Donnie Cleveland Lance v. Warden, Georgia Diagnostic Prison , 706 F. App'x 565 ( 2017 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15008
________________________
D.C. Docket No. 2:10-cv-00143-WBH
DONNIE CLEVELAND LANCE,
Petitioner - Appellant,
versus
WARDEN, GEORGIA DIAGNOSTIC PRISON,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 31, 2017)
Before WILLIAM PRYOR, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Donnie Cleveland Lance, a Georgia prisoner convicted and sentenced to
death for the murders of his ex-wife and her boyfriend, appeals the denial of his
petition for a writ of habeas corpus, 28 U.S.C. § 2254. Lance contends that we
should vacate his sentence on the grounds that his trial counsel provided
ineffective assistance when he failed to introduce mitigating mental health
testimony and character evidence during the penalty phase of Lance’s trial and
when counsel failed to obtain funds to hire expert witnesses. We disagree. The
Supreme Court of Georgia reasonably concluded that Lance did not suffer
prejudice when counsel failed to introduce mental health testimony. Counsel also
made a strategic decision not to introduce character evidence during the penalty
phase that we decline to second guess. And the Supreme Court of Georgia
reasonably concluded that counsel’s failure to obtain funds to hire expert witnesses
did not prejudice Lance. We affirm.
I. BACKGROUND
We divide this background in three parts. We first recount the facts of the
crime. We then summarize the preparation for, and disposition of, Lance’s trial,
sentencing, and direct appeal. We conclude with a summary of the state and federal
habeas proceedings.
2
A. The Crime
Donnie Cleveland Lance murdered his ex-wife, Sabrina “Joy” Lance, and
her boyfriend, Dwight “Butch” Wood, Jr., in the early morning of November 9,
1997, at Butch Wood’s home. Lance v. State (“Lance I”), 560 S.E.2d 663, 669–70
(Ga. 2002). The Supreme Court of Georgia described the events surrounding the
murders as follows:
Shortly before midnight on November 8, 1997, Lance called Joy
Lance’s father, asked to speak to her, and learned that she was not at
home. Shortly afterward, a passing police officer noticed Lance’s
automobile leaving his driveway. Lance arrived at Butch Wood’s
home, kicked in the front door, shot Butch Wood on the front and the
back of his body with a shotgun, and then beat Joy Lance to death by
repeatedly striking her in the face with the butt of the shotgun, which
broke into pieces during the attack. Joy Lance’s face was rendered
utterly unrecognizable. Later that morning, Lance told his friend, Joe
Moore, that Joy Lance (whom Lance referred to in a derogatory
manner) would not be coming to clean Lance’s house that day; that
Butch Wood’s father could not “buy him out of Hell”; and that both
Joy Lance and Butch Wood were dead. Lance later told a fellow
inmate that he “felt stupid” that he had called Joy Lance’s father
before the murders, and Lance bragged to the inmate that “he hit Joy
so hard that one of her eyeballs stuck to the wall.”
Hall v. Lance (“Lance II”), 687 S.E.2d 809, 811 (Ga. 2010).
Lance had long abused Joy. Id. In the past, he had kidnapped her, and he had
beaten “her with his fist, a belt, and a handgun.” Id. He had strangled her,
electrocuted “her with a car battery,” and threatened “her with a flammable liquid,
handguns, and a chainsaw.” Id. “He had repeatedly threatened to kill her himself,
and he had once inquired of a relative about what it might cost to hire someone to
3
kill her and Butch Wood.” Id. In 1993, Lance, accompanied by Joe Moore, “kicked
in the door of Butch Wood’s home . . . armed with a shotgun, loaded a shell into
the chamber of the shotgun, and then fled only after a child in the home identified
and spoke to Joe Moore.” Id.
B. Trial, Conviction, Sentence, and Direct Appeal
Lance hired J. Richardson Brannon to represent him at trial. An experienced
criminal attorney, Brannon had tried around 160 criminal cases to verdict before
Lance hired him. Three paralegals and a crime-scene investigator named Andy
Pennington assisted Brannon in his preparation for trial. Lance and his family
initially paid Brannon $50,000 to represent him, but after the exhaustion of that
initial sum, the court declared Lance indigent and retained Brannon as court-
appointed counsel.
