Travis Clinton Hittson v. GDCP Warden

Case: 12-16103 Date Filed: 07/09/2014 Page: 1 of 154

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
__________________________

No. 12-16103
__________________________

D.C. Docket No. 5:01-cv-00384-MTT

TRAVIS CLINTON HITTSON,

Petitioner – Appellee–Cross Appellant,

versus

GDCP WARDEN,

Respondent – Appellant–Cross Appellee.

__________________________

Appeal from the United States District Court
for the Middle District of Georgia
__________________________

(July 9, 2014)

Before CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.

TJOFLAT, Circuit Judge:
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In April 1992, Travis Hittson and Edward Vollmer, who were enlisted men

in the Navy, brutally killed, mutilated, and dismembered their shipmate Conway

Utterbeck. Hittson confessed to the crime, and in February 1993 he was convicted

of murder in the Superior Court of Houston County, Georgia. During the penalty

phase of his trial, 1 Hittson tried to show that his co-defendant, Vollmer, had

planned the murder and manipulated Hittson into helping him carry it out. This

strategy fell short and the jury returned a unanimous death sentence, finding as an

aggravating factor that the murder “was outrageously or wantonly vile, horrible, or

inhuman.” See O.C.G.A. § 17-10-30(b)(7).

After Hittson exhausted his direct appeal and collateral attack remedies in

the Georgia courts, he petitioned the United States District Court for the Middle

District of Georgia for a writ of habeas corpus pursuant 28 U.S.C. § 2254. In his

petition, Hittson presented twenty separate claims for relief. Those relevant to this

appeal concern the penalty phase of his trial: (1) The trial court erroneously

allowed the State’s psychologist to testify to statements made by Hittson during a

court-ordered mental-health examination, in violation of Hittson’s Fifth

Amendment right against self-incrimination and Sixth Amendment right to the

1
Georgia death-penalty cases proceed in two phases. If a defendant is found guilty of a
capital offense during the guilt phase, then the case proceeds to the penalty phase, during which
the same jury must unanimously find at least one statutory aggravating factor in order to return a
death sentence. See O.C.G.A. §§ 17-10-2(c); 17-10-31(a).

2
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effective assistance of counsel. 2 (2) Hittson’s attorneys failed to properly present

to the jury expert testimony regarding his background and mental condition, thus

denying him his Sixth Amendment right to the effective assistance of counsel.

And (3) the State withheld exculpatory evidence in violation of the Due Process

Clause of the Fourteenth Amendment and the rule of Brady v. Maryland3—to wit,

a Navy psychiatric report diagnosing Vollmer with severe Antisocial Personality

Disorder, and two letters written by Vollmer from jail following his arrest, in

which he discussed the murder.

The District Court found that Hittson was entitled to habeas relief from his

death sentence based on the State psychologist’s testimony. Hittson v. Humphrey,

No. 5:01–cv–384 (MTT), 2012 WL 5497808, at *56 (M.D. Ga. Nov. 13, 2012).

The court found that trial court’s allowance of the psychologist’s testimony denied

Hittson his Fifth and Sixth Amendment rights under Estelle v. Smith, 451 U.S.

454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981),4 and that the testimony had a

“substantial and injurious effect” on the jury’s death sentence and was therefore

2
The Sixth Amendment right to counsel and the Fifth Amendment right against self-
incrimination have been made applicable to the states through the Fourteenth Amendment’s Due
Process Clause. See Duncan v. Louisiana, 391 U.S. 145, 148, 88 S. Ct. 1444, 1447, 20 L. Ed. 2d
491 (1968).
3
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
4
More accurately, the District Court found, under § 2254(d)(1), that the Georgia
Supreme Court unreasonably applied Estelle in concluding that the trial court’s admission of the
psychologist’s testimony into evidence did not deny Hittson his Fifth and Sixth Amendment
rights.

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not harmless, see Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S. Ct. 1710, 1722,

123 L. Ed. 2d 353 (1993). The court denied the remainder of Hittson’s claims for

relief.

On appeal, the State now concedes that the trial court’s admission of the

psychologist’s testimony violated Hittson’s constitutional rights and does not

appeal the District Court’s ruling on this point—leaving only the question of

whether the admission of the testimony was harmless error under Brecht. Hittson

also cross-appealed the District Court’s denial of some of his penalty phase

challenges. The District Court granted Hittson a certificate of appealability

(“COA”) on his Brady claims, and we expanded the COA to include his

ineffective-assistance-of-counsel claim—that counsel failed to present expert

testimony relating to Hittson’s background and mental condition.

We expanded the COA a second time after the Supreme Court decided

Trevino v. Thaler, __ U.S. __, 133 S. Ct. 1911, 1852 L. Ed. 2d 1044 (2013)—by

which point briefing was already underway in this appeal. Trevino recognized

certain circumstances in which a federal court may excuse a habeas petitioner’s

failure to properly raise his claims in state court. __ U.S. at __, 133 S. Ct. at 1920–

21; see also Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309, 1320–21, 182 L. Ed. 2d

272 (2012). Before Trevino came down, Hittson sought leave from the District

Court to add four new claims to his federal petition—claims that he had not raised

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in any of his state proceedings. The District Court denied the motion. Because

Trevino has some bearing on the District Court’s analysis, we expanded Hittson’s

COA to decide:

Whether Hittson should be allowed to amend his federal habeas
petition to include claims of ineffective assistance of trial counsel
which were previously defaulted through prior counsel in state habeas
proceedings in light of the United States Supreme Court’s ruling in
Trevino v. Thaler . . . .

After reviewing the record and entertaining the parties’ arguments in open

court, we (1) reverse the District Court’s grant of habeas relief setting aside

Hittson’s death sentence based on the State psychologist’s testimony, (2) affirm the

District Court’s denial of Hittson’s Brady claims and ineffective-assistance-of-

counsel claim, and (3) hold that Trevino does not enable Hittson to raise new

claims that he failed to litigate in state court.

Part I of this opinion describes the crime, as presented to the jury in the

State’s case in chief, and the law enforcement’s investigation. Part II covers

Hittson’s 1993 trial, his direct appeal to the Georgia Supreme Court, and that

court’s refusal to grant him habeas corpus relief. Part III covers the § 2254

proceedings in the United States District Court and its granting of the writ setting

aside Hittson’s death sentence. Part IV explains the standard we apply under

§ 2254 in reviewing the Georgia courts’ denial of Hittson’s constitutional claims.

In parts V, VI, and VII, we review and dispose of those claims. Part VIII explains

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our reasons for concluding Hittson may not rely on Trevino to excuse his

procedural default. And we briefly conclude in part IX.

I.

A.

In the spring of 1992, Travis Hittson, Edward Vollmer, and Conway

Utterbeck were stationed aboard the USS Forrestal, an aircraft carrier that was

based in Pensacola, Florida, at the time. They were all assigned to the electrical

division of the engineering department. Vollmer and Hittson were on the same

work detail, and Vollmer was Hittson’s Leading Petty Officer. Utterbeck had a

different assignment but worked in a similar capacity in the same area of the ship.

On Friday, April 3, 1992, Vollmer invited Hittson and Utterbeck to come

with him to his parents’ house in Warner Robins, Georgia, for the weekend. His

parents were out of town. Apparently neither Hittson nor Utterbeck was aware that

the other had also been invited until shortly before they left Pensacola. The three

men arrived at Vollmer’s parents’ house late Friday evening, but they did not have

a key, so they spent the night in a storage shed behind the house. On Saturday,

April 4, a friend of Vollmer’s parents came by to check on the house; finding

Vollmer and the two others there, he gave them a key. The three sailors spent most

of the day on Saturday hanging around the house, but sometime Saturday evening,

Hittson and Vollmer went out drinking. They left Utterbeck at the house.

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Early in the morning of Sunday, April 5, after several hours of drinking,

Hittson and Vollmer headed back to the Vollmer residence. According to the

statement later given by Hittson to law enforcement, he was very drunk by that

time. On the drive back, Vollmer worked Hittson up by telling him that Utterbeck

was “going to get us”—that Utterbeck was plotting to kill the two of them—so

“we’ve got to get him” by killing him first. At some point—though it is not clear

when—Vollmer told Hittson that Utterbeck had a hit list with Hittson’s and

Vollmer’s names on it. When they pulled into the driveway, Vollmer put on a

bulletproof vest and a long trench coat and grabbed a sawed-off shotgun and a .22

caliber handgun from his car. He gave Hittson an aluminum bat that was also in

the car and told Hittson that Utterbeck was waiting for them inside the house and

was planning to shoot them. 5 Vollmer instructed Hittson to go in first and “get

him” and then “get him in the kitchen”—so they would not make a mess on the

carpet.

When Hittson entered the house, he found Utterbeck asleep in a recliner in

the living room. Hittson sneaked up on him and hit him in the head with the bat.

5
While Vollmer’s parents did have guns in their house, it has never been established
whether Vollmer (whom Hittson described as “very paranoid”) actually believed that Utterbeck
was planning to kill them that night, or if Vollmer just told Hittson as much to get him to kill
Utterbeck. There is no evidence in the record to indicate that Utterbeck harbored any particular
ill will towards either Hittson or Vollmer, or that Utterbeck had any intention to do them harm
that night. And, other than the crime itself, there is no evidence in the record to indicate that
Vollmer or Hittson had a reason to kill Utterbeck.

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Utterbeck woke up and jumped up out of the chair. Hittson hit him in the head

again, knocking him to the floor. Utterbeck raised a hand to defend himself, so

Hittson hit his hand with the bat and then hit him in the head a third time. The

third hit was apparently enough to subdue Utterbeck. Hittson dragged him by his

hands into the kitchen, where Vollmer was waiting. Utterbeck was still conscious

and asked Hittson, “what did I ever do to you?” Vollmer gave Hittson the .22

pistol and stood on Utterbeck’s hand to keep him from struggling. Utterbeck

screamed “no, no,” and begged for his life, but Hittson shot him point blank in the

forehead. In his own words, “I had no emotion or nothing on my face. I know I

didn’t. I was cold and Vollmer steps on his hand and . . . handed me the gun, I shot

him.”

Hittson and Vollmer stripped Utterbeck’s body, taking the $62 they found in

his pockets. They left the body in the kitchen and went to a nearby Waffle House

to get something to eat. Upon their return, Vollmer told Hittson that they had to

dismember the body and clean up the house to conceal the crime. They initially

tried to cut up the body with a serrated steak knife from the kitchen, but then

switched to a hacksaw from the tool shed out back. They also found a piece of

slate in the shed, which they placed under the body to avoid scratching up the

kitchen floor. Following Vollmer’s directions, Hittson sawed off one of

Utterbeck’s hands and began working on sawing off his head, but got sick and had

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to stop. Vollmer finished sawing off the head, the other hand, and both feet.

Vollmer also skinned part of Utterbeck’s arm and chest with a knife and a pair of

pliers. The autopsy later showed that Utterbeck’s buttocks and penis were partially

skinned and his testicles and rectum were removed. Hittson denied performing the

sexual mutilation and stated that he had not seen Vollmer do it either.

After finishing their grisly task, Hittson and Vollmer wrapped Utterbeck’s

torso and severed body parts in plastic bags and left them in the kitchen while they

drove to a nearby wooded area to dig a shallow grave. As they were returning to

Vollmer’s parents’ house—around 10:30 on Sunday morning—they happened to

pull onto the highway in front of a local woman who was traveling in the same

direction. The woman took notice of Vollmer’s car, which had an out-of-state

license plate and was pulling off of a lightly traveled dirt road that led to an

undeveloped tract of land owned by a friend. Suspicious, she wrote down the

license plate number and a description of the car, which she later turned over to the

Houston County Sheriff’s Office after Utterbeck’s torso was discovered on the

property two months later.

Hittson and Vollmer returned to Vollmer’s parents’ house and began

cleaning the blood off the kitchen floor and the living room carpet. Vollmer’s

sister-in-law (who lived nearby) came by around noon on Sunday, while they were

still cleaning. Vollmer left with her to go grab a bite to eat, without ever letting her

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inside the house. While they were gone, Hittson kept cleaning. When Vollmer

returned, he and Hittson drove back out to the grave to bury Utterbeck’s torso and

then went back to the house to finish cleaning. The family friend who had given

them the key came by Sunday evening to check on the house again. Hittson had to

quickly hide Utterbeck’s clothes and throw a blanket over a lingering blood spot in

the living room. When the family friend asked where the third guy was, Vollmer

told him that Utterbeck was asleep in the back room.

Hittson and Vollmer finally finished cleaning up the house sometime

Sunday evening, and so they packed up and set out for Pensacola. They put

Utterbeck’s severed hands, head, and feet in the trunk of Vollmer’s car, along with

a few other pieces of evidence, including Utterbeck’s clothing, his identification

card, and the .22 shell casing. They threw Utterbeck’s clothing and ID card in a

dumpster close to Vollmer’s parents’ house. Before leaving Warner Robins, they

stopped at Vollmer’s sister-in-law’s for about an hour to say goodbye. As they

drove back to Pensacola, Vollmer tried to find a good place to dump the remaining

body parts, but apparently did not find a spot to his liking.

They made it back to Pensacola around 6 a.m. on Monday, April 6. With

Utterbeck’s body parts still in Vollmer’s trunk, they drove onto the Navy base and

reported for duty aboard the Forrestal. When they got off work that day, they

drove to a wooded area outside of Pensacola and buried the body parts in several

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shallow holes. On their drive back into town, they scattered some remaining

pieces of evidence in a few dumpsters.

B.

When Utterbeck failed to report for roll call on Monday, April 6, the Navy

took note of his unauthorized absence but did not further investigate until later that

month, when Utterbeck’s mother called his division commander to tell him that she

had not heard from her son since the first weekend in April—when he had traveled

to Warner Robins with two shipmates. Inquiries aboard the Forrestal led Navy

personnel to Hittson and Vollmer. When questioned about Utterbeck’s

whereabouts, they confirmed that they had gone to Vollmer’s parents’ house over

the April 3 weekend with Utterbeck, but they claimed that they dropped him off at

a bar in Pensacola sometime in early morning hours of Monday, April 6. On April

27, 1992, the Naval Investigative Service issued a missing persons alert for

Utterbeck, and on May 5 he was declared a Navy deserter.

On June 16, 1992, Utterbeck’s torso was discovered by loggers who were

clearing the wooded property near Vollmer’s parents’ house. The loggers called

the Houston County Sheriff’s Office, who unearthed the torso and sent it to the

state crime lab in Atlanta. The autopsy did not reveal the victim’s identity. Upon

hearing about the dead body, the local woman, who had months earlier written

down Vollmer’s license plate, called the sheriff’s office. The plate number she had

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written down was off by one digit, so the Houston County officials were not able

to immediately trace the car to Vollmer.

On June 23, 1992, after receiving no new leads on Utterbeck’s whereabouts,

Navy investigators broadcast a request to other law enforcement agencies for

information regarding any unidentified bodies matching Utterbeck’s general

description. The Houston County Sheriff’s Office responded the same day,

informing the Navy that they had unearthed the remains of a white male matching

Utterbeck’s characteristics approximately two miles from Vollmer’s parents’

house, with a time of death estimated sometime in early April.

Investigators from Houston County and the Navy interviewed Hittson on

June 25, 1992. Hittson initially stuck to his story—that he and Vollmer had

dropped Utterbeck off at a bar sometime early Monday morning—but after being

confronted with the investigators’ suspicions that they had found Utterbeck’s

dismembered body, Hittson confessed that he and Vollmer had murdered

Utterbeck and buried him there. In a taped statement given to the investigators—

which was later played for the jury—Hittson described the murder,

dismemberment, and disposal of the body parts in detail. After confessing, Hittson

led investigators to the spot outside Pensacola where the remaining body parts

were buried. He also told the investigators where to find the baseball bat, which he

and Vollmer had stashed in the rafters of the shed at Vollmer’s parents’ house.

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Hittson was then taken into custody by the Houston County Sheriff’s Office. That

same day, Vollmer was arrested in Houston County, at his parents’ house.

The next day, investigators executed search warrants for Vollmer’s car and

his parents’ house. They found traces of blood and .22 caliber ammunition in the

trunk of Vollmer’s car. They recovered the .22 pistol, the aluminum bat, the

hacksaw, the piece of slate Hittson and Vollmer used during the dismembering,

and other various pieces of evidence from the house, and they found traces of

blood on the kitchen floor and baseboard.

II.

A.

A Houston County grand jury returned an indictment on June 30, 1992,

charging Hittson and Vollmer with four counts: Count One, malice murder; Count

Two, armed robbery; Count Three, aggravated assault; and Count Four, possession

of a firearm during the commission of a crime. At arraignment, both defendants

pled not guilty, and in September 1992, the Houston County District Attorney filed

a notice of the State’s intention to seek the death penalty. The cases against

Hittson and Vollmer were severed; at a joint trial, Hittson’s confession, which

implicated Vollmer, would technically be introduced against Hittson only, but the

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spillover effect would deny Vollmer a fair trial.6 The case against Hittson would

be tried first.

Hittson’s trial began on February 25, 1993, in the Superior Court of Houston

County. During the guilt phase, Hittson’s recorded confession formed the

framework for the State’s case, with various experts and lay witnesses confirming

the gory details Hittson related and a raft of gruesome autopsy photos showing

Utterbeck’s partially-decomposed torso and severed head, hands, and feet. The

State rested its case after three days, and Hittson did not put on a defense to contest

guilt. On Saturday, February 27, 1993, the jury found Hittson guilty on all counts. 7

The penalty phase of the trial began Monday, March 1. Under Georgia law,

to sentence a convicted murderer to death, the jury must return a unanimous

verdict finding at least one statutorily defined aggravating factor. See O.C.G.A.

§ 17-10-31(a). The State, relying on the evidence presented in the guilt phase,

pointed to two such factors in support of a death sentence: the murder was

committed during the commission of an aggravated battery, see id. § 17-10-

30(b)(2), and the murder “was outrageously or wantonly vile, horrible, or inhuman

6
At a joint trial, unless Hittson took the witness stand, which would be highly unlikely,
Vollmer would be unable to examine him about his confession. See generally Reeves v. State,
237 Ga. 1, 3, 226 S.E.2d 567, 568 (1976) (“[T]he admission of a co-defendant’s confession that
implicated another defendant at a joint trial constitutes prejudicial error . . . .” (citing Bruton v.
United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 1622, 20 L. Ed. 2d 476 (1968)).
7
On Count Two, armed robbery, the jury found Hittson guilty of the lesser charge of
theft by taking.

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in that it involved torture, depravity of mind, or an aggravated battery to the

victim,” see id. § 17-10-30(b)(7). 8 The State did not put on any new evidence

during the penalty phase.

A Georgia jury must also consider mitigating factors in deciding whether to

return a death sentence. Id. § 17-10-30(b). Even if the jury finds an aggravating

factor, they may still return a life sentence, with no requirement that they explain

their reasons for doing so. Head v. Thomason, 276 Ga. 434, 436, 578 S.E.2d 426,

429 (2003).

Hittson’s defense against a death sentence took a day and a half; it consisted

of the testimony of twenty lay witnesses who either knew Hittson before he joined

the Navy or worked with him or supervised him on the Forrestal. The witnesses

portrayed Hittson as a good-natured guy who, though somewhat dim-witted, was a

hard worker and was eager to please. His shipmates, some of whom shared an

apartment with him in Pensacola, testified that Hittson drank frequently and

heavily and would sometimes do stupid things when drunk. The defense also

elicited testimony that Hittson grew up in an unaffectionate home and was

constantly in search of affirmation from others, he occasionally grew depressed

8
The State initially proposed a third aggravating factor, that the murder was committed
during the commission of another capital felony (the armed robbery). However, because the jury
found Hittson guilty of theft by taking instead of armed robbery, see note 7, supra, the trial court
only instructed the jury on the two aggravating factors listed above.

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because he thought no one could love him, and he would go to great lengths to be

accepted by others. Several of his shipmates testified that he was impressionable

and gullible and would generally go along with whatever he thought people wanted

from him. His supervisors had similar assessments—e.g., “he was just a kid that

needed some guidance and direction,” and “he had a very fragile personality and

he wanted to fit in.” Lt. Cornelius Mapp, Hittson’s division officer, explained that

“Hittson’s the type of person that you can convince that he’d done anything.” In

his assessment, Hittson wasn’t capable of such a brutal murder—“If he’s guilty, I

think he’s guilty of being in the presence of a crime and he didn’t report it.”

In contrast to painting Hittson as the easily-duped kid with a dependent

personality, the defense sought to portray Vollmer as a violent sociopath who had

plotted the murder and manipulated Hittson into helping him carry it out. Several

witnesses testified that Vollmer was intelligent and domineering; one shipmate

explained that he “wanted people to think he was in control,” and a friend of

Vollmer’s explained that he “liked to play with people’s heads.” The defense

submitted letters written by Vollmer that showed him to be arrogant and violent.9

Shipmates described Vollmer as a “violent guy” who “likes to hold a grudge” and

9
For example, Vollmer bragged about participating in gang fights, dealing drugs, and
putting bounties out on rivals’ heads; he called himself “King of the Knights of Death” and
wrote, “I’m not afraid of dying and I have no problem with killing anyone . . . . Morals are for
losers trying to justify their place in life.”

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was known to keep his bulletproof vest and aluminum bat in his car and

occasionally carry a sawed-off shotgun under his trench coat.

The defense laid out evidence that Vollmer had been contemplating murder

long before the April 3 weekend. On three or four occasions, Vollmer borrowed a

shipmate’s copy of a documentary describing forensic techniques used to detect

and solve murders. He read books about murder. He told several people, both

before and after the murder, that the best way to dispose of a body was to cut it up.

In one of his letters, Vollmer described a detailed plan to murder the boyfriend of a

woman he used to be romantically involved with.10 Regarding Utterbeck, a few

witnesses testified that Vollmer did not like him and, prior to the murder, had told

shipmates who had disagreements with Utterbeck that he would “take care of” him

for them. No one ever identified a concrete motive for either Vollmer or Hittson,

but the inference the defense team wanted the jury to draw was that Vollmer had

been thinking about killing someone for quite a while, and on that April weekend,

Hittson “was led by Mr. Vollmer to do this out of some perverse or demented

fantasy that Mr. Vollmer had entertained.” 11

10
The plan laid out in the letter had no obvious similarities to Utterbeck’s murder.
11
Doc. 56-9, at 95 (testimony given by trial counsel during habeas proceedings before the
Butts County Superior Court).

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According to the defense’s theory, it was no surprise that someone like

Hittson would be vulnerable to manipulation by someone like Vollmer. The

narrative they sought to create was “that basically away from the co-defendant,

[Hittson] was a pretty harmless guy . . . he drank a lot, but, basically, he was sort of

a needy kind of harmless little guy, and that Mr. Vollmer was the brains of this

operation and basically manipulated [Hittson] into doing something that he would

have never done.” 12 One witness during the penalty phase described Hittson as

Vollmer’s “sidekick”—his “dog.” In the words of another witness, “Vollmer was,

you know, he liked to tell somebody what to do, and Hittson was the kind of guy,

you know, if you’re his friend and . . . you tell him something to do, he’ll do it. So

Vollmer had somebody to tell what to do and somebody to do it, and Hittson had

somebody who . . . would tell him what to do.”

To further distinguish Hittson from Vollmer, the defense presented

testimony that, after that April weekend, their relationship deteriorated. Vollmer

continued to be the “same old guy.” He jokingly told his friends that he had killed

Utterbeck and told shipmates that if they shot someone, to shoot them in the heart

instead of the head, because head wounds bleed too much. In comparison, Hittson

stopped hanging around Vollmer after the murder—they even got in a fight shortly

12
Doc. 75-17, at 61–62 (testimony given by trial counsel during habeas proceedings
before the Butts County Superior Court).

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before they were arrested—and Hittson became withdrawn and depressed and

began to drink even more. One night after some heavy drinking, Hittson confessed

to his best friend, Steven Nix, that Utterbeck “wasn’t ever coming back.” When

asked if Hittson appeared remorseful during this conversation, Nix responded,

“[l]ooking back now, maybe, he might have been.”

To rebut Nix’s testimony that Hittson might have been remorseful, the State

called Dr. Robert Storms, the psychologist the State had employed to examine

Hittson prior to trial,13 to testify to statements made by Hittson during the

examination. Prior to trial, the defense team had Hittson examined by a

psychologist and psychiatrist and were considering using some of the experts’

findings as mitigation evidence during the penalty phase. To preserve their right to

present this evidence, a few weeks before the trial began they filed a Notice of

Intent of Defense to Raise Issue of Insanity or Mental Incompetence. See Ga.

Unif. Super. Ct. R. 31.4 (1993) (now Rule 31.5). To allow the State to counter the

defense experts’ findings, the trial court granted the State’s motion for an order

requiring Hittson to submit to an examination by an expert of the State’s choosing,

Dr. Storms. Hittson’s attorneys were allowed to attend the examination, and

13
Dr. Storms was the senior psychologist in the Forensic Services Division of the
Central State Hospital in Milledgeville, Georgia.

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Hittson signed a form waiving his Miranda14 rights before talking to Dr. Storms.

During the interview, Hittson described Utterbeck as a “hillbilly” and an “asshole.”

The defense team eventually decided not to put on any expert opinion testimony of

Hittson’s mental condition; instead, they stuck to the lay testimony they had

already presented and rested their case. Nonetheless, the State, in rebuttal,

proffered in camera the testimony Dr. Storms would give, as a “lay” witness, about

Hittson’s description of Utterbeck—ostensibly to counter Nix’s testimony that

Hittson was remorseful. The defense team strenuously objected to the proffer on

the grounds that Hittson’s waiver of his Miranda right against self-incrimination

was limited to the admission of Dr. Storms’s opinion testimony to rebut the

defense experts’ opinions. The court overruled the objection, and Dr. Storms

testified before the jury in accordance with his proffer.

After stating his name, position, and reason for interviewing Hittson, Dr.

Storms testified as follows:

Q Now, in the course of . . . your interview with [Hittson] did you,
at any time, ask him about his opinion, or to give some statement
about Mr. Conway Utterbeck?

A Yes. I wanted to find out about that relationship.

14
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In signing
the form, Hittson purported to waive his right to remain silent—his right against self-
incrimination—during the examination.

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Q All right. And if you would, please, state what this defendant
said about Conway.

A Well, at one point he stated that Mr. Utterbeck was a “hillbilly,”
and at another point he stated that he was an “asshole.”

Hittson’s attorneys did not cross examine Dr. Storms or present any evidence in

surrebuttal.

