Carl J. Isaacs v. Frederick J. Head

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 6, 2002
THOMAS K. KAHN
No. 01-11915 CLERK

D. C. Docket No. 96-00084-CV-(WLS)-6

CARL J. ISAACS,

Petitioner-Appellant,

versus

FREDERICK J. HEAD, Warden,
Georgia Diagnostic and
Classification Prison,

Respondent-Appellee.

__________________________

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

(August 6, 2002)

Before EDMONDSON, Chief Judge, ANDERSON and BARKETT, Circuit
Judges.
ANDERSON, Circuit Judge:

In 1985, this Court granted a writ of habeas corpus based on constitutional

infirmities with Carl Isaacs’ 1974 state murder trial. See Isaacs v. Kemp, 778 F.2d

1482 (11th Cir. 1985). Afterwards, the State of Georgia retried Isaacs in 1988 on

six counts of murder, and Isaacs was again convicted and sentenced to death.

Isaacs was denied relief from his conviction and sentence through direct appellate

review and through state collateral review, and the case has now made its way to

the federal courts again. After Isaacs filed his federal habeas petition, pursuant to

28 U.S.C. § 2254, the district court denied Isaacs any relief, but granted him a

certificate of appealability as to numerous issues. Isaacs then filed this appeal

contending that his second trial and sentencing hearing did not satisfy minimal

constitutional guarantees. We disagree, and affirm the district court’s denial of

habeas relief.

I. BACKGROUND

A. Facts

The historical facts concerning Isaacs’ case, as concisely recounted by the

Georgia Supreme Court, are as follows:

In May of 1973, Carl Isaacs escaped from a Maryland penal
institution and, accompanied by his younger brother Billy Isaacs, his

2
half- brother Wayne Coleman and a friend, George Dungee, drove to
Florida. On the afternoon of May 14, 1973, they were in Seminole
County, Georgia, and their car was almost out of gas. They thought
they saw a gas pump behind the rural mobile home belonging to Jerry
Alday and Mary Alday and stopped to investigate it. They discovered
there was no pump; however, the trailer was empty, and they decided
to burglarize it. Dungee remained in the car while the defendant and
Wayne Coleman entered the trailer. While they were inside, Billy
Isaacs warned them two men were approaching in a jeep.

Jerry Alday and his father Ned Alday pulled in behind the trailer,
unaware that it was being burglarized. Carl Isaacs met them and
ordered them inside at gunpoint. After their pockets were emptied,
Jerry Alday was taken into the south bedroom of the trailer while Ned
was taken to the north bedroom. Carl Isaacs shot and killed Jerry
Alday, and then both he and Coleman shot and killed Ned Alday.

Soon afterward, Jimmy Alday (Jerry Alday’s brother) drove up on a
tractor, walked to the back door, and knocked on the door. Coleman
answered the door, “stuck a pistol up in the guy’s face,” and ordered
him inside. He was taken into the living room and forced to lie on the
sofa. Carl Isaacs shot and killed him.

After Carl Isaacs went outside to move the tractor, which was parked
in front of their car, Mary Alday (Jerry Alday’s wife) drove up. Carl
Isaacs entered the trailer behind her and accosted her. Meanwhile,
Chester Alday (Jerry Alday's brother) and Aubrey Alday (Jerry
Alday's uncle) drove up in a pickup truck. Leaving Coleman and
Dungee to watch Mary Alday, Carl and Billy Isaacs went outside to
confront the two men, and forced them at gunpoint into the trailer.
Once inside, Aubrey was taken to the south bedroom where Carl
Isaacs shot and killed him, while Chester Alday was taken to the north
bedroom and killed by Coleman.

Coleman and Carl Isaacs raped Mary Alday on her kitchen table.
Afterward, they drove to a heavily wooded area several miles away
where Mary Alday was raped again. Dungee killed her. They
abandoned their car in the woods and took Mary Alday’s car, which

3
 they later abandoned in Alabama. They stole another car there, and
were arrested a few days later in West Virginia, in possession of guns
later identified as the murder weapons, and property belonging to the
victims.

After his original trial, Carl Isaacs was interviewed by a film maker
who was producing a documentary about the case. The defendant
admitted shooting Jerry, Ned, Aubrey and Jimmy Alday, raping Mary
Alday, and burglarizing the trailer. These admissions were introduced
in evidence at the retrial.