Brannon then filed a motion for funds to hire expert witnesses, which he
amended three times. The original motion and the first two amendments, filed in
late 1998, requested funds to hire experts and a private investigator but did not
specify the kinds of experts needed, their names, the fees they charged, or any
other information. At a pre-trial hearing, Brannon requested funds to hire an expert
on jury selection, a private investigator, a DNA serologist, a forensic pathologist, a
4
ballistics expert, a criminologist, and an expert on shoe print analysis. He requested
the jury expert by name and gave the court information about the hourly expenses
of the requested private investigator, DNA serologist, and the forensic pathologist.
Brannon stated that, of all the experts he requested, a forensic pathologist was
“imperative” to establish “time of death” and “manner of death.” A month after the
hearing, Brannon filed a third amendment to the motion for funds to hire expert
witnesses. This amendment proffered the names, credentials, and fees of the
experts requested.
The trial court initially denied the request for funds to hire experts, but
reversed course a month before trial and granted $4,000 to hire an investigator.
Brannon used these funds to pay Pennington, a private investigator, and did not
hire any other experts or present any other expert testimony during the guilt or
penalty phases of the trial.
By contrast, the state introduced testimony from six expert witnesses at trial:
Terry Cooper, an agent with the Georgia Bureau of Investigation, who testified
about the crime scene and the shoe print he removed from the door at Butch
Wood’s home; David Cochran, the chief crime scene investigator for the Jackson
County, Georgia, Sheriff’s Department, who testified about investigating the
crime; Charles Moss, a fingerprint expert who testified that he was unable to
retrieve prints from the shotgun shell casings involved in the crime; Bernadette
5
Davy, a firearms expert, who testified about the shotgun shell casings found at the
scene and the kinds of wood used to manufacture the butts of shotguns; Larry
Peterson, a microanalyst who testified about the shoeprint found on Butch Wood’s
door and other evidence found at the crime scene; and Frederick Hellman, an
associate medical examiner for the Georgia Bureau of Investigation who testified
about the causes of death of Joy Lance and Butch Wood. Brannon extensively
cross-examined each of these expert witnesses, except the fingerprint expert.
The defense theory of the case was innocence. Brannon attempted to
establish an alibi defense based on the time of death and Lance’s whereabouts on
November 8–9. Lance’s uncle testified that he was with Lance into the late evening
of November 8 and then after midnight on November 9 until 5:00 a.m. Other
witnesses corroborated this timeline and testified that Lance behaved normally
immediately before and after the time when the murder occurred. Two children
who were neighbors of Butch Wood also testified that they heard gunshots and a
scream sometime after lunch on November 9, more than twelve hours later than
when the crime allegedly occurred.
Pennington, the private investigator hired by Brannon, also testified as an
expert crime scene technician. Pennington testified that the ballistics report from
the crime scene suggested the possibility that the shooter used weapons in addition
to the shotgun. He also testified that the absence of footprints on the stairs leading
6
to the house was suspicious and that the lack of latent fingerprints on the shotgun
shells suggested “[a] good burglar” committed the crime.
The jury found Lance guilty of the murders of Joy Lance and Butch Wood,
of burglary, and of possession of a firearm during the commission of a crime.
Lance I, 560 S.E.2d at 669. During the penalty phase of the trial, the state
presented testimony from Joy Lance’s and Butch Wood’s relatives and from David
Cochran, a crime scene investigator for the Georgia Bureau of Investigation.
Brannon presented no mitigating evidence during the penalty phase. The jury
sentenced Lance to death for the murders. Id. at 670.
The Supreme Court of Georgia affirmed Lance’s conviction and sentence on
direct appeal. Id.at 670, 677–79. Lance argued that the trial court erred when it
denied Lance’s motion for funds to hire expert witnesses. Id. at 671. But the
Supreme Court of Georgia ruled that “Lance’s request for the contested funds was
too unspecific, uncertain, and conclusory” to overturn his conviction. Id. Lance’s
conviction became final when the Supreme Court of the United States denied his
petition for a writ of certiorari. Lance v. Georgia, 537 U.S. 1050 (2002).