In its closing argument to the jury, the State made reference to the “hillbilly”

and “asshole” comments again:

[Y]ou’ve heard one of the defense witnesses talk about, well, as I
think about it now he was remorseful. I think he was remorseful.
Well, members of the jury, there’s your remorse. (Referring to
easel.)[15] As early, or as late, rather, as three weeks ago this is this
defendant’s response when asked about Conway Utterbeck being an
innocent human being. Conway was a hillbilly, he was an asshole. Is
that remorse? What does your common sense tell you? What does
reason tell you?

In the defense’s closing argument, Hittson’s attorney discounted the

comments and sought to mitigate their impact by pointing out Hittson’s

cooperation with investigators—he confessed, led investigators to the body parts,

and told them where to find the bat. In other words, regardless of how Hittson

described Utterbeck, he was clearly overcome with guilt about what he had done—

15
The record does not indicate what was displayed on the easel, but one of Hittson’s
attorneys testified before the Butts County Superior Court, in a hearing on Hittson’s petition for a
writ of habeas corpus, that the District Attorney wrote “hillbilly” and “asshole” on “big poster
boards” and displayed them to the jury during some portion of his closing argument.

21
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why else would he have confessed and aided investigators in making the case

against him?

The court charged the jury with their task—that, in considering whether to

impose the death penalty, they unanimously find at least one aggravating factor to

exist beyond a reasonable doubt. In explaining the requirements for finding that

the murder was “outrageously or wantonly vile, horrible, or inhuman,” the court

instructed the jury that they must find that the murder involved either “[1]

depravity of mind; or [2] torture of the victim prior to the death of the victim; or

[3] aggravated battery to the victim prior to the death of the victim.” See O.C.G.A.

§ 17-10-30(b)(7). The court further clarified that “[d]epravity of mind is a

reflection of an utterly corrupt, perverted, or immoral state of mind,” and in

deciding whether the murder involved such a mindset, the jury could consider “the

actions of the defendant prior to and after the commission of the murder,”

including whether the defendant “subjected the body of a deceased victim to

mutilation.”

The jury took all of the evidence from the guilt phase with them into

deliberations, including a picture of Utterbeck before the murder; pictures of

Utterbeck’s mutilated torso and severed head, hands, and feet; autopsy photos

showing the mutilation in great detail; and a diagram of Vollmer’s parents’ house

indicating where Hittson hit Utterbeck with the bat, dragged him into the kitchen,

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and where he was positioned when Hittson shot him. The jury also had the

defense’s exhibits from the penalty phase, including the letters written by Vollmer,

several pictures of Hittson with his family and as a child, and an art project Hittson

made in school.

During deliberations, the jury sent the court two questions aimed at whether

a “life sentence” actually meant that Hittson would spend the rest of his life in

prison. The court responded to both by repeating its original charge, that a life

sentence meant Hittson would “serve the remainder of life in the penitentiary.”

After approximately four hours, the jury returned a unanimous death sentence.

The aggravating circumstance they found was that the murder was “outrageously

or wantonly vile, horrible, or inhuman, in that it involved depravity of mind.” The

judge imposed Hittson’s death sentence on March 17, 1993.

In October 1993, Vollmer pled guilty to the murder count in exchange for a

life sentence. 16 He is currently eligible for parole.

16
The District Attorney who tried Hittson and offered Vollmer a plea deal explained his
reasons for seeking the death penalty for Hittson, while offering Vollmer a plea, as follows:
[I]t was my impression that [Vollmer] was a manipulator and certainly an evil
person. . . . The problem I had is, in deciding what to do I have to divorce my gut
and my feelings from what the evidence is and what the law is. I felt like, you
know, for all his personality problems and his being evil, whatever you want to
call it, it was Mr. Hittson who swung the bat and got Mr. Utterbeck basically
groggy or dazed or semi-conscious, and it was Mr. Hittson who put the gun
between his eyes and blew his brains out. And so . . . from a factual standpoint,
that’s a stronger case.

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B.

Hittson appealed his convictions and death sentence to the Georgia Supreme

Court, asserting a raft of trial court errors; chief among them was the court’s ruling

that allowed Dr. Storms to testify in accordance with his proffer. Hittson’s brief to

the Supreme Court reiterated his objection at trial, arguing that, to the extent that

he waived his privilege against self-incrimination when he signed the Miranda

waiver form and submitted to the court-ordered examination, that waiver was

limited to allowing the State to rebut defense expert testimony of his mental

condition. Thus, when the trial court allowed Dr. Storms to testify as a lay witness

to rebut Hittson’s evidence of remorse, it went beyond the scope of the waiver and

violated Hittson’s Fifth Amendment right against compelled self-incrimination.

Hittson also argued that, by ordering him to submit to Dr. Storms’s examination

without any notice that his statements could be used against him—even if he did

not present expert testimony in his own defense—the trial court denied him any

meaningful assistance of counsel in connection with the examination, in violation

of the Sixth Amendment. Hittson relied on Estelle v. Smith, 451 U.S. 454, 101

The other things, they’re more nebulous. They’re more, you know, on some other
plane they might mean a lot but when you start talking about facts and evidence
and who did what, I had a great concern that the jury would, in the end would say,
well [Vollmer] didn’t pull the trigger, he didn’t swing the bat, and so I felt at that
point a bird in the hand.
Doc. 56-11, at 148–49.

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S. Ct. 1866, 68 L. Ed. 2d 359 (1981), as the legal basis for both arguments. For

convenience, we refer to the Fifth and Sixth Amendment violations based on Dr.

Storms’s testimony as Hittson’s “Estelle claims.”

In October 1994, the Georgia Supreme Court upheld Hittson’s convictions

and death sentence. Hittson v. State, 264 Ga. 682, 449 S.E.2d 586 (1994), cert.

denied 514 U.S. 1129, 115 S. Ct. 2005, 131 L. Ed. 2d 1005 (1995). In rejecting his

Fifth Amendment claim, the court explained that Hittson voluntarily waived his

privilege against self-incrimination when he signed the Miranda form prior to the

examination. Id. at 684–85, 449 S.E.2d at 591–92. And the court found no Sixth

Amendment violation because the trial court adequately instructed defense counsel

on the scope and nature of the examination and allowed them to observe it and

voice objections if necessary. Id. at 685, 449 S.E.2d at 592.

C.

In December 1995, Hittson petitioned the Superior Court of Butts County,

Georgia, for a writ of habeas corpus. See O.C.G.A. § 9-14-42. His petition

alleged ineffective assistance of counsel “at virtually every critical stage before and

during trial.” The ineffective-assistance claim before us in the immediate appeal—

that Hittson’s trial counsel, in the penalty phase of his trial, failed to present

mitigating expert testimony regarding his background and mental condition—was

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among the allegations. 17 The petition also raised a “protective” Brady claim,

which generally alleged that the State withheld exculpatory evidence but did not

identify the evidence. Hittson’s petition did not include his Estelle claims—

because the Georgia Supreme Court rejected the claims on direct appeal, he was

precluded from raising them on collateral attack absent an intervening change in

the law. See Bruce v. Smith, 274 Ga. 432, 434, 553 S.E.2d 808, 810 (2001).

The Superior Court held a two-day evidentiary hearing on Hittson’s petition

in October 1997. At the close of the hearing, the court denied Hittson’s protective

Brady claim because he failed to come forward with any exculpatory evidence the

State had withheld at trial. In an order issued in July 1998, the court shaped

Hittson’s ineffective-assistance allegations into eight discrete claims and rejected

all of them under the standard set forth in Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).

In October 1998, Hittson applied to the Georgia Supreme Court for a

certificate of probable cause to appeal (“CPC”), pursuant to O.C.G.A. § 9-14-52.18

He took issue with the Superior Court’s denial of five of his ineffective-assistance

17
We present the facts related to this claim and expound on the state courts’ treatment of
the claim in part VI, infra.
18
Section 9-14-52(a) requires petitioners to obtain a certificate of probable cause before
appealing an adverse decision in the superior court. Rule 36 of the Georgia Supreme Court’s
Rules provides that a certificate of probable cause must be granted “where there is arguable
merit.”

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claims. Finding that his arguments lacked “arguable merit,” the Georgia Supreme

Court denied the CPC in September 2000. See Ga. Sup. Ct. R. 36.

While Hittson’s CPC application was pending, the Georgia Supreme Court

decided Nance v. State, 272 Ga. 217, 526 S.E.2d 560 (2000), in which the court

explicitly overruled its decision in Hittson’s direct appeal on the following point:

[W]hen a defendant must submit to a court-ordered mental health
examination because he wishes to present expert mental health
testimony at his trial, the State expert may only testify in rebuttal to
the testimony of the defense expert or to rebut the testimony of the
defendant himself.

...

To the extent Hittson v. State authorized a State expert to testify in
response to lay witness testimony that the defendant was remorseful,
it is overruled.

Id. at 220, 220 n.2, 526 S.E.2d at 565, 565 n.2 (citations omitted). Hittson did not

seek leave to amend his CPC application to ask the Georgia Supreme Court to

consider the effect of Nance on his Estelle claims (which he had not raised in the

Butts County Superior Court). However, after the Supreme Court denied his CPC

application, Hittson filed a motion for reconsideration, asking the high court to

consider the Estelle claims in light of Nance. The Supreme Court summarily

denied the motion in January 2001, and the United States Supreme Court denied

certiorari review in May 2001, Hittson v. Turpin, 532 U.S. 1052, 121 S. Ct. 2193,

149 L. Ed. 2d 1025 (2001).

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III.

A.

In January 2002, Hittson petitioned the United States District Court for the

Middle District of Georgia for a writ of habeas corpus, pursuant to 28 U.S.C.

§ 2254, setting aside his convictions and death sentence. The petition included

most of the claims he presented to the Georgia Supreme Court on direct appeal and

to the Butts County Superior Court in his habeas petition, including the Estelle

claims, several ineffective-assistance claims, and the protective Brady claim. To

allow Hittson to flesh out his Brady claim, the District Court ordered the State to

turn over the District Attorney’s file on the Utterbeck murder prosecution. When

Hittson’s habeas counsel reviewed the file, they discovered a 1991 Navy

psychiatric report, which diagnosed Vollmer with Antisocial Personality Disorder,

and two letters Vollmer had written from jail that touched on certain aspects of the

murder. Because Hittson had not litigated Brady claims based on this evidence in

the Butts County Superior Court, the District Court stayed further proceedings to

allow Hittson to exhaust the newfound Brady claims in state court.

B.

Accordingly, in July 2005, Hittson returned to the Butts County Superior

Court, filing a second habeas petition. The petition included two new Brady

claims, one based on Vollmer’s psychiatric report and the other on the post-arrest

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letters he wrote from the jail. Hittson also resubmitted his claim that the admission

of Dr. Storms’s lay testimony violated his Fifth Amendment right against self-

incrimination.19 Under Georgia law, a state prisoner may only bring a successive

habeas petition that raises claims “which could not reasonably have been raised in

the original or amended petition.” O.C.G.A. § 9-14-51. Hittson alleged that his

new petition was his first opportunity to bring these claims because (a) he didn’t

have access to the Brady material until the federal district court ordered discovery

of the District Attorney’s file and (b) res judicata barred his Fifth Amendment

claim at the time he prosecuted his first habeas petition—it was only after the

Supreme Court in Nance overruled its decision rejecting his Fifth Amendment

claim in his direct appeal that he was able to assert the claim in a habeas petition.

The Superior Court disagreed. Without conducting an evidentiary hearing,

the court held that all of Hittson’s claims could have been presented while he was

prosecuting his first habeas petition and were thus barred as successive. The

Georgia Supreme Court granted a certificate of probable cause to appeal from this

decision, vacated the Superior Court’s decision, and remanded the case with

instructions that the court conduct an evidentiary hearing.

19
Hittson’s petition did not re-allege his claim that the trial court’s order requiring him
to submit to Dr. Storms’s examination denied him his Sixth Amendment right to counsel.

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With the benefit of a two-day hearing, the Superior Court again denied

habeas relief, in January 2009. In a somewhat convoluted opinion, the court

rejected Hittson’s Fifth Amendment claim on three separate grounds: (1) The claim

was barred by res judicata because the Georgia Supreme Court rejected it on direct

appeal, and even though Nance overruled that decision, Nance did not apply

retroactively because “Nance did not set forth a new rule of constitutional

dimension, but merely narrowed an existing rule of criminal procedure.” (2) The

claim was barred by res judicata because, even if Nance applied retroactively, the

Supreme Court denied Hittson’s CPC application, and motion for reconsideration

of that denial, after Nance was decided. (3) Even if the Fifth Amendment claim

was properly before the court, and even if the admission of Dr. Storms’s testimony

violated Hittson’s privilege against self-incrimination, it was harmless error in light

of the overwhelming evidence in support of the jury’s death sentence.

The Superior Court rejected the Brady claims on alternative grounds too. It

held that the claim based on Vollmer’s psychiatric report was procedurally

defaulted because Hittson’s trial counsel or the attorneys who represented him in

his first habeas proceeding could have obtained the report from a source other than

the Houston County District Attorney through the exercise of reasonable diligence

and Hittson had not shown cause and resulting prejudice to excuse his failure to

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raise the claim on direct appeal or in his first habeas petition. 20 Even so, the court

held that both Brady claims failed on the merits because the Vollmer psychiatric

report and Vollmer’s jailhouse letters were cumulative of the mitigation evidence

presented during the penalty phase and the evidence supporting a death sentence

was overwhelming; thus, even when considered cumulatively, the “withheld”

evidence did not create a reasonable probability of a different result.21

Hittson again sought a certificate of probable cause from the Georgia

Supreme Court. He argued that (1) none of his claims could have been raised at

any point before he filed his second habeas petition; (2) that the allowance of Dr.

Storms’s testimony violated his Fifth and Sixth Amendment rights and the error

was not harmless; and (3) that the suppressed Brady material, considered either

separately or cumulatively, created a reasonable probability that the jury would

have returned a life sentence. The Georgia high court concluded that these

arguments lacked arguable merit and summarily denied Hittson’s CPC application

in October 2010. The United States Supreme Court denied certiorari review in

20
Georgia’s procedural default rules mimic the federal doctrine: “A claim that is subject
to procedural default may nevertheless be considered in habeas corpus proceedings if the
petitioner can satisfy the cause and prejudice test.” Perkins v. Hall, 288 Ga. 810, 822, 708
S.E.2d 335, 346 (2011).
21
See Kyles v. Whitley, 514 U.S. 419, 433, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490
(1995) (explaining that to prevail on a Brady claim, the petitioner must show a “reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different” (quotation mark omitted)).

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June 2011. Hittson v. Humphrey, __ U.S. __, 131 S. Ct. 3038, 180 L. Ed. 2d 858

(2011).

C.

In July 2011, Hittson returned to the District Court and amended his habeas

petition to include his now-exhausted Brady claims. In November 2012, the

District Court granted the writ, setting aside Hittson’s death sentence based on his

Estelle claims. The court found that the trial court’s admission of Dr. Storms’s

testimony violated Hittson’s Fifth and Sixth Amendment rights and that the

Georgia Supreme Court’s decision on direct appeal (the decision Nance overruled)

unreasonably applied Estelle and its progeny in concluding otherwise. Hittson,

2012 WL 5497808, at *30–35.

The District Court then applied the harmless-error standard from Brecht v.

Abrahamson, 507 U.S. 619, 637–38, 113 S. Ct. 1710, 1721–22, 123 L. Ed. 2d 353

(1993), and concluded that Dr. Storms’s testimony had a “substantial and injurious

effect” on the jury’s death sentence deliberations. Hittson, 2012 WL 5497808, at

*37–40. Accordingly, the court vacated Hittson’s sentence and ordered that the

State conduct a new penalty-phase proceeding or impose a lesser sentence.

The District Court denied the rest of Hittson’s claims, but granted a COA for

his Brady claims. This court then expanded the COA to include one of his

ineffective-assistance-of-counsel claims.

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IV.

“We review de novo the grant or denial of a writ of habeas corpus by a

district court.” Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1071

(11th Cir. 2013). Thus, we review Hittson’s Estelle claims, Brady claims, and

ineffective-assistance claim using the standard established by 28 U.S.C. § 2254, as

amended by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 214—the same standard the District

Court used.

A.

Under AEDPA, if a petitioner’s claims have been “adjudicated on the merits

in State court,” a federal court cannot grant habeas relief unless the state court’s

adjudication of the claims (1) “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) “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).

A state-court decision is “contrary to” federal law if it either “applies a rule

that contradicts the governing law set forth in [Supreme Court] cases”—e.g., by

applying the wrong legal standard to a particular claim—or “confronts a set of

facts that are materially indistinguishable from a decision of [the Supreme] Court

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and nevertheless arrives at a [different] result.” Williams v. Taylor, 529 U.S. 362,

405–06, 120 S. Ct. 1495, 1519–20, 146 L. Ed. 2d 389 (2000).

A state-court decision is an “unreasonable application” of Supreme Court

precedent if the state court “correctly identifies the governing legal rule but applies

it unreasonably to the facts of a particular prisoner’s case.” Id. at 407–08, 120

S. Ct. at 1520. “[A]n unreasonable application of federal law is different from an

incorrect application of federal law.” Id. at 410, 120 S. Ct. at 1522. “[S]o long as

fairminded jurists could disagree on the correctness of the state court’s decision,” a

federal court cannot grant habeas relief. Harrington v. Richter, __ U.S. __, 131

S. Ct. 770, 786, 178 L. Ed. 2d 624 (2011) (citation and quotation marks omitted).

Finally, “AEDPA instructs that, when a federal habeas petitioner challenges

the factual basis for a prior state-court decision rejecting a claim, the federal court

may overturn the state court’s decision only if it was ‘based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.’” Burt v. Titlow, __ U.S. __, 134 S. Ct. 10, 15, 187 L. Ed. 2d 348

(2013) (quoting 28 U.S.C. § 2254(d)(2)). In such cases, “[t]he prisoner bears the

burden of rebutting the state court’s factual findings ‘by clear and convincing

evidence.’” Id. (quoting 28 U.S.C. § 2254(e)(1)). Like the “unreasonable

application” standard in § 2254(d)(1), “a state-court factual determination is not

unreasonable merely because the federal habeas court would have reached a

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different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301, 130

S. Ct. 841, 849, 175 L. Ed. 2d 738 (2010). “[E]ven if reasonable minds reviewing

the record might disagree about the finding in question . . . that does not suffice to

supersede the [state] court’s determination.” Id. (alterations and quotation marks

omitted).

B.

Thus, AEDPA requires that our analysis of Hittson’s constitutional claims be

grounded in the Georgia courts’ adjudication of those claims. Because we are

considering multiple claims that were addressed by multiple state courts, it is

useful at the outset to explain which state-court decisions we look to for purposes

of AEDPA review.

Section 2254(d) requires that we defer to the state court’s adjudication of a

petitioner’s constitutional claims. As this court has observed, “the state court’s

‘adjudication on the merits,’ which triggers our review under [§ 2254], is the same

‘adjudication of the claim’ that we review for its application of federal law. . . .

Therefore, the highest state court decision reaching the merits of a habeas

petitioner’s claim is the relevant state court decision” we review under AEDPA.

Newland v. Hall, 527 F.3d 1162, 1199 (11th Cir. 2008); see also Harris v. Reed,

489 U.S. 255, 263, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989) (instructing

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federal courts to look to the “last state court rendering a judgment in the case” for

the state court’s reasons for rejecting a claim).

In Hittson’s case, the last state court to pass on the merits of the relevant

claims was the Georgia Supreme Court, when it summarily denied a certificate of

probable cause to appeal from the Butts County Superior Court’s denial of

Hittson’s first, and then second, habeas petition. See Newland, 527 F.3d at 1199.

Because the denial of the right to appeal by the state’s highest court does not

always constitute an adjudication on the merits, we briefly describe Georgia’s

habeas appeals process to reveal why the Georgia Supreme Court’s denial of a

CPC in this case constituted an adjudication on the merits.

Georgia habeas petitioners are required to obtain a certificate of probable

cause from the Georgia Supreme Court before appealing a superior court decision

denying relief. 22 O.C.G.A. § 9-14-52(b). The standard for granting a CPC is set

forth in Rule 36 of the Georgia Supreme Court Rules, which provides that “[a]

certificate of probable cause to appeal a final judgment in a habeas corpus case

involving a criminal conviction will be issued where there is arguable merit.” Ga.

22
In Pope v. Rich, 358 F.3d 852 (11th Cir. 2004) (per curiam), we held that a Georgia
prisoner who did not apply for a certificate of probable cause to appeal failed to exhaust his
state-court remedies as required by § 2254(b)(1). Id. at 854; see also O’Sullivan v. Boerckel,
526 U.S. 838, 845, 119 S. Ct. 1728, 1732, 144 L. Ed. 2d 1 (1999) (“[S]tate prisoners must give
the state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process.”).

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Sup. Ct. R. 36 (emphasis added); see also Sears v. Humphrey, 294 Ga. 117, 117,

751 S.E.2d 365, 368 (2013) (explaining that a CPC denial rests on the Supreme

Court’s conclusion that a claim lacks “arguable merit”). “In order for the Supreme

Court to consider fully the request for a certificate,” § 9-14-52(b) directs the

superior court clerk to transfer the record and transcript of the proceedings below

to the Supreme Court. As the Supreme Court has explained, the purpose of

transcribed evidentiary hearings in the superior courts is, at least in part, “to assist

the parties in preparing and opposing the application for a certificate of probable

cause to appeal” and “to assist the [Supreme] Court in considering the application.”

Edwards v. State, 288 Ga. 459, 460, 707 S.E.2d 335, 336 (2011).

Therefore, in denying Hittson’s CPC applications to appeal the denial of his

first and second habeas petitions, the Supreme Court was not exercising

discretionary review akin a denial of a petition for certiorari review. See generally

Ga. Sup. Ct. R. 34. Instead, the court was required to grant a CPC if it found

arguable merit to any of the arguments in the application.23 In concluding that

Hittson’s claims lacked arguable merit, the Supreme Court had the benefit of the

record from prior proceedings, the transcripts of the hearings held on his habeas

23
Because Georgia prisoners are required to apply for a CPC before they have exhausted
their state remedies, see note 22, supra, claims not in Hittson’s CPC application are unexhausted.

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petitions,24 and briefing on the merits of his constitutional claims. Such a standard

clearly constitutes an adjudication on the merits for AEDPA purposes. See

Johnson v. Williams, __ U.S. __, 133 S. Ct. 1088, 1097, 185 L. Ed. 2d 105 (2013)

(“A judgment is normally said to have been rendered on the merits only if it was

delivered after the court heard and evaluated the evidence and the parties’

substantive arguments.” (alteration, emphasis, and quotation marks omitted)).

While the Georgia high court denied each CPC without explaining why it

found Hittson’s arguments to be meritless, there is no AEDPA requirement that a

state court explain its reasons for rejecting a claim; “Section 2254(d) applies even

where there has been a summary denial.” Cullen v. Pinholster, __ U.S. __, 131

S. Ct. 1388, 1402, 179 L. Ed. 2d 557 (2011). “When a federal claim has been

presented to a state court and the state court has denied relief, it may be presumed

that the state court adjudicated the claim on the merits in the absence of any

indication or state-law procedural principles to the contrary.” Richter, __ U.S. at

__, 131 S. Ct. at 784–85. Our task in these situations is to review the record before

the Georgia Supreme Court to “determine what arguments or theories supported or,

24
In fact, the Supreme Court granted Hittson’s application for a CPC to appeal the
Superior Court’s first denial of his second habeas petition and remanded with instructions that
the court conduct an evidentiary hearing.

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as here, could have supported, the state court’s decision.”25 Id. at __, 131 S. Ct. at

786. Hittson may only obtain federal habeas relief “by showing there was no

reasonable basis for the state court to deny relief.” Id. at __, 131 S. Ct. at 784.

With this standard in mind, we turn to Hittson’s constitutional claims.

25
Prior to Richter, this circuit applied the Supreme Court’s pre-AEDPA decision, Ylst v.
Nunnemaker, 501 U.S. 797, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991), to “look through”
summary decisions by state appellate courts—reviewing, under § 2254(d), “the last reasoned
decision” by a state court. See McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1261 n.12 (11th
Cir. 2009); Powell v. Allen, 602 F.3d 1263, 1268 n.2 (11th Cir. 2010) (“When the last state court
rendering judgment affirms without explanation, we presume that it rests on the reasons given in
the last reasoned decision.”). In light of Richter’s directive—“[w]here a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing
there was no reasonable basis for the state court to deny relief,” __ U.S. at __, 131 S. Ct. at
784—we explained that “state appellate court[s’] [summary] affirmances warrant deference
under AEDPA because ‘the summary nature of a state court’s decision does not lessen the
deference that it is due,’” Gill v. Mecusker, 633 F.3d 1272, 1288 (11th Cir. 2011) (quoting
Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002)). Accordingly, we declined to “look
through” a summary decision by a state appellate court and instead reviewed the record to see
“whether the outcome of the state court proceedings permits a grant of habeas relief in this case.”
Id. (emphasis added); see also Jones v. GDCP Warden, No. 11-14774, slip op. at 23–24 (11th
Cir. Apr. 24, 2014) (“Though the Georgia Supreme Court did not give reasons for its decision [to
deny the petitioner’s CPC application], ‘[w]here a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable
basis for the state court to deny relief.’” (quoting Richter, __ U.S. at __, 131 S. Ct. at 784)).
While some decisions of this court have continued to apply Ylst to ascribe the reasoning
of a lower court to the decisions of later state courts, see, e.g., Adkins v. Warden, Holman CF,
710 F.3d 1241, 1250 n.6 (11th Cir. 2013); Price v. Allen, 679 F.3d 1315, 1320 n.4 (11th Cir.
2012); Madison v. Comm’r, Ala. Dep’t of Corr., 677 F.3d 1333, 1336 n.1 (11th Cir. 2012), we
are bound to follow the earliest of our post-Richter decisions, which is Gill (decided a month
after Richter), see Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003) (“[W]hen
circuit authority is in conflict, a panel should look to the line of authority containing the earliest
case, because a decision of a prior panel cannot be overturned by a later panel.”) (quotation
marks and citation omitted). Accordingly, we do not review the reasoning given in the Butts
County Superior Court decision; rather, we review the decision of the Georgia Supreme Court, in
accordance with Richter’s instructions.

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V.