Isaacs v. State, 259 Ga. 717, 718-19, 386 S.E.2d 316, 320 (1989). Neither party

disputes these facts.

B. Procedural History

After we granted Isaacs a writ of habeas corpus following his first

conviction, Isaacs was retried in Houston County, Georgia in 1988, and was again

convicted of six counts of murder and sentenced to death. On appeal, the Georgia

Supreme Court affirmed the conviction and sentence, Isaacs v. State, 259 Ga. 717,

386 S.E.2d 316 (1989), and the U.S. Supreme Court denied certiorari. Isaacs v.

Georgia, 497 U.S. 1032, reh’g denied, 497 U.S. 1051 (1990). In 1991, Isaacs filed

a petition seeking state habeas corpus relief, and the Butts County Superior Court

conducted an evidentiary hearing on the petition in 1993. The state court denied

Isaacs’ petition, and the Georgia Supreme Court denied Isaacs’ petition for a

certificate of probable cause. See Isaacs v. Thomas, No. S95H0164 (Ga. April 14,
4
1995). The U.S. Supreme Court again denied cert. Isaacs v. Thomas, 516 U.S.

1002, reh’g denied, 516 U.S. 1099 (1996).

While the rehearing motion was pending in the U.S. Supreme Court, Isaacs

filed a motion with the federal district court in the Middle District of Georgia for

appointment of habeas counsel pursuant to 21 U.S.C. § 848(q)(4)(B). The district

court granted the motion on February 9, 1996. On November 4, 1996, the district

court ordered that Isaacs’ §2254 petition be filed by December 6, 1996, and Isaacs

filed it on that day.

Between the time that the district court granted Isaacs’ motion for

appointment of habeas counsel and the time that Isaacs actually filed his §2254

petition, Congress passed the Anti-terrorism and Effective Death Penalty Act of

1996 (AEDPA), 110 Stat. 1214, which took effect on April 24, 1996. Therefore

the timing of Isaacs’ various filings gave rise to one of the issues before the district

court and involved in this appeal – whether the more lenient pre-AEDPA

standards, or the stricter AEDPA standards, should be applied to Isaacs’ petition.

After briefing by the parties, the district court ruled that it would apply AEDPA to

Isaacs’ petition.

In February 1999, the district court directed the parties to file briefs on

procedural default and on discovery. The court then entered an order ruling on the

5
claims of procedural default, denying discovery, and directing briefing on “all

grounds raised.”

On August 25, 2000, the district court entered an order denying Isaacs’

request to present evidence as to certain grounds and denying relief based on the

merits of all of the claims not previously found to be procedurally barred. After

the district court also denied a motion for reconsideration, Isaacs filed a timely

notice of appeal on April 5, 2001. On May 2, 2001, the district court issued a

certificate of appealability, pursuant to 28 U.S.C. § 2253(c), giving Isaacs the right

to appeal 16 different issues (all of the ones with respect to which Isaacs requested

permission to appeal).

II. ISSUES PRESENTED

Of the issues for which Isaacs received permission to appeal, he apparently

chose to abandon all but eight for purposes of this appeal. Therefore, the only

issues before this Court are:

A. Whether the district court correctly determined that AEDPA applied to

Isaacs’ § 2254 habeas petition.

B. Several issues related to the prayer given at the beginning of Isaacs’ trial,

including:

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 1. Whether Isaacs’ constitutional rights were violated when his trial was

opened with a prayer.

2. Whether the district court erred by denying discovery or the

presentation of evidence during the federal habeas proceedings

concerning the prayer that opened Isaacs’ trial.

3. Whether Isaacs’ constitutional claims regarding the failure to record

the prayer which opened his trial were properly dismissed as

procedurally defaulted.

4. Whether the district court correctly determined that Isaacs’ ineffective

assistance of counsel claim based on his counsel’s failure to recreate

the record of the prayer which opened Isaacs’ trial was procedurally

defaulted.

C. Whether the admission of statements made by Isaacs while in custody

concerning two escape attempts violated his constitutional rights.

D. Whether Isaacs’ constitutional rights were violated by the presentation of

evidence, argument and jury instructions concerning his lack of remorse.