C. State and Federal Habeas Proceedings
In May 2003, Lance filed a petition for a writ of habeas corpus in the Butts
County Superior Court. The superior court held an evidentiary hearing, at which
Lance presented evidence that he received ineffective assistance of counsel
7
because Brannon failed to investigate or present evidence of Lance’s mental
impairments during the penalty phase of Lance’s trial. The Supreme Court of
Georgia described the evidence on that issue as follows:
Lance presented testimony in the habeas court from three experts in
neuropsychology. Thomas Hyde, M.D., Ph.D., testified that he
administered over 100 neurological tests to Lance. Yet, as his
testimony establishes, only one of those tests indicated brain
dysfunction. Dr. Hyde concluded that Lance had “significant damage
to the frontal and temporal lobes” resulting from multiple blows to the
head and from alcohol abuse. He testified that persons with frontal
lobe dysfunction “often decompensate under periods of extreme
emotional distress.” He also testified that such persons are unlikely to
be able to plan and commit murder without leaving evidence but,
instead, are more often “involved in crimes of impulse.” Dr. Hyde
concluded that Lance’s mental state might have had an “impact” on
Lance’s “ability to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law,” but he also
acknowledged that other “reasonable” neurologists might disagree
with his conclusions in Lance’s case. The second of Lance’s three
experts in neuropsychology, Ricardo Weinstein, Ph.D., commented
generally on Lance’s “psychosocial history” as follows:
[I]t’s a relatively unusual case in terms of his upbringing, fairly
normal upbringing from an intact family, no major history of
dysfunction, no history of child abuse, neglect, things of that
nature, no history of significant mental illness in the family.
However, Dr. Weinstein concluded that Lance, as a result of multiple
head injuries, the exposure to toxic fumes, the ingestion of gasoline,
and a history of “heavy alcohol use starting at the age of 19,” suffered
from “generalized and diffuse brain dysfunction” and “clear
compromises in the frontal lobe functions.” Dr. Weinstein concluded
that Lance was not insane or mentally retarded, that he understood
“that certain behaviors are unacceptable,” but that his “brain
dysfunction . . . negatively impact[ed] his ability to conform his
conduct to the requirements of the law.” In particular, Dr. Weinstein
concluded that Lance would have difficulty in planning and in
8
impulse control and that the combined effects of Lance’s brain
dysfunction and his alcohol intoxication on the night of the murders
would have rendered “his capacity to think in a logical, well-directed
manner . . . equivalent or similar to an individual that suffers from
mental retardation.” Finally, Lance presented testimony from a third
expert, David Pickar, M.D., who concluded that Lance, as a result of
multiple head traumas and alcohol abuse, suffered from “impaired
intellectual and frontal lobe function” that resulted in impairments of
his ability to plan and to control his impulses.
Lance II, 687 S.E.2d at 814–15 (alterations in original).
The state presented the testimony of Dr. Daniel A. Martell, a
neuropsychologist, who testified that Lance had an IQ of 79 and suffered from
dementia:
[Martell] concluded that Lance functioned within “a range that’s
higher than mild mental retardation but lower than average.” Dr.
Martell added, however, that he had administered an additional test to
determine what Lance’s IQ had been before any possible brain
injuries and that the test showed Lance’s earlier IQ to fall within the
“exact same ranges” as found by the various experts who testified in
the habeas court. Dr. Martell testified that some of Lance’s test results
indicated frontal lobe dysfunction, but Dr. Martell further testified as
follows:
His weaknesses with regard to frontal lobe have to do with a
tendency to perseverate or repeat himself and mild to moderate
impairment in problem-solving abilities in certain contexts like
adapting to changing problems but not others like planning an
effective strategy for solving a problem. However, his ability to
inhibit unwanted or impulsive behaviors appears to be
relatively intact. And I think that’s important in my analysis
with regard to the issue of the crime itself because these data do
not suggest to me that he is, in fact, impulsive or unable to
control his impulses.
Dr. Martell concluded that Lance’s frontal lobe dysfunction would not
have prevented him from planning the murders and would not have
9
made him so impulsive that he could not prevent himself from
committing the murders. As we noted above, Dr. Martell also stated
that Lance’s symptoms were so subtle that a typical court-ordered
evaluation might not have given any indication of problems. Dr.
Martell summarized his opinion by stating, “In my opinion, [Lance’s
diagnosis is] not significant to the crime.”
Lance II, 687 S.E.2d at 815 (second alteration in original).
In addition, Lance presented evidence that Brannon rendered ineffective
assistance when Brannon failed to introduce mitigating character evidence during
the penalty phase of the trial. Friends and family testified that Lance was a loving
father, that his children loved him, and that he had a good character. But Brannon
testified that he chose not to introduce this evidence because to do so would have
allowed the state to cross-examine the character witnesses about aggravating
character evidence.