We begin with the two Estelle claims. The first Estelle claim is that

Hittson’s Fifth Amendment right against self-incrimination was denied when the

trial court, over Hittson’s objection, permitted Dr. Storms to testify before the jury

in conformance with his in camera proffer. The second claim is that the trial court

deprived Hittson of any meaningful assistance of counsel when it ordered him to

submit to an examination by Dr. Storms after waiving his Miranda rights. The

State now concedes the denial of Hittson’s Fifth and Sixth Amendment rights and,

accordingly, does not challenge the District Court’s conclusion, reached under

§ 2254(d)(1), that the Georgia Supreme Court unreasonably applied Estelle in

denying both claims. But that does not end our inquiry. We must decide whether

these violations, which yielded Dr. Storms’s testimony, prejudiced Hittson’s

defense in the penalty phase so to entitle Hittson to habeas relief.

A.

In § 2254 proceedings, federal courts must evaluate constitutional errors

under the harmless-error standard articulated in Brecht v. Abrahamson, 507 U.S.

619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).26 As Brecht explained, “[federal]

26
The District Court and the parties have devoted considerable attention to the fact that
the Butts County Superior Court applied the Brecht harmless-error standard when it denied
Hittson’s second habeas petition. Georgia habeas courts typically apply the more petitioner-
friendly standard from Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705

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habeas petitioners may obtain plenary review of their constitutional claims, but

they are not entitled to habeas relief based on trial error unless they can establish

(1967), which requires the State to show harmlessness beyond a reasonable doubt. See Horne v.
State, 281 Ga. 799, 808, 642 S.E.2d 659, 667 (2007). But state (and federal) courts are only
required to use Chapman on direct review. See Fry v. Pliler, 551 U.S. 112, 116, 127 S. Ct. 2321,
2325, 168 L. Ed. 2d 16 (2007). The Supreme Court has not established a harmless-error standard
for state collateral review. Because we are not reviewing the reasoning announced by the
Superior Court, we need not decide how to treat that court’s (seemingly anomalous) application
of Brecht. In his CPC application to the Georgia Supreme Court, Hittson argued that the
Chapman standard applied, under Georgia law, and that the admission of Dr. Storms’s testimony
was not harmless beyond a reasonable doubt. In concluding that his application lacked arguable
merit, the Supreme Court could have concluded either that Dr. Storms’s testimony did not violate
Hittson’s constitutional rights, or that the error was harmless under Chapman.
Either way, we would apply the Brecht standard, because Brecht is an independent hurdle
to obtaining relief under § 2254. See Mansfield v. Sec’y, Fla. Dep’t of Corr., 679 F.3d 1301,
1307–08 (11th Cir. 2012); Fry, 551 U.S. at 119, 127 S. Ct at 2327 (“[Section 2254(d)] sets forth
a precondition to the grant of habeas relief . . . not an entitlement to it.”). Where a state court
finds an error harmless under Chapman, a federal habeas court could conclude that the state court
unreasonably applied Chapman’s harmless-beyond-a-reasonable-doubt standard (which would
allow the federal court to issue the writ under § 2254(d)(1)), but nonetheless deny the writ
because the error did not cause “actual prejudice” under Brecht. See Fry, 551 U.S. at 119–20,
127 S. Ct. at 2327; Mansfield, 679 F.3d at 1307–08. Because Brecht’s “actual prejudice”
standard is more stringent than AEDPA review of the state court’s Chapman determination, it
“makes no sense to require formal application of both tests” because the Brecht standard
“obviously subsumes” the “more liberal AEDPA/Chapman standard.” Fry, 551 U.S. at 119–20,
127 S. Ct. at 2327. Accordingly, federal habeas courts apply Brecht both where the state court,
in rejecting a constitutional claim, failed to recognize the error (and thus did not conduct its own
harmless error review) and where the state court found harmless error under Chapman. Fry 551
U.S. at 121–22, 127 S. Ct. at 2328.
Even if we were faced with a state court decision applying Brecht, we still would have no
need to decide how to treat that decision under AEDPA, because we conclude that Dr. Storms’s
testimony did not cause “actual prejudice” under our own application of Brecht. See Berghuis v.
Thompkins, 560 U.S. 370, 390, 130 S. Ct. 2250, 2265, 176 L. Ed. 2d 1098 (2010) (“Courts can
. . . deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear
whether AEDPA deference applies . . . .”); Mansfield, 679 F.3d at 1308 (“[A] federal habeas
court may deny relief based solely on a determination that a federal constitutional error was
harmless under the Brecht standard.”); see also Hodges v. Fla. Att’y Gen., 506 F.3d 1337, 1343
(11th Cir. 2007) (“[I]f the state court did not apply the correct harmless error standard . . . federal
habeas relief is still due to be denied if the constitutional error was harmless [under Brecht].”).

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that it resulted in ‘actual prejudice.’” Id. at 637, 113 S. Ct. at 1722. To find

“actual prejudice,” a federal habeas court must conclude that the error “had

substantial and injurious effect or influence in determining the jury’s verdict.” Id.

(quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90

L. Ed. 1557 (1946)).

The District Court concluded that Dr. Storms’s testimony had a “substantial

and injurious effect” on the jury’s deliberations over Hittson’s sentence. We

review this decision de novo; therefore, we review the record to determine if Dr.

Storms’s testimony had a “substantial or injurious effect” on the jury’s

deliberations. In conducting this review, “[t]he inquiry [is not] merely whether

there was enough to support the result, apart from the phase affected by the error.

It is rather, even so, whether the error itself had substantial influence.” Kotteakos,

328 U.S. at 764–65, 66 S. Ct. at 1248. If there is “more than a reasonable

possibility that the error contributed to the conviction or sentence,” then the error is

not harmless. Mansfield v. Sec’y, Fla. Dep’t of Corr., 679 F.3d 1301, 1313 (11th

Cir. 2012).

Because Georgia law requires a jury to unanimously find at least one

statutorily defined aggravating factor to return a death sentence, O.C.G.A. § 17-10-

31, “habeas relief is warranted in this case if we believe even one of the jurors who

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voted in favor of the death penalty likely was substantially influenced” by the

error, Duest v. Singletary, 997 F.2d 1336, 1339 (11th Cir. 1993) (per curiam).

Because the error in Hittson’s trial resulted in the improper admission of

evidence, we must measure the impact of Dr. Storms’s testimony on the jury in

light of the body of evidence before them at the time. See Kotteakos, 328 U.S. at

764, 66 S. Ct. at 1248 (“[Courts] must take account of what the error meant to [the

jury], not singled out and standing alone, but in relation to all else that

happened.”). We analyze this impact by “looking at several factors, including ‘the

importance of the witness’[s] testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, . . . and, of course,

the overall strength of the prosecution’s case.’” Mason v. Allen, 605 F.3d 1114,

1123–24 (11th Cir. 2010) (per curiam) (quoting Delaware v. Van Arsdall, 475 U.S.

673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674 (1986)).

B.

We begin with the jury’s sentence. The jury found, after deliberating for

four hours, that Hittson should be sentenced to death on account of the

“outrageously or wantonly vile, horrible, or inhuman” nature of the murder. See

O.C.G.A. § 17-10-30(b)(7). The trial court instructed the jury that, in order to rely

on this aggravating factor, it must find that the murder was both “outrageously or

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wantonly vile, horrible, or inhuman” and that it involved “depravity of mind; or

torture to the victim prior to the death of the victim; or aggravated battery to the

victim prior to the death of the victim.” As the court explained it, “[d]epravity of

mind is a reflection of an utterly corrupt, perverted, or immoral state of mind,” and

in evaluating Hittson’s mindset, the jury could consider his actions “prior to and

after the commission of the murder,” including whether he “subjected the body of

a deceased victim to mutilation.”

It is abundantly clear that the jury could have relied on this aggravating

factor in the absence of Dr. Storms’s testimony. The jury heard Hittson’s taped

confession, during which he calmly described his role in the murder: how he found

Utterbeck (who, according to Vollmer, was planning to ambush them) asleep in the

living room, hit Utterbeck in the head with a baseball bat three times, dragged him

to the kitchen so as not to make a mess on the living room carpet, and shot him in

the forehead while he begged for his life. After stripping Utterbeck’s corpse and

leaving it to bleed out on the kitchen floor, Hittson and Vollmer left to grab a bite

to eat. Upon their return, they meticulously sawed off Utterbeck’s head, hands,

and feet, and at least one of them castrated him, skinned his penis and buttocks,

and cut out his rectum. They tossed Utterbeck’s mutilated torso in a shallow

grave, spent the better part of a day cleaning his blood off the interior of the house,

and headed back to Pensacola with his severed head, hands, and feet in the trunk—

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stopping off to say “bye” to Vollmer’s sister-in-law on the way out of town.

Clearly, the crime itself justified the jury’s conclusion that Hittson carried out an

“outrageously or wantonly vile, horrible, or inhuman” murder with “depravity of

mind.”

While Brecht “does not require a showing that but for the error the jury

would have rendered a verdict in favor of the defendant,” Duest, 997 F.2d at 1338,

the overwhelming amount of evidence that supports the aggravating factor found

by the jury—particularly the post-mortem dismemberment and mutilation, which

the court explicitly mentioned in its charge—convinces us that Dr. Storms’s

testimony did not meaningfully influence the jury’s reliance on the “vile, horrible,

and inhuman” aggravating factor. See Mansfield, 679 F.3d at 1313 (“[T]he

erroneous admission of evidence is likely to be harmless under the Brecht standard

where there is significant corroborating evidence . . . .”).

In reaching the opposite conclusion, the District Court explained:

Dr. Storms’ testimony that Hittson called Utterbeck an asshole and a
hillbilly certainly helped the State prove depravity of mind. The jury
was instructed that they could consider Hittson’s actions after the
commission of the crime. Dr. Storms’ testimony was the only
evidence that months after the crime, and with Vollmer completely
out of the picture, Hittson possessed a “corrupt” or “immoral state of
mind.”

Hittson, 2012 WL 5497808, at *40. We flatly reject the District Court’s

conclusion that the jury found Hittson’s statements to Dr. Storms, made long after

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the crime, to be probative of the “vile, horrible, and inhuman” nature of the murder

or his “utterly corrupt, perverted, or immoral” state of mind. The trial court told

the jury that, in evaluating Hittson’s mindset during the murder, they should

consider whether he committed aggravated battery, torture, or mutilation. 27 The

jury heard, from Hittson’s own mouth, a detailed description of how he and

Vollmer cut Utterbeck up and stuffed him into garbage bags, and the State paraded

a raft of grisly photos before the jury to give life to Hittson’s words. In light of the

trial court’s instructions and the overwhelming evidence supporting the jury’s

aggravating factor, we do not believe that the jury, in faithfully executing their

duty, gave any weight to Dr. Storms’s testimony in concluding that Hittson carried

out the “vile, horrible, and inhuman” murder with “depravity of mind.” 28

But the aggravating factor merely allowed the jury to return a death

sentence. They could have still sentenced Hittson to life imprisonment based on

mitigating circumstances, and so we must also assess the effectiveness of Dr.

Storms’s testimony as a rebuttal of Hittson’s mitigation evidence—the purpose for

27
Likewise, in urging the jury to find “depravity of mind,” the District Attorney
explained, “you can consider the dismemberment, you can consider the decapitation, you can
consider the fact that they went to the Waffle House, you can consider the fact that the body was
strewn all over the place.” Doc. 74-11, at 6.
28
“We presume that jurors, conscious of the gravity of their task, attend closely the
particular language of the trial court’s instructions in a criminal case and strive to understand,
make sense of, and follow the instructions given them.” United States v. Olano, 507 U.S. 725,
740, 113 S. Ct. 1770, 1781, 123 L. Ed. 2d 508 (1993) (alteration and quotation marks omitted).

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which it was admitted. Hittson claims that “Dr. Storms’s testimony was absolutely

devastating to Mr. Hittson’s defense . . . that Mr. Hittson was remorseful, burdened

and ashamed.” Hittson Appellee Br. at 26–27. This argument overstates both the

strength of the “remorse” evidence and the ability of Dr. Storms’s testimony to

rebut that evidence.

Over the course of two days and twenty witnesses, the only mention of

remorse during the penalty phase came from Hittson’s best friend on the Forrestal,

Steven Nix. Nix testified that, when Hittson told him Utterbeck was never coming

back, Hittson seemed “kind-of sad, kind-of down, kind-of depressed.” Doc. 74-9,

at 43. When asked if Hittson seemed remorseful, Nix responded, “Maybe. . . .

Looking back now, maybe, he might have been. . . . I didn’t notice it at the time.”

Id. at 48. The only other evidence of Hittson’s remorse during trial came from one

of the detectives who interviewed Hittson. He testified, during the guilt phase, that

prior to confessing:

I felt that [Hittson] had possibly been involved in something that he
was not extremely proud of, something that he had been a part of that
he might not have necessarily been the instigator of; and that there
was a possibility that he had been at the wrong place at the wrong
time; and that this was something that I wasn’t real sure that he could,
he could live with; that it might would be to his best interest to clear
his conscience, to tell what really happened.

Doc. 74-4, at 63.

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Hittson now attempts to convert these isolated, equivocal statements into

“powerful mitigating evidence” that was subsequently “dismantle[d]” by Dr.

Storms’s testimony. Hittson Appellee Br. at 27, 30. As is evident, though, the

defense had a weak case for remorse and, accordingly, did not spend much time

developing it. Instead, they spent the two-day penalty phase trying to prove that

Hittson had been overborne by the evil, controlling Vollmer. 29 Remorse was an

afterthought to the main strategy, and so, even if Dr. Storms had dismantled their

perfunctory attempts to show remorse, the impact of his testimony on the jury’s

death sentence deliberations still would not have amounted to much. Cf. Randolph

v. McNeil, 590 F.3d 1273, 1277 (11th Cir. 2009) (per curiam) (rejecting a habeas

29
In Hittson’s first state habeas proceedings—in which Hittson’s Estelle claims were not
at issue—Steve Hollman (lead counsel at trial) engaged in the following colloquy with Hittson’s
habeas counsel:
Q [I]n fact, your whole theory in mitigation, part of your theory in mitigation
was, that Mr. Hittson was, in fact, remorseful; correct?
[objection overruled]
A Well, I don’t know that, you know, it seems to me that the point that we
were trying to make was that Travis was, was a guy who was pretty
impressionable, and that basically away from the co-defendant, he was a pretty
harmless guy, that he was, you know, just that he drank a lot, but, basically, he
was sort of a needy kind of harmless little guy, and that Mr. Vollmer was the
brains of this operation and basically manipulated Travis into doing something
that he would have never done. I don’t know how much the notion of remorse
played into the case in mitigation.
Doc. 75-17, at 61–62.
Likewise, Bill Shurling (appointed by the court to advise Hittson’s two trial lawyers)
characterized trial counsel’s mitigation strategy as follows: “[T]hey were not trying to bring out
remorse. What they were trying to do is . . . show this [crime] is out of character with this
particular defendant . . . .” Doc. 75-18, at 113.

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petitioner’s argument that an isolated statement that he lacked remorse had a

substantial effect on the jury’s death sentence, where there was an abundance of

evidence to support the aggravating factors relied on by the jury).

But Dr. Storms’s testimony did not necessarily rebut the little evidence of

remorse that the defense mustered. Certainly, Hittson’s unflattering description of

his victim was illustrative of his indiscretion (and perhaps his dim-wittedness that

the defense witnesses testified to), but these bare statements did not convert

Hittson into a “brazen, unrepentant man.” See Hittson, 2012 WL 5497808, at *39.

Put simply, Hittson could regard Utterbeck as a hillbilly and an asshole and could

also regret murdering him.

Stripped of embellishment, Dr. Storms’s testimony suggested that Hittson

disliked Utterbeck. As damning as Hittson now tries to make it, we are skeptical

as to whether this information was truly detrimental. 30 Certainly, evidence that

Hittson called Utterbeck a hillbilly and an asshole after the murder seems

prejudicial when considered in isolation. But, in context, if Hittson had been fond

of Utterbeck, his willingness to murder him on command would have made Hittson

more culpable, not less. Since the State never identified a concrete motive for the

30
We do not doubt the reaction by one of Hittson’s attorneys—“It was like getting hit in
the head with a board. I mean, it was, it was just, it was like getting gutted.” Doc. 56-10, at 24.
While we understand the distress felt by an attorney when the jury hears evidence he tried to
keep from them, that visceral response does not absolve this court of its duty to rationally assess
the evidence in the full context of all that was said and done at trial.

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murder, Hittson’s statements at least provide some alternative (albeit a weak one)

to the inference that the murder was nothing more than a senseless act of violence.

In fact, in this very appeal, Hittson maintains that his trial counsel failed to

fulfill their Sixth Amendment duty because they didn’t present expert testimony of

his mental condition—testimony that, had it been put before the jury, would have

allowed the State to call Dr. Storms in rebuttal. His state habeas counsel

discounted trial counsel’s “strategic” concerns with Dr. Storms’s testimony as

follows:

Mr. Hollman’s [(lead trial counsel)] concern over Dr. Storms’
potential testimony . . . was exaggerated and unfounded. Mr. Hollman
was not concerned about Dr. Storms’ professional assessment of Mr.
Hittson, but feared only that Dr. Storms would testify to remarks Mr.
Hittson made during their pre-trial interview. During that interview,
Mr. Hittson referred to the victim as a “hillbilly” and, at another point,
an “asshole.” However, given that Mr. Hittson had just been found
guilty of a horrific murder, these offhand remarks hardly outweighed
the benefits of introducing favorable psychological evidence.

Doc. 76-1, at 39 (citation omitted). We agree with the assertion underlying this

argument; given that Hittson murdered, mutilated, and dismembered Utterbeck, the

fact that he later called Utterbeck a “hillbilly” and an “asshole” was simply not that

significant.

Therefore, we cannot say that the erroneous admission of Dr. Storms’s

testimony had a substantial effect on the jury’s finding that Hittson committed an

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“outrageously or wantonly vile, horrible, or inhuman” murder with “depravity of

mind.” We reverse the District Court’s holding to the contrary.

VI.

Hittson’s next claim is that he was denied his Sixth Amendment right to

counsel because his trial team failed to put on expert testimony regarding his

mental condition during the penalty phase of his trial.

To prevail on an ineffective assistance claim, a habeas petitioner must

establish both that his counsel’s performance was constitutionally deficient and

that the deficient performance prejudiced his defense. Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Under

Strickland’s performance prong, a petitioner must show that his attorneys’ conduct

“fell below an objective standard of reasonableness”—i.e., that it was not

“reasonable[] under prevailing professional norms.” Id. at 688, 144 S. Ct. at 2064–

65. And under the prejudice prong, he must show “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 694, 144 S. Ct. at 2068.

The Georgia Supreme Court rejected Hittson’s ineffective-assistance claim.

Hittson now argues that the court unreasonably applied Strickland. The District

Court disagreed, and so do we.

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A.

Hittson’s trial team consisted of three court-appointed lawyers: Walter “Bo”

Sammons, Steve Hollman, and William Shurling. Sammons was appointed first, in

June 1992, and Hollman was appointed a few months later (the trial began in

February 1993). At the time, neither had tried a death-penalty case through to

verdict and sentencing, and so after the State indicated its intention to seek the

death penalty (in September 1992), the trial court appointed Shurling, who had

tried a handful of capital cases, to advise Sammons and Hollman. Shurling

appeared in court and attended strategy sessions, but Sammons and Hollman did

most of the work and had the final say on important decisions.31

Hittson’s defense team had him evaluated twice by a psychologist and once

by a neuropsychiatrist, and they had a social worker research and prepare a

detailed analysis of his upbringing and family dynamics. Sammons and Hollman

also interviewed a number of lay witnesses (many of whom testified during the

penalty phase) and compiled various records from Hittson’s adolescence and Naval

service. They traveled to Hittson’s hometown in Nebraska to interview family,

friends, counselors, and teachers; Hollman traveled to Pensacola and Philadelphia

to interview sailors aboard the Forrestal; and both lawyers spent dozens of hours

talking to Hittson.
31
As Hollman put it, “Mr. Shurling did virtually nothing.” Doc. 75-17, at 28.

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Because of what their experts found, Hittson’s attorneys filed a notice of

their intent to raise Hittson’s mental condition at trial. In accordance with Georgia

law, the trial court required Hittson to submit to an examination by the State’s

chosen expert and the court’s expert. Hittson’s trial team eventually decided not to

put on their experts because they felt that the overall weight of the expert

testimony would hurt Hittson. Hittson claims that this decision amounted to

constitutionally-deficient conduct. We thus examine the attorneys’ decision,

starting with their efforts to develop mitigating expert testimony and then

describing their ultimate decision not to use the fruits of their labor.

1.

In July 1992 (shortly after Sammons was appointed), Sammons successfully

petitioned the trial court for funds to have Hittson examined by a psychologist.

According to Sammons, “[w]e were hopeful that it would be determined that

Travis was mentally retarded or that he had some sort of psychiatric condition that

would truly render sympathy, you know, from the jury.” Doc. 75-16, at 74.

Sammons hired Dr. Michael Prewett, a clinical psychologist from Macon, Georgia.

Dr. Prewett interviewed Hittson twice, in July 1992 and January 1993, and

administered a battery of psychometric tests, including the then-current versions of

the widely-used Wechsler Adult Intelligence Scale (“WAIS”) and Minnesota

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Multiphasic Personality Inventory (“MMPI”). 32 Dr. Prewett also reviewed

Hittson’s school records, counseling records, and letters written by Hittson. Dr.

Prewett did not prepare a report; he just discussed his findings with Sammons and

Hollman.

Based on interviews with Hittson, Dr. Prewett concluded that “he was a

serious alcoholic who suffered from alcoholic blackouts,” and “engaged in very

aggressive behavior” when drinking. Doc. 74-8, at 38; Doc. 72-5, at 7. His father

was an alcoholic and his family was dysfunctional, and, as a result, so was Hittson.

He had a hard time maintaining stable relationships; in fact, “he really never had

anything resembling a meaningful relationship with anybody,” including his

family. Doc. 75-18, at 22. At the same time, “he was so desperate to belong some

place, that the first person that was nice to him he was going to kind of fall in

with.” Id. at 24–25. Hittson had also contemplated suicide as an adolescent.

Dr. Prewett pegged Hittson’s IQ at 86—in the low-average range of

intelligence. His MMPI test results suggested a number of possible diagnoses:

depression, schizophrenia, schizoid personality disorder, schizo-typical personality

32
Dr. Prewett also administered the Personal Problems Checklist, Wide Range
Achievement Test, Luria-Nebraska Neuropsychological Test Battery, Trail Making Test, and
Bender–Gestalt Test.

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disorder, and borderline personality disorder. 33 Of those possibilities, Dr. Prewett

believed that Borderline Personality Disorder was the correct diagnosis—based on

Hittson’s history of unstable interpersonal relationships, substance abuse, suicidal

ideation, difficulty controlling his anger, and efforts to avoid abandonment. 34

On account of this diagnosis, Dr. Prewett believed that it was possible that

Hittson could have experienced brief psychotic episodes, triggered by extreme

stress. As he explained to the state habeas court:

Individuals with severe characterlogical disturbance, when they are
under stress, their behavior will frequently deteriorate to the point that
for a brief period of time, they may, in fact, be out of touch with
reality or have very poor reality testing. He was capable of doing that,
and perhaps had done that on at least one or two occasions.

Doc. 75-18, at 26. Dr. Prewett could not determine whether Hittson had

experienced a psychotic episode on the night of the crime:

[H]e was severely intoxicated on the night of the incident. That
would have masked anything that was going on, so it would have been
impossible to make any determination of what was happening at that
particular moment and time.

Id.

33
The MMPI consists of several hundred true-false questions, which are then “scored” by
a computer (the questions are statistically correlated to certain psychological traits). The
disorders listed above are correlated to Hittson’s raw score; however, the results are subject to
interpretation, which is why an expert (in this case, Dr. Prewett) is needed to reach a diagnosis.
34
These characteristics tracked the entry for Borderline Personality Disorder in the then-
current edition of the DSM, which Dr. Prewett relied on in making his diagnosis. See Am.
Psych. Ass’n, Diagnostic and Statistical Manual of Mental Disorders, at 346–47 (3d ed., rev.
1987) (hereinafter “DSM-III-R”).

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With respect to the crime, Hittson “expressed a good deal of remorse and

disbelief that he could have done something like this.” Id. Prior to the murder, he

was not particularly close to Utterbeck, nor did he harbor any ill will towards

him—they had a “neutral relationship.” But Hittson had a “very strange

relationship” with Vollmer; he “felt controlled by this individual [and] alternated

between very intense hatred for this person versus almost hero worship at times.”

Id. at 22.

Dr. Prewett also believed that Hittson might have “some degree” of brain

damage—possibly the result of a mild concussion or Hittson’s alcohol abuse. Dr.

Prewett suggested that Hittson’s attorneys hire Dr. Norman Moore, a

neuropsychiatrist who also practiced in Macon, to further evaluate Hittson—in

particular, to evaluate the existence or extent of his brain damage. Hittson’s trial

team again successfully petitioned the court for funds, and in January 1993, Dr.

Moore examined Hittson.

Dr. Moore did not find any evidence of brain damage, but he nonetheless

prepared a detailed report of his observations. The report recounted Hittson’s

troubled childhood, including suicide attempts, heavy drinking, an alcoholic father,

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and a dysfunctional family life. 35 Dr. Moore observed that Hittson “has a quick

temper but cools down quickly,” and “does not get violent when sober but was

always hostile and very violent on alcohol, especially liquor.” Doc. 75-20, at 39.

Dr. Moore also noted past misbehavior by Hittson, including stealing $1500 from

his father and a burglary arrest while enlisted in the Navy.

Aboard the Forrestal, Hittson said that he tried to avoid working with

Vollmer because Vollmer played “mind games.” Vollmer was higher in rank,

though, and apparently hand-picked Hittson to be a part of his work crew. Hittson

said that Vollmer would try to “get him drunk, and as a test, take him out to pick

up a hooker and use an electric zapper on her,” but Hittson refused. Id. at 38. On

the night of the murder, Hittson claimed that Vollmer “filled him with alcohol”

before he told him that Utterbeck was going to kill them. Id. While he did not

deny his participation in the murder, Hittson expressed disbelief at how he could

have done the things he did. When discussing his findings with the attorneys, Dr.

Moore stated his belief that the crime had homosexual overtones, although he did

not think that Hittson was a homosexual, and he characterized Hittson as “just

mean” and told his attorneys that he would say as much if called to testify. Doc.

75-16, at 100, 124.

35
Dr. Moore’s evaluation was based solely on his interview with Hittson. Dr. Moore
noted in his report, though, that “he impressed me with his openness and frankness and I have no
reason to doubt the truthfulness of his statements.” Doc. 75-20, at 39–40.