E. Whether the district court correctly determined that Isaacs’ challenge to

electrocution as cruel and unusual punishment was procedurally defaulted.

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 III. DISCUSSION

A. Applicability of AEDPA to Isaacs’ Petition

The first issue that we will address – whether AEDPA is applicable to

Isaacs’ §2254 petition – affects our review of all of Isaacs’ claims. The relevant

facts, as mentioned above, are that Isaacs filed a motion for appointment of habeas

counsel, and the district court granted that motion, prior to the effective date of

AEDPA. However, Isaacs did not file his actual habeas petition until after the

effective date. The Supreme Court subsequently held that the new AEDPA

standards did not apply to pending cases. See Lindh v. Murphy, 521 U.S. 320, 117

S. Ct. 2059 (1997). So, the critical issue becomes whether Isaacs’ habeas case was

pending, for purposes of AEDPA’s applicability, from the time that Isaacs moved

for appointment of counsel, or only from the later time when he filed his habeas

petition. As a matter of first impression in this Court, we agree with the district

court, and the majority of the other circuits which have addressed this narrow

issue,1 and hold that Isaacs’ habeas case was pending only from the time that he

1
So far five other circuits have addressed the precise issue that is
presented to us. Of those, the Ninth Circuit is the only one to agree with Isaacs’
position that AEDPA should not apply to habeas cases in which the petitioner had
moved for appointment of counsel prior to AEDPA’s effective date, even though
the actual petition was filed subsequent thereto. See Garceau v. Woodford, 275
F.3d 769, 772 n.1 (9th Cir. 2001); Sandoval v. Calderon, 241 F.3d 765, 771 (9th
Cir. 2001); Calderon v. U.S. District Ct. for the Central District of Cal., 163 F.3d
8
filed his actual §2254 petition, and therefore that AEDPA applies to this case.

1. Supreme Court Cases Concerning Applicability of AEDPA

The relevance of determining the point from which Isaacs’ case should be

considered to have been “pending” derives from the Supreme Court’s decision in

Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059 (1997). In that case, the Supreme

Court considered whether the provisions of AEDPA applied retroactively to

pending cases. The Court’s decision that AEDPA should not be applied to most

pending habeas cases was based largely on the fact that § 107(c) of the Act

expressly stated that chapter 154 of AEDPA – a chapter which sets out special

rules expediting §2254 cases when states satisfy certain requirements – should be

applied to pending cases. See id. at 327, 117 S. Ct. at 2063. No such retroactivity

provision was included in AEDPA chapter 153, the chapter applicable to other

§2254 petitions (including Isaacs’ petition, if AEDPA applies). The Court noted

that “[i]f ... Congress was reasonably concerned to ensure that chapter 154 be

530 (9th Cir. 1998) (en banc). On the other hand, the Fifth, Sixth, Seventh and
Tenth Circuits all have held that AEDPA applies unless the habeas petition itself
was filed before the Act became effective. See Foster v. Schomig, 223 F.3d 626,
631 n.2 (7th Cir. 2000); Moore v. Gibson, 195 F.3d 1152 (10th Cir. 1999); Gosier
v. Welborn, 175 F.3d 504 (7th Cir. 1999); Williams v. Coyle, 167 F.3d 1036 (6th
Cir. 1999); Nobles v. Johnson, 175 F.3d 504 (5th Cir. 1997); Williams v. Cain, 125
F.3d 269 (5th Cir. 1997); Holman v. Gilmore, 126 F.3d 876 (7th Cir. 1997).
9
applied to pending cases, it should have been just as concerned about chapter 153,

unless it had the different intent that the latter chapter not be applied to the general

run of pending cases.” Id. at 329, 117 S. Ct. at 2064. Because Congress

considered the two chapters together, the Court stated that the “negative

implications raised by disparate provisions are strong[].” Id. at 330, 117 S. Ct. at

2065. After discussing alternative interpretations of the statutory provisions, the

Court stated: “We hold that the negative implication of § 107(c) is that the new

provisions of chapter 153 generally apply only to cases filed after the Act became

effective.” Id. at 336, 117 S. Ct. at 2068.

