Daniel Anthony Lucas v. Warden, Georgia Diagnostic and Classification Prison

Case: 13-11909 Date Filed: 11/12/2014 Page: 1 of 46

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 13-11909
________________________

D.C. Docket No. 5:09-cv-00289-CAR

DANIEL ANTHONY LUCAS,

Petitioner - Appellant,

versus

WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON,

Respondent - Appellee.

________________________

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

(November 12, 2014)

Before HULL, MARCUS, and WILLIAM PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

Daniel Anthony Lucas was sentenced to death for his role in the murders of

three members of the Moss family during a botched burglary and robbery. He
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appeals the district court’s denial of his federal petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Five claims are certified to us. On none is he

entitled to relief.

First, Lucas argues that his counsel were ineffective for failing to investigate

and present evidence about the effect of intoxication on his memory when Lucas

sought to suppress his videotaped confession. Lucas has failed to establish

prejudice under Strickland v. Washington, 466 U.S. 668 (1984), because the state

court reasonably concluded that the additional expert testimony would not likely

have led to the suppression of his confession. Lucas also claims that counsel were

ineffective for failing to present all of the available evidence concerning his social

history as mitigation. A reasonable state court, however, could have rejected this

argument on performance or prejudice grounds. In fact, trial counsel presented

extensive evidence of the petitioner’s troubled background as mitigation at the

penalty phase and decided strategically to keep out certain evidence that would

have also yielded aggravating facts.

Next, Lucas says that the State violated Brady v. Maryland, 373 U.S. 83

(1963), by failing to disclose a report of an interview of an eyewitness who briefly

saw an intoxicated Lucas immediately after the killings. The state court found the

claim to be procedurally defaulted because the petitioner could not establish

prejudice. Like the district court, we agree, particularly in light of the substantial

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body of evidence of intoxication actually presented to the jury. Lucas cannot show

prejudice because there is no reasonable probability that the witness’s testimony

would have affected the outcome. Lucas also argues that he was deprived of a fair

trial when a prosecutor said during cross-examination of a defense expert that

prison escapes occurred “every day.” The Georgia Supreme Court’s determination

that the comments (improper though they may have been) were harmless in context

was not contrary to or an unreasonable application of clearly established Supreme

Court law.

Finally, Lucas claims that the jury was improperly limited in its

consideration of mitigating evidence because the trial court refused to instruct the

jurors that each mitigating factor need not be found unanimously. Like the district

court, we agree that the Georgia Supreme Court’s decision was neither contrary to

nor an unreasonable application of federal law clearly established by the Supreme

Court when it determined that no such instruction was required because the jurors

were expressly told they could impose life imprisonment “for any reason . . . or

without any reason.” Thus, we affirm.

I.

A.

The essential facts adduced at trial are these. See Lucas v. State, 555 S.E.2d

440, 443-44 (Ga. 2001). On April 23, 1998, Lucas and Brandon Joseph Rhode

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twice burglarized the home of Steven and Gerri Ann Moss. During their second

burglary, eleven-year-old Bryan Moss returned home from school. When Lucas

and Rhode saw Bryan, they confronted him and forced him to sit in a chair.

Without warning, Lucas shot Bryan with a .25 caliber handgun causing non-fatal

injuries to his upper arm and shoulder. Lucas led the wounded boy to a bedroom,

where he shot Bryan repeatedly with the .25 caliber handgun. Meanwhile, fifteen-

year-old Kristin Moss (Bryan’s sister) also arrived home from school. Rhode

placed her in a chair and shot her twice with a .357 caliber handgun. When the

children’s father, Steven Moss, came home shortly after, Rhode shot him too, four

times with the .357 caliber handgun. Upon discovering what Rhode had done,

Lucas retrieved a .22 caliber handgun from Rhode’s car and still again shot both

children, Bryan and Kristin Moss. The three members of the Moss family died

from the gunshot wounds.

Several eyewitnesses saw Lucas and Rhode flee in Rhode’s red car from the

Mosses’ home. One witness identified Lucas as the passenger. Rhode’s car was

linked to the scene by damage to the vehicle, a tire impression, and paint left at the

scene. Lucas admitted his role in the killings in a videotaped confession.

B.

On September 16, 1999, a jury in Jones County, Georgia, convicted Lucas of

three counts of malice murder, three counts of felony murder, two counts of

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burglary, and one count of kidnapping with bodily injury. 1 The next day,

following the sentencing phase, the jury found beyond a reasonable doubt that the

murder of Bryan was committed while Lucas was engaged in the murder of

Kristin, a burglary, and a kidnapping with bodily injury, O.C.G.A. § 17-10-

30(b)(2), and that it was outrageously or wantonly vile, horrible, or inhuman in that

it involved depravity of mind, id. § 17-10-30(b)(7). The jury also found beyond a

reasonable doubt that Kristin’s murder was committed while Lucas was engaged in

the murder of Steven and a burglary. Id. § 17-10-30(b)(2). Finally, the jury

concluded beyond a reasonable doubt that the murder of Steven was committed

while Lucas was engaged in the murder of Bryan and a burglary. Id. The jury

unanimously concluded that the petitioner should be sentenced to die for each of

the three murders. See id. § 17-10-31(a).2

Lucas appealed without success his conviction and sentence to the Georgia

Supreme Court. Lucas, 555 S.E.2d at 443. The Supreme Court denied a writ of

certiorari. Lucas v. Georgia, 537 U.S. 840 (2002). Lucas then filed a pro se

petition for a writ of habeas corpus in a state trial court on August 13, 2003,

followed by an amended petition on March 1, 2007. The state habeas court denied

1
Because Jones was convicted of the three counts of malice murder, the three corresponding
felony murder convictions were vacated because they merged with malice murder. Lucas, 555
S.E.2d at 443 n.1; see O.C.G.A. § 16-1-7.
2
Separately, Rhode was tried, convicted, sentenced to death, and executed by the State of
Georgia.

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Lucas’s petition. Thereafter, the Georgia Supreme Court denied Lucas’s

application for a certificate of probable cause to appeal. Again, the Supreme Court

denied certiorari review. Lucas v. Upton, 559 U.S. 979 (2010).

Lucas then filed his extensive habeas claims in the United States District

Court for the Middle District of Georgia. The district court determined that three

of the eleven claims, including his Brady claim that the prosecution withheld

exculpatory evidence, were procedurally defaulted because he had not timely

raised them in the state courts and he could not excuse the default. The court

denied the remaining claims, including his arguments: that counsel had been

ineffective in failing to adequately investigate and challenge the videotaped

confession and in failing to present available mitigation evidence; that due process

was violated by the prosecutor’s cross-examination questions asserting that

Georgia prison escapes happened “every day”; and that the penalty-phase jury

charge and instructions unconstitutionally suggested that mitigation circumstances

must be found unanimously. The district court granted Lucas a certificate of

appealability on his two ineffectiveness of counsel claims and his Brady claim. On

Lucas’s motion, we expanded the COA to include the claims challenging the

prosecutor’s questions and the jury instructions.

II.

