John Wayne Conner v. GDCP Warden

Case: 13-13928 Date Filed: 04/15/2015 Page: 1 of 39

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 13-13928
________________________

D.C. Docket No. 3:01-cv-00073-DHB

JOHN WAYNE CONNER,

Petitioner - Appellant,

versus

GDCP WARDEN,

Respondent - Appellee.
________________________

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

(April 15, 2015)

Before ED CARNES, Chief Judge, MARCUS, and MARTIN, Circuit Judges.

MARTIN, Circuit Judge:

Petitioner John Wayne Conner, a Georgia prisoner on death row, appeals the

District Court’s denial of his petition for a writ of habeas corpus. This is the

second time we review the District Court’s denial of Mr. Conner’s habeas petition.
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See Conner v. Hall, 645 F.3d 1277 (11th Cir. 2011). In Mr. Conner’s first appeal,

he was granted a certificate of appealability (COA) on three claims: “(1) whether

he procedurally defaulted his [intellectual disability] 1 claim; (2) whether he was

denied effective assistance of counsel at the sentencing phase of his trial; and (3)

whether he was prejudiced by prosecutorial misconduct during closing arguments.”

Id. at 1280; see also 28 U.S.C. § 2253(c).

Because we held that Mr. Conner did not procedurally default his

intellectual-disability claim and that the District Court erred by denying discovery

and an evidentiary hearing on his intellectual-disability claim, we remanded the

case for the District Court to determine in the first instance whether discovery and

an evidentiary hearing were appropriate. Id. at 1292–94. It was not necessary for

us to decide anything about Mr. Conner’s two other claims in light of our remand.

Id. at 1293–94. Instead, we remanded the “entire case.” Id. at 1294.

1
We used the term “mental retardation” in our opinion in Mr. Conner’s first appeal, consistent
with the Supreme Court’s use of that term in Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct.
2242, 2252 (2002) (holding the Eighth Amendment prohibits the execution of a “mentally
retarded offender”). In this opinion, we use the term “intellectual disability,” which has the same
legal meaning as “mental retardation” did in Atkins. Hall v. Florida, 572 U.S. ___, ___, 134 S.
Ct. 1986, 1990 (2014) (“This opinion uses the term ‘intellectual disability’ to describe the
identical phenomenon.”); see also Rosa’s Law, Pub. L. No. 111-256, § 4, 125 Stat. 2643, 2645
(2010) (replacing term “mental retardation” with “intellectual disability” in federal law); Am.
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 33 (5th ed. 2013)
(DSM-V) (using “intellectual disability”); Am. Ass’n on Intellectual and Developmental
Disabilities (AAIDD), Intellectual Disability: Definition, Classification and Systems of Supports
3 (11th ed. 2011) (substituting “intellectual disability” for “mental retardation”).

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On remand, the District Court granted Mr. Conner’s request for discovery

and an evidentiary hearing on his intellectual-disability claim. After hearing

testimony from seven experts who had evaluated Mr. Conner for intellectual

disability, the District Court denied Mr. Conner’s intellectual-disability claim on

the merits.

Separately, the District Court once again denied Mr. Conner’s penalty-phase

ineffective-assistance-of-counsel and prosecutorial-misconduct claims, but granted

Mr. Conner a COA as to “whether [the District] Court erred in concluding that

[Mr. Conner’s] trial counsel had not rendered ineffective assistance during the

mitigation phase of the trial.” This Court granted Mr. Conner’s request to expand

the COA to include two more claims: “[w]hether the District Court erred in

denying Mr. Conner’s claim that he has [intellectual disability] and is not eligible

for the death penalty”; and “[w]hether the District Court erred in determining that

the state court’s decision—that the prosecutor’s closing arguments were not so

egregious as to require reversal—was not contrary to, or an unreasonable

application of, Supreme Court precedent.” After careful review of the record, and

with the benefit of briefing and oral argument, we affirm.

I. BACKGROUND

Mr. Conner was convicted and sentenced to death for the January 9, 1982,

beating death of J.T. White in Telfair County, Georgia. See Conner v. State, 303

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S.E.2d 266, 270 (Ga. 1983). The day after the murder, Mr. White’s body was

found in a drainage ditch with severe injuries to his head. Id. Mr. Conner

confessed that he struck Mr. White with a bottle and then beat him with a stick. Id.

Mr. Conner was indicted for murder, armed robbery, and motor vehicle theft.2 Id.

A. TRIAL PROCEEDINGS

Mr. Conner attempted suicide while awaiting trial in the Telfair County Jail,

and was admitted to the Central State Hospital in Milledgeville, Georgia on

January 28, 1982, for treatment. Mr. Conner remained hospitalized until February

19, and the staff evaluated him for competency and insanity pursuant to court

order. During his stay, Mr. Conner was given a full psychological evaluation,

which included a social-history review, psychiatric examination, and psychological

testing, including the Wechsler Adult Intelligence Scale (WAIS). 3 Mr. Conner

scored a full-scale (FS) IQ of 87 on the WAIS as administered by Central State

Hospital staff. Although his WAIS “test results showed considerable discrepancy

between ver[b]al and performance ability . . . the tests results [were] felt to be

2
The Georgia Supreme Court gave a full discussion of the facts in its opinion written in Mr.
Conner’s direct appeal. See Conner, 303 S.E.2d at 270.
3
The WAIS is the “standard instrument in the United States for assessing intellectual
functioning. . . . The test measures an intelligence range from 45 to 155. The mean score of the
test is 100, which means that a person receiving a score of 100 is considered to have an average
level of cognitive functioning.” Atkins, 536 U.S. at 309 n.5, 122 S. Ct. at 2245 n.5. “[A]n IQ
between 70 and 75 or lower . . . is typically considered the cutoff IQ score for the intellectual
function prong of the [intellectual disability] definition.” Id.

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accurate and it [was] estimated that he functions within[] the average range of

intelligence.” On February 19, the hospital issued a letter to the trial judge stating

that Mr. Conner was competent to stand trial and could be held criminally

responsible for his actions.

Mr. Conner’s father originally hired David Morgan to represent Mr. Conner

in the underlying criminal case. About the same time, William Dennis Mullis, a

public defender, was appointed to represent Mr. Conner in an unrelated case. Mr.

Mullis was ultimately appointed to assist Mr. Morgan in this case once Mr. Conner

could no longer afford representation through the end of the criminal proceedings.

On June 21, 1982, Mr. Morgan withdrew from the case and Mr. Mullis

became Mr. Conner’s sole counsel. At a hearing on June 30, Mr. Mullis

announced that he would not be seeking to assert the insanity defense based on his

review of additional information private counsel had obtained from Central State

Hospital. After that, Mr. Mullis filed no other motion pertaining to Mr. Conner’s

mental health. Neither did he request the appointment of an independent mental

health examiner.