Although Lindh clearly establishes that AEDPA does not apply to “pending”

cases, it does not address the issue presented in this case of what event marks the

beginning of a habeas case. In addressing that issue, Isaacs points to other recent

Supreme Court cases interpreting habeas provisions in a way that supports his

contention that a habeas case begins at the time a petition files a motion for

appointment of counsel.

First, Isaacs directs us to the Supreme Court’s opinion in McFarland v.

Scott, 512 U.S. 849, 114 S. Ct. 2568 (1994). In that case, the Supreme Court

considered two statutory provisions related to habeas cases: 21 U.S.C.

§848(q)(4)(B), which creates a statutory right to qualified legal representation for

10
capital defendants in federal habeas proceedings, and 28 U.S.C. §2251, which

grants a federal judge before whom a habeas proceeding is pending the power to

stay any related state court proceeding. The lower courts in McFarland had refused

to appoint habeas counsel for the defendant pursuant to §848(q)(4)(B) because the

defendant had not yet filed a habeas petition. Id. at 851-54, 114 S. Ct. at 2570-71.

The Supreme Court began by noting that §848(q)(4)(B) “grants indigent

capital defendants a mandatory right to qualified counsel and related services ‘[i]n

any [federal] post conviction proceeding,’” but that the statute did not specify how

the right was to be invoked. Id. at 854, 114 S. Ct. at 2571 (quoting § 848(q)(4)(B))

(brackets in original). In particular, the statute did not “define a ‘post conviction

proceeding’ under §2254 or §2255 or expressly state how such a proceeding shall

be commenced.” Id. In light of other related provisions, however, the Court held

that “§848(q)(4)(B) . . . established a right to preapplication legal assistance.” Id.

at 855, 114 S. Ct. at 2572. The Court found that the “interpretation [of the statute

to permit the appointment of counsel prior to the filing of a formal petition] is the

only one that gives meaning to the statute as a practical matter,” and concluded

that:

The language and purposes of §848(q)(4)(B) and its related provisions
establish that the right to appointed counsel includes a right to legal
assistance in the preparation of a habeas corpus application. We

11
 therefore conclude that a “post conviction proceeding” within the
meaning of § 848(q)(4)(B) is commenced by the filing of a death row
defendant’s motion requesting the appointment of counsel for his
federal habeas corpus proceeding.

Id. at 855-57, 114 S. Ct. at 2572-73.

After reaching that conclusion, the Supreme Court went on to address the

similar issue of whether a federal court has authority to stay state court proceedings

pursuant to 28 U.S.C. § 2251 prior to the filing of a formal habeas petition.

Section 2251 grants any federal judge “before whom a habeas corpus proceeding is

pending” power to enjoin related state court proceedings. 28 U.S.C. §2251.

McFarland argued “that his request for counsel in a ‘post conviction proceeding’

under § 848(q)(4)(B) initiated a ‘habeas corpus proceeding’ within the meaning of

§2251, and that the District Court thus had jurisdiction to enter a stay.”

McFarland, 512 U.S. at 857, 114 S. Ct. at 2573. The Court held that:

The language of these two statutes indicates that the sections refer to
the same proceeding. Section 848(q)(4)(B) expressly applies to “any
post conviction proceeding under section 2254 or 2255” – the precise
“habeas corpus proceeding[s]” that § 2251 involves. The terms “post
conviction” and “habeas corpus” also are used interchangeably in
legal parlance to refer to proceedings under §§ 2254 and 2255. We
thus conclude that the two statutes must be read in pari materia to
provide that once a capital defendant invokes his right to appointed
counsel, a federal court also has jurisdiction under § 2251 to enter a
stay of execution.

Id. at 858, 114 S. Ct. at 2573.

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 Because the McFarland Court held with respect to both §848 and §2251that

habeas proceedings were commenced with the filing of a motion for appointment

of counsel, Isaacs argues that we should also find that his habeas case was pending,

for purposes of determining whether AEDPA applies, as of the time he filed his

motion for appointment of counsel. If we were to do so then it would follow, of

course, that AEDPA would not apply to his petition.