Lance also presented evidence that Brannon rendered ineffective assistance
during the guilt phase of the trial because Brannon’s request for funds to hire
expert witnesses was deficient and the failure to present this expert testimony
prejudiced Lance. Brannon explained that experts “were needed in this case,
particularly since it’s a death penalty case.” But he also testified that his motions
for funds to hire expert witnesses were sufficiently detailed for the trial court to
grant them. Although Lance’s habeas counsel acknowledged that Brannon “made a
request repeatedly for expert assistance in the case and pointed out the specific
10
categories that [Brannon] thought experts were critical to,” he argued that these
motions were “vague and entirely unspecific.”
The superior court granted Lance’s petition in part and vacated his death
sentence on the ground that Lance had received ineffective assistance of counsel
during the penalty phase of his trial. The superior court found that Brannon’s
failure to investigate and introduce evidence of Lance’s mental health history was
unreasonable. The superior court also found that, had Brannon introduced evidence
of Lance’s mental health history, “such an investigation . . . would have provided
significant mitigating evidence for the jury to consider.”
The Supreme Court of Georgia reversed and reinstated Lance’s death
sentence. Lance II, 687 S.E.2d at 811–12. Although the Supreme Court of Georgia
agreed with the superior court that Brannon’s failure to investigate Lance’s mental
health history was deficient performance, it disagreed that Lance suffered
prejudice. Id. at 812. The Supreme Court of Georgia explained that even if
Brannon had investigated Lance’s mental health background, Brannon would not
have sought “a psychological evaluation of Lance,” because such an investigation
would have revealed only mild mental impairment. Id. at 813. In addition, the court
reasoned that “the trial court [would not] have abused its discretion[] if it had been
asked by trial counsel for funds for a psychological evaluation of Lance, [but]
11
determin[ed] that this information failed to show that the assistance of a
psychologist was critical to Lance’s defense.” Id. (citation omitted).
In the alternative, the Supreme Court of Georgia held that even if Lance had
presented the expert testimony that he presented during his habeas proceedings,
there was not a reasonable probability that the testimony would have changed the
outcome of the trial. The court explained that the evidence established only mild
mental impairments, and “[a]gainst this somewhat mitigating evidence, the jury
would have weighed Lance’s long history of horrific abuse against Joy Lance,” the
horrific nature of the crime, and evidence about Lance’s statements and demeanor
after the crime, such as his declaration that Butch Wood was in “Hell” and “his
boast to an inmate that ‘he hit Joy so hard that one of her eyeballs stuck to the
wall.’” Id. at 815–16.
The Supreme Court of Georgia also denied Lance’s claim that his trial
counsel rendered ineffective assistance in his application for funds for forensic
experts. Id. at 816. The court explained that his trial counsel was not deficient even
though the court had described the motions on direct appeal as conclusory. Id. In
the alternative, the court ruled that Brannon’s failure to request funds for several
expert witnesses did not prejudice Lance. Id. at 817. Lance argued that his trial
counsel should have obtained three additional experts: (1) “an expert to testify that
the repeated blows to Joy Lance’s face with the butt of the shotgun likely would
12
have resulted in the perpetrator being spattered with blood and brain matter”; (2)
“an expert to testify that there were no shoe prints at the crime scene other than the
one on the front door”; and (3) “an expert in polygraph science to testify that the
results of the polygraph examination taken by Joe Moore were ‘inconclusive.’” Id.
(footnote omitted). But according to the Supreme Court of Georgia, the absence of
this testimony did not prejudice Lance. Testimony regarding “spattered . . . blood
and brain matter” was unnecessary because it would “have been obvious to the
jury” and consistent with the evidence that showed Lance “had initially walked
away from the crime scene rather than driving away in his automobile.” Id. The
absence of expert testimony about shoe prints “was not a matter that was subject to
varying scientific opinions.” Id. And, the absence of expert testimony regarding
Joe Moore’s polygraph did not prejudice Lance because “Moore’s volunteered
[polygraph] testimony was ruled inadmissible, and the jury was instructed to
disregard it.” Id. (citation omitted).