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Dr. Moore did not administer any psychometric tests; however, based on the

interview, he diagnosed Hittson with alcoholism and Antisocial Personality

Disorder. He also opined that Hittson “may have” experienced Induced Psychotic

Disorder on the night of the murder. As Dr. Moore explained it:

The central feature of this disorder is a delusional system that
develops in a second person (Mr. Hittson) as a result of a close
relationship with another person (the primary case, Mr. Vollmer) who
already has a psychotic disorder with delusions. The same delusions
are partly shared by both persons. The content of the delusion is
usually within the realm of possibility, and is often based on common
past experiences of the two people. Usually the primary person (Mr.
Vollmer) with the psychotic disorder is the dominant one in the
relationship and gradually imposes his or her delusional system on the
more passive and initially healthy second person (Mr. Hittson).

Doc. 75-20, at 40. Dr. Moore pointed out that, for Hittson to have shared

Vollmer’s psychotic delusion on the night of the murder, Vollmer himself would

have had to have had a psychotic delusion that Utterbeck intended to kill the two of

them—something that Dr. Moore had no way of determining. Nonetheless, Dr.

Moore noted that “[e]ven if Mr. Vollmer’s belief did not reach delusional level,

many of the other criteria were present,” and so, it was his opinion “that Mr.

Hittson was unduly influenced by Mr. Vollmer.” Id.

Finally, in early February 1993, defense counsel obtained funds from the

court to hire a social worker, Mary Shults, to work up a profile of Hittson’s family.

Shults traveled to Nebraska to interview family, friends, and teachers; she

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interviewed Hittson in jail; and she reviewed some of the same records provided to

Dr. Prewett.

Her research confirmed much of Hittson’s account of his upbringing. There

was a history of alcohol abuse on both sides of Hittson’s family; Hittson’s father

was an alcoholic who had emotionally abused Hittson when he was drunk;

Hittson’s three siblings struggled with alcohol dependency; and Hittson himself

began drinking at a very young age—when he was a teenager, he was twice

referred to treatment but never went. The Hittson home had been a “chaotic

environment” to grow up in. When Shults visited, the house was in disrepair, the

inside was “extremely cluttered, in disarray, and dirty,” and family members

“looked rather unkempt.” Doc. 75-20, at 6. Shults believed that Hittson’s parents

“failed to provide clean appropriate clothing for themselves and their children, had

poor hygiene skills, and failed to teach their children cleanliness and good

hygiene.” Id. at 9–10. Family dynamics paralleled living conditions—as Shults

put it, “Hittson’s family can only be described as dysfunctional.” Id. at 9. Shults

believed Hittson’s parents to be emotionally neglectful; they “were very ineffective

in providing nurturing and love for any of their children, but they neglected Travis

even more than the rest.” Id. at 10. Because of the lack of affection at home,

Hittson spent a lot of time at a friend’s house and became very attached to his

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friend’s family—he even took to calling the friend’s mother “mom.” 36 At school,

Hittson was “extremely needy, both emotionally and academically”; not

surprisingly, he performed poorly and was thought to have a learning disability.

Id. at 8. And he was teased by other children because he had poor hygiene and

dressed “awkwardly and clumsily” in “outdated and often dirty clothing.” Id.

In Shults’s opinion, Hittson’s upbringing “hampered . . . his ability to form

appropriate relationships and interact appropriately with society” and led him to

“develop[] a pattern of seeking . . . attention and love from others.” Id. at 10, 11.

Neither Shults nor Hittson’s attorneys believed that this information would excuse

Hittson’s participation in the murder, but they hoped it would at least explain

“some of the forces that went to mold Travis Hittson” and possibly show “how he

might be a bit more vulnerable . . . to being overwhelmed by the will of Mr.

Vollmer.” Doc. 75-17, at 46.

2.

On February 5, 1993, the defense team filed a notice of their intent to use

Hittson’s insanity or mental incompetence as a defense—as required if they wanted

the option of using any of their experts at trial. See Ga. Unif. Super. Ct. R. 31.4

(1993) (now Rule 31.5). In response, the State sought discovery of any expert

36
Mrs. Evie Fletcher—the friend’s mother—testified to this during the penalty phase of
Hittson’s trial.

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reports and requested that its own expert be allowed to evaluate Hittson. On

February 11, 1993, the trial court ordered him to submit to an examination by Dr.

Storms, the psychologist the State employed. 37 The court also appointed its own

expert, Dr. Paul Coplin, to examine Hittson, pursuant to O.C.G.A. § 17-7-130.1. 38

Hittson’s trial counsel were permitted to attend both examinations, but the court

cautioned them not to disrupt the interviews, else they would lose the right to

present their own experts. The court also stated that both sides could talk to Dr.

Coplin before trial.

Drs. Storms and Coplin independently interviewed Hittson over the course

of the next few days. 39 Sammons attended most of Dr. Storms’s interview—he

observed and took notes but did not interfere—but none of Hittson’s attorneys

attended Dr. Coplin’s interview. In addition to interviewing Hittson, both doctors

administered a handful of psychometric tests (including the WAIS and MMPI) and

37
See generally Motes v. State, 256 Ga. 831, 832, 353 S.E.2d 348, 349 (1987) (“[I]f a
defendant wants to tell his story to a jury through the mouth of an expert, the state should have
an equal opportunity to tell that story through the mouth of an expert, and . . . the state could not
practically possess this opportunity unless their expert gained access to the defendant.”).
38
“When notice of an insanity defense is filed, the court shall appoint at least one
psychiatrist or licensed psychologist to examine the defendant and to testify at the trial.”
O.C.G.A. § 17-7-130.1.
39
Dr. Coplin interviewed Hittson on Friday, February 12; Dr. Storms interviewed him on
Saturday, February 13 and Sunday, February 14. Jury selection for Hittson’s trial (which
commenced on February 25) began on Tuesday, February 16.

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reviewed some limited information on Hittson’s background and the crime. 40 They

each prepared a report stating their findings.

The reports contained much of the same background information. Hittson

did not have a close relationship with his parents; his father was an alcoholic; he

started drinking in high school; and he had contemplated suicide. Dr. Storms

reported that Hittson was “somewhat vague concerning his relationship with Mr.

Vollmer” but at one point stated that “Vollmer ‘considered me to be his protégé.’”

Doc. 70-4, at 18. Dr. Storms’s report included Hittson’s characterization of

Utterbeck—as a “hillbilly” and an “asshole”—but noted that “there was no

apparent intense feeling one way or the other between Mr. Hittson and his alleged

victim.” Id. Dr. Storms did not find any motive for the murder, other than

Vollmer’s statements telling Hittson that Utterbeck was going to kill them. When

he asked Hittson how he felt just before he killed Utterbeck, Hittson indicated “that

he was afraid” and “that he was not thinking.” Id. at 21.

Dr. Storms scored Hittson’s IQ at 105, placing him squarely in the average

range, and he found no evidence of brain damage. Dr. Storms noted that the

MMPI scores indicated that “Hittson was attempting to unconsciously exaggerate

40
Dr. Storms administered the WAIS, MMPI, Rorschach Inkblot Test, and Trail Making
Test. Dr. Coplin administered the WAIS, MMPI, Bender–Gestalt Test, Adult Sentence
Completion Test, Draw-A-Person Human Figure Drawing Test, and Beck Depression Inventory.

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his psychological problems,” 41 but he nonetheless believed that the test results fit

with his impressions from the interview:

[Hittson] has basically led a passive-dependent life style overlayed on
mild depression. He seemingly has been one to unquestioningly go
along with others who are perceived to have more personal power
than he, however, he has, at times, acted out, especially when he has
been drinking.

...

He tends to solve problems by “trial and error” and tends to not think
through the ramifications of his actions before he acts. . . . . He
usually has enough psychological resources to control and direct his
actions; however, under extraordinary circumstances, his controls may
falter.

Id. at 20–21. Dr. Storms did not find anything that would have impaired Hittson’s

ability to distinguish right from wrong on the night of the murder. He noted that

Hittson was drunk that night, and opined that alcohol tends to exacerbate Hittson’s

“natural style” of “act[ing] before he thinks.” Id. at 21.

Like Dr. Storms, Dr. Coplin found Hittson’s IQ to be average (93) and did

not find evidence of brain damage. Dr. Coplin’s test results showed Hittson to be

passive-dependent, depressed, anxious, and intrapunitive (“blaming himself for all

problems in his life situation”). Hittson had elevated MMPI scores on several

41
The MMPI has built-in validity tests in the form of questions that are designed to ferret
out individuals who may be trying to exaggerate or minimize their problems.

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scales 42—including the “Psychopathic Deviant” scale43—but Dr. Coplin did not

diagnose him with any personality disorders or otherwise find “any psychiatric

symptoms or psychiatric history that would render him not responsible for the

charges against him.” Doc. 70-5, at 16. He did note that Hittson was probably an

alcoholic.

42
The true–false answers given in response to MMPI questions correlate to numerical
scores on one or more of ten MMPI clinical scales. Elevated scores on a given scale, or
combinations of scores, are statistically correlated to certain personality traits or personality
disorders. The psychometrician who analyzed Hittson’s MMPI scores (as part of Dr. Coplin’s
examination) described Hittson’s score profile as follows:
[H]e tends to be anxious, tense and jumpy. He worries excessively and is
vulnerable to real and imagined threat[s]. He may anticipate problems before
they occur and over-react to minor stress. Somatic symptoms are common,
involve vague complaints of fatigue, tiredness, bored[om], insomnia, and other
physiological features. Depression is evident. He may not report feeling
especially sad or happy but shows symptoms of clinical depression including slow
personal tempo, slowed speech, and retarded thought processes. He is pessimistic
about the world in general and more specifically about the likelihood of
overcoming his problems. He may broo[d] and ruminate about his problems
much of the time. Although he has a strong need for achievement and recognition
for accomplishments, he feels guilty when he falls short of his goals. He tends to
be rather indecisive and harbors feelings of inadequacy, insecurity, and
inferiority. He is intrapunitive, blaming himself for all problems in his life
situation. He is rigid in his thinking and problem solving and meticulous and
perfectionistic in daily activities. He tends to be rather passive-dependent in his
relationships with other people. He has the capacity for forming deep emotional
ties and in times of stress may become overly clinging and dependent. He tends
to elicit nurturance and helping behavior from others.
Doc. 70-5, at 14.
43
Sammons later testified in the state habeas proceedings that Hittson’s elevated
Psychopathic Deviant score worried him, but neither party presented evidence in the state court
to explain what an elevated Psychopathic Deviant score is understood to mean. Cf. Cullen v.
Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011). (“[R]eview under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on
the merits.”).

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These findings remained unknown to the defense team when the guilt phase

of the trial began on February 25, 1993. The court did not require the parties to

disclose their experts’ findings before trial, and the court did not disclose Dr.

Coplin’s findings, because the defense had yet to definitively commit to putting on

evidence of Hittson’s mental condition. While Sammons had attended Dr.

Storms’s interview, he was not privy to Dr. Storms’s professional opinion. None

of Hittson’s attorneys attended Dr. Coplin’s interview or tried to talk to Dr. Coplin

before trial.

The defense team waited to commit to a course of action until the start of the

penalty phase—when they could wait no longer. Following the parties’ opening

statements, they proffered Dr. Prewett’s testimony to see if the court would let him

testify to some of his findings without opening the door to the State’s introduction

of Drs. Coplin and Storms.

They did not present anything from Dr. Moore; in fact, it appears that the

State was never aware of Dr. Moore’s involvement. Later, during the state habeas

proceedings, Sammons explained his fear “that [Dr. Moore] would testify that

Travis was just mean, and that he just did this because he is mean.” Doc. 75-16, at

101. Apparently, after talking to Dr. Moore, Sammons did not think they should

put on any mental health evidence: “I was scared to death that Dr. Moore’s

testimony would come in, that Dr. Prewett would testify that he had a consultation

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with Dr. Moore, and that Dr. Moore would have been called, and he was our

psychiatrist, and he would have testified that Travis was just mean.” Id. at 102. “I

didn’t think that there was anything worth doing to take the risk of putting, of

having the State put our psychiatrist on the stand to testify that our client was just

mean.” Id. at 103. While Hollman was less troubled by Dr. Moore’s possible

testimony (which presumably explains why they still proffered Dr. Prewett’s

testimony), he still felt that Dr. Moore’s findings were not very helpful to their

mitigation theory, and he wanted to avoid having Dr. Moore testify before the jury,

if possible.

After Dr. Prewett gave a condensed version of his testimony outside the

jury’s presence, Hittson’s counsel engaged in a lengthy colloquy with the court and

District Attorney regarding their ability to present some or all of Dr. Prewett’s

findings without allowing rebuttal from Drs. Storms or Coplin (even though they

were not yet aware of either doctor’s findings). The court rejected their arguments

and made it clear that, if they called Dr. Prewett, the State could call Drs. Storms

or Coplin. Before forcing them to decide what course to pursue, the court gave

both sides Dr. Coplin’s report—cautioning Hittson’s attorneys that, “I don’t think

y’all are going to find that that’s going to be for the benefit of Mr. Hittson.” Doc.

74-8, at 47. And the court required the State to turn over Dr. Storms’s report.

Trial counsel then had a thirty-minute recess to review the reports—Dr. Prewett

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was still present and also read the reports, but did not recall having an in-depth

discussion with the attorneys.

Upon seeing the doctors’ findings, Sammons and Hollman were convinced

that whatever benefit they might gain from having Dr. Prewett testify would be

outweighed by the other experts’ findings. In particular, Sammons recalled being

worried about Dr. Coplin’s MMPI test results showing Hittson to have an elevated

Psychopathic Deviant score. In his words, “I felt like if the jury heard that—you

know, you look at the photographs, you look at the crime, the jury hears that he is

elevated on a scale for being a psychopathic deviant, you know, it was my feeling

that that is what they would remember.” Doc. 75-17, at 14. Sammons was also

worried because Dr. Coplin did not find any evidence of brain damage—which

conflicted with Dr. Prewett’s findings (of the four doctors that examined Hittson,

Dr. Prewett was the only one that found any indication of brain damage). Hollman

likewise felt that the balance of the psychological testimony would not benefit

Hittson: “we were very concerned that the State and the Court’s, that is Dr.

Storms[’s] and Dr. Coplin’s opinions of Mr. Hittson’s mental state would have

been very difficult for us to overcome and would have been potentially even

frightening to the jury.” Id. at 67.

Shurling was more ambivalent; he testified in the state habeas proceedings

that, “[a]s a general proposition, I think one could say that all of the psychologies

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and psychological evaluations taken together were very, well, they were

unfavorable.” Doc. 75-18, at 91. But later he stated that, had it been his call, he

might have risked the rebuttal testimony because, in his experience, he preferred to

put on all the evidence he has at his disposal and let the jury sort it out. Shurling

was not the primary decisionmaker, though, and notwithstanding his inclination to

put on all available evidence, he apparently did not object to Sammons’s and

Hollman’s decision to forego expert testimony.

Following their review of the expert reports, trial counsel proffered Shults’s

testimony—again to see if they could have her testify without triggering rebuttal

from Drs. Storms or Coplin. They again struck out. The court made it clear that if

they put on Shults, then the State could call its own mental health experts to not

only rebut Shults’s testimony, but also to state their own conclusions based on their

independent evaluation of Hittson.

Faced with an all-or-nothing proposition, the defense decided to forego

expert testimony and just stick with their lay witnesses. In an abundance of

caution, they even asked the court, “[i]f we put up lay witnesses to testify about

[Hittson’s] character, you won’t let them put up Coplin and Storms?” To which

the court replied “Right.” Doc. 74-8, at 77. As recounted earlier, the defense

team’s twenty lay witnesses testified that Hittson was a pretty good guy—he was

not the brightest and he drank a lot, but he was pretty much harmless—and that

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Hittson was particularly impressionable and emotionally needy. And, as discussed

in detail, one lay witness testified that Hittson “might have been” remorseful about

the murder, which led to Dr. Storms’s “lay” testimony that Hittson called

Utterbeck a “hillbilly” and an “asshole” during his interview.

Following Dr. Storms’s brief rebuttal testimony, Hittson’s trial team did not

try to re-open their case in chief to put on their experts, despite the fact that at least

some of the testimony they had hoped to keep from the jury had now slipped out.

When asked why Dr. Storms’s testimony did not change their calculus, Sammons

pointed out that he was still worried about the specter of Dr. Moore’s testimony.

Likewise, Hollman “didn’t see the value” in having Dr. Prewett testify after Dr.

Storms but conceded that, “at that point, I’m not sure any of us really knew what to

do.” Doc. 75-17, at 59, 62.

3.

In his first state habeas petition, Hittson claimed that his trial counsel failed

to render effective assistance because they did not call Dr. Prewett or Ms. Shults

during the penalty phase—even after Dr. Storms testified. After the evidentiary

hearing, Hittson elaborated on this claim, arguing in his post-hearing brief that

“counsel’s decision to withhold psychological evidence during the penalty phase of

trial was uninformed,”—and therefore, by definition, not strategic—because

counsel “inexplicably failed to interview Dr. Coplin prior to trial.” Doc. 76-1, at

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31, 34. In the alternative, Hittson contended that, “[e]ven if the investigation could

be said to be reasonable . . . [c]ounsel’s purported reason for withholding the

evidence” was unreasonable because they only spent thirty minutes reviewing Drs.

Coplin’s and Storms’s reports—leading to “a non-strategic rush to judgment.” Id.

at 36–37. Because of such “blind decision-making,” counsel failed to recognize

that “Dr. Coplin’s report was mostly positive,” and their “concern over Dr.

Storms’s potential testimony also was exaggerated and unfounded.” Id. at 38, 39.

Moreover, “any basis for withholding [Dr. Prewett and Ms. Shults] disappeared

when Dr. Storms recounted [Hittson’s ‘hillbilly’ and ‘asshole’] statements . . . .”

Id. at 39.

In denying habeas relief, the Butts County Superior Court held that Hittson

had failed to show that his attorneys’ conduct fell below the “objective standard of

reasonableness” required by the Sixth Amendment, and, in the alternative, that

Hittson had not been prejudiced by the complained-of conduct—i.e., he failed to

establish either of Strickland’s prongs.

The Superior Court found the defense attorneys’ assessment of the mental

health evidence to be reasonable:

[T]rial counsel’s decision to forego mental health evidence was
reasonable based [solely] upon the fear that Dr. Moore might
testify . . . .

...

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[Moreover], in light of the contradictions to Dr. Prewett’s testimony
which are presented by the reports of Coplin and Storms, the possible
negative inferences which could be drawn from the psychological
reports, as well as the conclusions drawn in the reports concerning
Hittson’s responsibility for the crime, the Court concludes that it was
reasonable for trial counsel to conclude that the reports of Storms and
Coplin were unfavorable. [Therefore] trial counsel’s decision not to
present the testimony of Dr. Prewett and Ms. Shults, which was based
on the aforementioned reasonable conclusion was not unreasonable.

Doc. 76-4, at 17, 19 (citation omitted). Even after Dr. Storms testified, the court

believed that enough unfavorable evidence remained—unrelated to the “hillbilly”

and “asshole” statements—to support counsel’s decision not to call their experts.

And the court brushed aside the “uninformed judgment” argument because, in the

court’s view, thirty minutes was sufficient time to digest Drs. Coplin’s and

Storms’s reports, “as the reports are not lengthy [(together they totaled sixteen

pages)], and Dr. Coplin’s report contains a summary which would make it possible

to determine the substance of his testimony within that period of time.” Id. at 17.

In the alternative, the court held that, even if trial counsel had been

constitutionally deficient, the expert testimony did not create a reasonable

probability of a different result:

[I]n light of all the evidence adduced, including the crime committed,
the gruesome nature of that crime, Petitioner’s characterization of the
victim after the crime, the mitigation evidence which was actually
presented, and the possibly unfavorable psychological testimony

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which includes not only [Drs. Prewett’s, 44 Coplin’s, and Storms’s
findings], but the possibility of Dr. Moore, the defense’s own expert,
testifying that Travis was “just mean,” the Court does not believe
there to be a reasonable probability that the jury would have returned
with a sentence of life had Ms. Shults and Dr. Prewett been presented
in the penalty phase.

Id. at 21 (citations omitted).

Hittson applied to the Georgia Supreme Court for a certificate of probable

cause, claiming error in the Superior Court’s application of both Strickland prongs.

He maintained that thirty minutes was not enough time for his attorneys to assess

the reports and, in their rush to judgment (which they manufactured by failing to

interview Dr. Coplin before trial), “[t]hey overlooked helpful material in the

reports and misinterpreted irrelevant material as harmful.” Doc. 76-6, at 26. The

Supreme Court found no merit to his arguments and accordingly denied a CPC.

In his federal habeas petition, Hittson contended that the state courts

unreasonably applied Strickland when they found the defense team’s assessment to

be reasonable: “In these circumstances, counsel could not possibly make an

informed decision to withhold psychiatric evidence”; “[i]n their rush during a 30

minute recess, the lawyers misread the reports, overlooking helpful material, and

misinterpreting irrelevant material as harmful.” Am. Pet. for Writ of Habeas

44
The court pointed out that some of Dr. Prewett’s testimony could have worked against
Hittson’s interests—e.g., the Borderline Personality Disorder diagnosis and his opinion that
Hittson was violent and impulsive.

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Corpus, ECF no. 45, at 48. The District Court evaluated the experts’ findings and

agreed with the Butts County Superior Court’s reasons for holding that Hittson’s

counsel acted reasonably—going as far as to note that “trial counsel more likely

would have been ineffective if they had opened the door to the damaging testimony

of Dr. Coplin, Dr. Storms, and Dr. Moore,”—“regardless of the mitigation strategy

that capital defense lawyers choose, they are often damned if they do, and damned

if they don’t when they decide to use, or not use, mental health testimony.”

Hittson, 2012 WL 5497808, at *48 (quotation marks omitted).

B.

Like the District Court, we review the state courts’ rejection of Hittson’s

ineffectiveness claim through the lens of AEDPA and, accordingly, look only to

whether the Georgia Supreme Court had a reasonable basis in the record to

conclude that Hittson’s ineffective-assistance claim was meritless.

AEDPA review of a state court’s adjudication of a Strickland claim is an

especially onerous standard for a federal habeas petitioner to overcome. We begin

with Strickland’s performance prong, which, in staking out the standard for

constitutionally defective representation, demands that courts give considerable

deference to trial counsel’s judgment. See Richter, __ U.S. at __, 131 S. Ct. at 788

(“Unlike a later reviewing court, the attorney observed the relevant proceedings,

knew of materials outside the record, and interacted with the client, with opposing

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counsel, and with the judge.”). Because it would be “all too easy for a court,

examining counsel’s defense after it has proved unsuccessful, to conclude that a

particular act or omission of counsel was unreasonable . . . a court must indulge a

strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at

2065. This presumption insulates all but those errors that are “so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. at 687, 104 S. Ct. at 2064.

To show that an attorney failed to discharge his Sixth Amendment duty, a

petitioner must establish that the attorney’s conduct “amounted to incompetence

under ‘prevailing professional norms.’” Richter, __U.S. at __, 131 S. Ct. at 788

(quoting Strickland, 466 U.S. at 690, 104 S. Ct. at 2066) (emphasis added). “The

[Strickland] test has nothing to do with what the best lawyers would have done.

Nor is the test even what most good lawyers would have done.” White v.

Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992). “[A] petitioner must establish

that no competent counsel would have taken the action that his counsel did take.”

Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc)

(emphasis added).

Thus, “[e]ven under de novo review, the standard for judging counsel’s

representation is a most deferential one.” Richter, __ U.S. at __, 131 S. Ct. at 788.

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But “[e]stablishing that a state court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The standards created by Strickland and

§ 2254(d) are both highly deferential, and when the two apply in tandem, review is

doubly so.” Id. (citations and quotation marks omitted). “The question is not

whether a federal court believes the state court’s determination under the

Strickland standard was incorrect but whether that determination was

unreasonable—a substantially higher threshold.” Knowles v. Mirzayance, 556

U.S. 111, 123, 129 S. Ct. 1411, 1420, 173 L. Ed. 2d 251 (2009) (quotation marks

omitted). If there is “any reasonable argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not disturb a state-court decision

denying the claim. Richter, __ U.S. at __, 131 S. Ct. at 788.

Hittson has come nowhere close to satisfying this combined Strickland–

AEDPA standard. At best, he has demonstrated that his attorneys faced a tough

choice—they had to let the jury hear all the expert testimony or none of it and,

based on their assessment of the evidence, they decided that this would do more

harm than good. Such a showing is not enough to establish ineffectiveness under a

de novo application of Strickland—much less justification for upsetting the

Georgia high court’s decision under § 2254(d)(1).

We need not rehash the expert evidence. It suffices to say what should be

evident: The experts’ findings were a mixed bag (even after the “hillbilly” and

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“asshole” statements came in)—some of what they had to say would have been

good for Hittson, and some would have been bad. The defense team’s judgment

that the findings were more aggravating than mitigating is precisely the type of

game-time decision that Strickland insulates from Monday-morning

quarterbacking. See Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en

banc) (“Which witnesses, if any, to call, and when to call them, is the epitome of a

strategic decision, and it is one that we will seldom, if ever, second guess.”).

Hittson tries to avoid the broad deference owed to defense counsel’s best

judgment by arguing that their “decision” was just guesswork, because they failed

to fully investigate the other experts’ findings. The record does not support this

argument. First, even without considering Drs. Storms’s and Coplin’s findings,

trial counsel had reason enough to forego Dr. Prewett’s testimony based solely on

the risk that the State (and then the jury) would hear from Dr. Moore. A

reasonable attorney could have concluded, as Sammons did, that “there was [not]

anything worth doing to take the risk of . . . having the State put our psychiatrist on

the stand to testify that our client was just mean,” Doc. 75-16, at 103—not to

mention Dr. Moore’s Antisocial Personality Disorder diagnosis, his observation

that Hittson was “always hostile and very violent on alcohol,” and the report’s

references to Hittson’s burglary arrest and theft from his parents, Doc. 75-20, at

38–39.

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Even so, the team reserved judgment until after they had access to Drs.

Coplin’s and Storms’s reports and after the court ruled that Dr. Prewett’s or Ms.

Shults’s testimony would allow the state to call Drs. Coplin or Storms in rebuttal.