We review de novo a district court’s denial of federal habeas relief. Peterka

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v. McNeil, 532 F.3d 1199, 1200 (11th Cir. 2008). No one disputes that the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies to Lucas’s

habeas petition. Under AEDPA, if a petitioner’s habeas claim “was adjudicated on

the merits in State court proceedings,” a federal court may not grant relief unless

the state decision (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). Under

§ 2254(d)(1)’s “contrary to” clause, we grant relief only “if the state court arrives

at a conclusion opposite to that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than [the Supreme Court] has on

a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413

(2000). Under § 2254(d)(1)’s “unreasonable application” clause, we grant relief

only “if the state court identifies the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies that principle to the facts of

the prisoner’s case.” Id. For § 2254(d)(1), clearly established federal law includes

only the holdings of Supreme Court decisions -- not Supreme Court dicta and not

the opinions of this Court. White v. Woodall, 134 S. Ct. 1697, 1702 (2014).

The Supreme Court has explained that, to satisfy § 2254(d), “a state prisoner

must show that the state court’s ruling on the claim being presented in federal court

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was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011). The state

court need not cite or even be aware of Supreme Court precedents “so long as

neither the reasoning nor the result of the state-court decision contradicts them.”

Early v. Packer, 537 U.S. 3, 8 (2002). “[A]n ‘unreasonable application’ of

[Supreme Court] holdings must be ‘objectively unreasonable,’ not merely wrong;

even ‘clear error’ will not suffice.” Woodall, 134 S. Ct. at 1702 (quoting Lockyer

v. Andrade, 538 U.S. 63, 75-76 (2003)). In other words, Lucas must establish that

no fairminded jurist would have reached the Georgia court’s conclusion. See

Richter, 131 S. Ct. at 786-87. And Lucas must do so based only on the “record

that was before the state court that adjudicated the claim on the merits.” Cullen v.

Pinholster, 131 S. Ct. 1388, 1398 (2011). AEDPA also requires that we give state

court factual findings great deference. “[A] determination of a factual issue made

by a State court shall be presumed to be correct. The applicant shall have the

burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1). “If [the AEDPA] standard is difficult to meet,

that is because it was meant to be.” Richter, 131 S. Ct. at 786.

On federal habeas review, a federal constitutional error is harmless unless

there is “actual prejudice,” meaning that the error had a “substantial and injurious

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effect or influence” on the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619,

637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

Harmlessness under the Brecht standard is a question of law that we review de

novo. Vining v. Sec’y, Dep’t of Corr., 610 F.3d 568, 571 (11th Cir.2010) (per

curiam); Prevatte v. French, 547 F.3d 1300, 1305 (11th Cir.2008). “[I]n § 2254

proceedings a court must assess the prejudicial impact of constitutional error in a

state-court criminal trial under the ‘substantial and injurious effect’ standard set

forth in Brecht, whether or not the state appellate court recognized the error and

reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt’

standard set forth in Chapman [v. California, 386 U.S. 18 (1967)].” Fry v. Pliler,

551 U.S. 112, 120 (2007). Because of the “[s]tates’ interest in finality,” the states’

“sovereignty over criminal matters,” and the limitation of habeas relief to those

“grievously wronged,” the Supreme Court set out in Brecht a standard that is more

favorable to and “less onerous” on the state, and thus less favorable to the

defendant, than the usual harmless beyond a reasonable doubt standard. Brecht,

507 U.S. at 637; accord Fry, 551 U.S. at 117. The Supreme Court explained 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.” 507 U.S. at 633–34. Thus, “a federal

habeas court may deny relief based solely on a determination that a federal

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constitutional error was harmless under the Brecht standard.” Mansfield v. Sec’y,

Dep’t of Corr., 679 F.3d 1301, 1308 (11th Cir. 2012), cert. denied sub nom.

Mansfield v. Tucker, 133 S. Ct. 861 (2013) (emphasis added).

III.

Lucas first claims that trial counsel were ineffective in two distinct ways:

first, because they inadequately attempted to suppress his videotaped confession;

and, second, because they failed to make a fulsome-enough presentation of the

available mitigating evidence during the penalty phase. It is by now hornbook law

that Strickland v. Washington, 466 U.S. 668 (1984), requires that Lucas establish

both “that his counsel provided deficient assistance and that there was prejudice as

a result.” Richter, 131 S. Ct. at 787. “To establish deficient performance, a person

challenging a conviction must show that ‘counsel’s representation fell below an

objective standard of reasonableness.’” Id. (quoting Strickland, 466 U.S. at 688).

Moreover, prejudice demands “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. “The likelihood of a different result

must be substantial, not just conceivable.” Richter, 131 S. Ct. at 792. “The

standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and

when the two apply in tandem, review is ‘doubly’ so.” Id. at 788 (citations

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omitted).

“[T]he highest state court decision reaching the merits of a habeas

petitioner’s claim is the relevant state court decision” for our AEDPA review.

Newland v. Hall, 527 F.3d 1162, 1199 (11th Cir. 2008). Lucas first raised his

Strickland claims before the state habeas court, which rejected them on the merits.

The Georgia Supreme Court refused to issue a certificate of probable cause to

appeal the state habeas court’s decision. Under our precedent, the Georgia

Supreme Court’s denial of the application for a certificate of probable cause to

appeal was the final state-court determination of Lucas’s Strickland claims. See

Jones v. GDCP Warden, 753 F.3d 1171, 1182 (11th Cir. 2014) (“[T]he rejection of

petitioner’s application for a certificate of probable cause to appeal was, implicitly,

a determination that none of petitioner’s claims had arguable merit.”) (internal

quotation marks omitted). Though the Georgia Supreme Court did not offer

reasons for its decision, “[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.” Harrington, 131 S. Ct. at

784. Lucas cannot meet his substantial burden here because the Georgia Supreme

Court had many reasonable grounds for denying the Strickland claims. Indeed, the

outcome would not have been different even if the state trial court’s habeas ruling

was the relevant decision because that court did not act contrary to nor

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unreasonably apply clearly established Supreme Court law either.

A.

Lucas first says that trial counsel were ineffective for failing to adequately

develop and present expert witness testimony concerning the claimed

involuntariness of Lucas’s confession. The essential facts are these. On April 25,

1998, two days after the murders, police questioned Rhode, who told them he was

with Lucas on the day of the crime. That night, officers questioned Lucas at the

Jones County Sheriff’s Department. Lucas signed a waiver of his Miranda rights

and first denied any involvement in the slayings. During a break after about an

hour, the officers learned Rhode had implicated his confederate, Lucas, in the

murders. When confronted with this fact, Lucas continued to deny shooting

anyone or even possessing a gun that night. After still another break, the officers

showed Lucas three firearms used in the crime that had been recovered with

Rhode’s help. One officer told Lucas that Rhode was “going to be the main

witness against” him and “end up putting [him] in the electric chair” if Lucas

didn’t tell his side of the story. Lucas said he did not know what to do and asked

to see his girlfriend. The two interrogating officers left the room and allowed him

to speak with her for about five minutes. When the officers returned around

midnight, Lucas told them he wanted to sleep. He was escorted to a cell for the

night.

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The next morning, April 26, an officer retrieved Lucas and offered him food,

drink, and a cigarette. Lucas again was read his Miranda rights and said he was

willing to answer questions. One of the officers told Lucas that Rhode had given a

videotaped confession, which Lucas asked to see. After watching the tape, Lucas

said it was “bull shit” and agreed to tell his side of the story. An officer still again

read Lucas his Miranda rights. Lucas said he understood his rights and had not

been offered anything or threatened to elicit his statement. Lucas then gave a

videotaped confession to the Jones County police around noon.