Lance then filed a federal petition for a writ of habeas corpus, which the
district court denied. The district court granted Lance a certificate of appealability
about whether his trial counsel was ineffective in “preparing for and presenting
[Lance’s] case in mitigation during the penalty phase of his trial.” Lance appealed
and filed a motion to expand his certificate. We granted it on one issue: whether
13
Brannon “rendered ineffective assistance when he failed to properly request funds
for an investigator and expert witnesses.”
II. STANDARD OF REVIEW
“We review de novo the denial of a petition for a writ of habeas corpus.”
Williamson v. Fla. Dep’t of Corr., 805 F.3d 1009, 1016 (11th Cir. 2015). The
Antiterrorism and Effective Death Penalty Act of 1996 imposes a “highly
deferential standard for evaluating state-court rulings” that “demands that state-
court decisions be given the benefit of the doubt.” Rutherford v. Crosby, 385 F.3d
1300, 1306–07 (11th Cir. 2004) (citations omitted). We will not disturb the
decision of the state court unless it “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d); accord McClain v. Hall, 552 F.3d 1245, 1250 (11th Cir. 2008).
III. DISCUSSION
Lance argues that he is entitled to relief because Brannon rendered
ineffective assistance of counsel and the decision of the Supreme Court of Georgia
that Brannon did not do so was unreasonable, but we disagree. “It is by now
hornbook law that to succeed on a Sixth Amendment ineffective-assistance claim,
a petitioner must show that: (1) ‘counsel’s representation fell below an objective
14
standard of reasonableness,’ and (2) ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1312 (11th Cir.
2016) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). “To
establish deficient performance, the petitioner must show that his attorney ‘made
errors so serious that he was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.’” Id. (alteration adopted) (citation omitted).
“On the issue of prejudice, . . . a reasonable probability of a different result means
‘a probability sufficient to undermine confidence in the outcome.’” Id. (citation
omitted). “When a petitioner challenges his conviction, ‘the question is whether
there is a reasonable probability that, absent the errors, the factfinder would have
had a reasonable doubt respecting guilt.’” Id. (citation omitted). “When a capital
petitioner challenges his death sentence, ‘the question is whether there is a
reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.’” Id. (citation omitted). “The standards created by Strickland and
[section] 2254(d) are both highly deferential, and when the two apply in tandem,
review is doubly so.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations and
internal quotation marks omitted).
15
We divide our discussion in three parts. First, we explain that the Supreme
Court of Georgia reasonably determined that Lance did not suffer prejudice when
Brannon failed to present mental health testimony in the penalty phase. Second, we
explain that Brannon made a strategic decision not to introduce mitigating
character evidence. Third, we explain that Brannon’s failure to obtain funds to hire
expert witnesses was not prejudicial.
A. Inadequate Mental Health Investigation and Testimony
Although the parties dispute whether the Supreme Court of Georgia
reasonably determined that Brannon’s failure to investigate and present expert
mental health testimony during the penalty phase of the trial was deficient
performance, we need not decide this question. We need only decide that the
determination of the Supreme Court of Georgia that this deficiency did not affect
the outcome of the case was reasonable.
Lance argues that, had Brannon performed a reasonable investigation,
Brannon would have discovered “red flags” in Lance’s background that would
have led him to introduce mitigating evidence during the penalty phase of the trial.
According to Lance, “a basic investigation would have revealed” that Lance was
shot in the head, that Lance “had been hospitalized for mental health treatment” for
depression, and that Lance abused alcohol. Lance argues that discovery of this
evidence “necessarily would have led [Brannon] to [request] a comprehensive
16
mental health investigation.” Such an investigation would have led in turn to the
introduction of the expert testimony of doctors, such as Weinstein, Pickar, and
Hyde, that Lance suffered from “borderline retardation,” dementia, and frontal lobe
dysfunction, which impaired Lance’s ability to control his behavior. Lance
contends that, in the light of this evidence, it was unreasonable for the Supreme
Court of Georgia to conclude that Lance did not suffer prejudice.
The Supreme Court of Georgia made two alternative holdings on prejudice,
and we conclude that its second holding was not unreasonable. The Supreme Court
of Georgia held that even if Brannon had introduced the mental health testimony
presented at the state habeas hearing, that evidence would not have changed the
outcome of the case. Lance II, 687 S.E.2d at 815. The court explained that the
evidence presented on habeas review “showed merely that Lance functioned, when
sober, in the lower range of normal intelligence”; had memory issues; suffered
from mild depression; was “somewhat impulsive”; and had some trouble problem
solving. Id.