At his jury trial on July 12–14, Mr. Conner did not testify or present any

evidence on his own behalf. In his guilt-phase closing argument, the prosecutor

said the following:

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Ladies and gentlemen, as prosecutor, as defense attorney, I have been
involved in criminal law for seven years. As District Attorney of this
circuit, I have prosecuted nine murder cases. I have never before
sought the death penalty. I have seen several killings. I have been
responsible for prosecuting several terrible killings. I have never
before sought the death penalty.

Mr. Conner’s counsel objected. The trial court sustained the objection and gave

the jury a curative instruction not to consider the penalty before deciding guilt or

innocence.

After the jury returned its verdict of guilt, trial counsel advised the trial court

that Mr. Conner had told him not “to enter any evidence in mitigation.” The trial

court then talked to Mr. Conner, who confirmed that he understood his right to

present evidence and that he did “not want to put anything in . . . evidence in

mitigation.”

The prosecution and the defense then made their closing arguments without

presenting more evidence. During his sentencing-phase closing, the prosecutor

once again expressed his personal belief, based upon his experience, that the death

penalty was appropriate in Mr. Conner’s case:

As I told you, I have never previously sought the death penalty in any
murder case, but I tell you, I am seeking it now, and I am asking this
jury to go back to that jury room and return a verdict, or a decision to
send John Wayne Conner to the electric chair.

Mr. Conner’s counsel did not object to the prosecutor’s sentencing-phase closing

argument, and no curative instruction was given.

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The jury returned a death sentence upon a finding that the offense was

“outrageously and wantonly vile, horrible, and inhuman and that it did involve

depravity of mind and aggravated battery to the victim.” See O.C.G.A. § 17-10-

30(b)(7).

B. DIRECT APPEAL

Mr. Conner appealed his conviction and sentence to the Georgia Supreme

Court. Conner, 303 S.E.2d 266. The court affirmed Mr. Conner’s convictions for

motor vehicle theft and murder but vacated his armed-robbery conviction for

insufficient evidence. Id. at 270–71. The court sua sponte reviewed the

prosecutor’s closing argument to ensure that Mr. Conner’s death sentence was not

imposed “under the influence of passion, prejudice, or any other arbitrary factor.”

Id. at 272–73 (quoting O.C.G.A. § 17-10-35(c)(1)). The court found the closing

argument to be improper because “[t]he portion of the prosecutor’s argument

referring to his prior criminal experience and the frequency with which he had

sought the death penalty was not supported by any evidence and, moreover, was

not relevant to any issue in the case.” Id. at 276. However, the court held that the

remarks were “not so prejudicial or offensive and do not involve such egregious

misconduct on the part of the prosecutor as to require reversal of [Mr. Conner’s]

death sentence on the basis that it was impermissibly influenced by passion,

prejudice, or any other arbitrary factor.” Id.

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C. FIRST STATE HABEAS PROCEEDING

Mr. Conner filed his first writ of habeas corpus in state court on March 23,

1984. Evidentiary hearings were held on September 24, 1984, and February 11,

1985.

In the September evidentiary hearing, Mr. Mullis testified about his

representation of Mr. Conner at trial. He explained that although raising an

insanity defense “crossed [his] mind,” he found “[no]thing to substantiate such a

claim.” When asked about the Central State Hospital records, Mr. Mullis

acknowledged that he knew that Mr. Conner had some psychiatric problems and

had a history of drug and alcohol abuse.

Mr. Mullis testified that while he was considering potential mitigation, he

spoke with Mr. Conner’s parents and brother. During a visit to Mr. Mullis’s office,

Mr. Conner’s parents discussed his “upbringing” and “socio-economic

information.” Mr. Mullis said he learned that Mr. Conner had a “deprived

economic background” and “had not been brought up in the best of

circumstances.” After Mr. Conner was convicted, Mr. Mullis spoke with Mr.

Conner’s brother about testifying in mitigation. Also during this time, Mr. Mullis

approached Mr. Conner’s girlfriend, Beverly Bates, who had testified against him

at trial, and asked if she would testify. She refused. Mr. Mullis described Mr.

Conner’s parents and brother as “waiting in the wings.”

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Mr. Mullis stated that his plan to present the testimony by Mr. Conner’s

family changed after the guilt-phase verdict, when Mr. Conner said “I don’t want

to put up any evidence.” Mr. Mullis explained that Mr. Conner said “[s]omething

to the effect of letting them do what they will.” Mr. Mullis testified that he

explained the purpose of mitigating evidence to Mr. Conner but that Mr. Conner

“didn’t seem to care about himself.”

At the February hearing, the state habeas court admitted into evidence the

affidavits from Mr. Conner’s mother and father; his sister, Linda Jones, and her

husband, Phillip Jones; and his sister-in-law, Sally Conner. In her affidavit, Mr.

Conner’s mother testified that Mr. Mullis asked her and her husband if they would

be willing to testify on Mr. Conner’s behalf. She also said that, had she testified,

she would have informed the court that Mr. Conner was a “good and loving” son

who worked hard and supported his family. As for Mr. Conner’s relationship with

his father, she explained that Mr. Conner was “special” to his father but that his

father would drink alcohol and beat him as a child and into his teens. Mr.

Conner’s mother admitted that he had problems, describing him as a “very troubled

young man” who drank alcohol and used drugs. She explained that Mr. Conner

was always depressed because he felt unloved. She also said that Mr. Conner tried

to commit suicide several times, beginning in 1981.

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In his affidavit, Mr. Conner’s father testified that Mr. Mullis never asked if

there were other family members and friends who would be willing to testify on

Mr. Conner’s behalf. He testified that Mr. Mullis never asked about Mr. Conner’s

school or work background or his relationship with other family members and

friends. Mr. Conner’s father explained that Mr. Conner “suffer[ed] from constant

depression” as a teenager and “started drinking heavily,” which only deepened his

depression. He also stated that he felt that Mr. Conner needed psychiatric help but

the family could not afford it. The father described a suicide attempt, in which Mr.

Conner tried to kill himself by cutting ropes suspending him above the ground

while working with his father in a tree.

The other affidavits attested to similar facts about Mr. Conner, and no family

members said that Mr. Mullis ever asked them to testify on Mr. Conner’s behalf in

mitigation.

The state habeas court filed a final order denying relief on January 6, 1997.