Hittson’s contention that thirty minutes was not enough time for three attorneys

and a psychologist to digest two eight-page reports is little more than wishful

thinking.45 The trial team was already familiar with Hittson’s psychological

profile from their discussions with Drs. Prewett and Moore, and the trial judge told

them, point blank, “I don’t think y’all are going to find that [Dr. Coplin’s report is]

going to be for the benefit of Mr. Hittson.” Doc. 74-8, at 47. As we have just said,

their assessment of the evidence was objectively reasonable, and Hittson has done

nothing to overcome the strong presumption that counsel “made all significant

decisions in the exercise of reasonable professional judgment.” Strickland, 466

U.S. at 690, 104 S. Ct. at 2066.
45
Hittson quibbles with some of the aggravating parts of the reports that his trial
attorneys highlighted in the state habeas proceedings. He forgets, though, that he bears the
burden of proving his attorneys’ incompetence; it is not up to defense counsel to articulate each
and every reason they had for a single decision made in the course of an entire trial, litigated
years ago. Richter, __ U.S. at __, 131 S. Ct. at 790 (“[C]ourts may not . . . insist [that] counsel
confirm every aspect of the strategic basis for his or her actions. There is a strong presumption
that counsel’s attention to certain issues to the exclusion of others reflects trial tactics rather than
sheer neglect.” (quotation marks omitted)); see also Chandler, 218 F.3d at 1315 n.16 (“To uphold
a lawyer’s strategy, we need not attempt to divine the lawyer’s mental processes underlying the
strategy.”). The only “evidence” Hittson puts forth to support his argument that the defense
team’s decision was uninformed is the very fact that the defense team found the reports to be, on
the whole, unfavorable. In other words, Hittson argues that the attorneys’ assessment of the
expert evidence was unreasonable because it was uninformed, and as proof that it was
uninformed, he points to their unreasonable assessment. Needless to say, such tautology is
unpersuasive.

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That the attorneys might have been able to glean some information from Dr.

Coplin before trial is irrelevant.46 For context, we note that Dr. Coplin interviewed

Hittson on Friday, February 12, 1993; Dr. Storms interviewed Hittson on Saturday

and Sunday February 13 and 14; and jury selection began on Tuesday, February

16. Assuming that the attorneys could have found time to run down Dr. Coplin

(before the state habeas court, Hittson never asked the attorneys why they didn’t

interview Dr. Coplin), Hittson has produced no evidence to show that he would

have told them anything other than what was in his report (Hittson did not call Dr.

Coplin during the state habeas proceedings). At most, Hittson has shown that trial

counsel might have been able to learn—slightly earlier—the same information they

got from Dr. Coplin’s report.

Courts are not in the business of micromanaging attorney trial prep. See

Richter, __ U.S. at __, 131 S. Ct. at 788 (“[I]ntrusive post-trial inquiry threaten[s]

the integrity of the very adversary process the right to counsel is meant to serve.”

46
In his federal habeas petition and brief to this court, Hittson claims that his counsel also
should have interviewed Dr. Storms before trial. The first time Hittson made this claim was in
his CPC application to the Georgia Supreme Court. Putting aside Hittson’s failure to present this
argument to the Butts County Superior Court, there is no support in the trial record (and
obviously none in the collateral record) for the proposition that Hittson’s attorneys could have
obtained Dr. Storms’s findings prior to trial. In the pretrial hearing in which the trial court
ordered Hittson to submit to an examination by Dr. Storms, the court explained that neither side
had an obligation to disclose their respective experts’ findings until the defense team decided
whether they were going to use their expert evidence. Thus, Dr. Storms had no obligation to
disclose his findings to the defense team. In fact, after Dr. Storms interviewed Hittson,
Sammons tried to ask him about his impressions in the parking lot, but Dr. Storms rebuffed his
inquiries.

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(quotation marks omitted)); Strickland, 466 U.S. at 490, 104 S. Ct. at 2066

(“Intensive scrutiny of counsel and rigid requirements for acceptable assistance

could dampen the ardor and impair the independence of defense counsel . . . .”).

We are all too familiar with the strain of claims alleging ineffective assistance

because an attorney could have interviewed one more witness, read one more

document, or chased down one more loose end. In the face of these claims, courts

have explained ad nauseam that attorneys are not required to conduct an exhaustive

investigation of each and every decision made at trial—merely a reasonable one.

See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066 (“[C]ounsel has a duty to make

reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary.”); Richter, __ U.S. at __, 131 S. Ct. at 789 (“Counsel

[is] entitled to . . . balance limited resources in accord with effective trial tactics

and strategies.”).

With unlimited time and resources, there is always something more that

might have been done in a capital case—such allegations “prove[] at most the

wholly unremarkable fact that with the luxury of time and the opportunity to focus

resources on specific parts of a made record, post-conviction counsel will

inevitably identify shortcomings in the performance of prior counsel.” Waters, 46

F.3d at 1514. Hittson takes this worn-out argument one step further—

complaining, not that his attorneys failed to investigate a particular line of inquiry,

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but that they didn’t investigate it fast enough. We refuse to stretch the Sixth

Amendment to include such a right.

In sum, Hittson has failed to show that his attorneys’ decision to forego

expert testimony fell below an objective standard of reasonable attorney conduct—

much less that the state courts unreasonably applied Strickland in rejecting his

Sixth Amendment claim. The District Court’s rejection of habeas relief on

Hittson’s Strickland claim is, accordingly, affirmed.

VII.

Hittson’s final constitutional claim is that the State withheld Vollmer’s

psychiatric report and post-arrest letters he wrote from jail, in violation of Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) .

Under Brady, “the suppression by the prosecution of evidence favorable to

an accused . . . violates due process where the evidence is material either to guilt or

to punishment.” Id. at 87, 83 S. Ct. at 1196–97. But “the Constitution is not

violated every time the government fails or chooses not to disclose evidence that

might prove helpful to the defense.” Kyles v. Whitley, 514 U.S. 419, 436–37, 115

S. Ct. 1555, 1567, 131 L. Ed. 2d 490 (1995). To prevail on a Brady claim, a

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defendant must establish three elements: “[1] The evidence at issue must be

favorable to the accused, either because it is exculpatory, or because it is

impeaching; [2] that evidence must have been suppressed by the State, either

willfully or inadvertently; and [3] prejudice must have ensued.” Strickler v.

Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286 (1999).

We focus on the third element. 47 To show “prejudice,” or “materiality,”

under Brady, the petitioner must show that “there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would

have been different.” Kyles, 514 U.S. at 433, 115 S. Ct. at 1566 (quotation mark

omitted). This process, “will necessarily require a court to ‘speculate’ as to the

effect of the new evidence.” Sears v. Upton, __ U.S. __, 130 S. Ct. at 3259, 3266,

177 L. Ed. 2d 1025 (2010). 48 “The question is not whether the defendant would

more likely than not have received a different verdict with the evidence, but

whether in its absence he received a fair trial, understood as a trial resulting in a

47
There has been considerable debate as to whether Hittson’s trial counsel or first state
habeas counsel could have, or in fact did, obtain the psychiatric report. Because we conclude
that the report would not have made a difference, we need not wade into the quagmire that has
developed over whether or why the report was unavailable. Cf. Strickler, 527 U.S. at 295, 119
S. Ct. at 1955 (interchangeably using the Brady materiality requirement and the procedural-
default prejudice requirement).
48
Sears explained this in the context of Strickland prejudice, but the point obviously
holds true for the identical Brady materiality test.

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verdict worthy of confidence.” 49 Kyles, 514 U.S. at 434, 115 S. Ct. at 1566. In

conducting this analysis, courts first evaluate the effect of each suppressed item on

its own and then weigh the cumulative impact of all of the suppressed evidence.

Id. at 436 n.10, 115 S. Ct. at 1567 n.10.

Vollmer’s psychiatric report was prepared in February 1991—more than a

year before the murder—by R. J. Dusan, a social worker in the psychiatric

department of the Naval Hospital in Jacksonville, Florida, where the Forrestal was

stationed at the time. The Forrestal’s flight surgeon requested the psychiatric

evaluation because Vollmer’s attitude was affecting his work performance and

causing interpersonal problems aboard the ship. After interviewing Vollmer and

reviewing his medical and military records, Dusan diagnosed Vollmer with

“severe” Antisocial Personality Disorder and recommended that he be discharged

from the Navy. The hospital’s chief of psychiatry, Dr. Donald Gibson, signed off

on the report—he did not interview Vollmer or prepare the report.

The two jailhouse letters were addressed to Joleen Ward, a sailor on the

Forrestal and friend of Vollmer’s; they were written after Vollmer was arrested but

before Hittson’s trial. The letters are a few pages each and ramble through a

49
The Brady materiality test is more stringent (from a petitioner’s perspective) than the
Brecht “substantial and injurious effect” standard that we applied to Hittson’s Estelle claims.
See Kyles v. Whitley, 514 U.S. 419, 435–36, 115 S. Ct. 1555, 1566–67, 131 L. Ed. 2d 490
(1995).

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variety of topics, including the murder investigation, Vollmer’s ex-wife, Ms.

Ward’s boyfriend, foreign affairs, recollections of good times with friends, sports,

jokes, and poetry. Of chief relevance to Hittson’s Brady claim are Vollmer’s

references to his impending prosecution, in which he casually dismisses the

likelihood of a conviction because of police incompetence and because “[t]hey’re

in my hometown . . . with my hand picked judge and my hand picked jury.” Doc.

56-15, at 8. He also wrote, “only two people actually know what happened, and

I’ve never talked to any cops or made a confession, so it looks like the whole

world[’]s gonna have to wait till August to hear me speak, and only if I feel like

it.” Id. at 17.

As recounted earlier, in rejecting Hittson’s second state habeas petition, the

Butts County Superior Court concluded that Hittson could have obtained

Vollmer’s psychiatric report during trial or in his first state habeas proceeding, and

so the report claim was procedurally defaulted. Nonetheless, the court analyzed

the report under Brady’s materiality requirement, along with the post-arrest letters,

and concluded that the suppressed evidence was not material, either individually or

collectively, because it was duplicative of other evidence put on by the defense

during the penalty phase. In his CPC application, Hittson argued that his

psychiatric report claim was properly before the court on the merits, and that the

suppressed evidence was material, both individually and cumulatively. The

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Georgia Supreme Court summarily denied his CPC application. As explained

above, this was a rejection on the merits, and so our task is to review the record

before the Georgia Supreme Court to determine if there is any reasonable basis to

support the court’s denial of relief. See Richter, __ U.S. at __, 131 S. Ct. at 784.

We find ample support in the record for the conclusion that Vollmer’s

psychiatric report and post-arrest letters did not create a reasonable probability of a

different result. We examine this evidence separately and then cumulatively.

A.

In analyzing the materiality of the psychiatric report—as with any piece of

evidence—we must necessarily determine how Hittson would have used it at trial

and then weigh the “tendency and force” of the evidence as it would have been

presented to the jury. See Kyles, 514 U.S. at 436 n.10, 115 S. Ct. at 1567 n.10.

Throughout his state and federal habeas proceedings, Hittson has brandished

Vollmer’s diagnosis as if it were dispositive proof of every attribute his trial team

sought to ascribe to Vollmer during the penalty phase. But Hittson has

consistently failed to explain how the evidence he produced to this effect in the

2005 to 2009 time frame, when he was litigating his state habeas petition, relates

back to his trial in 1993. More importantly, Hittson has lost sight of the fact that

Vollmer was not the one on trial. He apparently assumes that anything that would

have made Vollmer look bad necessarily would have helped him, but culpability

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for this crime was not a zero-sum game. Hittson has not carefully traced the

inferences the jury could have drawn about Vollmer to the jury’s ultimate decision

to return a death sentence. Thus, we must parse the record to answer the only two

questions that matter: what would the jury have heard or seen during Hittson’s

1993 trial, and what effect would that have had on the jury’s conclusion that

Hittson deserved the death penalty.

In the habeas proceedings before the Butts County Superior Court, Hollman

testified that he would have either called the Navy personnel who prepared the

report, or submitted the report as an exhibit, to “acquaint the jury with Mr.

Vollmer’s psychological condition” as a way to “buttress[] the defense” that

“Vollmer was the stronger personality and the more intelligent of the two and that

he, in fact, had induced Mr. Hittson to participate in this crime.” Doc. 56-9, at 115.

We assume, for sake of discussion, that the report would have been admissible and

Hittson’s attorneys could have called Mr. Dusan (the social worker who

interviewed Vollmer and prepared the report) or Dr. Gibson (the psychiatrist who

signed off on the report) to testify regarding the contents of the report or meaning

of the diagnosis.50 See generally Gissendaner v. State, 272 Ga. 704, 714, 532

50
Hittson also claims that, with the benefit of Vollmer’s report, his trial counsel would
have decided to put on their own experts (we presume that he means Dr. Prewett) who would
have then been able to explain the relevance of Vollmer’s diagnosis in light of his assessment of
Hittson. We can give short shrift to this assertion. As we have just discussed in detail, Hittson’s

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S.E.2d 677, 688–89 (2000) (explaining that the Georgia rules of evidence are

relaxed in the penalty phase of a capital case). We also assume that, in admitting

evidence of Vollmer’s mental condition, Hittson would not have opened the door

to damaging rebuttal evidence—in particular, his own Antisocial Personality

Disorder diagnosis made by Dr. Moore.

We agree that, when used in this manner, the report could have supported

Hittson’s mitigation theory during the penalty phase; however, it is not the silver

bullet that Hittson tries to make it out to be. See Strickler, 527 U.S. at 289, 119

S. Ct. at 1952 (“[The suppressed evidence] might have changed the outcome of the

trial. That, however, is not the standard . . . . He must [show] that there is a

reasonable probability that the result of the trial would have been different . . . .”)

(quotation marks omitted).

As an initial matter, we are skeptical as to how probative the report would

have been to the crux of Hittson’s mitigation theory—that he was acting under

Vollmer’s control on the night of the crime. In his report, Dusan made the

defense team had a number of well-founded reasons not to call their experts—not the least of
which was that they would have risked the State calling Dr. Moore to testify that he had
diagnosed Hittson with Antisocial Personality Disorder. In his state habeas proceedings related
to the Brady claims, Hittson did not submit a scrap of evidence from Drs. Prewett or Moore, and
neither Hollman nor Sammons could say that the added value of Vollmer’s psychiatric report
would have changed their risk calculus and led them to put on one or all of their experts. Thus,
we limit our materiality review to the admission of the psychiatric report and testimony from Mr.
Dusan or Dr. Gibson explaining the report.

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following observations—drawn from an hour-and-a-half interview and a review of

Vollmer’s medical and military records:

This patient admits that as child there was lying, stealing, truancy,
vandalism, initiating fights, and running away from home. Presently
he is unable to sustain consistent work behavior. He frequently
becomes intoxicated, is promiscuous and has no remorse for his
actions as they affect others.

Doc. 56-15, at 4. This paragraph recites—nearly verbatim—the diagnostic criteria

for Antisocial Personality Disorder listed in the Diagnostic and Statistical Manual

of Mental Disorders (“DSM”) in print in 1991. See Am. Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders, at 344–46 (3d ed., rev.

1987) (hereinafter “DSM-III-R”). According to the DSM-III-R, a person with

Antisocial Personality Disorder typically “fail[s] to conform to social norms and

repeatedly perform[s] antisocial acts that are grounds for arrest, such as destroying

property, harassing others, stealing, and having an illegal occupation.” Id. at 342.

They also “tend to be irritable and aggressive and to get repeatedly into physical

fights and assaults,” “[t]ypically . . . are promiscuous,” “they generally have no

remorse about the effects of their behavior on others; they may even feel justified

in having hurt or mistreated others,” and they have “the conviction (often correct)

that others are hostile towards them.” Id. at 342–43.

Dr. Gibson testified in the state habeas proceedings that a “severe” diagnosis

was typically given to indicate “that this patient has a personality disorder that is of

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such severity as to preclude further military service”—“so people will know that

we’re not just kidding, this is something that’s serious and needs to be taken care

of right away.” Doc. 56-11, at 109, 110. Dr. Gibson also explained that a person

with severe Antisocial Personality Disorder, “has adaptability problems. He has

interpersonal problems. He has problems with authority. He has problems doing

what he’s supposed to do. He’s done illegal things, things for which if he had

gotten caught doing them he would have been arrested. He violates the rights of

everybody.” Id. at 110. This testimony also tracks the DSM-III-R’s description of

the disorder (Dr. Gibson did not evaluate Vollmer and, understandably, did not

recall signing off on the 1991 report when he testified in 2007 before the state

habeas court).

Critically lacking is any support for the theory that Vollmer had a propensity

for manipulating or controlling others. Neither the report, the DSM, nor Dr.

Gibson’s description indicate that a person with Antisocial Personality Disorder in

general, or Vollmer in particular, is adept at bending others to his will. 51 The

“essential feature” of the disorder is described as “a pattern of irresponsible and

antisocial behavior”—i.e., a “fail[ure] to conform to social norms.” DSM-III-R, at

51
The DSM lists, as one of the diagnostic criteria for the disorder, “no regard for the
truth, as indicated by repeated lying, use of aliases, or ‘conning’ others for personal profit or
pleasure.” DSM-III-R, at 345. Dusan did not rely on this criterion in reaching his diagnosis (the
DSM lists ten diagnostic criteria, of which a doctor must find four in order to reach a diagnosis).

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342. While this type of behavior might include attempts to control others, there is

nothing in the report or the diagnosis that indicates that Vollmer possessed this

particular attribute among the host of traits that could be deemed “antisocial.”

Hittson submitted an affidavit to the Butts County Superior Court from Dr.

Jerry Lee Brittain, a neuropsychologist who, in 2002, reviewed Vollmer’s military

and medical records along with the various expert assessments of Hittson that were

prepared for trial. Dr. Brittain gave the following opinion:

The combination of Mr. Vollmer’s extremely high level of
intelligence[52] with an Antisocial Personality Disorder suggests a very
manipulative, clever, sophisticated con artist—this is typically a
person who often gets away with their infractions because they are
smart enough to avoid getting caught, many times at the expense of a
weaker codefendant.

Doc. 56-16, at 48. In forming this opinion, Dr. Brittain relied on the version of the

DSM in print in 2002, which was published nearly a decade after Vollmer was

diagnosed with Antisocial Personality Disorder. See generally Am. Psychiatric

Ass’n, Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev.

2000) (hereinafter “DSM-IV-TR”). Dr. Brittain cited the updated version of the

DSM for the proposition that “[i]ndividuals with Anti-social Personality Disorder

‘are frequently deceitful and manipulative in order to gain personal profit or

52
The psychiatric report pegged Vollmer’s intelligence at “average or above.” Dr.
Brittain presumably got the idea that Vollmer possessed “extremely high” intelligence from
Vollmer’s Armed Forces Qualifying Test scores—which were in the 99th percentile.

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pleasure, (e.g., to obtain money, sex, or power).’” Doc. 56-16, at 46 (quoting

DSM-IV-TR at 702). This language, or its equivalent, is not in the version of the

DSM in print in 1991 and 1993 (the DSM-III-R), and Dr. Brittain did not explain

whether these traits were commonly understood to be a characteristic of the

disorder in 1991 and did not otherwise attempt to establish what an expert could

have testified to during Hittson’s 1993 trial.

Hittson also called Dr. Keith Caruso in the habeas proceedings in state court.

Dr. Caruso is a forensic psychiatrist who, in 2007, reviewed Vollmer’s report, the

various expert assessments of Hittson, a transcript of the penalty phase, and a

variety of other evidence related to Vollmer (much of which was not available to

the defense at the time of trial). The following colloquy ensued:

Q Why is [Vollmer’s diagnosis] significant to understanding Mr.
Hittson’s behavior on the night of the offense?

A Well, I think it was considerable, there is evidence that
[Hittson’s behavior] may have been considerably influenced by Mr.
Vollmer, that Mr. Hittson’s behavior as a passive, dependent
individual, he would, potentially he would be very easily influenced
by someone with antisocial personality disorder, particularly someone
who can be conning and manipulative.

Q And is there evidence in the record, of the stuff that you
reviewed, that Mr. Vollmer was conning, cunning and manipulative?

A Yes.

...

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Q What does it tell me, as a lay person, what does it mean when
you have a severe antisocial personality disorder?

A You’ve got someone who essentially can, I think for the
purposes of this case, someone who potentially could be very good at
controlling and manipulating someone else. And you had a
combination of two individuals, between Mr. Vollmer with a
diagnosis of antisocial personality disorder and then Mr. Hittson, who
has been described as having a passive, dependent personality, that he
would be particularly prone to manipulation by someone as bright and
antisocial as Mr. Vollmer has been described.

Doc. 56-12, at 16, 18. Dr. Caruso’s testimony spilled the bounds of the psychiatric

report, wandering into the other experts’ assessments of Hittson and evidence that

was either already before the jury or was not available to the defense at the time of

trial. Hittson made no attempt to establish what portion, if any, of Dr. Caruso’s

testimony his trial counsel could have presented during the 1993 trial.

We do not question Drs. Brittain’s or Caruso’s professional opinions, but,

given that they were formed in 2002 and 2007, with the benefit of hindsight and

evidence that was not available the defense team during Hittson’s trial, we do not

find their opinions particularly helpful in weighing the impact of Vollmer’s 1991

diagnosis on the jury’s penalty-phase deliberations during Hittson’s 1993 trial. 53

53
In the state habeas court, the State presented expert testimony to counter Drs. Brittain’s
and Caruso’s explanations of Vollmer’s diagnosis. The State asked Dr. Coplin (the court-
appointed expert from Hittson’s trial), “because Vollmer was diagnosed with an antisocial
personality disorder, what kind of impact would that have had on [Hittson’s] actions on the night
of the crime?” Dr. Coplin responded, “I don’t think it would have had any, other than [Vollmer
is] prone for repetitive behavior, trouble with the law. Antisocial is a sociopath, you know. It’s
a person who repetitively has no concept of the law.” Doc. 56-12, at 3.

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At bottom, Hittson has not produced evidence to show that his trial counsel could

have called an expert to testify at trial who would have said, based on the 1991

Navy psychiatric report, that Vollmer had a propensity or aptitude for controlling

others.

That is not to say, though, that Vollmer’s psychiatric report would have been

irrelevant. Bo Sammons’s assessment of the report, which he explained in the

2007 state evidentiary hearing, is on firmer footing. In his view, the diagnosis

would have helped them show that Vollmer was “a real bad guy”—that he was

“amoral about the effect that things that he did had on other people.” Doc. 56-10,

at 30, 80. The report itself, the DSM-III-R, and Dr. Gibson’s explanation of the

diagnosis before the state habeas court (which was effectively a recitation of the

DSM-III-R) all support the proposition that Vollmer had “no remorse for his

actions as they affect others.” Doc. 56-15, at 4; see also DSM-III-R at 342

(Individuals with Antisocial Personality Disorder “generally have no remorse

about the effects of their behavior on others.”).

Accepting that this aspect of Vollmer’s character had some bearing on

Hittson’s sentence, the idea that Vollmer had amoral or antisocial tendencies

certainly would not have come as news to Hittson’s jury. The defense team had

shipmates testify that Vollmer was violent, had a fixation with murder, and liked to

tote around a bulletproof vest and sawed-off shotgun. They submitted two letters

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written by Vollmer in which he bragged about his illegal and amoral escapades.

They had a witness read part of one of those letters in which Vollmer described a

detailed plot to murder someone. One of Vollmer’s friends testified that, after the

murder, Vollmer often joked about having killed Utterbeck. Other shipmates

testified that Vollmer doled out advice on getting rid of dead bodies. And, of

course, the jury heard Hittson’s uncontested version of the crime, in which

Vollmer played a central role. The State never tried to rebut any of this evidence.

It never tried to redeem Vollmer in the jury’s eyes; in fact, the District Attorney

made clear that Vollmer would be separately prosecuted for his role in the crime.

In light of the evidence presented by the defense, Vollmer’s diagnosis would

have simply put a label on something that was abundantly clear—something that

was not really in controversy. Certainly, a medical diagnosis can carry more

weight with a jury than lay testimony. And a report prepared before the crime by a

neutral expert would have bolstered the credibility of lay witnesses whose view of

Vollmer might have been skewed by their knowledge of his complicity in the

crime. But where the point being proven is both uncontested and amply supported

by the evidence, we can hardly say that additional evidence that would only

reinforce the obvious is the type of evidence that puts the case in a whole new

light, as required for relief under Brady.

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More importantly, though, even if the report would have cemented an

otherwise shaky proposition, proving Vollmer’s bad character was not the lynchpin

to securing a life sentence for Hittson. When considered in isolation, Vollmer’s

character is irrelevant to Hittson’s punishment; i.e., making Vollmer out to be “a

real bad guy” in the eyes of the jury did not automatically make Hittson less

culpable for his own choices. As Hollman put it in the state habeas court:

I wouldn’t say that it was our mission to do everything that we could
possibly do to make [Vollmer] look bad. I think that what we were
trying to do is show that he was the lead actor in this terrible crime
and that he was the one who actually was the primary mover in the
murder and the dismemberment.

Doc. 56-9, at 125. In effect, the defense team’s attempts to prove that Hittson was

a pretty good guy and Vollmer was a really bad guy were a means to an end—a

way of prodding the jury to infer that Hittson had not acted on his own volition but

had instead been overborne by his evil co-defendant. While this was a sensible

strategy, there is no question that the jury could have accepted their portrayal of

Vollmer and still concluded that Hittson was responsible for his own actions.

After all, Hittson confessed to swinging the bat, pulling the trigger, and cutting up

Utterbeck’s corpse.

While Brady’s materiality requirement “is not a sufficiency of the evidence

test,”—i.e., courts do not simply look to whether there is still enough evidence to

support the result—a defendant must show “that the favorable evidence could

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reasonably be taken to put the whole case in such a different light as to undermine

confidence in the verdict.” Kyles, 514 U.S. at 434–35, 115 S. Ct. at 1566. “In the

face of [an abundance of evidence to support the result] it should take more than

supposition on . . . weak premises offered by [a habeas petitioner] to undermine a

court’s confidence in the outcome.” Wood v. Bartholomew, 516 U.S. 1, 8, 116

S. Ct. 7, 11, 133 L. Ed. 2d 1 (1995) (per curiam). Vollmer’s psychiatric report is

simply not the type of evidence that undermines our confidence in Hittson’s

sentence. The Antisocial Personality Disorder diagnosis merely assigns a medical

term to character traits that were already well-attested-to. And whatever

reinforcing effect this “new” information would have had regarding Vollmer’s bad

character would have only minimally improved the chances that the jury would

believe that Vollmer controlled Hittson on the night of the crime. Thus, the state

court could have reasonably concluded that Vollmer’s report was not material

under Brady.