This conclusion was not unreasonable because much of the evidence that
Lance introduced in the superior court of his mental impairments was not
necessarily mitigating. We have often acknowledged that juries may infer that a
defendant’s alcohol abuse or impulsive behavior that is triggered by organic brain
damage is aggravating. See Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1329
17
(11th Cir. 2013) (en banc) (“We have held too that evidence of substance abuse
‘can do as much or more harm than good in the eyes of the jury.’” (citation
omitted)); Rhode v. Hall, 582 F.3d 1273, 1285–86 (11th Cir. 2009) (“Counsel
reasonably believed that the jury would see Rhode’s impulsive behavior, which
more than one expert believed was triggered by his organic brain damage, as
aggravating.”). And although Lance insists that the Supreme Court of Georgia
erred because it “never even mentioned the word ‘dementia’ in its decision,” the
Georgia Supreme Court did acknowledge “new evidence of subtle neurological
impairments.” Lance II, 687 S.E.2d at 816. This characterization of the evidence
was not objectively unreasonable.
Indeed, “[o]ur analysis of the prejudice prong . . . must also take into
account the aggravating circumstance’s associated with [Lance]’s case . . . .”
Dobbs v. Turpin, 142 F.3d 1383, 1390 (11th Cir. 1998). “At the end of the day, we
are required to ‘reweigh the evidence in aggravation against the totality of
available mitigating evidence.’” Boyd v. Allen, 592 F.3d 1274, 1301 (11th Cir.
2010) (quoting Wiggins v. Smith, 539 U.S. 510, 534 (2003)). In Boyd, for example,
we explained that although trial counsel’s investigation overlooked mitigating
evidence of childhood abuse that “undeniably would have been relevant to Boyd’s
mitigation case,” we determined “that the evidence of abuse would not ultimately
have affected weighing the aggravators and the mitigators.” Id. at 1299. The
18
petitioner in Boyd had participated in a gruesome double murder that culminated in
Boyd and his accomplice beating and shooting the victims. Id. at 1279–81. Boyd
later “bragged about the killings and about how cold blooded he was.” Id. at 1284.
In the light of these circumstances, “we conclude[d] that the totality of mitigating
evidence . . . pales when compared to the brutal nature and extent of the
aggravating evidence.” Id. at 1302. As in Boyd, the aggravating factors of Lance’s
crime are substantial. He had a long history of abusing Joy Lance, he beat her
during the crime until her face was “utterly unrecognizable,” he made derogatory
statements about her and Butch Wood, and Lance showed little remorse after the
crime. Lance II, 687 S.E.2d at 811. And Lance’s new mitigating evidence fails to
convince us that the Georgia Supreme Court unreasonably determined that Lance
was not prejudiced by his defense counsel’s performance.
Lance urges us to follow a trio of decisions—Rompilla v. Beard, 545 U.S.
374 (2005), Williams v. Taylor, 529 U.S. 362 (2000), and Porter v. McCollum, 558
U.S. 30 (2009)—but each decision involved undiscovered evidence that is
substantially more mitigating than the evidence Lance introduced on state habeas
review. Had trial counsel in Rompilla performed an adequate investigation, he
would have discovered that the defendant was raised in a “slum environment,”
suffered from schizophrenia, and had a third-grade level of cognition. Rompilla,
545 U.S. at 390–91. Moreover, the Supreme Court was not bound by the same
19
deferential standard of review that we are. Id. at 390 (conducting a de novo
review). Nor is the mitigating evidence here like the evidence uncovered in
Williams. Unlike the evidence that Lance argues Brannon would have uncovered,
had Williams’ trial counsel performed an adequate investigation, he “would have
uncovered extensive records graphically describing Williams’ nightmarish
childhood.” Williams, 529 U.S. at 395. And in Porter, an adequate investigation
would have revealed the defendant’s heroic military service, “his struggles to
regain normality upon his return from war,” a childhood of abuse, and a brain
abnormality. Porter, 558 U.S. at 41.
Lance erroneously contends that the Supreme Court of Georgia applied an
incorrect prejudice standard, because, according to Lance, it asked “whether the
sentencing jury ‘might’ have considered the mitigating evidence and nonetheless
imposed the death penalty,” when the correct inquiry is “whether the mitigating
evidence might have caused the jury to impose a life sentence in lieu of the death
penalty.” But this latter standard was the standard that the Supreme Court of
Georgia applied; it asked whether, “in reasonable probability [the mitigating
evidence would] have changed the outcome of the sentencing phase if it had been
presented at Lance’s trial.” Lance II, 687 S.E.2d at 816.