In that order, the court identified and addressed twenty-six specific allegations of

ineffective assistance of trial and appellate counsel. Relevant to our inquiry here,

the court considered Mr. Conner’s claims that his trial counsel, Mr. Mullis, was

ineffective for “‘intolerably acquiescing’ in [Mr. Conner’s] decision not to present

mitigating evidence” and for “failing to prepare evidence in mitigation.” The state

habeas court found that Mr. Mullis tried to convince Mr. Conner to present

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mitigating evidence, and that Mr. Conner knowingly and intelligently waived his

right to do so. The court also found that Mr. Mullis prepared to present evidence

in mitigation, but that Mr. Conner’s “own actions prevented [Mr. Mullis] from

presenting evidence.” As for the affidavits of Mr. Conner’s family members, the

court concluded that they “d[id] not overcome” Mr. Conner’s waiver of his right to

present mitigation evidence or otherwise establish ineffectiveness of counsel.

Finding Mr. Mullis’s performance to be objectively reasonable, the court

concluded that Mr. Conner could not prevail on his ineffective assistance of

counsel claim. See Strickland v. Washington, 466 U.S. 668, 687–88, 104 S. Ct.

2052, 2064 (1984). The Georgia Supreme Court denied Mr. Conner’s application

for certificate of probable cause on September 11, 2000.

D. SECOND STATE HABEAS PROCEEDING

On October 3, 2001, Mr. Conner filed his second state habeas petition,

asserting one claim: that he is intellectually disabled and ineligible for the death

penalty. Without an evidentiary hearing, the court dismissed the second petition as

successive under O.C.G.A. § 9-14-51. The court held that the claim could have

been raised in an amendment to his original habeas petition because Fleming v.

Zant 4 was decided while Mr. Conner’s first state habeas petition was pending in

4
In Fleming v. Zant, 386 S.E.2d 339 (Ga. 1989), the Georgia Supreme Court held that execution
of the intellectually disabled constitutes “cruel and unusual punishment” under the Georgia

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state court. Mr. Conner’s application for a certificate of probable cause to the

Georgia Supreme Court to appeal the dismissal of his second state habeas corpus

petition was denied on March 25, 2002.

On June 20, 2002, the United States Supreme Court decided Atkins, holding

that the Eighth Amendment categorically prohibits the execution of an

intellectually disabled defendant. On July 11, Mr. Conner timely filed a petition

for certiorari in the United States Supreme Court relying on Atkins. The Supreme

Court denied certiorari. Conner v. Head, 537 U.S. 908, 123 S. Ct. 249 (mem.),

reh’g denied, 537 U.S. 1069, 123 S. Ct. 657 (2002) (mem.).

E. FEDERAL HABEAS PROCEEDINGS

Mr. Conner filed his § 2254 petition in the District Court on November 13,

2001. The federal petition contained thirty-three separate claims for relief,

including an Eighth Amendment challenge to the death penalty based on

intellectual disability under Atkins.

On March 31, 2004, Mr. Conner filed a motion for leave to conduct limited

discovery on his Atkins claim. In his memorandum in support of that motion, Mr.

Constitution. Id. at 342. Further, Fleming established a procedure for habeas courts to follow in
evaluating intellectual-disability claims for defendants, like Mr. Conner, who were tried and
sentenced before the effective date of Georgia’s 1988 statutory prohibition against executing
intellectually disabled offenders. Id. at 342–43.

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Conner alleged that he was intellectually disabled; that his elementary school

records attested to his disability; that his elementary school teachers who were still

living were willing to attest to his disability; and that he had never been granted

access to an independent defense evaluation of his intellectual-disability claim.

Despite the state court’s ruling that he procedurally defaulted his

intellectual-disability claim, Mr. Conner argued that he followed Georgia’s

procedures as provided in Fleming and Turpin v. Hill, 498 S.E.2d 52, 53–54 (Ga.

1998). 5 Alternatively, Mr. Conner argued that the state’s procedural bar was not

adequate to bar federal review because it was not consistently applied.

On September 8, 2004, the District Court denied Mr. Conner’s discovery

request, determining that he had defaulted his intellectual-disability claim in state

court. The District Court denied Mr. Conner’s habeas petition in its entirety on

November 6, 2009.

In Mr. Conner’s first appeal to this Court, we vacated the District Court’s

judgment denying his habeas petition and remanded the entire case to the District

Court for further proceedings consistent with our opinion. Conner, 645 F.3d at

1293–94. The District Court then granted Mr. Conner’s request for discovery and

an evidentiary hearing on his intellectual-disability claim but ultimately denied the

5
In Turpin, the Georgia Supreme Court held that state habeas relief was available to capital
petitioners asserting intellectual-disability claims in state habeas petitions, regardless of whether
the claim had been procedurally defaulted. 498 S.E.2d at 53.

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claim on the merits. The District Court also denied Mr. Conner’s penalty-phase

ineffective-assistance-of-counsel and prosecutorial-misconduct claims. We review

each claim in turn.

II. STANDARDS OF REVIEW

We review de novo the District Court’s denial of a 28 U.S.C. § 2254

petition. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). “Although we

review de novo the District Court’s conclusions on legal questions and mixed

questions of law and fact, we generally review the District Court’s findings of fact

for clear error.” Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1245

(11th Cir. 2014).

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “sets

several limits on the power of a federal court to grant an application for a writ of

habeas corpus on behalf of a state prisoner.” Cullen v. Pinholster, 563 U.S. ___,

___, 131 S. Ct. 1388, 1398 (2011). Under AEDPA, if a state court has adjudicated

the merits of a claim—as the state court did here for Mr. Conner’s ineffective-

assistance-of-counsel and prosecutorial-misconduct claims—we cannot grant

habeas relief unless the state court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or “was based on an unreasonable

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

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proceeding.” 28 U.S.C. § 2254(d). Section 2254(d) “is a difficult to meet and

highly deferential standard for evaluating state-court rulings, which demands that

state-court decisions be given the benefit of the doubt.” Pinholster, 131 S. Ct. at

1398 (internal citations and quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes federal habeas relief so long as

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

Harrington v. Richter, 562 U.S. 86, ___, 131 S. Ct. 770, 786 (2011) (quotation

marks omitted).

State court fact-findings are entitled to a presumption of correctness unless

the petitioner rebuts that presumption by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1). “AEDPA’s statutory presumption of correctness applies only to

findings of fact made by the state court, not to mixed determinations of law and

fact.” Tanzi v. Sec’y, Fla. Dep’t of Corr., 772 F.3d 644, 651 (11th Cir. 2014)

(quotation marks omitted). “[B]oth the performance and prejudice components of

the ineffectiveness inquiry are mixed questions of law and fact.” Strickland, 466

U.S. at 698, 104 S. Ct. at 2070.