Lucas began by explaining that he took six Xanax pills before burglarizing

the Moss home. He explained that, shortly after he and Rhode broke into the home

the second time, eleven-year-old Bryan Moss arrived. Lucas walked into the living

room, found the little boy sitting in a chair, and shot the boy, though he did not kill

him. Lucas took the boy into a bedroom. Rhode then yelled to Lucas that a girl

was coming in the house. Rhode then shot her. Lucas also recounted Rhode

telling him that her father was coming into the home next. After the father

hollered, Lucas said, “we shot him. I don’t know -- I didn’t hardly remember

hearing the gunshots or nothing.” According to Lucas, “I went in the living room

and the man was on the -- on the floor and the girl was sitting in the chair and I

went back into the bedroom and the little boy was sitting there and I shot him.”

Lucas said he returned to the bedroom, shot Bryan again, and then walked out to

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Rhode’s car to get a .22 caliber handgun. Lucas told police he came back inside

and shot the girl, Kristin, who was sitting in a chair after already having been

wounded by Rhode. Lucas said he also might have shot the boy, Bryan, with the

.22 caliber handgun. Lucas admitted that he knew what he did was wrong and said

he was sorry. He offered no reason or explanation for what happened.

Lucas’s trial counsel moved to suppress the confession as being involuntary

and unreliable for at least five reasons, including because Lucas simply repeated

what the officers and Rhode had told him since his drug and alcohol consumption

kept him from having any memory of the events. The trial court considered

Lucas’s motion to suppress at a pretrial hearing on July 9, 1999. After reviewing

the videotaped confession and hearing testimony from the interrogating officers,

the trial court denied Lucas’s motion to suppress. On direct appeal the Georgia

Supreme Court affirmed, finding the confession to have been voluntarily made

after Lucas waived his Miranda rights. Lucas, 555 S.E.2d at 445-46.

Lucas later argued to the habeas state trial court that trial counsel were

ineffective because they failed to develop and present expert testimony from Dr.

Anthony Stringer, a neuropsychologist, and Dr. Randall Tackett, a pharmacology

expert, to support their claim that Lucas’s intoxication on the day of the murders

rendered his confession unreliable. Dr. Stringer testified at an evidentiary hearing

that he was hired by trial counsel in March 1999 to conduct a neuropsychological

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examination of Lucas and to evaluate Lucas’s “susceptibility to suggestion from

others and his memory and behavior.” Stringer testified about Lucas’s “horrific

family circumstances,” his “extensive drug abuse,” and “the fact that he had . . . a

number of incidents where he had suffered blows to the head.” Stringer said Lucas

tested with an IQ of 110, at the upper end of the average range, but that he suffers

from “left hemisphere brain dysfunction,” which can be associated with

“remember[ing] information in less detail.” Stringer added that Lucas, due to this

disorder, may have gaps in his memory and might “take information that someone

has provided him . . . as being accurate.” He said he reviewed Lucas’s videotaped

confession in 2002 and, had he seen it in 1999, he could have testified that the

statement contained “gaps with regards to any detail” and “it seemed to be very

much responsive to the information that was being presented to him.” Stringer

said he was not called to testify at the suppression hearing or Lucas’s trial.

Dr. Tackett also testified at the state habeas evidentiary hearing. He said

that trial counsel contacted him in September 1998 and asked him to assess the

effects of drugs and alcohol on Lucas. Tackett explained that Lucas had a family

and personal history of drug abuse, which included “everything from cocaine,

alcohol, mushrooms, LSD, [and] prescription drugs.” According to Tackett, Lucas

could not remember much of what happened inside the Moss residence on the day

of the murders. Tackett said he informed trial counsel that he “felt strongly that

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[Lucas] had experienced a blackout or blackouts during the day of the crime.” He

also testified that Lucas, because of his blackouts, was susceptible to suggestibility,

which meant that when Lucas could not recall a detail about the events of the day,

he accepted an explanation suggested by someone else. Tackett opined that the

combination of drugs and alcohol that Lucas consumed on the day of the murders

“made it impossible for Mr. Lucas to understand events as they occurred, much

less remember any details later.”

On cross-examination, Tackett acknowledged, however, that he did not

know the exact amount of substances Lucas consumed on the day of the murders.

He also explained that it was not his opinion Lucas had no memory of the crimes,

just that there were periods of time that Lucas could not recall. Tackett said he

disagreed with Dr. John Robert Cusak, another of Lucas’s experts, who found that

Lucas was not in a blackout the day of the murders. Tackett explained that he

informed trial counsel of these findings and opinions but they did not call him to

testify at the suppression hearing or at trial.

The state habeas trial court denied relief on both the performance and

prejudice prongs of Strickland. The court observed that Lucas “has never denied

involvement in the case, and has never told anyone, in the past or present, that his

confession is untrue.” To the contrary, the state habeas trial court found that

Lucas’s statements to law enforcement and others showed he had a particularized

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memory of the crimes and of shooting Bryan Moss. Indeed, Lucas had “made

statements to his Uncle Brad Lucas and Derrick Jackson prior to talking to police

saying that he ‘messed up real bad’ and ‘killed somebody,’” and told “Robbie

Hunnicutt on the afternoon of the murders . . . that ‘he was killing those

motherfuckers.’” The court concluded that, combined with the videotaped

confession, the other confessions undermined Lucas’s claim that police fed him

information about the crime and also undermined his experts’ opinions that Lucas

was in a blackout and without any memory of the crimes. The state habeas trial

court found Lucas’s story was not likely to have been suggested by Rhode because

Lucas viewed Rhode’s videotaped statement just before saying “that’s bullshit”

and specifically recounting events that contradicted some of Rhode’s version.

We hold that the Georgia Supreme Court had a reasonable basis for rejecting

Lucas’s claim because the petitioner failed to establish a reasonable probability

that the result would have been different had the additional testimony been offered

at the suppression hearing. The testimony that Lucas says should have been

presented -- suggesting the petitioner had no memory of the events of the murder

due to drug use or brain damage -- was directly refuted by a substantial body of

evidence. Lucas professed and exhibited a memory of the murders in his

videotaped confession. He claimed specific responsibility for shooting Bryan and

Kristin, but not their father, whereas Rhode claimed that Lucas was responsible for

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all three slayings. And, before talking with police, he confessed to his uncle,

Jackson, and Hunnicutt about killing the victims. The long and the short of it is

that the petitioner has failed to establish that the state court’s determination about

prejudice was contrary to or an unreasonable application of clearly established

precedent. Since this claim fails on the prejudice prong we have no occasion to

address performance. See Strickland, 466 U.S. at 697.

In a related Strickland argument, Lucas says that trial counsel also should

have argued the police fed Lucas with the information contained in his confession

because every verifiable fact in Lucas’s statement could be traced to another

source. In essence, Lucas observes that police knew most of the basic facts of the

crime by the time Lucas confessed four days after the killings. No real surprise.

The police had investigated the crime and talked extensively with Rhode, so they

already were far along in gathering the facts that could be used to confirm Lucas’s

story. Moreover, Lucas ignores the key, unverifiable facts that he confessed about,

including having shot two victims -- the brother and the sister -- not three. Thus,

Lucas has failed to establish that the state court determination about performance

was an unreasonable application of Strickland. Under our doubly deferential

review, a court could reasonably conclude that trial counsel acted reasonably.

