on at least one occasion his mother
stabbed his father. He was abused by his father who beat him
when he was young with his hands, fists, leather straps, belts
and sticks. All of the children lived in terror. There were no
expressions of parental love, affection or approval. Instead, he
was subjected to yelling and verbal abuse. His father locked
Rompilla and his brother Richard in a small wire mesh dog pen
that was filthy and excrement filled. He had an isolated back-
ground, and was not allowed to visit other children or to speak
to anyone on the phone. They had no indoor plumbing in the
house, he slept in the attic with no heat, and the children were
not given clothes and attended school in rags.
Rompilla, 545 U.S. at 391–92. Nearly sentence for sentence, this paragraph
could have been written about Mr. Pye.
Nevertheless, the majority opinion homes in on three details it says Mr. Romp-
illa had in his background that Mr. Pye lacked: evidence of schizophrenia, a
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18-12147 JILL PRYOR, J., Dissenting 63
What is more, this is not a case where the type of mitigating
evidence adduced during the state habeas proceedings would have
undermined counsel’s strategy at sentencing. Mr. Mostiler focused
his penalty-phase presentation on mercy; mitigating evidence of
the type postconviction counsel uncovered “would have easily and
directly supported the approach counsel offered at sentencing.” Id.
at 1235. If the prosecution had asked a more informed jury, “If Wil-
lie James Pye does not deserve the death penalty, who are you sav-
ing it for?,” Doc. 13-11 at 90, there is a reasonable probability that
at least one juror would not have seen Mr. Pye as someone so un-
worthy of grace.
Second, the aggravating evidence. This of course includes
evidence the State would have introduced to rebut the defense’s
new mitigating evidence. Wiggins, 539 U.S. at 534. Mr. Pye’s was,
third-grade level of cognition, and likely fetal alcohol syndrome. Maj. Op. at
62. Mr. Pye also had a documented, serious mental health condition: he suf-
fered from depression. Mr. Pye also had documented, significant cognitive im-
pairments. He performed in the lowest one percentile of his classmates and
attended classes for slow learners—and, like Mr. Rompilla, left school near the
end of junior high. See Rompilla, 545 U.S. at 391. When he reached adulthood,
he was reading and writing at a fourth-grade level—similar to Mr. Rompilla.
See id. Finally, Mr. Pye’s evidence showed that his mother drank while preg-
nant, and one of his experts opined that Mr. Pye suffered from a fetal alcohol
spectrum disorder (one of which is fetal alcohol syndrome).
I see very little daylight between the wealth of mitigating evidence counsel
failed to uncover in Rompilla and the wealth of mitigating evidence counsel
failed to uncover here. It cannot fairly be said that the mitigating evidence in
Rompilla was “significantly stronger” than the evidence here.
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64 JILL PRYOR, J., Dissenting 18-12147
without a doubt, an aggravated crime with aggravating circum-
stances, including Mr. Pye’s history with Ms. Yarbrough. Mr. Pye
and two others kidnapped and raped Ms. Yarbrough at gunpoint,
and then Mr. Pye shot her multiple times as she was lying on a
roadside and left her to die. The State presented compelling evi-
dence that Mr. Pye had been violent with Ms. Yarbrough before
and that on this night she remained alive for up to 30 minutes after
he shot her, was conscious for most that time, and attempted to
stand or crawl to safety. Mr. Pye’s conduct resulted in the trial
court’s imposition of four statutory aggravating circumstances.