III. DISCUSSION

A. INTELLECTUAL-DISABILITY CLAIM

The Eighth Amendment to the United States Constitution prohibits the

execution of the intellectually disabled. Atkins, 536 U.S. at 321, 122 S. Ct. at

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2252. In Mr. Conner’s first appeal, we held that his intellectual-disability claim

had never been adjudicated on the merits in state court and “no adequate [state]

procedural bar preclude[ed] federal review.” Conner, 645 F.3d at 1292. As a

result, “the District Court [was] not bound by AEDPA’s deferential standards in 28

U.S.C. § 22554(d) and federal court review [was] de novo.” Id.; see also Porter v.

McCollum, 558 U.S. 30, 39, 130 S. Ct. 447, 452 (2009) (“Because the state court

did not decide whether Porter’s counsel was deficient, we review this element of

Porter’s Strickland claim de novo.”). But the District Court has now held that Mr.

Conner is not intellectually disabled, and we review that finding for clear error.

See Holladay v. Allen, 555 F.3d 1346, 1353–54 (11th Cir. 2009).

When we remanded this case, we guided the District Court in the exercise of

its discretion to grant discovery or an evidentiary hearing, including instructions

that it “must apply Georgia’s substantive [intellectual disability] criteria” and

require Mr. Conner to prove his claim only “by a preponderance of the evidence.”

Conner, 645 F.3d at 1293 & n.17. On remand, the District Court expressly

acknowledged that “Georgia state law . . . govern[s] the procedure for determining

whether [Mr. Conner] is [intellectually disabled] and thus ineligible for the death

penalty.” The District Court specifically cited Georgia’s statutory definition of

intellectual disability, O.C.G.A. § 17-7-131(a)(3).

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Under Georgia law, intellectual disability “means having [1] significantly

subaverage general intellectual functioning [2] resulting in or associated with

impairments in adaptive behavior which [3] manifested during the developmental

period.” Id. We have recognized that Georgia’s definition of intellectual disability

“essentially tracks the AAMR and APA definitions mentioned in Atkins.”6 Hill v.

Humphrey, 662 F.3d 1335, 1341 (11th Cir. 2011) (en banc).

The District Court initially found the “evidence sufficient to warrant further

inquiry” and appointed its own “independent” expert, Dr. Thomas R. Swift, M.D., 7

to determine if Mr. Conner is intellectually disabled under Georgia law. The

District Court then found that Mr. Conner showed good cause for discovery and

allowed the parties to do discovery on his intellectual-disability claim, including

expert examination of Mr. Conner “in accordance with the standards elucidated in

[Atkins] . . . and O.C.G.A. § 17-7-131(a)(3).” In the end, seven experts evaluated

Mr. Conner for intellectual disability: (1) Dr. Swift (the District Court’s appointed

6
In Atkins, the Supreme Court referenced the clinical definitions for intellectual disability used
by the American Association of Mental Retardation (AAMR) (which has since changed its name
to the American Association on Intellectual and Developmental Disability (AAIDD)), and the
American Psychiatric Association (APA). Atkins, 536 U.S.at 308 n.3, 122 S. Ct. at 2245 n.3.
The Court also noted states’ “statutory definitions of [intellectual disability] are not identical, but
generally conform to the clinical definitions” of the AAIDD and APA. Id. at 317 n.22, 122 S.
Ct. at 2250 n.22.
7
The District Court described Dr. Swift as a “physician of broad experience,” “a Diplomat of
the American Board of Psychiatry and Neurology, Past President of the American Academy of
Neurology, former Chairman of the Department of Neurology at the Medical College of Georgia
(now Georgia Health Sciences University) and . . . active in many other professional
organizations.”

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neurologist); (2) Dr. Bhushan Agharkar, M.D. (Mr. Conner’s psychiatrist); (3) Dr.

Stephen Greenspan, Ph.D. (Mr. Conner’s psychologist); (4) Dr. Barry Crown (Mr.

Conner’s neuropsychologist); (5) Dr. Elizabeth Beck, Ph.D. (Mr. Conner’s social

worker); (6) Dr. Glen King, Ph.D. (state’s psychologist); and (7) Dr. Matthew

Norman, M.D. (state’s psychiatrist). All of these experts testified at the

evidentiary hearing held before the District Court on May 7 and 8, 2013. Each

expert’s written evaluation was admitted into evidence.

Three defense experts—Drs. Agharkar, Crown, and Greenspan—all

concluded that Mr. Conner has significantly sub-average intellectual functioning

based on academic achievement, intelligence testing, and neuropsychological

testing. 8 These defense experts relied on two IQ scores: (1) Mr. Conner’s FS IQ

score of 87 on the WAIS administered by Central State Hospital in 1982; 9 and (2)

his FS IQ score of 80 on the WAIS-IV administered by Dr. King in 2013. 10

8
A fourth defense expert, Dr. Beck, prepared a psychosocial history assessment of Mr. Conner,
focusing “primarily on the conditions of [his] childhood and development through young
adulthood.” Based on her review of background materials and collateral witness interviews, Dr.
Beck opined that Mr. Conner’s life history indicated “he is an individual with significant
intellectual impairments.”
9
On his 1982 WAIS test, Mr. Conner obtained a performance IQ score of 97, a verbal IQ score
of 80, and a FS IQ score of 87, unadjusted for the Flynn effect or scoring error.
10
When Dr. King administered the WAIS-IV in 2013, Mr. Conner obtained a FS IQ of 80, a
verbal comprehension index of 81, and a perceptual reasoning index of 88, unadjusted for the
Flynn Effect or scoring error.

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Applying the Flynn effect 11 to these test scores caused the IQ score on the 1982

WAIS to be reduced by nine points to 78, according to Mr. Conner’s experts.

Similarly, the Flynn effect reduced Mr. Conner’s IQ score on the 2013 WAIS-VI

by two points to 78. Finally, scoring errors on both the WAIS and WAIS-IV

lowered the full scale IQ scores on both tests by one point to 77, after correcting

for the Flynn Effect, according to Dr. Crown. 12

Mr. Conner’s neuropsychologist, Dr. Crown, opined, “[b]ecause Mr.