B.

Like the psychiatric report, Vollmer’s post-arrest letters are cumulative of

evidence that was already before the jury and are only indirectly related to

Hittson’s sentence.

We begin with how the letters would have been used by Hittson’s trial

counsel. When Hollman was asked, in the state collateral hearing, if the post-arrest

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letters would have been helpful at trial, he candidly replied, “[h]onestly, I don’t

know if they would have or not. I’ve read them. There are matters of interest that

are contained in these letters. I don’t know if they would or wouldn’t have.” Doc.

56-9, at 124. He conceded that he would have liked for the jury to have heard

certain passages from the letters, because they would have “impacted on the jury’s

view of Mr. Vollmer in a negative way,” but still explained, “I wouldn’t say that it

was our mission to do everything that we could possibly do to make [Vollmer]

look bad. . . . [W]e were trying to . . . show that he was the lead actor in this

terrible crime and that he was the one who actually was the primary mover in the

murder and the dismemberment.” Id. at 125.

Despite Hollman’s ambivalence, we will assume that trial counsel would

have submitted the post-arrest letters into evidence (along with the pre-arrest letters

that were already in evidence) and could have had Ms. Ward, the recipient, read

selected portions to the jury. In his arguments in both the state and federal habeas

proceedings, Hittson has cherry-picked a few paragraphs from the post-arrest

letters and touted them as “the best evidence” of “Vollmer’s inflated and arrogant

self-appraisal . . . complete indifference to the consequences of his actions . . .

sophistication, dominance, arrogance, self-assurance, manipulation and control . . .

[and] the unequal relationship (testified to by lay witnesses) between the two co-

defendants.” Hittson Appellee Br. at 41–42. This is hyperbole.

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In the first of Hittson’s excerpts, Vollmer wrote:

It’s not like I’m going to be stuck in here forever. Sure, I may do two
or three more years at the most, but I wouldn’t be surprised if I’m cut
loose after the trial in August. These fuckers haven’t got a clue or a
brain in their heads, and they’ll be lucky if they keep their jobs after
the public finds out how bad they’ve bungled the investigation and
how far out of bounds they’ve stepped. When this case goes to trial,
it’ll be a damn three ring circus. They’re in my hometown, for christ
sakes, with my hand picked judge and my hand picked jury.
Everyone who’s lived here since ’73 are my character witnesses, and
there isn’t a man or woman who doesn’t know me, at least in passing.
I used to think I didn’t have a chance, because of the dirty,
underhanded way the investigation was going, but now I know who
doesn’t have a chance.

Doc. 56-15, at 8. Certainly, this maniacal rant reflects arrogance or delusions of

grandeur. Vollmer’s pre-arrest letters, which the jury had, contained similar

braggadocio. Vollmer wrote that he was one of the three “Bad Asses” in the

world; he had only lost one fight in his life; he toted a pistol and sawed-off shotgun

to gang fights; he was “in tight with the Outlaws biker gang” and was “dealing

grass at $130 an ounce and snow at $60 a gram”; he had bounties out on rival

gang-members’ heads; and he had “done more than most will do in their miserable

lives.” Doc. 74-15, at 16–17. He explained, “I’m not afraid of dying and I have no

problems with killing anyone. Hand me $500 cash and I’ll kill whoever you point

your finger at. Morals are for losers trying to justify their place in life.” Id. at 17.

And, after describing a detailed plan to kill a man, he told the woman he was

writing to that he would “spit on his lifeless body for you.” Id. at 15.

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It is possible that the above-quoted passage from Vollmer’s post-arrest letter

would have strengthened the existing evidence of Vollmer’s brazenness or sense of

superiority. It is also possible that this additional indictment of Vollmer’s

character would have made Hittson’s mitigation theory slightly more believable to

the jury. And it’s possible that this incremental boost in believability would have

led the jury to conclude that Hittson did not deserve the death penalty. But our

task is not to stack inference upon inference—“petitioner’s burden is to establish a

reasonable probability of a different result.” Strickler, 527 U.S. at 291, 119 S. Ct.

at 1953 (emphasis in original). The tenuous connection between Vollmer’s bad

character and Hittson’s death sentence is reason enough to conclude that more

evidence that Vollmer was brazen, wicked, etc., wouldn’t have turned the tide in

Hittson’s favor.

Hittson next points us to Vollmer’s veiled references to the crime:

These fuckers couldn’t come up with a better motive than “drugs” or
“cult religion”? They’re the fuckin Keystone Cops. I could sit on the
shitter reading the paper and come up with more and better
motives. . . . There are a lot of questions left unanswered, and I’m the
only key to the mystery. They can assume and guess, but only two
people actually know what happened and I’ve never talked to any
cops or made a confession, so it looks like the whole world[’]s gonna
have to wait till August to hear me speak, and only if I feel like it.

Doc. 56-15, at 17. Apart from exhibiting more of Vollmer’s aggrandizing style,

this cryptic paragraph does little to help Hittson. It does tend to corroborate

Hittson’s uncontested account of the crime—at least insofar as it confirms

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Vollmer’s participation—and it implies that either Vollmer or Hittson had some

undisclosed motive for the crime, but there is nothing from which the jury could

have inferred that Vollmer was pulling Hittson’s strings. Without more, it is

impossible to say that this paragraph somehow advances Hittson’s mitigation

theory.

In fact, other parts of the letters contain similarly oblique references to the

crime. Some of these passages could be read to inculpate Hittson:

But the bit with Hittson really torqued my gonads cause it was
obvious why he did it. . . . I kinda majorly screwed up his plan [to
date Ward (the recipient)] and that just about sent him over the edge.
Oh fucking well, I won’t ever shed a fucking tear over his twisted love
life. I’m a tad bent out of shape because I heard what he said to the
cops about me, and I also heard Mike believed it. That really hurt me
guys.

Doc. 56-15, at 17.

I froze under pressure, Jo. That’s all I can say. Tell Mike I got kicked
out[54] on purpose, he was right about that. Things were more than a
little dangerous (remember the fights before I left?[55]) so I bailed to
avoid going overboard on a moonless night. Reasons I could never
have told you guys at the time, do you understand.

Id. at 12. While vague, these ramblings could have been used by the State to

undercut Hittson’s mitigation theory—they hint that Hittson had a reason for

54
After the crime, but before being arrested, Vollmer was discharged from the Navy for
possession of marijuana.
55
A handful of witnesses testified during the penalty phase that, shortly before Hittson
and Vollmer were arrested, their relationship deteriorated and they got into a fight.

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disliking Vollmer, that the confession was not entirely true, and that Vollmer was

scared of Hittson, enough so to get himself kicked out of the Navy. While these

passages, like the ones Hittson highlights, leave much to speculation, we cannot

entertain Hittson’s requests that we divine meaning from select parts without also

considering the State’s attempts to do the same.

When read as a whole and considered in light of the body of evidence before

the jury, the letters have little bearing on their ultimate task of sentencing Hittson.

The two new letters might have added a little more flavor to the jury’s

understanding of Vollmer’s personality, but Vollmer was not on trial. And the

handful of references to the crime itself raise more questions than answers. Given

that Hittson did not pursue a “residual doubt” strategy during the penalty phase

(and does not now argue that the letters would have enabled him to do so), we do

not see how anything in the letters supports Hittson’s mitigation theory that

Vollmer held sway over him on the night of the murder. Accordingly, the record

amply supports a conclusion that the post-arrest letters were not material under

Brady.

C.

Because neither Vollmer’s psychiatric report nor his jailhouse letters had

much to do with Hittson’s sentence, we need not rehash the above analysis to see

if, when considered cumulatively, they might have turned the tide. It is sufficient

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to say that the psychiatric report and post-arrest letters would have reinforced the

existing evidence of Vollmer’s bad character. But the jury sentenced Hittson based

on his own choices, and we find nothing in either the report or the letters that

would have helped Hittson show that those choices were less than voluntary

because Vollmer overpowered him psychologically. Considered together, the

evidence does not cast the case in such a different light as to entitle Hittson to a

new sentencing proceeding. Therefore, we affirm the District Court’s holding that

the state courts had a reasonable basis to conclude that the suppressed evidence

was not material under Brady.

VIII.

Hittson’s final claim requires us to decide whether he should have been

granted leave to further amend his federal habeas petition to add four brand-new

ineffective-assistance claims that he did not raise in any of his state court

proceedings, his original § 2254 petition, or his amended federal petition. It is a

matter of first principles that a state prisoner cannot raise claims for the first time

in his federal habeas petition. See 28 U.S.C. § 2254(b)(1)(A). Hittson does not

contest that he has failed to exhaust his “new” claims. Instead, he would have us

treat the claims as procedurally defaulted 56 and then excuse the default by relying

56
Where a return to state court would be futile—because the petitioner’s claims would
clearly be barred by state procedural rules—a federal court can “forego the needless ‘judicial

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on the recent Supreme Court decisions Martinez v. Ryan, __ U.S. __, 132 S. Ct.

1309, 182 L. Ed. 2d 272 (2012), and Trevino v. Thaler, __ U.S. __, 133 S. Ct.

1911, 1852 L. Ed. 2d 1044 (2013). We decline to do so for reasons explained

below. We first explain the relevance of Martinez and Trevino, and then why

Hittson cannot rely on those cases to excuse his procedural default.

A.

A federal court may consider the merits of a procedurally defaulted claim

only if the petitioner can show both “cause” for the default and “prejudice” from a

violation of his constitutional right. Wainwright v. Sykes, 433 U.S. 72, 84–85, 97

S. Ct. 2497, 2505, 53 L. Ed. 2d 594 (1977). To establish cause, a petitioner must

ordinarily “demonstrate ‘some objective factor external to the defense’ that

impeded his effort to raise the claim properly in state court.” Ward v. Hall, 592

F.3d 1144, 1157 (11th Cir. 2010) (quoting Murray v. Carrier, 477 U.S. 478, 488,

106 S. Ct. 2639, 2645, 91 L. Ed. 2d 397 (1986)). Before its 2012 decision in

Martinez, the Supreme Court had long held that § 2254 petitioners cannot rely on

errors made by their state collateral counsel to establish cause. See Coleman v.

Thompson, 501 U.S. 722, 752–53, 111 S. Ct. 2546, 2566–67, 115 L. Ed. 2d 640

ping-pong’” and treat unexhausted claims as procedurally defaulted. Snowden v. Singletary, 135
F.3d 732, 736 (11th Cir. 1998). There is no doubt that Hittson’s “new” claims are barred by
O.C.G.A. § 9-14-51, as all of the claims could have been raised in Hittson’s first or second state
habeas petition.

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(1991). Martinez created a limited, equitable exception to Coleman where, (1) “a

State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in

a collateral proceeding,” as opposed to on direct appeal;57 (2) “appointed counsel

in the initial-review collateral proceeding, where the claim should have been

raised, was ineffective under the standards of Strickland”; and (3) “the underlying

ineffective-assistance-of-trial-counsel claim is a substantial one.” Martinez, __

U.S. at __, 132 S. Ct. at 1318–19 (citations omitted).

Shortly after Martinez was decided, Hittson sought leave from the District

Court to further amend his federal habeas petition to add the following ineffective-

assistance claims:

[1] Mr. Hittson Was Deprived of the Effective Assistance of Counsel
under the Sixth Amendment When His Counsel Failed to Thoroughly
Investigate His Upbringing, Background, and Mental Health and
Failed to Secure More Time from the Trial Court for this
Investigation.

[2] Mr. Hittson was Deprived of the Effective Assistance of Counsel
Due to His Counsel’s Failure to Alert the Trial Court that It Had

57
Martinez dealt with Arizona law, which bars criminal defendants from raising
ineffective-assistance claims on direct appeal. __ U.S. at __, 132 S. Ct. at 1314 (citing State v.
Spreitz, 202 Ariz. 1, 3, 39 P.3d 525, 527 (2002)). The Court explained the reasons for this
limitation as follows:
By deliberately choosing to move trial-ineffectiveness claims outside of the
direct-appeal process, where counsel is constitutionally guaranteed, the State
significantly diminishes prisoners’ ability to file such claims. It is within the
context of this state procedural framework that counsel’s ineffectiveness in an
initial-review collateral proceeding qualifies as cause for a procedural default.
Id. at __, 132 S. Ct. at 1318.

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Forced Them Into a Conflict Regarding the Adequacy of the Waiver
Signed by Mr. Hittson During His Evaluation by Dr. Storms.

[3] Mr. Hittson Was Deprived of the Effective Assistance of Counsel
by His Counsel’s Failure to Independently Discover Exculpatory
Material Suppressed by the State.

[4] Mr. Hittson was Deprived of the Effective Assistance of Counsel
Due at Motion for New Trial and Direct Appeal.

Second Am. Pet. for Writ of Habeas Corpus, ECF no. 94, at 2 (hereinafter “Second

Am. Habeas Pet.”). Hittson conceded that none of these claims had been raised in

any of his state proceedings, but, relying on Martinez, asserted that the cause for

this failure was his lawyers’ incompetence during his first state habeas

proceeding—when the claims should have been raised.

The District Court denied Hittson’s motion because Georgia law allows

defendants to litigate ineffective-assistance claims on direct appeal.58 As the

District Court pointed out, the Martinez exception to Coleman’s general rule is

limited to circumstances where state law “requires a prisoner to raise an

ineffective-assistance-of-trial-counsel claim in a collateral proceeding.” Martinez,

__ U.S. at __, 132 S. Ct. at 1318 (emphasis added). So, “because Georgia did not

bar Hittson from presenting his ineffective assistance of trial counsel claims during

his direct appeal, Martinez is not applicable, and pursuant to Coleman, ineffective

58
Georgia defendants may raise ineffective-assistance-of-trial-counsel claims on direct
appeal if they have new counsel. White v. Kelso, 261 Ga. 32, 32, 401 S.E.2d 733, 734 (1991).

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assistance of counsel during state post-conviction proceedings cannot serve as

cause to excuse procedural default.” Order Den. Mot. for Leave to Am., ECF no.

102, at 5.

After the District Court denied Hittson’s motion to further amend, the

Supreme Court decided Trevino. Trevino expanded Martinez’s exception to states

that effectively prohibit defendants from raising ineffective-assistance claims on

direct appeal. __ U.S. at __, 133 S. Ct. at 1921 (“[A] distinction between (1) a

State that denies permission to raise the claim on direct appeal and (2) a State that

in theory grants permission but, as a matter of procedural design and systemic

operation, denies a meaningful opportunity to do so is a distinction without a

difference.”).59 By the time Trevino came down, Hittson’s appeal in this court was

well underway; however, he sought to expanded his COA, asking that we decide

the effect of Trevino on his right to raise and litigate his new claims in the District

Court. We granted his request and expanded his COA to resolve the following

issue:

59
Trevino considered Texas law. While Texas technically allows a defendant to raise
ineffective-assistance-of-trial-counsel claims on direct appeal, “Texas procedure makes it
‘virtually impossible for appellate counsel to adequately present an ineffective assistance [of trial
counsel] claim’ on direct review,” and “Texas courts in effect have directed defendants to raise
claims of ineffective assistance of trial counsel on collateral, rather than on direct, review.”
Trevino, __ U.S. at __, 133 S. Ct. at 1918–19 (quoting Robinson v. State, 16 S.W.3d 808, 810–
11 (Tex. Crim. App. 2000)).

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Whether Hittson should be allowed to amend his federal habeas
petition to include claims of ineffective assistance of trial counsel
which were previously defaulted through prior counsel in state habeas
proceedings in light of the United States Supreme Court’s ruling in
Trevino . . . .

In supplemental briefing on the issue, Hittson has focused on Georgia’s

requirements for raising ineffective-assistance claims on direct appeal. He asserts

that, under Georgia law, “there is no ‘meaningful opportunity’ to litigate

ineffectiveness on direct appeal.” Hittson Supp. Br. at 10 (quoting Trevino, __

U.S. __, 133 S. Ct. at 1921). While that may be true, we leave that question for

another day because Hittson has failed to establish either of the other two elements

of the Martinez exception—that “appointed counsel in the initial-review collateral

proceeding, where the claim should have been raised, was ineffective under the

standards of Strickland”; or that “the underlying ineffective-assistance-of-trial-

counsel claim is a substantial one.” Martinez, __ U.S. at __, 132 S. Ct. at 1918.

We address each element in turn.

B.

To establish cause under Martinez, Hittson must demonstrate that state

habeas counsel were themselves ineffective for failing to raise the four claims in

his second amended § 2254 petition. This is a somewhat familiar inquiry, as

petitioners have long been able to claim ineffective assistance of trial or appellate

counsel to establish cause to excuse a procedural default caused by their trial or

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appellate counsel. See Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639,

2645, 91 L. Ed. 2d 397 (1986). As the Supreme Court has explained in that

context, “[n]ot just any deficiency in counsel’s performance will do . . . the

assistance must have been so ineffective as to violate the Federal Constitution.”

Edwards v. Carpenter, 529 U.S. 446, 451, 120 S. Ct. 1587, 1591, 146 L. Ed. 2d

518 (2000) (citation omitted). While Martinez did not establish a constitutional

right to counsel in state post-conviction proceedings, it did adopt the constitutional

standard from Strickland as the standard governing petitioners’ claims that their

post-conviction counsel’s conduct should excuse a procedural default. See

Martinez, __ U.S. at __, 132 S. Ct. at 1318.

Accordingly, Hittson must establish that his habeas counsel’s conduct “fell

below an objective standard of reasonableness,” and that, “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 688, 694, 144 S. Ct. at 2064, 2068. Obviously the merits of

the underlying ineffective-assistance claims have some bearing on both Strickland

prongs; collateral counsel would clearly not fall below Strickland’s minimum

competency requirements by deciding not to raise a meritless claim, and a

petitioner would also not be prejudiced by his counsel’s failure to do so.

But the merits of the underlying claim is only a part of the Strickland

analysis. With unlimited time and the benefit of hindsight, a petitioner can come

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up with any number of potentially meritorious ineffective-assistance claims that he

now wishes his collateral counsel had raised. However, a petitioner does not

establish constitutionally defective performance simply by showing that (a)

potentially meritorious claims existed and (b) his collateral counsel failed to raise

those claims. Murray, 477 U.S. at 486, 106 S. Ct. at 2644 (“[T]he mere fact that

counsel failed to recognize the factual or legal basis for a claim, or failed to raise

the claim despite recognizing it, does not constitute cause for a procedural

default.”). “Experienced advocates since time beyond memory have emphasized

the importance of winnowing out weaker arguments on appeal and focusing on one

central issue if possible, or at most on a few key issues.”60 Jones v. Barnes, 463

U.S. 745, 751–52, 103 S. Ct. 3308, 3313, 77 L. Ed. 2d 987 (1983). “[A] per se rule

that . . . the professional advocate, [is not] allowed to decide what issues are to be

pressed . . . seriously undermines the ability of counsel to present the client’s case

in accord with counsel’s professional evaluation.” Id. at 751, 103 S. Ct. at 3313.

As we have explained, Strickland instructs courts to “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance”—that counsel “rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” 466

60
“Even in a court that imposes no time or page limits . . . [a] brief that raises every
colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong
and weak contentions.” Barnes, 463 U.S. at 753, 103 S. Ct. at 3313.

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U.S. at 689–90, 104 S. Ct. at 2065–66. To overcome this presumption, a petitioner

must “establish that no competent counsel would have taken the action that his

counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir.

2000) (en banc).

Thus, to show that his habeas counsel failed to provide the level of

representation required by Strickland, Hittson must show more than the mere fact

they failed to raise potentially meritorious claims; he must show that no competent

counsel, in the exercise of reasonable professional judgment, would have omitted

those claims. Even assuming that the underlying ineffective-assistance claims are

meritorious (which, as we explain in the following section, they are not), Hittson

has not established that his state habeas counsel were incompetent for failing to

raise them.

During Hittson’s first state habeas proceedings, he was represented, pro

bono, by several attorneys from the law firm Swindler & Berlin of Washington,

D.C. His habeas petition to the Butts County Superior Court was prepared by

Andrew Lipps, Melissa Rogers, and John Lange. Lipps and Rogers had previously

assisted Hittson’s trial counsel in the direct appeal to the Georgia Supreme Court,

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and they were Hittson’s primary attorneys before the Butts County Superior

Court.61

Their petition to the Superior Court included the following allegations of

trial-level incompetence:

¶ 17. Petitioner’s counsel failed to render reasonably effective
assistance to petitioner at virtually every critical stage before and
during trial . . . .

(1) Pre-Trial

(a) Failure to Provide Plaintiff With the Assistance of Counsel
During State Psychiatric Evaluation

...

¶ 22. . . . Defense counsel arrived late to [Dr. Storms’s] interview and
was not present when Dr. Storms presented petitioner with the waiver
form. . . . Accordingly, defense counsel never consulted with or
advised petitioner with respect to the waiver.

...

(b) Failure to Raise Proper Grounds to Challenge Location of Trial

...

(2) Trial

¶ 26. Defense counsel failed to introduce any evidence whatsoever at
the guilt-innocence phase of trial. . . .

61
Lipps and Rogers represented Hittson during the state habeas proceedings conducted in
October 1997, and Lipps and Rogers helped prepare the post-hearing brief, with the assistance of
Jeremy Simon and Christina Novak—also of Swindler & Berlin. Neither Lipps nor Rogers
worked on the CPC application to the Georgia Supreme Court.

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(3) Sentencing

¶ 27. Counsel failed to introduce relevant mitigating evidence at the
sentencing hearing. . . .

...

¶ 31. Counsel called only lay witnesses in mitigation. At no point
did the defense present any testimony by Dr. Prewett or Ms.
Shults. . . .

¶ 32. . . . Once Dr. Storms testified about [Hittson’s “hillbilly” and
“asshole”] statements, the sole reason for keeping Dr. Prewett and Ms.
Shults off the stand evaporated. . . .

¶ 33. . . . [D]efense counsel did not provide clear guidance and
assistance to petitioner as to whether he should testify, and ultimately
forced him to forego the exercise of his right to testify.

...

¶ 39. Counsel also failed to object to the prosecutor’s closing
argument at the sentencing hearing, in which the prosecutor engaged
in an improper and misleading appeal to passion, prejudice and other
arbitrary factors.

¶ 40. . . . Despite the prosecutor’s improper reference to the
defendant’s exercise of his [Fifth Amendment] rights, defense counsel
failed to object.

¶ 41. Defense counsel also failed to object when the prosecutor
referred to photographs of the victim in an effort to inflame the
jury. . . .

¶ 42. Counsel further failed to object to the trial court’s responses to
two questions that the jury asked during deliberations. . . .

¶ 43. Defense counsel also failed to object to the trial court’s failure
in its sentencing instructions to explain to the jury the concept of
mitigating circumstances . . . .

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¶ 44. Defense counsel also failed to object to the court’s sentencing
instructions that stated that the jury should “fix” or “recommend” that
the death penalty be imposed.

Doc. 75-13 (citations omitted). The Superior Court formed these allegations into

eight separate ineffective-assistance claims, and denied all of them.

Hittson claims that Lipps and Rogers were incompetent for failing to tack on

the four additional claims from his second amended § 2254 petition; however, he

has alleged no facts to overcome the presumption that they exercised reasonable

professional judgment in deciding which claims to raise and which claims to omit.

In his motion to further amend, Hittson made the following general

allegations of habeas-counsel incompetence:

[S]tate habeas counsel failed to pursue obvious avenues of
investigation, resulting in a failure to raise meritorious and potentially
meritorious claims. Ineffective Assistance claims which Mr. Hittson
believes are “substantial” and which have “some merit” were
available to be litigated in state habeas proceedings but post-
conviction counsel unreasonable failed to raise them.

...

Undersigned counsel represents, upon information and belief, that Mr.
Hittson’s original habeas attorneys performed no investigation beyond
the limited investigation performed by Mr. Hittson’s trial attorneys
into Mr. Hittson’s background. In fact, original habeas counsel
appear to have raised only claims which were apparent from a review
of the trial transcript, failing to look beyond the record in order to
determine whether Mr. Hittson’s trial attorneys failed to discover, for
instance, available and compelling mitigation evidence. Further,
original habeas counsel failed, absent any reasonable explanation, to
bring a claim which was apparent from the record.

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Mot. for Leave to Amend, ECF no. 93, at 5–7 (footnotes omitted).

Such generalized allegations are insufficient in habeas cases. Rule 2(c) of

the Rules Governing Section 2254 Cases requires petitioners to “specify all the

grounds for relief available to the petitioner” and “state the facts supporting each

ground.” 62 In other words, Rule 2(c) “mandate[s] ‘fact pleading’ as opposed to

‘notice pleading,’ as authorized under Federal Rule of Civil Procedure 8(a).”

Borden v. Allen, 646 F.3d 785, 810 (11th Cir. 2011); see also Mayle v. Felix, 545

U.S. 644, 655, 125 S. Ct. 2562, 2570, 162 L. Ed. 2d 582 (2005) (explaining that

§ 2254 Rule 2(c) is more demanding than Fed. R. Civ. P. 8(a)). These generalized

allegations from Hittson’s motion to further amend do not satisfy Rule 2(c)’s

requirements; Hittson has not alleged any facts to support his allegations that his

state habeas attorneys were incompetent for failing to raise the four “new”

claims. 63

62
Hittson’s allegations of habeas-counsel ineffectiveness are not technically “grounds for
relief,” since they are pled only to establish cause to excuse his procedural default. See
Martinez, __ U.S. at __, 132 S. Ct. at 1320. He must nevertheless plead the facts necessary to
demonstrate that his lawyers were ineffective under the standard of Strickland. See Hill v.
Lockhart, 474 U.S. 52, 60, 106 S. Ct. 366, 371, 88 L. Ed. 2d 203 (1985).
63
Moreover, by relying on “information and belief,” Hittson misapprehends the
requirements of habeas pleading. “The reason for the heightened pleading requirement—fact
pleading—is obvious. Unlike a plaintiff pleading a case under Rule 8(a), the habeas petitioner
ordinarily possesses, or has access to, the evidence necessary to establish the facts supporting his
collateral claim; he necessarily became aware of them during the course of the criminal
prosecution or sometime afterwards.” Borden, 646 F.3d at 810.
Hittson’s trial was in 1993, and his first state habeas petition was filed in 1995. Hittson’s
current counsel has the same record and all of the evidence that was available to trial counsel and

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Hittson’s second amended § 2254 petition itself contains somewhat more

specific allegations of habeas-counsel ineffectiveness. The allegations in the

amended petition relate to each underlying ineffective-assistance claim, and so we

examine the habeas-counsel allegations for each of the four “new” claims to see (1)

if the allegations satisfy Rule 2(c)’s pleadings requirements and (2) if the

allegations, taken as true, would allow a court to conclude that habeas counsel was

ineffective under Strickland.