Moreover, the Georgia Supreme Court had a reasonable basis for concluding that

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petitioner failed to establish any prejudice.3

B.

Lucas’ next Strickland claim is that his trial counsel were ineffective for

failing to fully present his life history as mitigation during the penalty phase. A

review of the extensive record suggests quite the opposite. Indeed, the penalty

phase revealed that petitioner’s counsel presented substantial testimony concerning

Lucas’s personal background, family history, and character, among other things.

We detail what was presented because it amply establishes that the Georgia

Supreme Court did not unreasonably apply Strickland to that claim.

Lucas’s counsel presented the testimony of Dr. Cusack, “an expert in

Psychiatry with a special expertise in the effects of drugs and alcohol,” who

explained the effects of Xanax, Darvocet, and alcohol -- the drugs Lucas consumed

on the day of the murders. Cusack specifically opined that Lucas’s “recollection or

reasoning, his impulsivity, everything was eroded, almost destroyed,” and “his

judgment . . . was significantly marred.” Indeed, Cusack added that he did not

think the murder would have occurred but for the substances Lucas took.

Trial counsel also called Kelly Bowden, Lucas’s aunt, who testified in detail,

averring that Lucas’s maternal grandmother had always abused drugs and alcohol,

3
For the same reasons, we are unpersuaded by Lucas’s argument that trial counsel should have
developed the suppression argument about no new, verifiable information in Lucas’s statement
by consulting with “an expert in coerced confessions.”

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so much so that her children were placed in foster care. Meanwhile, Lucas’s

maternal grandfather was in prison. Bowden also said that Lucas’s mother began

using drugs and alcohol at an early age. By eighteen, Debra was pregnant with

Lucas. After Lucas’s birth, his father and Debra drank alcohol excessively,

smoked marijuana, used crack cocaine, and took methamphetamines for much of

his childhood, often when Lucas was in the house. According to Bowden,

substance abuse made it impossible for David and Debra to care for Lucas and his

younger sister Lacey. Bowden said that, in addition to abusing drugs in the

children’s presence, Lucas’s parents often fought in front of him and his sister.

Despite these surroundings, Bowden said Lucas had been a sweet and loving child.

She asked the jury not to impose the death penalty.

Defense counsel also called Lucas’s sister Lacey, fourteen at the time of

trial. She too testified about the harrowing circumstances surrounding the

petitioner’s childhood and upbringing. Lacey observed that her brother protected

her when their parents fought and comforted her and covered her ears so she would

not hear their mother and father argue. She said she loved her brother, she

apologized for the murders, and asked the jury to spare Lucas’s life.

Lucas’s paternal grandmother, Fay Lucas, testified that Lucas’s father had

not been present one day at the trial. Fay said she spent a lot of time with Lucas

when he was young and that he was more like a child to her than a grandchild. She

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called him a “marvelous child” who was sweet and well-behaved. She said he was

a gifted artist who still sent her pictures and wrote her often. Fay explained that

she frequently visited Lucas in jail and knew he was remorseful. She pled with the

jury to spare his life. Lucas’s paternal grandfather, Charles Lucas, also testified

that Lucas was a good child. He said he loved Lucas and sees him every week on

visiting day. He begged the jury not to sentence him to death. Reverend John

Miller Brown, the pastor at Debra’s church, testified that he visited Lucas in jail

about six times and that Lucas was “[v]ery remorseful and is feeling a lot of pain

for what he’s done.”

Trial counsel also presented a series of witnesses to testify about Rhode’s

criminal history in order to establish that he, and not Lucas, was the leader of the

criminal enterprise on the night of the murder. Thus, the jurors were presented

with testimony from the defense that Rhode successfully escaped from the Jones

County Jail and attempted a second escape in which a female jail supervisor was

physically attacked. A Georgia Bureau of Investigation Special Agent testified

that a polygraph of Rhode after the murders established deception when Rhode

denied shooting the victims -- the strongest deception occurred when Rhode

claimed he had not shot “the girl.” Still another witness, Bryan Keith Hyde, Jr.,

testified that when he was fourteen Rhode talked him into burglarizing a home,

something Hyde had never done before. According to Hyde, Rhode told him what

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to steal in the home and took several firearms, including one Rhode kept to commit

three more burglaries that day.

Trial counsel also cross-examined Derrick Jackson, a State witness, in order

to establish that Rhode “had been involved in virtually dozens of burglaries”

around the time of the murders, while Lucas had been involved in “no more than

three.” Jackson also testified that Lucas drank alcohol and used drugs, including

marijuana, mushrooms, and angel dust, at a young age. Jackson stated that Lucas’s

family abused drugs and drank alcohol. Jackson told the jury that at the time of the

murder Lucas had no home and nowhere to go. His “mother had kicked him out

and his father just . . . never seemed to care. I mean, never.” Jackson explained

that Lucas often talked to him about feeling neglected and abandoned by his

family. He told the jury that Lucas “always felt like -- he felt nobody wanted

him.”

Finally, as part of the elaborate mitigation presentation by defense counsel,

James Evans Aiken, a former prison warden, was called to testify as a corrections

and prison classifications expert. Aiken told the jury that he had reviewed Lucas’s

records from the Jones and Baldwin County jails and had spoken to jail staff, who

described Lucas as someone who “stays out of trouble,” “stays to himself,” and

“avoids trouble makers.” Lucas had been a model prisoner “for an extended period

of time” and, according to jail officials, “[i]f we had everybody like Mr. Lucas, we

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wouldn’t be running up and down these hallways all the time.” Aiken opined that

Lucas could be safely confined in a maximum security facility for the remainder of

his life without harming staff, other inmates, or the community.

Aiken also testified that he spoke with Lucas’s family to learn about the

environment in which he grew up. Aiken noted that, though he had interviewed

“many people,” seen “many lives that ha[d] been destroyed due to family

dysfunction,” and had “heard some heartbreak stories,” “[t]his case and this family

history [would] always remain with [him] so long as [he] live[d].” He explained

that Lucas’s family had a history of substance abuse, sexual abuse, alcohol abuse,

and abject poverty. Lucas’s family “ha[d] no structure,” “the mother is beaten up,”

and the “father is an alcoholic.” Lucas grew up in a family setting where he didn’t

know what to expect coming home from school: “Is it going to be a boyfriend

that’s beating up the mother[?]” Aiken said, in Lucas’s case, the problems had

passed “from generation to generation.” The State objected to further family

background testimony from Aiken. The trial court sustained the objection, ruling

that Aiken was going “outside the bounds of the qualification.” Still, Aiken

explained that the way Lucas dealt with his unstable upbringing was important

from a corrections perspective. Aiken reported, “I didn’t find any incidents of

violence, no arrest record where he was violent in a domestic situation or in the

community.”

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Notwithstanding the presentation of this mitigation evidence, Lucas claimed

that counsel was ineffective for failing to put forward still more facts about his

childhood. Specifically, Lucas submitted an affidavit from Louis Pelt, who grew

up with Lucas. Pelt stated that he saw Lucas’s father beat Lucas with a belt and

that Lucas’s stepmother Ginger often yelled at Lucas, called him obscene names,

and belittled him. Pelt said that “Ginger had strange sexual habits” and on multiple

occasions had touched Pelt’s genitalia when he was about fourteen. Lucas also

submitted an affidavit from Curtis Stephens, a high-school friend of Lucas’s, who

stated he avoided Lucas’s house because of Ginger, “a ‘pill-popper’ who would

often say sexual things to [Lucas].” Stephens reported that Ginger would watch

Lucas shower and comment on his genitals. Lucas also points to material in

defense counsel’s files referencing verbal abuse from Ginger, physical violence

Lucas’s father inflicted on Lucas’s mother and her boyfriend, and abuse Lucas’s

mother endured at the hands of boyfriends.