The second Supreme Court case on which Isaacs relies is Hohn v. United

States, 524 U.S. 236, 118 S. Ct. 1969 (1998). In Hohn, the Court considered

whether it had jurisdiction to review a decision by a court of appeals denying an

application for a certificate of appealability (COA). To resolve this issue, the

Court had to decide whether a court of appeals’ consideration of a COA

application constituted a “case.” Id. at 241, 118 S. Ct. at 1972. The Court

concluded that it did, stating:

There can be little doubt that Hohn’s application for a certificate of
appealability constitutes a case under § 1254(1). As we have noted,
“[t]he words ‘case’ and ‘cause’ are constantly used as synonyms in
statutes ..., each meaning a proceeding in court, a suit, or action.”
Blyew v. United States, 13 Wall. 581, 595, 20 L. Ed. 638 (1871). The
dispute over Hohn’s entitlement to a certificate falls within this
definition. It is a proceeding seeking relief for an immediate and
redressable injury, i.e., wrongful detention in violation of the
Constitution. There is adversity as well as the other requisite qualities
of a “case” as the term is used in both Article III of the Constitution
and the statute here under consideration. This is significant, we think,

13
 for cases are addressed in the ordinary course of the judicial process,
and, as a general rule, when the district court has denied relief and
applicable requirements of finality have been satisfied, the next step is
review in the court of appeals.

Id.

The Hohn Court also rejected the suggestion that an application for a COA

was a threshold matter separate from the merits and over which appellate courts

lack jurisdiction, stating:

Precedent forecloses this argument. In Ex parte Quirin, 317 U.S. 1, 63
S. Ct. 1, 87 L. Ed. 3 (1942), we confronted the analogous question
whether a request for leave to file a petition for a writ of habeas
corpus was a case in a district court for the purposes of the then-extant
statute governing court of appeals review of district court decisions.
See 28 U.S.C. § 225(a) First (1940 ed.) (courts of appeals had
jurisdiction to review final decisions “[i]n the district courts, in all
cases save where a direct review of the decision may be had in the
Supreme Court”). We held the request for leave constituted a case in
the district court over which the court of appeals could assert
jurisdiction, even though the district court had denied the request. We
reasoned, “[p]resentation of the petition for judicial action is the
institution of a suit. Hence the denial by the district court of leave to
file the petitions in these causes was the judicial determination of a
case or controversy, reviewable on appeal to the Court of Appeals.”
317 U.S., at 24, 63 S. Ct., at 9.

Id. at 246, 118 S. Ct. at 1974-75. Isaacs contends that, in light of McFarland and

Hohn, the Court should hold that he instituted his habeas case at the time that he

filed his motion for appointment of counsel.

Arguably pointing in the other direction, however, is another recent Supreme

14
Court case that has not yet been discussed by any of the other circuits in

connection with the issue before us. In Slack v. McDaniel, 529 U.S. 473, 120 S.

Ct. 1595 (2000), the Supreme Court addressed whether pre- or post-AEDPA rules

should apply to an appeal filed pursuant to §2253 after AEDPA became effective,

when the original petition was filed with the district court before AEDPA.2 The

Court noted that just as § 2254 was directed to petitions filed in district courts after

AEDPA, Section 2253 was directed to proceedings initiated in appellate courts

after the Act’s effective date. Id. at 481, 120 S. Ct. at 1602. Therefore, the Court

concluded that AEDPA’s rules applied to appeals filed after AEDPA, even though

appellate courts would be required “to apply pre-AEDPA law in reviewing the trial

court’s ruling.” Id.

As the State points out, the Slack Court’s holding indicates that, at least

when a case moves from the district court to appellate court level, it may be

divisible so that AEDPA would apply to one aspect of the proceeding, but not to

other. The Supreme Court recognized this fact, explaining:

While an appeal is a continuation of the litigation started in the trial
court, it is a distinct step. We have described proceedings in the
courts of appeals as “appellate cases.” Under AEDPA, an appellate

2
Section 2253 is the provision governing appeals from a district court’s
final order in a habeas case. It requires that a COA be granted before an appeal
will be entertained. 28 U.S.C. §2253.
15
 case is commenced when the application for a COA is filed.

When Congress instructs us (as Lindh says it has) that application of a
statute is triggered by the commencement of a case, the relevant case
for a statute directed to appeals is the one initiated in the appellate
court. Thus, § 2253(c) governs appellate court proceedings filed after
AEDPA’s effective date.