1.

Hittson’s first ineffective-assistance-of-trial-counsel claim is:

Mr. Hittson Was Deprived of the Effective Assistance of Counsel
under the Sixth Amendment When His Counsel Failed to Thoroughly
Investigate His Upbringing, Background, and Mental Health and
Failed to Secure More Time From the Trial Court for this
Investigation.

Second Am. Habeas Pet., ECF no. 94, at 14. The related allegations of habeas-

counsel ineffectiveness are:

first state habeas counsel. Current counsel also has the benefit of the record generated by
Hittson’s federal habeas proceedings and second state habeas proceedings. And Hittson’s
current counsel has access to their client. By the time they sought to further amend Hittson’s
federal habeas petition, in 2012, they had ample opportunity to conduct whatever investigation
they needed to plead the facts necessary to support the claims therein. See Borden, 646 F.3d at
810 (“[T]he petitioner is, or should be, aware of the evidence to support the claim before
bringing his petition.”).

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First state habeas counsel conducted almost no independent
investigation into the facts of Mr. Hittson’s case outside the available
record from trial and direct appeal. First habeas counsel did not travel
to the places where Mr. Hittson grew up or interview family, friends,
neighbors and teachers; they did not hire an investigator or mitigation
specialist; they did not have Mr. Hittson psychologically evaluated;
and, they failed to speak with the mitigation witnesses offered at trial
to see if they had further mitigating information about Mr. Hittson that
would have changed the result of his trial. It appears that first habeas
corpus counsel also failed to request any educational records, medical
or mental health records regarding Mr. Hittson or his family. These
omissions constitute deficient performance under the relevant
standards of performance for habeas corpus attorneys at the time of
first habeas counsel’s representation of Mr. Hittson.

Id. at 13 (citations omitted).

First state habeas counsel also failed to have Mr. Hittson evaluated by
a neuropsychologist or other mental health professional, despite the
fact that there were numerous red flags in his background indicating
that he had come from a family of alcoholics, suffered neglect and
abuse within his family, tried to commit suicide seven times as a
teenager, had a learning disability, and suffered from recurrent
blackouts even when he was not drinking.

Id. at 28 (citation omitted).

Hittson supported these allegations with an affidavit from Ms. Rogers and

another from Mark Olive—a capital defense attorney from Tallahassee, Florida.

According to Ms. Rogers, she was the a third-year associate at Swindler & Berlin

when she started working on Hittson’s case. She was supervised by Mr. Lipps, a

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senior partner, and consulted with staff from the Georgia Resource Center 64 but she

was “largely left to develop the case on [her] own.” Rogers Aff., ECF no. 92-2, at

2. She confessed that, “[t]hough I received the impression that Mr. Hittson had a

very rough childhood, I did not delve into Mr. Hittson’s background and

upbringing to find out if there was any information that should have been presented

to the jury that was omitted at trial.” Id. More specifically, she did not “hire a

private investigator or a mitigation specialist,” “have Mr. Hittson psychologically

or medically evaluated,” “travel to Nebraska or Oklahoma to talk with Mr.

Hittson’s family,” or “speak with any of the lay witnesses presented at Mr.

Hittson’s trial.” Id. She did “travel[] to Georgia on three or four occasions”; on

those trips she “spoke with two out of the three trial attorneys on Mr. Hittson’s

case, as well as went to the District Attorney’s office to review their file [and] also

met with Travis Hittson on these occasions.” Id. at 2–3.

Mr. Olive’s affidavit attempted “to provide a description of the standard of

care for counsel representing death-sentenced inmates in Georgia post-conviction

cases in the mid-1990s.” Olive Aff., ECF no. 92-3, at 3. He summed it up as

follows:

64
The Georgia Resource Center is a nonprofit that provides free legal representation to
indigent Georgia death-row inmates. Hittson’s current counsel are attorneys with the Georgia
Resource Center.

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The standard of care for attorneys representing death-sentenced clients
in state habeas corpus proceedings is, and was in the mid-1990s, that
habeas counsel undertake a substantial and thorough investigation in
order to identify all available claims for relief and all available
evidence which may support those claims. It is not enough to confine
one’s efforts primarily to scrutiny of the trial and appellate record;
counsel must investigate, and investigate thoroughly, issues which
may not be readily apparent from the record . . . .

Id. at 7–8.

While Hittson has at least set out some substantive facts for us to analyze,

these facts, even if taken as true, are insufficient to establish that his habeas

counsel’s conduct fell below Strickland’s performance standard. Despite Mr.

Olive’s purported “standard of care,” we have explained that “no absolute duty

exists to investigate particular facts or a certain line of defense.” Chandler, 218

F.3d at 1317. “[C]ounsel has a duty to make reasonable investigations or make a

reasonable decision that makes particular investigations unnecessary.” Strickland,

466 U.S. at 691, 104 S. Ct. at 2066 (emphasis added). “[C]ounsel need not always

investigate before pursuing or not pursuing a line of defense. Investigation (even a

nonexhaustive, preliminary investigation) is not required for counsel reasonably to

decline to investigate a line of defense thoroughly.” Chandler, 218 F.3d at 1318.

“In assessing the reasonableness of an attorney’s investigation . . . a court must

consider not only the quantum of evidence already known to counsel, but also

whether the known evidence would lead a reasonable attorney to investigate

further.” Wiggins, 539 U.S. at 527, 123 S. Ct. at 2538.

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Hittson has alleged that his collateral counsel failed to conduct certain

investigatory steps, but he has not explained why, in this particular case, a

competent attorney would have undertaken those steps—i.e., why a competent

attorney would have been compelled to dig deeper into Hittson’s background when

faced with the evidence in the record. Hittson fails to mention that Hollman and

Sammons—with whom Lipps and Rogers worked on direct appeal—undertook all

of the investigatory steps that Hittson now complains of. They traveled to

Nebraska, Pensacola, and Philadelphia to interview friends, family, counselors,

teachers, shipmates, and officers; they hired a social worker to travel to Nebraska

to interview many of the same people and work up an analysis of Hittson’s

background; and they had Hittson examined by a psychologist and a

neuropsychiatrist. Lipps and Rogers had Sammons’s and Hollman’s notes from

the witness interviews; they had Shults’s report on Hittson’s background and

family dynamics; and they had Drs. Prewett’s, Moore’s, Storms’s, and Coplin’s

findings regarding Hittson’s mental condition.

It would have been reasonable for Lipps and Rogers to conclude that

additional investigation into Hittson’s background would not yield anything useful

to Hittson’s collateral attack. Even if additional investigation would have turned

up new evidence that might have been relevant at trial (Hittson has not identified

any such evidence), Lipps and Rogers could have reasonably concluded that they

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did not have a viable “failure to investigate” ineffective-assistance claim given the

investigation conducted by Sammons and Hollman. See Waters v. Thomas, 46

F.3d 1506, 1514 (11th Cir. 1995) (en banc) (“The mere fact that other witnesses

might have been available or that other testimony might have been elicited from

those who testified is not a sufficient ground to prove ineffectiveness of [trial]

counsel.” (quotation marks omitted)); see also Chandler, 218 F.3d at 1316 n.20

(“Once we conclude that declining to investigate further was a reasonable act, we

do not look to see what a further investigation would have produced.” (quotation

marks omitted)).

Rather than attacking trial counsel’s investigation itself, Lipps and Rogers

chose to challenge trial counsel’s decision not to use some of the results of their

investigation (i.e., trial counsel’s decision not to call Dr. Prewett or Ms. Shults).

Strickland instructs us to presume that they exercised reasoned professional

judgment in doing so, and Hittson has alleged nothing to overcome that

presumption.

2.

Hittson’s next trial-counsel claim is:

Mr. Hittson was Deprived of the Effective Assistance of Counsel Due
to His Counsel’s Failure to Alert the Trial Court that It Had Forced
Them Into a Conflict Regarding the Adequacy of the Waiver Signed
by Mr. Hittson During His Evaluation by Dr. Storms.

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Second Am. Habeas Pet., ECF no. 94, at 29. We briefly elaborate on the

underlying claim. After Dr. Storms testified to Hittson’s “hillbilly” and “asshole”

statements during the penalty phase of Hittson’s trial, the trial court proposed that

the State supplement the record by calling Dr. Storms to testify regarding the

voluntariness of Mr. Hittson’s statements and the circumstances surrounding the

execution of a Miranda waiver at the beginning of the interview. According to

Hittson’s second amended § 2254 petition, this line of inquiry “created an

impermissible professional conflict for counsel” because, “along with Mr. Hittson,

[his trial attorneys] were the only witnesses who could have testified regarding

whether or not the waiver was truly a knowing and voluntary one, based on how

they had prepared Mr. Hittson for his evaluation by the State’s expert.” Id. at 30.

By failing to object to this conflict, trial counsel “deprived Mr. Hittson of the

effective assistance of counsel, as well as the only witnesses aside from Mr.

Hittson, who could counter the State’s testimony that the waiver was valid.” Id. at

31.

His allegations of habeas-counsel ineffectiveness for failing to raise this

claim are contained in one sentence: “Despite [the conflict of interest], first state

habeas counsel from Swindler & Berlin failed to raise these issues and to litigate

them, causing them to become procedurally defaulted.” Id. at 31–32. As

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explained above, the mere fact that counsel did not raise a particular claim does not

establish deficient performance under Strickland.

3.

Hittson’s third-trial counsel claim is:

Mr. Hittson Was Deprived of the Effective Assistance of Counsel by
His Counsel’s Failure to Independently Discover Exculpatory
Material Suppressed by the State.

Second Am. Habeas Pet., ECF no. 94, at 32. This claim relates to the hotly-

contested issue of whether trial counsel could have obtained Vollmer’s 1991

psychiatric report from a source other than the Houston County District Attorney—

an issue we did not address in part VII above because we concluded that the report

was not “material” under Brady. Throughout his state and federal post-conviction

proceedings, Hittson has maintained, as part of his Brady claim, that “[t]rial

counsel were, at the time of trial, diligent in attempting to discover the mitigating

evidence in the State’s possession.” Am. Pet. for Writ of Habeas Corpus, ECF no.

45, at 114–15. Nonetheless, Hittson sought to add as a claim in his second

amended § 2254 petition, that “trial counsel was ineffective for failing to locate

and use [Vollmer’s psychiatric report] on Mr. Hittson’s behalf.” Second Am.

Habeas Pet., ECF no. 94, at 33–34.

Putting aside the merits of the underlying trial-counsel claim and the fact

that we have already concluded that the psychiatric report would not have created a

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reasonable probability of a different result, we look to the relevant habeas-counsel

ineffectiveness allegations. They are brief: “Had first habeas counsel not failed to

make an alternative allegation of trial counsel ineffectiveness, the state habeas

court would have been required to assess whether Mr. Hittson’s trial counsel were

ineffective for failing to discover the evidence.” Id. at 34. Again, habeas

counsel’s failure to raise a claim does not, standing alone, establish deficient

conduct under Strickland.

4.

Hittson’s final claim is:

Mr. Hittson was Deprived of the Effective Assistance of Counsel Due
at Motion for New Trial and Direct Appeal.

Second Am. Habeas Pet., ECF no. 94, at 34. Hittson does not identify what his

attorneys did wrong in his motion for a new trial or on direct appeal, nor does he

explain how habeas counsel were ineffective for failing to raise these claims. He

has not pled any facts to support relief and, thus, has not established that habeas

counsel’s conduct fell below Strickland’s standard.

In sum, even if Hittson’s underlying ineffective-assistance claims were

“substantial,” Hittson has failed to overcome the presumption that, in choosing not

to present those claims to the Butts County Superior Court, his habeas counsel

were exercising reasoned professional judgment. We nonetheless address the

merits of the underlying ineffective-assistance-of-trial-counsel claims, explaining

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Martinez’s “substantial claim” requirement and why Hittson’s trial-counsel claims

are not “substantial.”

C.

Martinez articulated the “substantial claim” requirement as follows:

To overcome the default, a prisoner must . . . demonstrate that the
underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate that
the claim has some merit. Cf. Miller-El v. Cockrell, 537 U.S. 322,
123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (describing standards for
certificates of appealability to issue).

Martinez, __ U.S. at __, 132 S. Ct. at 1318–19. Neither Martinez nor Trevino

elaborated on or applied this standard, but we take the Court’s reference to Miller-

El to mean that it intended that lower courts apply the already-developed standard

for issuing a COA, which requires “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2).

As the Court explained in Miller-El, “[a] petitioner satisfies this standard by

demonstrating . . . that jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.” 537 U.S. at 327, 123 S. Ct. at 1034.

Where a petitioner must make a “substantial showing” without the benefit of a

merits determination by an earlier court,65 he must demonstrate that “jurists of

65
In the COA context, this situation presents itself where a district court dismisses a
petitioner’s federal petition on procedural grounds, without passing on the merits of the claims.
Because § 2253 requires a “substantial showing of the denial of a constitutional right” before an

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reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct.

1595, 1604, 146 L. Ed. 2d 542 (2000). That does not mean that a petitioner must

show “that some jurists would grant the petition.” Miller-El, 537 U.S. at 338, 123

S. Ct. at 1040. “[A] claim can be debatable even though every jurist of reason

might agree, after the . . . case has received full consideration, that petitioner will

not prevail.” Id.

We observe that this standard is similar to the preliminary review conducted

by district judges in § 2254 proceedings. Rule 4 of the § 2254 Rules allows the

district judge to summarily dismiss a petition “[i]f it plainly appears from the

petition and any attached exhibits that the petitioner is not entitled to relief.” The

Advisory Committee Notes further instruct that, in keeping with the heightened,

fact-pleading requirement in habeas cases, “the petition is expected to state facts

appeal may be taken, a petitioner must show, “[1] that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists
of reason would find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604, 146 L. Ed. 2d 542 (2000).
Where a petitioner seeks to overcome procedural default by way of Martinez, the court
initially tasked with evaluating the underlying ineffective-assistance claims (in most future cases,
it will be a district court) will necessarily have to decide whether the claims are “substantial”
without the benefit of a state-court determination on the merits. The “substantial showing”
standard from Slack, then, is a good fit for this task.

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that point to a real possibility of constitutional error.” Advisory Committee Note

to Rule 4 of the Rules Governing Section 2254 Cases (quotation marks omitted).

Thus, we examine the allegations in Hittson’s proposed second amended

§ 2254 petition to see whether “jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right.” In making

this determination, we consider the fact-pleading requirement for § 2254 petitions,

and the standard from Strickland.

1.

Mr. Hittson Was Deprived of the Effective Assistance of Counsel
under the Sixth Amendment When His Counsel Failed to Thoroughly
Investigate His Upbringing, Background, and Mental Health and
Failed to Secure More Time from the Trial Court for this
Investigation.

Hittson’s second amended § 2254 petition devotes considerable effort to

explaining why trial counsel’s conduct fell below Strickland’s performance

requirement. The incompetent-conduct allegations boil down the claim that “[t]rial

counsel were ineffective due to the lateness with which they began this

investigation,” and “[w]hile trial counsel originally called for more time and expert

funds to conduct a thorough mitigation investigation . . . they failed to use the

resources they were given effectively and presented very little information to the

jury about the origins of Mr. Hittson’s problems in his early family life and

upbringing.” Second Am. Habeas Pet., ECF no. 94, at 20, 25. Thus, “[t]rial

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counsel’s decision to offer very little evidence in mitigation regarding their client’s

family background and upbringing was not reasonable because they conducted an

inadequate investigation into this area.” Id. at 19–20.

Even if we assumed that Hittson could satisfy Strickland’s performance

prong based on these allegations of a constitutionally deficient investigation, he

has not alleged any facts that would warrant a finding of prejudice. Hittson’s

petition only hints in broad, conclusory terms that more investigation by his trial

counsel would have yielded something useful:

[¶ 27] There is nothing to suggest that further investigation would
have been fruitless.

[¶ 29] Trial counsel . . . were on notice that Mr. Hittson’s background
was such that it would likely produce mitigating evidence regarding
his upbringing, family, and psychological profile.

[¶ 33] [C]ounsel was on notice from their visit to Mr. Hittson’s
parents, the nature of Mr. Hittson’s crime, and the results of the
psychological evaluations that Mr. Hittson did have pre-trial, that
there was likely more mitigating information about Mr. Hittson’s
childhood that a thorough investigation into his background and
upbringing would likely uncover.

[¶ 40] But for trial counsel’s ineffective representation, there is a
reasonable probability that the result of trial, motion for a new trial,
and the appeal would have been different.

Id. at 21–28.

Nowhere in these generalized claims does Hittson allege any facts that

would allow a court to find “that there is a reasonable probability that, but for

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counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694, 144 S. Ct. at 2068. Apart from broad

statements that trial counsel’s investigation was not thorough enough, Hittson does

not identify what additional investigatory steps his attorneys should have taken; he

has not identified a single piece of mitigating evidence that his attorneys failed to

discover; he has not explained how that undiscovered evidence should have been

presented to the jury; and he has not stated, even in conclusory fashion, that the

jury would have returned a life sentence if they had heard the mitigating evidence

that his attorneys would have discovered had they been competent.

“[A] habeas case is not a vehicle for a so-called fishing expedition via

discovery, an effort to find evidence to support a claim.” Borden, 646 F.3d at 810

n.31. Because Hittson has not alleged any facts to warrant a finding of Strickland

prejudice, his first claim is not “substantial.”

2.

Mr. Hittson was Deprived of the Effective Assistance of Counsel Due
to His Counsel’s Failure to Alert the Trial Court that It Had Forced
Them Into a Conflict Regarding the Adequacy of the Waiver Signed
by Mr. Hittson During His Evaluation by Dr. Storms.

As explained in the preceding section, Hittson complains that the inquiry

into the voluntariness of his “hillbilly” and “asshole” statements to Dr. Storms and

the circumstances surrounding his Miranda waiver created a conflict of interests,

because his attorneys had some knowledge of “whether or not the waiver was truly

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a knowing and voluntary one.” Second Am. Habeas Pet., ECF no. 94, at 30.

According to Hittson, trial counsel abrogated their Sixth Amendment duty by

failing to object to this conflict.

The claim is meritless. This type of inquiry into the voluntariness of a

defendant’s statements and the circumstances surrounding the execution of a

Miranda waiver is routine in criminal cases where a statement or confession is

admitted. See generally Jackson v. Denno, 378 U.S. 368, 377–81, 84 S. Ct. 1774,

1780–833, 12 L. Ed. 2d 908 (1964). Hittson has laid no foundation for his bare

assertion that his attorneys’ failure to object to the Jackson–Denno hearing

deprived him of his Sixth Amendment right to counsel. He has not cited a scrap of

legal authority for his theory that such hearings create a conflict of interest where

the attorney has personal knowledge of the circumstances being inquired into. Nor

has he identified any professional or ethical standards that would require an

attorney to bring such a conflict to the court’s attention.

3.

Mr. Hittson Was Deprived of the Effective Assistance of Counsel by
His Counsel’s Failure to Independently Discover Exculpatory
Material Suppressed by the State.

Hittson has long claimed, as an element of his Brady claim, that “[t]rial

counsel were . . . diligent in attempting to discover the mitigating evidence in the

State’s possession,” Am. Pet. for Writ of Habeas Corpus, ECF no. 45, at 114–15,

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but he now also seeks to claim that “trial counsel was ineffective for failing to

locate and use [Vollmer’s psychiatric report] on Mr. Hittson’s behalf,” Second

Am. Habeas Pet., ECF no. 94, at 33–34. We need not attempt to resolve this

inconsistency because Hittson has pled no facts to support the ineffective-

assistance claim—nor could he, if his representations to this court, the District

Court, and the state courts are to be believed.

4.

Mr. Hittson was Deprived of the Effective Assistance of Counsel Due
at Motion for New Trial and Direct Appeal.

Hittson’s last claim does not specify what conduct he is complaining of.

The entirety of the allegations of constitutionally-deficient performance are as

follows:

In his motion for new trial proceeding and direct appeal . . . [c]ounsel
failed to fully research, raise, brief and support with evidence the
meritorious claims that could and should have been raised based on
the errors that occurred during Mr. Hittson’s capital trial.

Second Am. Habeas Pet., ECF no. 94, at 35. The allegation of prejudice is equally

lacking:

The attorneys appointed at the motion for new trial and direct appeal
stages of Mr. Hittson’s capital proceedings failed to effectively litigate
strong claims on Mr. Hittson’s behalf. Other claims, they abandoned
entirely. Not only did these omissions deprived Mr. Tollette [sic] of
relief at those levels, but significantly hindered his ability to assert
these claims in the current habeas proceedings.

Id. at 36. Such allegations are patently frivolous.

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Thus, in addition to his failure to establish habeas-counsel ineffectiveness,

Hittson has also failed to raise any “substantial” underlying ineffective-assistance

claims. Accordingly, he cannot rely on Martinez to excuse his procedural default.

IX.

For the foregoing reasons, the District Court’s grant of habeas relief is

REVERSED, and the District Court’s denial of habeas relief on all other grounds is

AFFIRMED.

SO ORDERED.

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CARNES, Chief Judge, concurring:

I fully concur in all of the Court’s opinion. I write separately to respond to

the dissent’s insistence that the Georgia Superior Court, in rejecting the petitioner’s

Estelle claims on state collateral review, clearly erred in applying Brecht’s

harmless-error standard instead of Chapman’s more petitioner-friendly standard,

and that the asserted error is somehow relevant to whether the petitioner is entitled

to federal habeas relief. See Diss. Opn. at 1–8. It did not, and it is not. 1

The central premise of the dissent’s position is that circuit precedent, as well

as what it sees as the “obvious implications” of the United States Supreme Court’s

decisions in Brecht and Fry, requires state courts to apply Chapman’s harmless-

beyond-a-reasonable-doubt standard on collateral review, not just on direct review.

Id. That premise and the conclusions that the dissent draws from it are wrong for a

number of reasons.

First, the dissent’s focus on the Georgia Superior Court’s application of

Brecht is inconsistent with our task under AEDPA, which is to evaluate whether

1
The dissenting opinion seems to be of two minds about whether the harmlessness
standard that the state collateral trial court applied is relevant to the issue of whether federal
habeas relief should be granted. The first paragraph of that opinion states: “To be clear, I agree
with the Concurrence that the state court’s application of the incorrect standard would not be an
independent basis for granting habeas relief.” Diss. Opn. at 1. But the dissenting opinion goes
on to state, “I disagree with the Majority’s statement that it does not matter whether Georgia’s
application of Brecht instead of Chapman was unreasonable.” Id. at 8. And it says, “Fry makes
it unclear whether we can grant habeas relief based upon the [state collateral trial] court’s error . .
. .” Id. at 7 n.4. As a precaution, I will respond to the dissenting opinion’s second mind, which
says that it does matter, as well as to that opinion’s assertion that “it was error,” id.

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the highest state court decision addressing the petitioner’s claims is incompatible

with clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1);

Newland v. Hall, 527 F.3d 1162, 1199 (11th Cir. 2008) (“[T]he highest state court

decision reaching the merits of a habeas petitioner’s claim is the relevant state

court decision.”). As Judge Tjoflat’s opinion for the Court in today’s case

correctly explains, the relevant state court decisions for AEDPA purposes are the

Georgia Supreme Court’s summary denials of Hittson’s applications for a

certificate of probable cause (CPC), not the Georgia Superior Court’s denials of his

two state habeas petitions. See Maj. Opn. at 35–39, 39 n.25, 41 n.27. And

“[b]ecause we are not reviewing the reasoning announced by the Superior Court,”

whether the Superior Court’s application of Brecht was contrary to, or involved an

unreasonable application of, clearly established Supreme Court precedent is

irrelevant. See Maj. Opn. at 41 n.27. Because of AEDPA the only question before

us is whether the Georgia Supreme Court had any “reasonable basis” for denying

Hittson relief on his Estelle claims. See Harrington v. Richter, — U.S. —, 131

S.Ct. 770, 784 (2011) (“Where a state court’s decision is unaccompanied by an

explanation, the habeas petitioner’s burden [under AEDPA] still must be met by

showing there was no reasonable basis for the state court to deny relief.”). We

cannot presume from the Georgia Supreme Court’s silence that it followed the

Superior Court in applying Brecht, especially given that Hittson’s application for a

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CPC argued that the Chapman standard applied under state law. See Maj. Opn. at

39 n.25, 41 n.27; Gill v. Mecusker, 633 F.3d 1272, 1288–89 (11th Cir. 2011)

(examining whether a summary state appellate decision was entitled to AEDPA

deference even though the trial court’s ruling was “based on potentially flawed

reasoning”).

Second, our own precedent does not, as the dissent contends, “clearly

require[] state courts hearing habeas corpus appeals to use the more petitioner-

friendly standard provided in Chapman.” Diss. Opn. at 4. Citing our decisions in

Trepal v. Secretary, Florida Department of Corrections, 684 F.3d 1088 (11th Cir.

2012), and Duest v. Singletary, 997 F.2d 1336 (11th Cir. 1993), the dissent asserts

that “we have unambiguously required that state collateral courts apply Chapman

in reviewing . . . federal constitutional claims.” Diss. Opn. at 3. That is wrong,

unless you count ambiguous dicta as an unambiguous holding.

In Trepal we explicitly recognized that “Chapman was a direct-appeal case”

and that “Brecht determined that [Chapman’s] harmless error standard did not

apply on collateral review.” 684 F.3d at 1111. Although we said in a footnote that

Brecht “does not apply to state courts’ review of their own convictions,” that

statement was founded upon the observation that, as a matter of practice, “Florida

courts apply the more petitioner-friendly Chapman standard of whether the

constitutional error is ‘harmless beyond a reasonable doubt.’” Id. at 1112 n.27

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(quoting Pittman v. State, 90 So. 3d 794, 811 (Fla. 2011)). In Trepal we had no

occasion to decide, and did not purport to decide, whether state courts are

constitutionally required to apply Chapman on collateral review because the state

collateral courts in that case had rejected the petitioner’s claims on the merits, not

on grounds of harmlessness; they did not apply either the Chapman or the Brecht

standard. See id. at 1104–06. The most that can be said about the dicta in our

Trepal opinion is that it recognized that state courts are required to apply Chapman

on direct review and that they usually do apply that same standard on collateral

review. We did not say, even in dicta, that they must do so.