Lance also argues that the Supreme Court of Georgia improperly “brushed
aside” the factual findings of the superior court, but we disagree. The Supreme
20
Court of Georgia accepted the factual findings of the superior court, but
determined the legal question of prejudice de novo, id. at 812, 815, which Georgia
law requires. Humphrey v. Morrow, 717 S.E.2d 168, 172 (Ga. 2011). The Supreme
Court of Georgia reasonably concluded that Lance did not suffer prejudice when
Brannon failed to introduce mental health testimony.
B. Mitigating Character Evidence
Lance next argues that Brannon rendered ineffective assistance when
Brannon failed to introduce mitigating character evidence during the penalty phase
of the trial. Although this claim appears to be procedurally defaulted because the
Supreme Court of Georgia held that it was abandoned, Lance II, 687 S.E.2d at 819,
neither party addresses this preliminary question, so we deny Lance’s claim on its
merits. Valle v. Sec’y for Dep’t of Corr., 459 F.3d 1206, 1213 (11th Cir. 2006)
(“Here, it is unnecessary to address the issue of the procedural bar, because even
assuming the claim is preserved, Valle is not entitled to habeas relief . . . .”). Lance
argues that, had Brannon investigated Lance’s background, Brannon would have
introduced character evidence that painted Lance as a “quiet, peaceful man,” who
was “normally a kind, dependable, and compassionate person.” Brannon “also
could have identified witnesses to testify that [Lance] loved his son and daughter
dearly, and they loved him in return.” Lance argues that Brannon’s failure to do so
constituted ineffective assistance. We disagree.
21
The decision not to introduce mitigating character evidence was a reasonable
strategic decision. Brannon testified that he chose not to introduce mitigating
character evidence because it would have opened the door to the introduction of
aggravating character evidence. We have repeatedly held that this kind of
decision—to call or not call certain witnesses—is the “epitome of a strategic
decision . . . that we will seldom, if ever, second guess,” Waters v. Thomas, 46
F.3d 1506, 1512 (11th Cir. 1995); accord Ledford v. Warden, Ga. Diagnostic &
Classification Prison, 818 F.3d 600, 647 (11th Cir. 2016); Conklin v. Schofield,
366 F.3d 1191, 1204 (11th Cir. 2004), and we decline to do so here.
C. Motion to Obtain Funds for Expert Witnesses
Lance argues that Brannon rendered ineffective assistance because the
motions for funds to hire expert witness fell below the standard set by Georgia law
and that this deficiency caused Lance to suffer prejudice, but we disagree.
Although the Supreme Court of Georgia held that the motions for funds were not
deficient, we consider only its holding that the motions did not cause prejudice.
Lance argues that, had Brannon obtained funds to hire expert witnesses, he
would have presented the testimony of a forensic pathologist, a crime scene expert,
a polygraph expert, and a fingerprint expert. He contends that there is a reasonable
probability that this additional testimony would have changed the outcome of the
case. A forensic pathologist, according to Lance, would have “uncovered . . .the
22
lack of physical evidence” in the case, testified to inconsistencies in Agent
Cooper’s testimony on the times of death, and explained that it could have been
“‘virtually impossible for the person administering the blows [to Joy Lance] to
escape from the scene with little or no blood on her/him.’” A crime scene expert,
according to Lance, would have testified that the Jackson County Sheriff’s Office
“failed to look for footprints, tire marks, or other evidence on the ground around
Wood’s home.” A polygraph expert, according to Lance, would have discredited
the testimony of Joe Moore, who took a polygraph test and implicated Lance in the
murders. And a fingerprint expert, according to Lance, would “have testified that
[Lance’s] fingerprints were never found in or around the crime scene.”