Conner’s verbal skills are much weaker than his performance skills, his Full Scale

IQ score on a standardized test for intellectual functioning such as the WAIS tests

11
When considering an individual’s intellectual functioning, this Court has recognized that the
statistical phenomena known as the Standard Error of Measure (SEM) and the Flynn effect can
be applied by a test evaluator in arriving at an individual’s final test score. Thomas v. Allen, 607
F.3d 749, 753 (11th Cir. 2010) (citations omitted); see also Burgess v. Comm’r, Ala. Dep’t of
Corr., 723 F.3d 1308, 1321 nn.15 & 16 (11th Cir. 2013). With respect to the Flynn effect in
particular:
An evaluator may also consider the “Flynn effect,” a method that recognizes the
fact that IQ test scores have been increasing over time. The Flynn effect
acknowledges that as an intelligence test ages, or moves farther from the date on
which it was standardized, or normed, the mean score of the population as a
whole on that assessment instrument increases, thereby artificially inflating the IQ
scores of individual test subjects. Therefore, the IQ test scores must be
recalibrated to keep all test subjects on a level playing field.
Thomas, 607 F.3d at 753 (citations omitted). The District Court was, in its words, “extremely
doubtful of the Flynn Effect.” While the experts for the defense agreed that the Flynn effect
should be taken into consideration to reduce Mr. Conner’s IQ scores, the state’s expert, Dr. King,
did not. Dr. King’s opinion was that there is no sound basis for the Flynn effect. However, the
District Court found it unnecessary to resolve the experts’ conflicting testimony about whether
the Flynn Effect exists because, even if it does and was applied, Conner’s IQ score would be 77.
12
While he rejected application of the Flynn effect, Dr. King did recognize that there was a one
point scoring error in the WAIS-IV, which changed the perceptual reasoning index from 88 to 87
and the FS IQ from 80 to 79. Dr. King testified the scoring error did not change his assessment
of Mr. Conner’s performance on the test.

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will tend to be inaccurate and an overestimate of his true level of functioning.”

Instead, Dr. Crown indicated that Mr. Conner’s “[v]erbal IQ score on the 1982

WAIS, corrected for the Flynn effect, is a more accurate representation of [Mr.

Conner’s] overall cognitive functioning and is significantly subaverage.” Mr.

Conner’s verbal IQ score on the 1982 WAIS was 70, corrected for the Flynn effect

and a one point scoring error.

Drs. Agharkar, Beck, Crown, and Greenspan also each testified that Mr.

Conner had adaptive skill deficits consistent with intellectual disability, with onset

prior to age eighteen. According to Dr. Greenspan, Mr. Conner’s history

demonstrates adaptive deficits in five areas: work, home living, functional

academics, social judgment, and communication. Dr. Agharkar found Mr. Conner

had deficits in four areas: work, functional academics, home living, and

communication. Dr. Beck testified that Mr. Conner had adaptive deficits in three

areas: home living, work, and functional academics. While Dr. Crown’s

evidentiary hearing testimony addressed only Mr. Conner’s impairment in social

adjustment, Dr. Crown’s written report indicated he “would expect to see the kind

of adaptive deficits identified by Dr. Beck and Dr. Agarkar in someone with the

deficits [he] saw in [his] testing of Mr. Conner.”

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Finally, Drs. Agharkar, Crown, and Greenspan concluded that Mr. Conner

met the criteria for mild intellectual disability.

Drs. King, Norman, and Swift all agreed that Mr. Conner is not intellectually

disabled. Dr. King testified that he did “not find any evidence for [intellectual

disability].” Rather, Dr. King explained that the pattern of test scores from the

2013 WASI-IV he administered to Mr. Conner, as well as the 1982 WAIS, is

indicative “of the pattern that we get in individuals who have learning disabilities.”

Dr. King emphasized that all of Mr. Conner’s index scores on the WAIS-IV were

“in the 80s,” including a performance IQ score of 87. With regard to the results of

the Wide Range Achievement Test (WRAT) Dr. King administered to Mr. Conner

in 2013, 13 Dr. King agreed that Mr. Conner’s “significantly reduced reading score

and writing score . . . indicate the presence [of] both dyslexia, that is a reasoning

disorder, and dysgraphia, which is a writing disorder.” Dr. King did not evaluate

Mr. Conner for adaptive behavioral deficits because he understood the Georgia

statute and DSM-IV to require an IQ score of 70 or below for a diagnosis of

intellectual disability and “Mr. Conner didn’t reach or even get close to that,” in

Dr. King’s view.

13
Mr. Conner’s standard scores on the WRAT-4 were: word reading 73; spelling 73; and math
computation 84. Dr. King explained Mr. Conner’s scores in reading and spelling were two
standard deviations below the mean, but he “wouldn’t have a learning disability in math.”

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Dr. Norman concluded “with a reasonable degree of medical certainty, [that]

Mr. John Wayne Conner does not meet criteria for [intellectual disability] either

currently or in the past.” More specifically, Dr. Norman noted that Mr. Conner did

not have an IQ score from an individually administered IQ test “approximately 70

or below.” He also found “insufficient evidence of concurrent deficits or

impairment in present adaptive functioning in at least two areas.” Rather, Dr.

Norman indicated Mr. Conner “currently demonstrated a history of a lack of

impairments or deficits in communication, self-care, home living,

social/interpersonal skills, use of community resources, self-direction, functional

academic skills, work, leisure, health, and safety.” Dr. Norman found no evidence

of onset of intellectual disability before age 18.

Finally, Dr. Swift concluded that Mr. Conner is not intellectually disabled.

Dr. Swift noted the absence of any IQ scores less than 70. In Dr. Swift’s opinion,

Mr. Conner “seemed to have normal mental and adaptive function and normal

emotional and language expression.”

After hearing two days of evidence, the District Court took a one-day break

and then heard closing arguments from the parties. The District Court then

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announced its findings of fact and conclusions of law from the bench. 14 The

District Court began by clearly identifying the three elements from Georgia’s

intellectual disability standard, citing and discussing O.C.G.A. § 17-7-131(a)(3).

The court correctly treated Georgia’s definition of intellectual disability and the

definition from the DSM-IV “as each being the functional equivalent of the other.”

The District Court properly based its rulings on the preponderance-of-evidence

standard, per our instructions, see Conner, 645 F.3d at 1293 n.17. The District

Court concluded Mr. Conner had not shown any of the three elements required

under the Georgia statute to establish intellectual disability.

Specifically, the District Court found Mr. Conner had not shown he “suffers

from a significantly subaverage general intellectual functioning.” “On the

contrary,” the District Court found by clear and convincing evidence that Mr.

Conner’s “general intellectual functioning is not significantly subaverage.”

(emphasis added). Although the District Court determined that Mr. Conner’s IQ is

“the level of a WAIS-IV intelligence score of 79 and has been throughout his

maturity,” the District Court “agree[d] with [Mr. Conner’s counsel] that a bright

line methodology cannot be employed here.” The District Court explained that

determining the existence of intellectual disability “is not simply a function of

14
“In an action tried on the facts without a jury . . . the court must find the facts specially and
state its conclusions of law separately. The findings and conclusions may be stated on the record
after the close of evidence . . . .” Fed. R. Civ. P. 52(a)(1).