Lucas concedes, as he must, that trial counsel adequately investigated his

background. He argues only that trial counsel did not present all of the evidence it

had discovered. But “strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable.” Strickland,

466 U.S. at 690. The state habeas court rejected Lucas’s Strickland claim,

concluding “that trial counsel’s presentation of mitigation evidence and trial

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counsel’s arguments, which were based on strategic decisions after a thorough

investigation, were not unreasonable and Petitioner was not prejudiced by trial

counsel not submitting the additional mitigation evidence or arguments presented

to this Court.” In the face of the elaborate record presented by the defense counsel

in mitigation, we are hardpressed to conclude that the Georgia Supreme Court

unreasonably applied Strickland when it denied Lucas’s claim. Trial counsel

presented the jury with evidence of an extensive family and personal history of

drug abuse. The jurors learned that Lucas grew up amidst poverty, instability,

neglect, addiction, and abuse. The additional evidence identified by Lucas would

have added little to the mitigation case because other evidence informed the jury of

his sad social history. See Pinholster, 131 S. Ct. at 1409 (“The ‘new’ evidence

largely duplicated the mitigation evidence at trial.”).

In addition, trial counsel reasonably feared that the additional evidence now

identified by Lucas would be a “two-edged sword,” undermining the argument that

he had endured a tough life but was largely an “innocent” until people like Rhode

influenced him. Atkins v. Virginia, 536 U.S. 304, 321 (2002). Indeed, when asked

if Lucas was a leader among his peers, Pelt explained that “when I’d be around

[Lucas would] be the oldest one, so . . . we all looked up to him.” This information

would have collided with trial counsel’s attempt to paint Rhodes as the “leader” in

the triple murder. What’s more, Pelt and Stephens testified extensively about

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Lucas’s prior drug use. The Supreme Court has recognized that evidence of

previous abuse and addiction can be mitigating in that it may offset moral

culpability, but also that it can have aggravating aspects if it undermines capacity

for rehabilitation and enhances future dangerousness. See Pinholster, 131 S. Ct. at

1410; Wong v. Belmontes, 558 U.S. 15, 22-24 (2009). Thus, while Pelt described

some physical and sexual abuse of Lucas, he also recalled that, leading up to the

Moss murders, Lucas “got more wild, just . . . not caring . . . . He used to dress

real nice and all, . . . then you see him and . . . he’d be . . . barefooted and . . . drunk

half the time or messed up . . . .” Pelt said that, during his teen years, “[t]he

amount of drugs [Lucas] was doing was on a higher level than what everybody else

was doing. He was doing a lot more. . . . Crank, cocaine, acid. I don’t know,

pretty much everything that’s out there.”

Stephens described strange sexual behavior of Lucas’s stepmother, but also

told how Lucas would take pills, including Xanax, from her house. Stephens said

that Lucas got into using and selling “crank,” or methamphetamine. In his

affidavit, Stephens reported Lucas’s monumental substance abuse, which “spiraled

out of control” and included: “one gram of crank per day while drinking and

popping pills at the same time”; hallucinogenic mushrooms, which he picked

trashbags full of and “was constantly eating”; a “tremendous amount of acid,” at

times “four to seven hits of acid at a time, when everyone else around him was

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taking one to two hits” -- sometimes he took as many as fourteen acid hits; on a

number of occasions, using about an “eight ball” of crack cocaine over a two or

three day period; and eventually, Lucas devolving to smoking embalming fluid.

Stephens “seldom saw [Lucas] without an alcoholic beverage in his hand.”

Contrary to the nonviolent image of Lucas painted by trial counsel, Stephens

notably also said Lucas got into many fistfights with his cousin, including one

when they were at a restaurant that continued into a moving pickup truck and

caused a car accident.

The testimony about Lucas’s childhood from witnesses like Pelt and

Stephens amounted to a mixed mitigation bag that arguably could have opened the

door to damaging evidence and “would likely have been more harmful than

helpful.” Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1324 (11th Cir.), cert.

denied sub nom. Evans v. Crews, 133 S. Ct. 2742 (2013). On this mixed record, a

court reasonably could conclude that Lucas’s lawyers followed a reasonable

mitigation strategy, particularly because Pelt or Stephens could have damaged the

sympathetic image of Lucas that counsel sought to cultivate. Moreover, the

Georgia Supreme Court reasonably could have found no Strickland prejudice

because the additional mitigation, viewed alongside the aggravating evidence that

would have come with it, and the powerful aggravators already in the record,

would not have affected the outcome with any reasonable probability.

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The same is true for Lucas’s claim that trial counsel “mishandled” Aiken by

presenting him as a lay witness instead of as a mitigation expert opining about

Lucas’s background, although he was qualified as an expert in corrections and

prison classifications. As this record reveals, Aiken offered social history

testimony at trial touching on Lucas’s experiences with poverty, drugs, alcohol,

and abuse. Moreover, trial counsel explained at the state habeas hearing that they

made the decision to present Mr. Aiken instead of a psychologist or psychiatrist as

they believed that he would be their best witness in mitigation. As part of this

strategy, trial counsel observed that they wanted to “cherry pick” positive

mitigation evidence from Mr. Aiken so that it would fit with his purpose in

testifying. By “cherry picking” their mitigation evidence from Mr. Aiken, trial

counsel said they would have been able to elicit testimony regarding Lucas’s social

background that could not safely have been brought out through other witnesses

without also confronting a variety of negative comments too. Thus, for example,

aside from the potentially damaging evidence we’ve detailed about Lucas’s serious

substance abuse problem and his violent behavior, there was also evidence from

Lucas’s mother that he had been kicked out of her house three months prior to the

murder because he had been using drugs, arguing, and fighting with her, and,

indeed, he had even brought drugs into the home around his younger sister. His

mother further acknowledged that immediately before Lucas was thrown out of the

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home, Lucas told her that “if it wasn’t against the law, sometimes he wished that

he could kill [her].”

Moreover, trial counsel were fully aware that Lucas had been diagnosed by

Central State Hospital with antisocial personality disorder, and there were hospital

records to this effect. Indeed, counsel expressed concern over this diagnosis and

how it could be misinterpreted by a jury. And if Aiken had been qualified as a

mitigation or social history expert, the door would have been opened to far broader

cross-examination by the State. Thus, counsel could well conclude that Aiken, as a

mitigation expert, would have done more harm than good. See Evans, 703 F.3d at

1328 (describing as harmful evidence about antisocial personality disorder, and

drug and alcohol use).

In short, we are unpersuaded by Lucas’s claim that counsel was deficient in

the way it attempted to present mitigation evidence through Aiken. A court

reasonably could find that presenting Lucas’s background through Aiken was part

of a reasonable strategy to introduce mitigating evidence without opening the door

to related and damaging facts. Finally, we note that though Aiken’s testimony

was cut short by the trial judge, Lucas did not present any evidence (or any

proffer) to the state habeas court concerning what additional testimony Aiken

could have provided regarding Lucas’s past.