The Supreme Court of Georgia held that this additional testimony would not
have changed the outcome of the trial. Lance II, 687 S.E.2d at 816–17.The court
explained “there is, even now, no substantial dispute among the experts regarding
the time of death but, instead, that there is merely a dispute over the manner in
which the time of death was established.” Id. at 816. The court reasoned that the
lack of blood spatter would “have been obvious to the jury,” and it was also
“consistent with Lance having disposed of any bloody clothes at the same time he
obviously disposed of his distinctive shoes.” Id. at 817. In addition, “the absence of
shoe prints was not a matter that was subject to varying scientific opinions.” Id. A
polygraph expert was unnecessary, according to the Supreme Court of Georgia,
23
because “Moore’s volunteered testimony was ruled inadmissible, and the jury was
instructed to disregard it.” Id. (citation omitted). Finally, the court explained that
the lack of fingerprint evidence was a “matter of common sense,” not varying
scientific opinions. Id.
The decision of the Supreme Court of Georgia was not an unreasonable
application of federal law. The court weighed the new evidence presented by
Lance during state habeas proceedings and concluded that the new evidence would
not have changed the outcome of Lance’s trial. Lance II, 687 S.E.2d at 816–17.
This analysis is the analysis Strickland commands. The state habeas court
compared the “totality of the evidence before the . . . jury” with the new evidence
presented by Lance and concluded that the new evidence had “an isolated, trivial
effect” on the whole “evidentiary picture.” Strickland, 466 U.S. at 695. There was
little testimony introduced that went beyond ruminations about common sense
facts, and no testimony that fundamentally undermined the state’s case. As the
district court correctly explained, Lance’s claim amounts to a “quibble[]” with the
conclusion of the Supreme Court of Georgia, not that the conclusion was truly
unreasonable. None of the evidence presented by Lance would have had a
“pervasive effect on the inferences” drawn by the jury. Strickland, 466 U.S. at
695–96.
24
IV. CONCLUSION
We AFFIRM the denial of Lance’s petition for a writ of habeas corpus.
25
MARTIN, Circuit Judge, concurring in the judgment:
Counsel’s performance at the penalty phase of Donnie Lance’s capital
murder trial was unquestionably deficient. Trial counsel conducted no
investigation into Mr. Lance’s background or mental health. And at trial, counsel
offered nothing in mitigation. As a result, the jurors that decided whether Mr.
Lance should live or die never learned any facts that gave them a reason not to
sentence him to death. The jury never heard that Mr. Lance had suffered from
repeated head trauma, including the time he was shot in the head, and was brain-
damaged as a result. Neither did the jury learn of his dementia or his borderline
intellectual functioning. Because the jury did not know of Mr. Lance’s mental
impairments, it could not “accurately gauge his moral culpability.” Porter v.
McCollum, 558 U.S. 30, 41, 130 S. Ct. 447, 454 (2009). Had the jury heard the
mitigating evidence uncovered during postconviction proceedings, there is, in my
view, a “reasonable probability that at least one juror would have struck a different
balance” between the aggravating and mitigating factors. Wiggins v. Smith, 539
U.S. 510, 537, 123 S. Ct. 2527, 2543 (2003).
Our death penalty jurisprudence is premised on the idea that only those most
deserving should receive the ultimate punishment. See Woodson v. North
Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 2991 (1976). That being the case, the
“primary purpose” of the penalty phase of a capital trial is to ensure that the
26
sentence is individualized “by focusing on the particularized characteristics of the
defendant.” Brownlee v. Haley, 306 F.3d 1043, 1074 (11th Cir. 2002) (quotation
omitted and alteration adopted). This process doesn’t work, however, when
counsel fails to perform a constitutionally adequate mitigation investigation,
thereby denying the defendant the opportunity to make the case that he should live.
I respectfully disagree with the Georgia Supreme Court’s conclusion that Mr.
Lance failed to show prejudice here. The habeas court disagreed with this
conclusion as well, and so found that Mr. Lance was entitled to relief on his
ineffective assistance claim and vacated his death sentences.
However, it is not the job of this Court to decide the merits of Mr. Lance’s
ineffective assistance claim in the first instance. Rather, the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, allows a federal court
to grant relief to a state prisoner challenging his conviction or sentence only if the
state court’s decision involves an unreasonable application of the law or is based
on an unreasonable determination of the facts. Id. § 2254(d). Despite my belief
that the Georgia Supreme Court got this wrong, I acknowledge that fairminded
judges can disagree. See Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770,
786 (2011) (“A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could disagree on the correctness
of the state court’s decision.” (quotation omitted)). For that reason, I concur with
27
the majority’s holding that Mr. Lance is not entitled to federal habeas relief on his
claims.
28