But the Supreme Court and this Court have found prejudice
in highly aggravated cases. See, e.g., id. at 514–15, 535 (finding prej-
udice even though defendant robbed and drowned an elderly
woman); Ferrell, 640 F.3d at 1204–05, 1234–36 (finding prejudice
even though defendant robbed and murdered, execution-style, his
elderly grandmother and young cousin); Cooper, 646 F.3d at 1331,
1353–56 (finding prejudice even though the state had proven that
the triple execution-style murders—apparently committed in the
presence of an eight-year-old child—satisfied five aggravating fac-
tors). Moreover, the extreme domestic violence Mr. Pye experi-
enced—in part because his father, imprisoned around the time of
his conception and birth, questioned his parentage—would have
contextualized some of the circumstances of the undeniably hor-
rific crime Mr. Pye committed—a crime that involved extreme do-
mestic violence apparently fueled by questions about Ms. Yar-
brough’s child’s parentage. See Ferrell, 640 F.3d at 1235; see also
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18-12147 JILL PRYOR, J., Dissenting 65
O.C.G.A. § 17-10-30(b) (requiring the judge to instruct the jury that
it can consider “any mitigating circumstances”).
I have little doubt that had Mr. Mostiler introduced evidence
that Mr. Pye posed no serious threat while incarcerated and had
trusting, congenial relationships with guards, the State would have
introduced evidence that while serving his time for burglary
Mr. Pye was sometimes insubordinate.41 Even so, these instances
would have added very little in the way of support for the prosecu-
tor’s assertion that Mr. Pye would murder a prison guard to escape
prison. Similarly, although there is some evidence in the record
that Mr. Pye occasionally moved or spoke in an aggressive manner,
the records reveal no real violence toward guards 42 and no propen-
sity for an escape attempt.
Reweighing the evidence in mitigation against the evidence
in aggravation, I am convinced that the “mitigating evidence, taken
as a whole, might well have influenced the jury’s appraisal of
41 The majority opinion states that many of the instances of insubordination
were “categorized as ‘High’ and ‘Greatest’-level offenses.” Maj. Op. at 54. Sort
of. Those designations are listed under “Warden’s Disposition Recommenda-
tion,” see, e.g., Doc. 15-20 at 1, indicating that they reflect not the severity of
the infraction itself, but the Warden’s view of how severe the disciplinary re-
sponse should be in proportion to the infraction committed.
42 The one instance of aggression toward a guard the majority opinion high-
lights—when Mr. Pye refused to take a shakedown posture—resulted only in
failure to follow instructions/insubordination charges. Mr. Pye was not
charged with assault or any violent offense.
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66 JILL PRYOR, J., Dissenting 18-12147
[Mr. Pye’s] moral culpability.” Wiggins, 539 U.S. at 538 (internal
quotation marks omitted). Although surely it “is possible that a jury
could have heard it all and still have decided on the death penalty,
that is not the test.” Rompilla, 545 U.S. at 393. I would conclude,
upon a de novo review, that Mr. Pye has shown “a reasonable prob-
ability that at least one juror would have struck a different balance”
between life and death. Wiggins, 539 U.S. at 537. Thus, I would
conclude that he has shown prejudice under Strickland and is enti-
tled either to a new penalty phase or to be resentenced without the
penalty of death.
V. CONCLUSION
Deciding that she has had enough of the characters she en-
countered through the looking glass, Alice, immersed in a giant
chessboard, captures the Red Queen, puts the Red King into check-
mate, and awakens from the dream. She emerges in her home, sur-
rounded by her belongings and her precious pet kittens. All is right
again.
The majority opinion, by ignoring the Supreme Court’s
opinion in Wilson, traps our Court behind the looking glass. At this
point, only the Supreme Court can set things right again.
This side of the looking glass, the reality for Mr. Pye is that
he experienced the unthinkable as an infant, child, and adolescent.
He is chronically depressed and has borderline intellectual func-
tioning. When weighing his background against the undeniably
horrendous crime he committed, the state habeas court
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18-12147 JILL PRYOR, J., Dissenting 67
egregiously missed the mark. But the majority opinion—even
while acknowledging some of the problems in the state court’s de-
cision—buries those problems under a mountain of reasons the
state habeas court never employed, in violation of Wilson. For
Mr. Pye and others who come after his case, though deserving of a
second chance to convince a jury to spare their lives under AEDPA
as framed by Wilson, they will never get that chance. The writ of
habeas corpus is illusory—impossible—even, to obtain. I dissent.