IV.

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Lucas next claims that he should be granted a new trial because the

prosecution violated Brady by failing to disclose a report of a state investigator’s

interview with an eyewitness, Tim Bentley. The day before jury selection began,

the State’s chief investigator interviewed Bentley, a witness who saw a red car

speeding away from the scene immediately after the crime. Bentley told the

investigator that he had nearly smashed into the passenger side of the car, but that

the passenger remained slumped in his seat and unresponsive. The investigator

prepared a four-page report of the interview that stated the passenger “had slumped

down so the driver could see.” The Bentley Report was found in the government’s

files, but the defense did not receive the report until a post-appeal Open Records

Act request.

In an affidavit submitted to the state habeas court, Bentley gave a somewhat

different account of seeing a passenger with light hair. “His head was propped

back with his eyes facing forward, and he was resting his arm out the window.”

Bentley said that the passenger “never tried to move out of the line of vision of the

driver.” “He never looked towards the truck, and did not move at all in

anticipation of an accident when my truck almost collided into the passenger side

of the car.”

Under Brady, suppression by the prosecution of evidence favorable to an

accused violates due process if the evidence is material to guilt or punishment,

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regardless of the good faith of the prosecution. Strickler v. Greene, 527 U.S. 263,

280 (1999). The materiality prong of this test is met “if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” United States v. Bagley, 473 U.S. 667,

682 (1985). “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 verdict worthy of

confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995).

Lucas first raised this Brady argument before the state habeas court. That

court said the claim was procedurally defaulted because he did not make a timely

objection or raise it on direct appeal. The habeas court recognized that the

petitioner could overcome procedural default if he shows both “adequate cause . . .

and a showing of actual prejudice.” Black v. Hardin, 336 S.E.2d 754, 755 (Ga.

1985). The Georgia rule tracks Strickler, which explained that Brady claims can

be procedurally defaulted but that the default may be “excused by an adequate

showing of cause and prejudice.” 527 U.S. at 282. Prejudice requires “a

reasonable probability that the result of the trial would have been different if the

suppressed documents had been disclosed to the defense.” Id. at 289 (internal

quotation marks omitted).

The state habeas court held that Lucas could not demonstrate prejudice and

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thus could not overcome his procedural default. Considering the other witnesses

who testified extensively about Lucas’s behavior and intoxication on the day of the

murders, the state court concluded that testimony from Bentley would have been

cumulative at best and that there was no reasonable probability it would have

changed the outcome of the suppression hearing or the trial.

We do not apply § 2254(d) AEDPA review, which is reserved for claims

adjudicated on the merits, because the state habeas court relied on a procedural bar

in rejecting Lucas’s Brady claim. When a state court denies a claim as defaulted

based on an adequate and independent state procedural rule, a petitioner may not

bring the claim in federal habeas unless he can show cause for and actual prejudice

from the default. Jones v. Campbell, 436 F.3d 1285, 1304 (11th Cir. 2006). A

federal court may also hear a defaulted claim to avoid a fundamental miscarriage

of justice. See, e.g., Mincey v. Head, 206 F.3d 1106, 1135 (11th Cir. 2000). Lucas

has not invoked that exception, nor would it apply. Lucas claims that his

procedural default should be excused because he demonstrated both cause and

actual prejudice. The district court found that Lucas failed to establish prejudice.

Upon de novo review, we agree.

For prejudice, Lucas must demonstrate a reasonable probability that his

conviction or sentence would have been different had the State disclosed the

Bentley Report and the identity of Bentley as a potential witness. Strickler, 527

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U.S. at 280. We look both to the report itself and to evidence about what Bentley

might have testified to at trial. See Downs v. Sec’y, Fla. Dep’t of Corr., 738 F.3d

240, 260 (11th Cir. 2013) (explaining that the identity of a witness is Brady

material when that “potential witness would offer or lead to exculpatory or

impeaching information favorable to the defendant”). Lucas claims he suffered

prejudice because Bentley’s story showed the extent of Lucas’s intoxication, which

prevented him from forming the requisite intent to commit malice murder. The

essential problem is that there is no reasonable probability that Bentley’s testimony

would have altered the outcome on the intoxication defense because it added little

that was new.

During the guilt phase, the jury heard an extensive presentation concerning

Lucas’s intoxication and mental state at the time of the killings. The jury learned

that Lucas had taken between six and ten Xanax pills hours before the murder, he

had been drinking red wine, and he had taken an unknown quantity of Darvocet.

Lucas’s friends testified that after the murders Lucas was completely “messed up,”

“tore down,” and was obviously intoxicated from either alcohol or drugs because

his speech was slurred and he “couldn’t walk straight” -- he was “swaying,”

rubbing his head, and moving “like he’d been drinking all day.” And, again, an

expert witness who specialized in the effects of drug and alcohol, Dr. John Cusack,

testified that, due to the effects of Xanax, Darvocet, and alcohol, on the day of the

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crime Lucas “had to be thoroughly intoxicated.” His “memory, concentration,

judgment, impulsivity, insight, . . . [and] orientation . . . had to be gravely

impaired.” With “the amount of drugs that the record showed that this boy took, if

he did not possess something called tolerance, he could have easily o.d’ed on that

or been in an emergency room or died.” According to Dr. Cusack, “it would be

difficult to be able to co-ordinate the making of a sandwich,” much less “logically

plan out thoughts.” His “thoughts were, I think, acting more like a Roman candle,

just kind of going off in undirected manners, which would be the case with this

type of intoxication.”

Moreover, even if Bentley had testified that, from his brief car-to-car

observation, a passenger in a red vehicle failed to react to the threat of a crash, it

would not have proven that Lucas lacked the requisite mental state when he shot

the victims. Indeed, Bentley’s account is consistent with the way Lucas himself

described his mental state, which was not so compromised as to negate intent: “I

know what was happening, but I was just like dazed and can’t think.” In short, we

can discern no reasonable probability that testimony from Bentley would have

made Lucas’s intoxication defense any more successful than it was.

Lucas also argues that Bentley’s testimony would have supported

suppression of the videotaped confession because it showed Lucas could not have

remembered the crime. But as we’ve explained Lucas’s trial counsel had access to

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significant evidence of Lucas’s intoxication without Bentley. Bentley’s testimony

would not have shown Lucas lacked memory of the shootings. Moreover, the

strongest signals of the knowing and voluntary nature of the videotaped confession

came from his extensive statements fully captured on tape. Quite simply, Lucas

has not shown a reasonable probability that Bentley’s testimony would have led to

suppression.

Finally, Lucas argues that Bentley would have created residual doubt in the

minds of jurors during the penalty phase, leading them to be less than certain that

Lucas had the requisite mental state or was deserving of death. Lucas does not

explain how testimony from Bentley would have fueled any more residual doubt

than had already been created by the other evidence presented about the nature and

extent of his intoxication. The fact that the defense did not have the benefit of

Bentley’s testimony does not undermine confidence in the verdict or the sentence.

See Strickler, 527 U.S. at 290.4

V.