Id. at 481-82, 120 S. Ct. at 1602-03 (citations and quotations omitted). Therefore,

a case isn’t always just a case. Instead this Court must consider the “relevant case”

in order to determine which set of standards apply.

2. Other Circuits’ Approaches to this Issue

Having set out the Supreme Court authority relevant to the issue of whether

AEDPA applies to Isaacs’ petition, we will now discuss the competing approaches

taken by our sister circuits in this regard.

As mentioned above, five circuits have considered this exact issue, and all

but one have found AEDPA to be applicable under these circumstances. The only

circuit so far to have accepted Isaacs’ position on when a habeas case is instituted

is the Ninth. In Calderon, the en banc Ninth Circuit overruled the position

announced in previous decisions and held that, for purposes of determining

whether a case was pending when AEDPA took effect in April 1996, courts should

look to the date on which the defendant filed a motion for appointment of counsel.

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163 F.3d at 539-40. Its previous cases had interpreted the Supreme Court’s

McFarland decision as applying only to the two statutory provisions presented in

that case (the provisions allowing for appointment of habeas counsel and providing

district courts with authority to stay state court proceedings), but not to the

question of whether a “case” was pending for AEDPA purposes. Id. at 539

(discussing cases). The Calderon court found, however, that the Supreme Court’s

intervening decision in Hohn required it to revisit and reverse its position.

In Calderon, the Ninth Circuit interpreted Hohn as indicating that a habeas

case may be initiated by the filing of an application for a COA. Id. The court

focused on the Supreme Court’s rejection of the notion that a COA is a threshold

matter separate from the merits of a habeas case. Id. The court then reasoned

that:

In the wake of Hohn, we must overrule [the Ninth Circuit precedent]
holding that a habeas corpus “case” is not pending until the habeas
petition itself has been filed. Hohn’s holding, as well as its reliance on
Ex Parte Quirin that a threshold request for leave to file a petition for
habeas corpus commences the habeas “case,” is simply irreconcilable
with [those cases]. Like a request for leave to file a habeas petition, a
petition for the appointment of counsel to prepare and file a petition
for a writ of habeas corpus, accompanied by a motion for a stay of
execution under McFarland, is a threshold action that presents a
“case” to the district court. By analogy to Hohn, it follows that a
petition for appointment of counsel under McFarland creates a
pending habeas case. Accordingly, we overrule those [cases] that held
that a habeas corpus case is pending only when the habeas petition

17
 itself has been filed. A petition for the appointment of counsel to
prepare and file a habeas petition, coupled with a motion for a stay of
execution, also suffices.

Id. at 540. See also Garceau v. Woodford, 275 F.3d 769, 772 n.1 (9th Cir. 2001)

(following Calderon); Sandoval v. Calderon, 241 F.3d 765, 771 (9th Cir. 2001).

Contrary to the Ninth Circuit, four courts of appeals have held that AEDPA

applies to § 2254 petitions filed after the Act became effective, even if the

defendant had filed a motion for appointment of counsel or for a stay prior to the

effective date. The courts which have taken this position have found the Supreme

Court cases discussed above distinguishable for several reasons.

The Sixth Circuit’s decision in Williams v. Coyle, 167 F.3d 1036 (6th Cir.

1999), is a good example that contains most of the reasons cited by the other

circuits for the conclusion that a habeas case is only pending from the time that an

actual petition is filed. The Williams court began by noting that “[i]n ordinary

usage a case is pending when a complaint or petition is filed.” Id. at 1038. Also,

the Sixth Circuit noted that habeas cases are generally subject to the Federal Rules

of Civil Procedure, see Rule 11 of the Rules Governing §2254 Cases, and Rule 3 of

those rules states that “[a] civil action is commenced by the filing of a complaint

with the court.” Id. After stating that no habeas rules address the specific issue,

the court “conclude[d] that Fed. R. Civ. P. 3 yields a presumption that a federal

18
habeas corpus case is filed with the filing of an application for the writ.” Id. The

court found that “[t]his presumption is reinforced by the language of the habeas

corpus provisions,” because, for example, Section 2254(e) refers to “a proceeding

instituted by an application for a writ of habeas corpus.” Id.