In any event, our dissenting colleague fails to recognize that whatever one

may attempt to read into one of our opinions, or indeed whatever they may say, a

decision can never hold anything beyond the facts of the case before it; all else is

dicta, which is not binding on anyone for any purpose. See Edwards v. Prime, Inc.,

602 F.3d 1276, 1298 (11th Cir. 2010) (“We have pointed out many times that

regardless of what a court says in its opinion, the decision can hold nothing beyond

the facts of that case. All statements that go beyond the facts of the case . . . are

dicta. And dicta is not binding on anyone for any purpose.”) (citations omitted);

Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 762 (11th Cir. 2010) (“We are

not required to follow dicta in our own prior decisions. Nor for that matter is

anyone else.”) (citation omitted); Watts v. BellSouth Telecomms., Inc., 316 F.3d

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1203, 1207 (11th Cir. 2003) (“Whatever their opinions say, judicial decisions

cannot make law beyond the facts of the cases in which those decisions are

announced.”); United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000)

(“The holdings of a prior decision can reach only as far as the facts and

circumstances presented to the Court in the case which produced that decision.”)

(quotation marks omitted); Browning v. AT&T Paradyne, 120 F.3d 222, 225 n.7

(11th Cir. 1997) (“Since this statement was not part of any holding in the case, it is

dicta and we are not bound by it.”).

Our decision in Duest is no different. In that case we merely acknowledged

that Brecht’s harmless-error standard for federal habeas review is identical to “the

harmless-error standard federal appellate courts use on direct review as to

nonconstitutional error,” and then vaguely noted that Chapman applies “in all other

situations.” Duest, 997 F.2d at 1338 & n.2. In context, the most that can be said

about our statements in Duest is that they recognize that Chapman applies to

constitutional errors reviewed on direct appeal, whether in state or federal court.

Like Trepal, our Duest decision did not address, did not purport to address, and

could not have held anything about whether Chapman must be applied in state

collateral proceedings, because the state collateral courts in that case had actually

applied Chapman. Id. at 1339 n.4. Neither Trepal nor Duest nor any other

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decision issued by this circuit has held, or had occasion to hold, that state courts

must apply Chapman not only on direct review, but also on collateral review.

And even if there were an actual holding to that effect in one of our

decisions, it would still be irrelevant under AEDPA, which forecloses federal

habeas relief unless the relevant state court decision “was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1) (emphasis

added). By relying on our precedent, our dissenting colleague forgets what the

Supreme Court has repeatedly told us, which is that the only thing that can clearly

establish federal law for AEDPA purposes is a holding of the United States

Supreme Court, not dicta, and certainly not the holdings of lower federal courts.

See Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (explaining that the decisions

of federal appeals courts “cannot form the basis for habeas relief under AEDPA”

because they do “not constitute clearly established Federal law, as determined by

the Supreme Court”) (quotation marks omitted); Marshall v. Rodgers, 133 S.Ct.

1446, 1450 (2013) (“The Court of Appeals’ contrary conclusion rested in part on

the mistaken belief that circuit precedent may be used to refine or sharpen a

general principle of Supreme Court jurisprudence into a specific legal rule that this

Court has not announced.”); see also White v. Woodall, 134 S.Ct. 1697, 1702 n.2

(2014); Renico v. Lett, 559 U.S. 766, 778–79, 130 S.Ct. 1855, 1865–66 (2010);

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Dombrowski v. Mingo, 543 F.3d 1270, 1274 (11th Cir. 2008) (“We have held that

the ‘clearly established law’ requirement of § 2254(d)(1) does not include the law

of the lower federal courts.”); Putnam v. Head, 268 F.3d 1223, 1241 (11th Cir.

2001) (“Clearly established federal law is not the case law of the lower federal

courts, including this Court.”).

The third reason that the premise and conclusion of the dissenting opinion is

wrong is that the Supreme Court’s decisions in Brecht and Fry do not imply, let

alone clearly hold (and thereby establish for AEDPA purposes), that state courts

are required to apply Chapman’s harmless-error standard on collateral review. To

support its belief that they do, the dissenting opinion clips language from those two

decisions, disregards the context of that language, and omits most of the limiting

references to direct review. See Diss. Opn. at 6–7. Brecht and Fry both

underscored that Chapman was decided on direct review and that it requires states

to apply its harmless-beyond-a-reasonable-doubt standard on direct review. See

Brecht, 507 U.S. at 630, 636, 113 S.Ct. at 1718, 1721 (explaining that

“Chapman reached this Court on direct review” and set the standard that state

courts must “engage in on direct review”) (emphasis added); Fry, 551 U.S. at 116,

127 S.Ct. at 2325 (“In Chapman, . . . a case that reached this Court on direct review

of a state-court criminal judgment, we held that a federal constitutional error can

be considered harmless only if a court is able to declare a belief that it was

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harmless beyond a reasonable doubt.”) (quotation marks omitted). In Brecht, the

Supreme Court declined to extend Chapman’s standard to federal habeas review,

broadly concluding that a “substantial and injurious effect” standard was “better

tailored to the nature and purpose of collateral review than the Chapman standard.”

507 U.S. at 623, 113 S.Ct. at 1714 (emphasis added).

One of the primary reasons the Brecht Court gave for refusing to extend

Chapman to federal collateral review — a reason equally applicable to state

collateral review — is the fundamental difference between direct review, which “is

the principal avenue for challenging a conviction,” and collateral review, where the

state has an “interest in the finality of convictions that have survived direct review

within the state court system.” Id. at 633–35, 113 S.Ct. at 1719–20; see also

Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1307 (11th Cir. 2012) (“The

Supreme Court emphasized in Brecht that ‘collateral review is different from direct

review,’ and, therefore, that ‘an error that may justify reversal on direct appeal will

not necessarily support a collateral attack on a final judgment.’”) (quoting Brecht,

507 U.S. at 633–34, 113 S.Ct. at 1719–20). Nothing in Brecht implies, let alone

clearly establishes, that state courts must apply Chapman on collateral review. If

anything, Brecht’s principal rationale — that “collateral review is different from

direct review” and that the “substantial and injurious effect” standard is “better

tailored to the nature and purpose of collateral review than the Chapman standard”

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— implies that state courts, like federal courts, are not bound to apply the

Chapman standard when conducting collateral review.

The Supreme Court’s Fry decision took Brecht one step further away from

the position of the dissenting opinion in the present case. Fry held that federal

habeas courts must apply the “substantial and injurious effect” standard to evaluate

constitutional errors regardless of whether the state courts recognized the error and

reviewed it for harmlessness under the Chapman standard. Fry, 551 U.S. at 121–

22, 127 S.Ct. at 2328. Fry did not imply, much less definitively decide, that state

courts must apply Chapman on collateral review. Indeed, it had no occasion to

address that question because the relevant state court decision in that case — which

notably failed to apply Chapman — was issued on direct appeal, not on collateral

review. See id. at 115, 166 n.1, 127 S.Ct. at 2324, 2325 n.1. Thus, when the

Supreme Court in Fry noted that “state courts are required to evaluate

constitutional error under Chapman,” it was simply reiterating the well-worn

principle that Chapman sets forth the appropriate harmless-error standard on direct

appeal, which is what that case was. Id. at 118, 127 S.Ct. at 2326. That Brecht,

Fry, and circuit precedent establish that regardless of what the state courts do,

federal habeas courts must apply Brecht’s harmless-error standard does not imply,

as the dissent suggests, that Chapman is the only appropriate standard on state

collateral review. See Diss. Op. at 5–6; cf. Brooks v. Kyler, 204 F.3d 102, 108 (3d

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Cir. 2000) (“[D]rawing instruction from Supreme Court passages through the use

of the negative pregnant is risky and unsatisfactory.”). It implies nothing at all

about the proper harmlessness standard for state collateral review.

From its unfounded premise that state collateral courts are categorically

required to apply Chapman instead of Brecht, the dissent suggests that the

harmless-error standard employed by a state collateral court may affect whether a

petitioner is entitled to federal habeas review. See Diss. Opn. at 7–8. Setting aside

the flaws in its underlying premise, which have already been discussed, the

dissent’s suggestion cannot be squared with the Supreme Court’s decision in Fry.

In that case a state appellate court had rejected a petitioner’s constitutional claim

on direct appeal, concluding that the asserted error resulted in “no possible

prejudice.” Fry, 551 U.S. at 115, 127 S.Ct. at 2324 (quotation marks omitted).

The state court, however, “did not specify which harmless-error standard it was

applying,” and the Supreme Court assumed for the sake of argument that the state

court “did not determine the harmlessness of the error under the

Chapman standard,” as it was required to do on direct appeal. Id. at 115, 116 n.1,

127 S.Ct. at 2324, 2325 n.1. Even with that assumption, the Supreme Court

concluded that the petitioner in Fry was not entitled to federal habeas relief

because the error was harmless under the Brecht standard. Id. at 116, 122, 127

S.Ct. at 2324, 2328. The Fry Court held that a federal habeas court must apply

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Brecht “whether or not the state appellate court recognized the [constitutional]

error and reviewed it for harmlessness under the harmless beyond a reasonable

doubt standard set forth in Chapman.” Id. at 121–22, 127 S.Ct. at 2328 (quotation

marks omitted). And it explained that a petitioner, even one who can demonstrate

that the state court’s “harmlessness determination . . . was unreasonable,” is not

entitled to federal habeas relief unless he “also satisf[ies] Brecht’s standard.” Id. at

119, 127 S.Ct. at 2326–27 (emphasis omitted); see also Mansfield, 679 F.3d at

1308 (“[A] federal court may deny habeas relief based solely on a determination

that the constitutional error is harmless under the Brecht standard.”).

In other words, even if a state court failed to recognize a constitutional error,

failed to review it for harmlessness, or failed to apply the correct harmless-error

standard, the Supreme Court’s Fry decision requires that federal habeas relief must

still be denied if the error was harmless under Brecht’s “substantial and injurious

effect” standard. We have recognized exactly that. See Hodges v. Att’y Gen.,

State of Fla., 506 F.3d 1337, 1342–43 (11th Cir. 2007) (“[I]f the state court did not

apply the correct harmless error standard, or even if it did not recognize that there

was error, federal habeas relief is still due to be denied if the constitutional error

was harmless [under Brecht].”).

The dissenting opinion’s insistence that Fry, despite its clear language, is

unclear on this point rests on the spurious notion that Fry “assumes that state

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collateral courts will properly apply the Chapman standard.” Diss. Opn. at 7 n.4.

Fry assumed no such thing. To the contrary, it explicitly assumed just the

opposite. The Court plainly stated that it was assuming that the state appellate

court in that case had not applied the correct harmlessness standard. Fry, 551 U.S.

at 116 n.1, 127 S.Ct. at 2325 n.1 (“We also assume that the state appellate court did

not determine the harmlessness of the error under the Chapman standard . . . .”).

Judge Tjoflat’s opinion for this Court is absolutely right when it says that Hittson

would not be entitled to federal habeas relief under Brecht’s harmless-error

standard even if we assumed both that the Georgia Supreme Court had applied

Brecht and that that application was contrary to clearly established Supreme Court

precedent. That is what Fry says and holds. The dissenting opinion errs in

suggesting otherwise.

I have put off until the end the most noteworthy of the dissenting opinion’s

errors, one that would have the most profound and far reaching impact if it were

the law, which thankfully it is not. The error is embodied in that opinion’s attitude

about the relationship between this Court and the state courts. The dissenting

opinion takes the position that we have the authority and the duty to lecture state

courts about federal law and to admonish them to follow the law, that we are their

teachers, and that the state courts in this circuit are bound to follow our views. In

footnote 4, for example, the dissenting opinion says that regardless of whether the

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state collateral trial court’s application of the Brecht standard is a basis for granting

federal habeas relief, “we should be clear that it was error, that it should not be

repeated, and that it matters.” Diss. Opn. at 7 n.4. Instead, what we should be

clear about is that outside of what is necessary to decide if federal habeas relief is

due to be granted, it is not the role of inferior federal courts, of which we are one,

to sit in judgment of state courts on issues of federal law, and we should not

arrogate to ourselves the role of lecturing them that one of their rulings is an error

of federal law that “should not be repeated.” The Supreme Court alone, and not

any inferior federal court, may do that. We have no more right to lecture state

courts about federal law than they have to lecture us about it.

The Supreme Court has rejected and disparaged as “remarkable” a passage

from a Ninth Circuit opinion saying that state courts are bound to follow rulings of

the federal court of appeals in the circuit in which they are located. Arizonans for

Official English v. Arizona, 520 U.S. 43, 58 n.11, 117 S.Ct. 1055, 1064 n.11

(1997). In making it clear that the Ninth Circuit’s view was wrong, the Supreme

Court cited with favor its own decision in ASARCO Inc. v. Kadish, 490 U.S. 605,

617, 109 S.Ct. 2037, 2045 (1989), which instructed federal courts that “state courts

. . . possess the authority, absent a provision for exclusive federal jurisdiction, to

render binding judicial decisions that rest on their own interpretations of federal

law.” Id. The Court also cited with favor Justice Thomas’ concurring opinion in

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Lockhart v. Fretwell, 506 U.S. 364, 375–376, 113 S.Ct. 838, 845–846 (1993), for

the proposition that the “Supremacy Clause does not require state courts to follow

rulings by federal courts of appeals on questions of federal law.” Id. As Justice

Thomas explained in that opinion: “The Supremacy Clause demands that state law

yield to federal law, but neither federal supremacy nor any other principle of

federal law requires that a state court's interpretation of federal law give way to a

(lower) federal court’s interpretation. In our federal system, a state trial court’s

interpretation of federal law is no less authoritative than that of the federal court of

appeals in whose circuit the trial court is located.” Lockhart, 506 U.S. at 376, 113

S.Ct. at 846.

We have reiterated that same core principle of federalism. See Casale v.

Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009) (describing as a “well settled”

principle of federalism that “a state court’s interpretation of federal law is no less

authoritative than that of the corresponding federal court of appeals”) (brackets and

quotation marks omitted); Glassroth v. Moore, 335 F.3d 1282, 1302 n.6 (11th Cir.

2003) (“[S]tate courts when acting judicially, which they do when deciding cases

brought before them by litigants, are not bound to agree with or apply the decisions

of federal district courts and courts of appeal.”); see also Powell v. Powell, 80 F.3d

464, 467 (11th Cir. 1996) (referring to “the dual dignity of state and federal court

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decisions interpreting federal law” as going “to the heart of our system of

federalism”).

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WILSON, Circuit Judge, dissenting:

The district court correctly decided this case by concluding that the violation

of Hittson’s constitutional rights had a “substantial and injurious effect or

influence” on the jury’s determination to sentence him to death. Brecht v.

Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722 (1993). In addition, I am

unable to join the Majority’s disregard of our precedent inherent in its conclusion

that it does not matter whether a state court, sitting in collateral review, applies

either the harmless error standard articulated in Brecht, or the more petitioner-

friendly harmless error standard provided by Chapman v. California, 386 U.S. 18,

87 S. Ct. 824 (1967). To be clear, I agree with the Concurrence that the state

court’s application of the incorrect standard would not be an independent basis for

granting habeas relief. See Fry v. Pliler, 551 U.S. 112, 121–22, 127 S. Ct. 2321,

2328 (2007) (holding that federal habeas courts must apply the Brecht standard

even where the state court did not recognize a constitutional error). However, the

fact that we would not grant habeas on that basis alone does not mean that state

courts are free to apply Brecht instead of Chapman, or as in Fry, no review at all,

when a constitutional error was committed. As our court has said three times, state

courts are supposed to apply Chapman, not Brecht, even on collateral review.

Here, my concurring colleague goes to great lengths to characterize what we have

said as dicta. In so doing, the Concurrence disregards binding precedent for

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purposes that are not even relevant to the resolution of this case, given our

conclusion that Fry precludes use from granting relief based solely on a state

collateral court’s application of the wrong harmless error standard. But we have

made clear that, even though we cannot grant habeas relief on this basis, it is

nevertheless erroneous for state courts to apply Brecht not Chapman on collateral

review. To the extent that the Majority suggests otherwise, I cannot endorse that

opinion, which essentially tells state courts that because we cannot grant relief

when they apply the wrong standard, they are free, despite our precedent, to apply

the wrong standard at will.

The district court concluded that Hittson was entitled to habeas relief,

holding that the trial court’s allowance of Dr. Storms’s testimony denied Hittson

his Fifth and Sixth Amendment rights under Estelle v. Smith, 451 U.S. 454, 101 S.

Ct. 1866 (1981), and that the testimony had a “substantial and injurious effect” on

the jury’s death sentence and was therefore not harmless under the Brecht standard.

507 U.S. at 637, 113 S. Ct. at 1722. In Hittson’s case, the jury imposed the death

penalty after finding one aggravating statutory circumstance: that the murder was

“outrageously or wantonly vile, horrible, or inhuman in that it involved depravity

of mind.” Hittson v. Humphrey, No. 5:01-cv-384, 2012 WL 5497808, at *40

(M.D. Ga. November 13, 2012). As the district court notes, Dr. Storms’s

testimony was the only evidence that, months after the crime, Hittson possessed a

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corrupt or depraved mind. Id. Because Georgia law requires a jury to

unanimously find at least one statutory aggravating factor to return a death

sentence, “habeas relief is warranted in this case if we believe even one of the

jurors who voted in favor of the death penalty likely was substantially influenced”

by the error. Duest v. Singletary, 997 F.2d 1336, 1339 (11th Cir. 1993) (per

curiam). Thus, contrary to the Majority, I agree with the district court that we

cannot conclude with fair assurance that the erroneous admission of Dr. Storms’s

testimony in the context of the trial as a whole did not substantially sway the jury.

The testimony was admitted in violation of clearly established Supreme Court

precedent. See Estelle, 451 U.S. at 471, 101 S. Ct. at 1877. The constitutional

violation was harmful under the Brecht standard, and therefore Hittson is entitled

to habeas relief.

Further, the district court correctly noted that the state collateral court erred

applying the Brecht harmless error standard rather than the Chapman harmless

error standard. Although the Majority concedes that the Georgia Superior Court’s

application of the Brecht standard to Hittson’s Estelle claims was “seemingly

anomalous” and that Georgia habeas courts typically apply the more petitioner-

friendly standard from Chapman, it concludes that state courts are only required to

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use Chapman harmless error standard on direct review.1 Also, the Majority

ultimately finds the state habeas court’s choice of a standard of review irrelevant

because, in any event, the federal court will apply the Brecht standard.

However, our precedent clearly requires state courts hearing habeas corpus

appeals to use the more petitioner-friendly standard provided in Chapman. Before

today’s case, no state appellate court in this circuit, as far as I can find, has applied

the Brecht standard to review the lower state court’s constitutional error. This is

expected, as we have unambiguously required that state collateral courts apply

Chapman in reviewing their federal constitutional claims. See Trepal v. Sec’y, Fla.

Dep’t of Corr., 684 F.3d 1088, 1112 n.27 (11th Cir. 2012), cert. denied, 133 S. Ct.

1598 (2013); Duest, 997 F.2d at 1338 & n.2. In Trepal, we said:

We emphasize that the Brecht standard is a harmless error test that
applies to federal habeas review of state convictions. Brecht, 507
U.S. at 634–38, 113 S. Ct. at 1720–22; [Ventura v. Atty. Gen., Fla.,
419 F.3d 1269, 1279 n.4 (11th Cir. 2005)]. It does not apply to state
courts’ review of their own convictions. Instead, the Florida
courts apply the more petitioner-friendly Chapman standard of
whether the constitutional error is “harmless beyond a reasonable
doubt.”

684 F.3d at 1112 n.27 (emphasis added).2 And in Duest, we said again, “The

harmless-error standard for constitutional violations in all other situations remains

1
The Majority places their analysis of the appropriate standard of review for state
collateral courts assessing constitutional errors in footnote 26.

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the longstanding test of Chapman v. California: whether the State has proved the

error was harmless beyond a reasonable doubt.” 997 F.2d at 1338 n.2 (citation

omitted). This guidance to the state court is not vague in any way, as my

concurring colleague suggests. We clearly stated that the appropriate standard in

“all other situations,” obviously including collateral review, is the “longstanding

test of Chapman v. California.” Id. Most recently in Rodriguez v. Sec’y of Fla.,

No. 11-13273, __ F.3d __ , (11th Cir. June 30, 2014), we reiterated that Brecht is

only the appropriate harmless error standard for federal habeas review, citing our

decision in Trepal. See Rodriguez, p. 53, n.44 (“Because we consider the Brecht

question in the first instance on federal habeas review, there is no state court

Brecht actual-prejudice finding to review or to which we should defer.” (emphasis

added) (citing Trepal, 684 F.3d at 1112)). Our precedent has routinely advised

state courts that while the Brecht standard applies to assess constitutional error in

federal court, Chapman is the appropriate standard on state collateral review. Each

of my colleagues in today’s Majority was on the panel in either Trepal or Duest,

2
I disagree with my concurring colleague that the most that can be said of Trepal is that
we said that state courts “usually do apply [Chapman] standard on collateral review.”
Concurring Op., p. 4.

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and both were on Rodriguez, joining opinions making it clear that state courts are

expected to use Chapman —not Brecht—to analyze constitutional errors.3

In addition to our own precedent, the Supreme Court in Brecht itself

indicated that state courts are required to apply the more petitioner-friendly

Chapman analysis of whether the constitutional error is “harmless beyond a

reasonable doubt.” See Brecht, 507 U.S. at 636, 113 S. Ct. at 1721 (noting the

“harmless-error review that Chapman requires” of state courts). In Brecht, the

Supreme Court explained that it would not make sense for federal courts to apply

Chapman in reviewing state errors, after the state courts had themselves used that

standard. Id. (“[I]t scarcely seems logical to require federal habeas courts to

engage in the identical approach to harmless-error review that Chapman requires

state courts to engage in on direct review.”). Indeed, the Supreme Court

acknowledged that interests in comity and federalism support a standard, such as

Brecht, which is less petitioner-friendly than Chapman, for federal collateral

review of state constitutional errors. Id. That federal habeas courts apply a more

deferential harmless error standard does not mean that states are free to do the

same: it only means that we cannot grant relief for less egregious constitutional

errors in state courts. To be clear, however, applying Brecht in state courts is error.

3
The Majority’s analysis of this issue, which appears only in footnote 26, does not even
cite this binding Circuit precedent.

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More recently, the Supreme Court implied the mandatory nature of

Chapman review for state courts analyzing the effects of constitutional error in Fry

v. Pliler. 551 U.S. at 117–18, 127 S. Ct. at 2326. In Fry, while addressing the

standard under which a federal court must assess the prejudicial impact of a

constitutional error, the Supreme Court repeatedly acknowledged that state courts

“are required to” apply the Chapman standard in reviewing their own

constitutional errors. See, e.g., Fry, 551 U.S. at 118, 127 S. Ct. at 2326 (“To say

(a) that since state courts are required to evaluate constitutional error under

Chapman it makes no sense to establish Chapman as the standard for federal

habeas review is not at all to say (b) that whenever a state court fails in its

responsibility to apply Chapman the federal habeas standard must change.”). The

Supreme Court ultimately held that Brecht’s applicability to federal review of state

constitutional errors is not contingent on whether or not the state appellate court

recognized the constitutional error and “reached the Chapman question,” thus

implicitly recognizing that Chapman continues to be the proper standard for a state

court’s review of its own constitutional errors. Id., 127 S. Ct. at 2326. Fry

certainly did not tell state courts that the Constitution does not require them to

apply Chapman when they recognize and evaluate constitutional errors. Id. at

120–22, 127 S. Ct. at 2327–28. Even if we disregard the obvious implications of

Brecht and Fry, in addition to our court’s clear precedent, neither Respondent nor

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the Majority has pointed us to any authority indicating that states are free to use

Brecht on initial collateral review in habeas corpus proceedings. 4 Indeed, if there

was any doubt that Chapman was meant to apply as the harmless error standard on

state collateral review, our precedent clarifies the expectation that Chapman does

apply.

Finally, I disagree with the Majority’s statement that it does not matter

whether Georgia’s application of Brecht instead of Chapman was unreasonable,

because we will just apply Brecht de novo anyway. If we apply Brecht de novo

without first affording the State an opportunity to apply Chapman, what is the

point—why have we been telling the states all these years to apply Chapman and

not Brecht? The state court here, unlike the state court in Fry, found that the lower

court had committed constitutional error and applied a standard that was more

difficult for Hittson to meet than the standard precedent required the court to apply.

That the error was not, in the Majority’s view, harmful based on the Brecht

4
I disagree that Fry supports the Majority’s conclusion that it does not matter what
standard a state collateral court applies in assessing constitutional error. In that decision, the
Supreme Court held that a federal court must assess the prejudicial impact of a state court’s
constitutional error under Brecht’s “substantial and injurious effect” standard, not under
Chapman’s “harmless beyond reasonable doubt” standard, regardless of whether the state court
has recognized the error and found it harmless under the Chapman standard. Fry, 551 U.S. at
121, 127 S. Ct. at 2328. Thus, Fry assumes that state collateral courts will properly apply the
Chapman standard. That the state court failed to do as required matters a great deal, especially
because the error deprived Hittson of his opportunity to have the petitioner-friendly standard
applied to him. Fry makes it unclear whether we can grant habeas relief based upon the court’s
error, but again, we should be clear that it was error, that it should not be repeated, and that it
matters.

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standard, simply does not mean the state court did not err in applying Brecht rather

than Chapman.

Here, the district court properly applied Brecht and concluded that the

violation of Hittson’s constitutional rights had a “substantial and injurious effect or

influence” on the jury’s determination to sentence him to death. Brecht, 507 U.S.

at 637, 113 S. Ct. at 1722. Thus, Hittson probably would have achieved habeas

relief at the state court level, had the state court applied the proper, less onerous

standard that constitutional violations require reversal unless they were “harmless

beyond a reasonable doubt,” Chapman, 386 U.S. at 24, 87 S. Ct. at 828. The State

insists that the record as a whole and the horrific details of Hittson’s crime are so

overwhelming that Dr. Storms’s unconstitutional testimony, rebutting the minimal

testimony of remorse Hittson provided, did not make a difference in the outcome

of the trial. Like the district court I disagree, and find that the violation of

Hittson’s constitutional rights was substantial and injurious. Brecht, 507 U.S. at

638; 113 S. Ct. at 1722. Also, according to our precedent and the clear implication

of the Supreme Court, Hittson was still entitled to have his Fifth Amendment claim

considered by the State of Georgia under the Chapman analysis before our review

and he was deprived of that entitlement.

Accordingly, I respectfully dissent.

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