The petitioner also seeks a new trial because the prosecutor improperly said

during cross-examination that prison escapes happen “every day.” We remain

unpersuaded. The Georgia Supreme Court’s determination, rendered on direct

4
We are equally unpersuaded that the cumulative effect from Lucas’s Strickland and Brady
claims entitles him to relief. See Conklin v. Schofield, 366 F.3d 1191, 1210 (11th Cir. 2004)
(“[W]e cannot say that [petitioner’s] trial, as a whole, was fundamentally unfair and outside of
the bounds of the Constitution.”).

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appeal, that any error was harmless was not an unreasonable application of

Supreme Court law. This is especially true since the harmless error standard we

apply as a federal habeas court -- that the error is harmless unless there is “actual

prejudice,” meaning that the error had a “substantial and injurious effect or

influence” on the jury’s verdict, Brecht, 507 U.S. at 637 -- is more difficult to meet

than the one applied by the Georgia Supreme Court.

During the penalty phase, defense expert Aiken opined that “Lucas can be

confined in a maximum security prison for the remainder of his life without

presenting a harm to staff, other inmates or the community.” On cross-

examination, prosecutor Bright attempted to highlight the risk that Lucas would

escape by asking whether Aiken would be surprised that escapes occurred at a

prison complex in Baldwin County, Georgia, “all the time, every day.” Bright

prefaced his question by explaining that he knew about the escapes because he had

prosecuted many of the cases. The trial court overruled defense counsel’s

objection. Bright then framed the question this way: “Would it surprise you if

inmates -- and when I say escape every day, I mean it’s -- it’s a very common

occurrence.” Aiken squarely rejected Bright’s question, offering that “[n]o, they

don’t oftentimes escape,” and explained that prison escapes had been substantially

curtailed over the last twenty years. Aiken also challenged the definition of escape

assumed by the prosecutor’s question, observing that the prosecutor could be

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including a number of infractions at lower-security facilities. Thus, for example,

an incident could be considered an escape when a prisoner with authorization to

leave a low-security prison returns too late, or is in a unauthorized area. Aiken

went on to observe that would not be possible at a high-security prison holding

Lucas.

To further rebut the prosecutor’s questions concerning prison escapes,

Lucas’s counsel used redirect examination to address the State’s line of

questioning, pointing out that Georgia prisons were classified in six security levels.

Lucas would only be housed in a level six facility because he had committed a

heinous crime. He then questioned Aiken about a “Georgia Department of

Corrections FY’98 Report,” which indicated that “all the prisons that Mr. Bright

talked about where they have escaped virtually every day, according to him, they

are all level three and four.” These lower level security facilities allowed prisoners

to leave for work details. Notably, Lucas would not enjoy similar freedoms if

sentenced to life imprisonment. Aiken again emphasized that there was “no

chance” and “no way” that Lucas would be housed in a reduced-security prison,

and instead would be housed in a level six prison.

On recross, the prosecutor returned to the escape theme, asking Aiken

whether he would be surprised to learn that numerous murderers had escaped from

(the level three and four security) Baldwin County prisons. Aiken pushed back,

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explaining that some prisoners who committed murder could be held in lower-

security prisons than the facilities for those like Lucas who committed “heinous

crimes.”

After the jury voted for death, Lucas’s counsel moved for a new trial based

on public records showing that escapes from the prisons referenced by the

prosecutor occurred about twice a year, not every day. The trial court denied the

motion. On direct appeal, Lucas renewed his argument that the prosecutor’s

comments about “every day” escapes from Georgia prisons had no factual basis

and no evidentiary support, and that he had instead personally vouched for them as

the District Attorney for the judicial circuit where the trial was held. The Georgia

Supreme Court explained that, though the subject matter -- escape frequency -- was

proper for cross-examination because Aiken had raised the issue of prison security,

it “[found] merit in the objection Lucas raised asserting that the district attorney

had been unclear or had exaggerated in his use of the phrase ‘every day’ in

describing the frequency of escapes.” Lucas, 555 S.E.2d at 449. “Nevertheless,”

the Georgia Supreme Court concluded, “considering the trial record, . . . the

ensuing exchange between the witness and the district attorney rendered harmless

any error in the trial court’s not addressing the district attorney’s use of hyperbole,

particularly because the district attorney himself later clarified that he was using

the phrase as an idiom and not literally.” Id. “Likewise,” the court concluded,

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“any error in the trial court’s failure to sustain a later defense objection to the

district attorney’s ‘testifying’ in his cross-examination questions was harmless in

light of the questions and testimony viewed as a whole.” Id.

A prosecutor may not “misstat[e] the facts in his cross-examination of

witnesses” or “assum[e] prejudicial facts not in evidence.” Berger v. United

States, 295 U.S. 78, 84 (1935). Because the average juror generally trusts the

prosecutor to pursue justice, “improper suggestions, insinuations, and, especially,

assertions of personal knowledge are apt to carry much weight against the accused

when they should properly carry none.” Id. at 88. Nevertheless, improper

comments only violate the Constitution if they “so infected the trial with unfairness

as to make the resulting conviction a denial of due process.’” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974)).

We can discern nothing unreasonable in the Georgia Supreme Court’s

determination that the prosecutor’s comments were harmless. That decision was

wholly consistent with the United States Supreme Court’s refusal to grant relief in

Darden and Donnelly, two cases cited by petitioner. In Darden, the prosecutor’s

closing argument during the guilt phase was problematic in a number of ways: he

partially blamed prison officials for the crime because they had released the

Defendant on furlough; he implied that the death penalty would be the only

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guarantee against a similar act; he incorporated the defense’s description of the

perpetrator of the crime as an “animal”; and he made several offensive comments

reflecting an emotional reaction to the case, such as wishing the victim “had had a

shotgun in his hand when he walked in the back door and blown his [Darden’s]

face off. I wish that I could see him sitting here with no face, blown away by a

shotgun.” Darden, 477 U.S. at 179, 180 & n.12 (internal quotation mark omitted).

Though the Supreme Court found that the prosecutor’s argument deserved

“condemnation,” id. at 179, it held that his comments “did not deprive petitioner of

a fair trial,” id. at 181. The prosecutor did not “manipulate or misstate the

evidence, nor did it implicate other specific rights of the accused such as the right

to counsel or the right to remain silent.” Id. at 182. “Much of the objectionable

content was invited by or was responsive to the opening summation of the

defense.” Id. And “[t]he trial court instructed the jurors several times that their

decision was to be made on the basis of the evidence alone, and that the arguments

of counsel were not evidence.” Id. Finally, defense counsel “were able to use the

opportunity for rebuttal very effectively, turning much of the prosecutors’ closing

argument against them by placing many of the prosecutors’ comments and actions

in a light that was more likely to engender strong disapproval than result in

inflamed passions against petitioner.” Id. As a result, the Supreme Court found

“Darden’s trial was not perfect -- few are -- but neither was it fundamentally

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unfair.” Id. at 183 (internal quotation marks omitted). It is undeniable that the

prosecutor’s questions/comments about escape in this case were far less egregious

than what was said by the prosecutor in Darden. Moreover, counsel had every

opportunity to and did vigorously redirect the witness about the unlikelihood of

escape from the type of Georgia prison that might house Lucas. The Georgia

Supreme Court’s determination was not an unreasonable application of Darden.

The Supreme Court also denied relief in Donnelly, when a prosecutor told a

jury during closing argument that the defendant and his counsel hoped that the jury

would “find him guilty of something a little less than first-degree murder.” 416

U.S. at 640 (internal quotation mark omitted). The Supreme Court found that “the

prosecutor’s remark here, admittedly an ambiguous one, was but one moment in an

extended trial and was followed by specific disapproving instructions.” Id. at 645.