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intelligence or an intelligence quotient or a score on a WAIS-IV type of test. . . . It

is not that simple. . . . Now while I think that the test is very important and the

scoring of it is critical here, it is not the final answer.” Still, the District Court

considered the IQ score “to be a very important factor,” taking into consideration

that “the law of Georgia would allow some slippage . . . around the area of 70 but

this WAIS score does not hover around 70. It hovers around 80.” It turns out the

District Judge was prescient in his view that intellectual disability is not just a

number. See Hall, 134 S. Ct. at 2001 (“Intellectual disability is a condition, not a

number.”). 15

The District Court went on to find:

[T]he Petitioner ha[d] not shown that the evidence supports a finding
by a preponderance of the evidence or otherwise that John Wayne
Conner has significant limitations or deficits in adaptive functioning
in at least two of these areas. One, communication; two, self-care;
three, home living; four, social interpersonal skills; five, use of
community resources; six, self-direction; seven, functional academic
skills; eight, work; nine, leisure; ten, health; and eleven, safety.

Finally, the District Court made a finding that Mr. Conner had not shown by a

preponderance of the evidence “that the conditions that he is obligated to show

were manifest during the developmental period.” Although the District Court

15
This Court has ruled that the Supreme Court has not made the new rule announced in Hall
retroactive to cases on collateral review for the purposes of authorizing petitioners to file second
or successive habeas corpus applications under 28 U.S.C. § 2244(b)(2)(A). See In re Henry, 757
F.3d 1151, 1159 (11th Cir. 2014).

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agreed that Mr. Conner “was a troubled youth,” the judge explained “this did not

equate to impairments in adaptive behavior associated with subaverage, general

intellectual functioning.”

On this record, we cannot say that the District Court clearly erred in any of

its findings related to the three elements Mr. Conner was charged with proving in

order to prevail on his intellectual-disability claim under Georgia law. “Findings

of fact . . . must not be set aside unless clearly erroneous, and the reviewing court

must give due regard to the trial court’s opportunity to judge the witnesses’

credibility.” Fed. R. Civ. P. 52(a)(6); see also Anderson v. City of Bessemer City,

N.C., 470 U.S. 564, 573–74, 105 S. Ct. 1504, 1511–12 (1985); United States v.

Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012) (per curiam) (“Appellate courts

reviewing a cold record give particular deference to credibility determinations of a

fact-finder who had the opportunity to see live testimony.” (quotation marks and

alterations omitted)). “The clearly erroneous standard is very deferential.”

Madison, 761 F.3d at 1255. “A finding is clearly erroneous when although there is

evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” Anderson, 470

U.S. at 573, 105 S. Ct. at 1511 (quotation marks and alterations omitted).

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We remanded this case to the District Court to give Mr. Conner a fair

opportunity to litigate his intellectual-disability claim after we concluded the claim

was not procedurally barred. Mr. Conner took full advantage of that opportunity

by having three different defense experts evaluate him and a fourth expert develop

a comprehensive psychosocial history assessment. The District Court also granted

Mr. Conner an evidentiary hearing in which he was able to present his experts and

subject the state’s and the court’s experts to meaningful cross examination. In

short, Mr. Conner had a fair opportunity to investigate, develop, and present

evidence in support of his intellectual-disability claim. As it turned out, he was not

able to convince the fact-finder by a preponderance of the evidence that he is

intellectually disabled.

While Mr. Conner faults the District Court for relying too much on Dr.

Swift, the fact remains that the assessments done by Dr. King and Dr. Norman also

support the District Court’s finding that Mr. Conner is not intellectually disabled.

The record demonstrates that the District Court applied the correct legal standards

in making its findings of fact and conclusions of law regarding Mr. Conner’s

intellectual-disability claim. The intellectual-disability determination is fact-

intensive, requiring careful consideration of the petitioner’s intellectual

functioning, adaptive skills, and age of onset, with the assistance of qualified

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experts. Cf. Hall v. Quarterman, 534 F.3d 365, 371 (5th Cir. 2008) (“The issue of

[intellectual disability], defined by Atkins[,] . . . is fact-intensive and rests on

nuanced determinations under broadly stated concepts such as limitations in

adaptive functioning.” (quotation marks omitted)). Mr. Conner got that careful

consideration here.

Because the District Court’s finding that Mr. Conner is not intellectually

disabled is plausible in light of the entire record, it is not clearly erroneous. See

Anderson, 470 U.S. at 573–74, 105 S. Ct. at 1511 (“If the district court’s account

of the evidence is plausible in light of the record viewed in its entirety, the court of

appeals may not reverse it even though convinced that had it been sitting as the

trier of fact, it would have weighed the evidence differently.”). Finally, where, as

here, “there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” Id. at 574, 105 S. Ct. at 1511.

B. PENALTY PHASE INEFFECTIVE ASSISTANCE OF COUNSEL

To establish ineffective assistance, a petitioner must show both deficient

performance and prejudice. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To

prove deficient performance, a petitioner must show that “counsel’s representation

fell below an objective standard of reasonableness.” Id. at 688, 104 S. Ct. at 2064.

To establish prejudice, a petitioner must demonstrate a “reasonable probability

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

have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694, 104 S. Ct. at 2068. In

challenging a death sentence, a petitioner establishes prejudice by showing that

“there is a reasonable probability that, absent the errors, the sentencer . . . would

have concluded that the balance of aggravating and mitigating circumstances did

not warrant death.” Id. at 695, 104 S. Ct. at 2069. Failure to make the showing

either as to performance or prejudice is fatal to a defendant’s claim. Kokal v.

Sec’y, Dep’t of Corr., 623 F.3d 1331, 1344 (11th Cir. 2010). A court deciding an

ineffectiveness claim need not “address both components of the inquiry if the

defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104

S. Ct. at 2069. In this case, we decide only the prejudice prong because we find it

dispositive in light of Mr. Conner’s instructions to counsel not to present

mitigating evidence. See Schriro v. Landrigan, 550 U.S. 465, 478, 127 S. Ct.

1933, 1942 (2007). Further, because we conclude that Mr. Conner would not be

entitled to habeas relief even under de novo review, we affirm the District Court’s

denial of relief under that standard without resolving whether AEDPA deference

applies. 16

16
“Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo review . . .
because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is

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For the Strickland prejudice analysis here, “[t]he United States Supreme

Court has told us in no uncertain terms that if a competent defendant did instruct

his counsel not to offer any mitigating evidence, ‘counsel’s failure to investigate

further could not have been prejudicial under Strickland.’” Allen v. Sec’y, Fla.

Dep’t of Corr., 611 F.3d 740, 762 (11th Cir. 2010) (quoting Landrigan, 550 U.S. at

475, 127 S. Ct. at 1941). “[T]he [Landrigan] rule follows naturally from

Strickland’s formulation of the prejudice prong, for there cannot be a reasonable

probability of a different result if the defendant would have refused to permit the

introduction of mitigation evidence in any event.” Id. (quotation marks omitted).

The record reflects that Mr. Conner affirmatively instructed trial counsel not

to present any mitigating evidence. After it had deliberated for fifty minutes, the

jury found Mr. Conner guilty on all counts. Before beginning the sentencing phase

of the trial, the trial court granted a brief recess for Mr. Mullis to confer with Mr.

rejected on de novo review, see § 2254(a).” Berghuis v. Thompkins, 560 U.S. 370, 390, 130 S.
Ct. 2250, 2265 (2010); see also Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1291 (11th
Cir. 2012) (“The Supreme Court has made clear that we are entitled to affirm the denial of
habeas relief in this manner: a habeas petitioner will not be entitled to a writ of habeas corpus if
his or her claim is rejected on de novo review. . . . [W]e have employed this approach even when
it was clear that the deference afforded by section 2254(d) applied.” (quotation marks omitted)).
This Court has previously affirmed the denial of § 2254 relief after conducting de novo review
without resolving whether AEDPA deference applies. See, e.g., Wellons v. Warden, 695 F.3d
1202, 1213 (11th Cir. 2012); Owen v. Fla. Dep’t of Corr., 686 F.3d 1181, 1201 (11th Cir. 2012);
Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1109–10 (11th Cir. 2012); Payne v. Allen,
539 F.3d 1297, 1317 n.18 (11th Cir. 2008).

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Conner. When the proceedings reconvened, the court asked Mr. Mullis if he

planned to present any evidence in mitigation. Mr. Mullis responded:

Your Honor, I had planned on calling four witnessesCof course, the
defendant, and his brother, and father, and his mother. After the
verdict came in I talked to Mr. Conner in a room adjacent to the
courtroom and he has informed me that he does not desire me to enter
any evidence in mitigation. He does not desire to do that himself, he
has told me. I have counselled him that my advice would be to do
otherwise. My advice would be to put in some evidence to mitigate
this. He has told me he does not desire to do that.

The following colloquy then took place between the court and Mr. Conner:

THE COURT: Mr. Conner, do you understand your rights to
present evidence?

MR. CONNER: Yeah.

THE COURT: And you have instructed your counsel and you are
telling the Court now that you do not want to put
anything in in [sic] evidence in mitigation?

MR. CONNER: That’s right.

THE COURT: All right, sir. That’s your privilege.

This record demonstrates that Mr. Conner prevented trial counsel from presenting

mitigating evidence, and distinguishes Mr. Conner’s case from other cases where

counsel was found ineffective for failing to investigate and present mitigation, such

as Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456 (2005), and Wiggins v. Smith,

539 U.S. 510, 123 S. Ct. 2527 (2003). See Landrigan, 550 U.S. at 478, 127 S. Ct.

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at 1942; see also Newland v. Hall, 527 F.3d 1162, 1205 (11th Cir. 2008)

(following the lead of Landrigan in “drawing a distinction between a defendant’s

passive non-cooperation and his active instruction to counsel not to engage in

certain conduct”).

Our earlier decision in Gilreath v. Head, 234 F.3d 547 (11th Cir. 2000), is

instructive here. See Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1360

(11th Cir. 2009) (“Our earlier decision in Gilreath . . . is consistent with

Landrigan.”). In Gilreath, a habeas petitioner instructed his trial counsel not to

present mitigating evidence during the penalty phase of his capital trial. 234 F.3d

at 549–50. This Court denied Mr. Gilreath’s penalty-phase ineffective-assistance-

of-counsel claim, explaining that to show prejudice a petitioner “actually must

make two showings”:

First, Petitioner must show a reasonable probability that—if Petitioner
had been advised more fully about character evidence or if trial
counsel had requested a continuance—Petitioner would have
authorized trial counsel to permit such evidence at sentencing.
Second, Petitioner must establish that, if such evidence had been
presented at sentencing, a reasonable probability exists that the jury
would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.

Id. at 551–52 (quotation and footnote omitted). Like the petitioner in Gilreath, and

because Mr. Conner instructed his attorney not to present mitigation, he must make

both of these showings to prove prejudice.

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On the record before us, we cannot say that Mr. Conner has shown “a

reasonable probability that—if [he] had been advised more fully about character

evidence or if trial counsel had requested a continuance—[Mr. Conner] would

have authorized trial counsel to permit such evidence at sentencing.” Id. at 551.

Mr. Conner does not argue that trial counsel should have requested a continuance.

Rather, Mr. Conner contends “there is a reasonable probability that prepared and

informed defense counsel would have been able to persuade Mr. Conner to change

his mind after ‘full and careful’ consultation, as Mr. Conner did after habeas

counsel investigated and consulted with Mr. Conner as to the significance of the

available mitigating evidence.” But Mr. Conner has not shown a reasonable

probability that he would have authorized trial counsel to present the mitigating

evidence he now offers. Apart from the fact that he allowed postconviction

counsel to investigate and present mitigation evidence, Mr. Conner has pointed to

no direct or circumstantial evidence (such as postconviction testimony or an

affidavit from Mr. Conner himself) that he would have allowed trial counsel to

present mitigating evidence.

Mr. Conner’s willingness to allow the presentation of mitigating evidence in

postconviction proceedings, without more, does not show a reasonable probability

that he would have allowed trial counsel to present mitigation at the time of his

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capital sentencing. See Allen, 611 F.3d at 763 (“Allen’s willingness to present

mitigation evidence today, however, does nothing to alter his steadfast desire at the

time of his trial to seek the death penalty instead of life in prison.”). Because Mr.

Conner has not shown prejudice under Gilreath’s first prejudice prong, we need not

consider Gilreath’s second prejudice prong. 17 Mr. Conner is not entitled to habeas

relief on his penalty-phase ineffective-assistance-of-counsel claim.

C. PROSECUTORIAL MISCONDUCT

The final issue we must consider is “[w]hether the District Court erred in

determining that the state court’s decision—that the prosecutor’s closing

arguments were not so egregious as to require reversal—was not contrary to, or an

unreasonable application of, Supreme Court precedent.”

“To find prosecutorial misconduct, a two-pronged test must be met: (1) the

remarks must be improper, and (2) the remarks must prejudicially affect the

substantial rights of the defendant.” United States v. Eyster, 948 F.2d 1196, 1206

(11th Cir. 1991). To satisfy the second prong, the prosecutor’s improper remarks

must have “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, 106 S. Ct.

17
See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“Because both parts of the test
must be satisfied in order to show a violation of the Sixth Amendment, the court need not
address the [first] prong if the defendant cannot meet the [second] prong, or vice versa.” (internal
citation omitted)).

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2464, 2471 (1986) (quotation marks omitted); see also Romine v. Head, 253 F.3d

1349, 1366 (11th Cir. 2001) (explaining that “habeas relief is due to be granted for

improper prosecutorial argument at sentencing only where there has been a

violation of due process, and that occurs if, but only if, the improper argument

rendered the sentencing stage trial fundamentally unfair”).