The Court concluded that, “[a]lthough the process of constitutional line drawing in

this regard is necessarily imprecise, we simply do not believe that this incident

made respondent’s trial so fundamentally unfair as to deny him due process.” Id.

(emphasis added). Again, nothing in Donnelly suggests that the Georgia Supreme

Court’s determination on this point in this case was an unreasonable one.

Moreover, the Supreme Court recently explained in Parker the meaning of

its holding in Darden. Reversing a grant of habeas relief when a prosecutor

commented during closing argument that the defendant had colluded with his

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lawyer in manufacturing a defense, the Supreme Court observed, “even if the

comment is understood as directing the jury’s attention to inappropriate

considerations, that would not establish that the [state court’s] rejection of the

Darden prosecutorial misconduct claim ‘was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.’” Parker v. Matthews, 132 S. Ct. 2148,

2155 (2012) (quoting Harrington, 131 S. Ct. at 786-87). “Particularly because the

Darden standard is a very general one, leaving courts ‘more leeway . . . in reaching

outcomes in case-by-case determinations,’ the Sixth Circuit had no warrant to set

aside the [state] Supreme Court’s conclusion.” Id. (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)). 5

Quite simply, the Georgia Supreme Court’s harmless-error determination

was not contrary to or an unreasonable application of the Supreme Court’s

“necessarily imprecise” rule. Here, the factors identified in Darden and Donnelly

cut in different directions. On the one hand, the prosecutor arguably interjected

facts about escape not in evidence, albeit in the form of a series of questions. On

the other, the comments were limited to the cross-examination and recross of

5
Lucas would have us consider our own precedents, and those of other Circuits, in our analysis.
Section 2254(d) forbids this practice. See, e.g., Lopez v. Smith, __ S. Ct. __, No. 13-946, 2014
WL 4956764, *1 (Oct. 6, 2014) (“We have emphasized, time and again, that [AEDPA] prohibits
the federal courts of appeals from relying on their own precedent to conclude that a particular
constitutional principle is ‘clearly established.’”); Parker, 132 S. Ct. at 2155 (“The Sixth Circuit
also erred by consulting its own precedents, rather than those of this Court, in assessing the
reasonableness of the Kentucky Supreme Court’s decision.”).

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Aiken as a corrections expert witness. Moreover, the responses of Aiken, as well

as redirect by defense counsel, mitigated any potential prejudice by making clear

that the prisons the prosecutor said were plagued by every-day escapes had looser

restrictions than the maximum-security facilities Lucas would face. We add that

the prosecutor made no mention of the likelihood of escape from prison in his

closing argument. And the trial judge charged the jurors during the guilt phase that

facts must be proven through evidence, which includes the testimony of witnesses

but not arguments from attorneys. On this record, a reasonable jurist could fairly

conclude that the prosecutor’s questions about escape did not so taint the penalty

phase as to violate due process. And, at the very least, we cannot say that the error

had a “substantial and injurious effect or influence” on the jury’s verdict. Brecht,

507 U.S. at 637.

Lucas also argues that the Georgia Supreme Court unreasonably found that

the prosecutor had used the term “every day” as an idiom instead of literally. But

there can be little doubt that the prosecutor did not suggest that escapes happened

on every single day, especially because he explained “when I say escape every day,

I mean it’s -- it’s a very common occurrence.” If we view the Georgia Supreme

Court’s inference about this as being a finding of fact, Lucas has not met his

burden of rebutting the presumption of correctness we must afford it by “clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1). Nor has he shown that the Georgia

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Supreme Court’s decision was an “unreasonable determination of the facts in light

of the evidence presented in the State court proceeding..” 28 U.S.C. § 2254(d)(2).

VI.

Finally, Lucas complains that the trial court failed to instruct the jury that

mitigating factors need not be found unanimously. Lucas cannot prevail because

the Georgia Supreme Court’s decision on the adequacy of the instructions was not

contrary to or an unreasonable application of the Supreme Court precedents he

cites, Mills v. Maryland, 486 U.S. 367 (1988), and McKoy v. North Carolina, 494

U.S. 433 (1990).

In Mills, a prisoner sentenced to death challenged his sentence because the

jury instructions and verdict form used by the Maryland trial court had prohibited

jurors from considering mitigating evidence unless the entire jury unanimously

found that a mitigating factor existed. The verdict form stated: “Based upon the

evidence we unanimously find that each of the following mitigating circumstances

which is marked ‘yes’ has been proven to exist by a preponderance of the evidence

and each mitigating circumstance marked ‘no’ has not been proven by a

preponderance of the evidence.” Mills, 486 U.S. at 387 (emphasis omitted). The

Supreme Court held that “the sentencer must be permitted to consider all

mitigating evidence,” regardless of whether a factor was found unanimously. Id. at

384. The Court vacated the death sentence in Mills because the jury instructions

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and verdict form created “a substantial probability that reasonable jurors . . . well

may have thought they were precluded from considering any mitigating evidence

unless all 12 jurors agreed on the existence of a particular such circumstance.” Id.

Two years later in McKoy, the Supreme Court applied Mills to strike down a

North Carolina unanimity requirement that prevented a capital jury from

considering any mitigating factor it did not unanimously find. McKoy, 494 U.S. at

436. The judge had instructed the jury: “If you do not unanimously find [a]

mitigating circumstance by a preponderance of the evidence, so indicate by having

your foreman write, ‘No,’ in that space.” Id. Similarly, the verdict form read: “In

the space after each mitigating circumstance, write ‘Yes,’ if you unanimously find

that mitigating circumstance by a preponderance of the evidence. Write, ‘No,’ if

you do not unanimously find that mitigating circumstance by a preponderance of

the evidence.” Id. The Supreme Court held that, under Mills, “North Carolina’s

unanimity requirement violates the Constitution by preventing the sentencer from

considering all mitigating evidence.” Id. at 435. In fact, the Court noted, McKoy

was “an even clearer case for reversal than Mills” because in Mills “the Court

divided over the issue whether a reasonable juror could have interpreted the

instructions in that case as allowing individual jurors to consider only mitigating

circumstances that the jury unanimously found.” Id. at 444 n.8. “In this case, by

contrast, the instructions and verdict form expressly limited the jury’s

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consideration to mitigating circumstances unanimously found.” Id.

Here, the trial court’s jury instructions and verdict form contained no

statement that reasonably could be read by jurors to require unanimity on

mitigating factors. And Lucas can point us to no Supreme Court precedent clearly

establishing that an affirmative instruction must be given when the trial court has

not otherwise suggested that unanimity is mandatory. Moreover, as the Georgia

Supreme Court concluded on direct review, the trial judge in fact “charged the jury

that it could impose a life sentence for any reason or no reason.” Lucas, 555

S.E.2d at 450 (emphasis added). Any reasonable juror would have known from

these instructions that she was free to vote for life imprisonment for any reason she

chose, regardless of whether other jurors found the existence of mitigating factors.

Unlike in Mills and McKoy, there was no danger that a reasonable juror would

have felt compelled to vote for death if she were moved by a mitigating factor not

found by another juror. The Georgia Supreme Court did not contradict or

unreasonably apply these cases in denying relief.

AFFIRMED.

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