In determining whether arguments are sufficiently egregious to result
in the denial of due process, we have considered the statements in the
context of the entire proceeding, including factors such as: (1)
whether the remarks were isolated, ambiguous, or unintentional; (2)
whether there was a contemporaneous objection by defense counsel;
(3) the trial court’s instructions; and (4) the weight of aggravating and
mitigating factors.

Land v. Allen, 573 F.3d 1211, 1219–20 (11th Cir. 2009) (per curiam) (citing

Romine, 253 F.3d at 1369–70).

Mr. Conner argues that the prosecutor improperly injected evidence of his

personal experience in seeking the death penalty and relied on materially

inaccurate and prejudicial evidence in closing argument. During the guilt phase of

Mr. Conner’s trial, the prosecutor told the jury that he had practiced criminal law

for seven years; that as district attorney he had prosecuted nine murder cases; but

that he had never sought the death penalty until Mr. Conner’s case. Mr. Conner’s

counsel objected. The trial court sustained the objection and gave the jury a

curative instruction not to consider the penalty before deciding guilt or innocence.

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During the penalty-phase closing argument, the prosecutor once again expressed

his personal belief, that Mr. Conner deserved to be sentenced to death:

As I told you, I have never previously sought the death penalty in any
murder case, but I tell you, I am seeking it now, and I am asking this
jury to go back to that jury room and return a verdict, or a decision to
send John Wayne Conner to the electric chair.

Mr. Conner did not object to the prosecutor’s penalty-phase closing and no

curative instruction was given.

Although Mr. Conner did not present his prosecutorial-misconduct claim on

direct appeal, the Georgia Supreme Court sua sponte reviewed the arguments of

counsel to ensure that the sentence of death was not imposed “‘under the influence

of passion, prejudice, or any other arbitrary factor.’” Conner, 303 S.E.2d at

272 (quoting O.C.G.A. § 17-10-35(c)(1)). In its review, the Georgia high court

noted that counsel should not “go outside the facts appearing in the case and lug in

extraneous matters as if they were a part of the case,” and that “[w]hat the law

condemns is the injection into the argument of extrinsic and prejudicial matters

which have no basis in the evidence.” Id. at 276 (quotation marks omitted).

The George Supreme Court found the prosecutor’s closing argument to be

improper because “[t]he portion of the prosecutor’s argument referring to his prior

criminal experience and the frequency with which he had sought the death penalty

was not supported by any evidence and, moreover, was not relevant to any issue in

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the case.” Id. The court held, however, that the remarks were “not so prejudicial

or offensive and do not involve such egregious misconduct on the part of the

prosecutor as to require reversal of appellant’s death sentence on the basis that it

was impermissibly influenced by passion, prejudice, or any other arbitrary factor.”

Id.

We agree with the Georgia Supreme Court that the prosecutor’s closing

arguments were improper. But we must defer to its determination that the

arguments were not constitutionally infirm unless Mr. Conner can show that the

state court’s decision was contrary to or involved an unreasonable application of

Supreme Court precedent. See 28 U.S. C. § 2254(d)(1). Our precedent requires us

to conclude that Mr. Conner cannot make this showing. In Gates v. Zant, 863 F.2d

1492 (11th Cir. 1989) (per curiam), we found that “the prosecutor’s assertion that

he sought the death penalty rarely and that he had made the careful judgment that

this case warranted it” was improper, but we concluded that “[c]onsidering the

totality of the circumstances . . . th[is] argument[] did not render the sentencing

proceeding fundamentally unfair.” Id. at 1503. We observed that a “‘prosecutorial

expertise’ argument” is “troubling . . . because of [its] tendency to mislead the jury

as to its role.” Id. But we explained that our decision in Gates was controlled by

our previous analysis of “prosecutorial expertise” arguments in Brooks v. Kemp,

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762 F.2d 1383 (11th Cir. 1985) (en banc), vacated and remanded, 478 U.S. 1016,

106 S. Ct. 3325 (1986), aff’d on remand, 809 F.2d 700 (11th Cir. 1987) (en banc).

See Gates, 863 F.2d at 1503.

In Brooks we recognized that “[t]he discussion of the prosecutor’s practice

of seeking death only in a few cases during the past years was improper” because it

“was unsupported in the evidence and, at best, irrelevant.” Brooks, 762 F.2d at

1410. In fact, we cited directly to the Georgia Supreme Court’s analysis of the

prosecutor’s arguments in Mr. Conner’s case in support of this conclusion. See id.

(citing Conner, 303 S.E.2d at 276). Nevertheless, we held that the “prosecutorial

expertise” argument, while troubling, did not render the sentencing fundamentally

unfair. Id. at 1413–14. In reaching this conclusion, we explained that “[t]he

prosecutor did not simply state that he had selected this case from among the mass

of cases; rather, he expressly laid out before the jury his reasons for selecting this

case.” Id. at 1414. As such, “the jury could . . . determine for itself the validity of

each underlying factor and the degree to which each factor indicated that death was

appropriate.” Id. We also explained that the arguments of the prosecutor and

defense counsel and “[m]ost importantly,” “the judge’s instructions . . .

unambiguously placed the sole responsibility [for deciding whether to impose the

death penalty] on the jury.” Id.

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In Mr. Conner’s case, as in Brooks, the arguments of counsel and

instructions of the judge “unambiguously placed the sole responsibility on the

jury.” See id. For example, in concluding his charge to the jury, the trial judge

stated: “Whatever the penalty to be imposed, within the limits of the law as I have

instructed you is a matter solely for you members of the jury to determine.”

While we recognize that here, unlike in Brooks, the prosecutor did not set out his

reasons for selecting this case to pursue the death penalty, we nevertheless

conclude that, like in Gates, “the court’s instructions to the jury, and the totality of

the sentencing proceedings, made absolutely clear to the jury the proper role of the

jury in the sentencing proceedings.” Gates, 863 F.2d at 1503 n.11.

Finally, with respect to the prosecutor’s closing argument at the guilt phase

of the trial, we observe that the trial judge sustained defense counsel’s

contemporaneous objection and gave the jury a curative instruction. See Land, 573

F.3d at 1219–20 (explaining that contemporaneous objection by defense counsel

and the trial court’s instructions are among the factors to be considered in

determining whether prosecutorial “arguments are sufficiently egregious to result

in the denial of due process”). We conclude that the Georgia Supreme Court’s

decision on this issue neither was contrary to nor involved an unreasonable

application of Supreme Court precedent.

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IV. CONCLUSION

For all the reasons above, we affirm the District Court’s denial of habeas

relief.

AFFIRMED.

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