After discussing these reasons to believe that a habeas case is only pending

after a petition is filed, the Williams court turned to the Supreme Court cases

discussed above. The court noted that McFarland “held that a motion for the

appointment of counsel constitutes a post conviction proceeding for purposes of 21

U.S.C. §848(q)(4)(B),” and that “a motion for appointment of counsel was

sufficient to enable a district court to stay an execution pursuant to 28 U.S.C.

2251, which literally grants this power to a judge ‘before whom a habeas corpus

proceeding is pending.’” Id. The Sixth Circuit concluded that McFarland did not

indicate that a habeas case was pending, for purposes of AEDPA’s applicability,

simply because a motion for appointment of counsel had been filed, stating:

[B]oth holdings of McFarland appear to rest on the necessity of
expanding the ordinary meaning of a “pending case” in order to give
effect to clear congressional intent. By contrast, we perceive no
compelling reason to depart from plain meaning in the present case.
The problem the Court addressed in McFarland was of an ongoing
nature and had nothing to do with the effective date of any statutory
provision. In the present case, on the other hand, the defendant faces
additional procedural hurdles post-AEDPA, but there is no ongoing
rationale for stretching the “pending” period to reach prior to the

19
 actual filing of the application as there was in McFarland. Once all
cases in which a petitioner initiated some habeas corpus-related legal
action prior to the effective date of the AEDPA have been resolved,
the point at which a § 2254 case is “filed” will become irrelevant.

Id. at 1039. Williams acknowledged that McFarland contains language which

could be interpreted as meaning that a §2254 case in general begins with the filing

of a motion for appointment of counsel, but rejected such a broad reading,

concluding instead that “this reading is warranted only to the extent necessary to

give effect to §848(q)(4)(B).” Id.

The Sixth Circuit then turned to the Ninth Circuit’s decision in Calderon,

and rejected the Ninth Circuit’s interpretation of the effect of the Supreme Court’s

Hohn decision. Id. The court stated that:

In our opinion Hohn and Ex parte Quirin stand only for the
proposition that the denial by the district court of a motion for the
issuance of a COA, a motion for leave to file a petition for the writ, or,
as in our case, a motion for the appointment of counsel pursuant to 21
U.S.C. §848(q)(4)(B) would constitute an appealable case. This does
not imply, however, that the petitioner’s habeas corpus case has been
initiated by the filing of such a preliminary motion. Although the
Court in Hohn rejected the contention that the filing of a preliminary
motion “should be regarded as a threshold inquiry separate from the
merits,” Hohn, 118 S. Ct. at 1974-75, the holding and logic of the case
were limited to the determination that the rejection by the district
court of the preliminary motion constitutes an appealable case. Thus,
we do not believe that Hohn dictates the result sought by Williams.

Id. at 1040.

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 Having rejected an interpretation of Hohn that would have the motion for

appointment of counsel mark the beginning of a habeas case, the Sixth Circuit then

stated that it agreed with a pre-Hohn Seventh Circuit opinion that stated:

Although it is linguistically possible for this “preapplication legal
assistance” to open a “case” having some affinity to a petition under
§2254 . . . the motion for counsel is not itself a petition, because it
does not call for (or even permit) a decision on the merits. And it is
“the merits” that the amended § 2254(d)(1) is all about.

Id. (quoting Holman v. Gilmore, 126 F.3d 876, 880 (7th Cir. 1997)). Therefore, the

Sixth Circuit concluded that “a federal habeas corpus case is filed or pending for

purposes of Lindh and the AEDPA only when the petition for the writ is filed.” Id.

More recently, the Seventh Circuit addressed the effect of Hohn and the

Ninth Circuit’s Calderon opinion, and Judge Easterbrook stood by the court’s

earlier approach, stating:

The question in Hohn was whether an application for a certificate of
appealability is a “case” in the court of appeals, and therefore
amenable to review on writ of certiorari under 28 U.S.C. § 1254. The
answer to that question does not bear on the issue in Holman and
Calderon: whether an application for counsel under 21 U.S.C.
§848(q)(4) is a “case pending” under Chapter 153 of the Judicial Code
– the critical question for application of the AEDPA. We did not
doubt in Holman that a request for counsel is a “case” in the sense that
it is subject to appellate review (and, if need be, review by the
Supreme Court). Indeed, Gosier’s request for counsel was reviewed
by this court on appeal, after the district judge dismissed his
application. But a request for counsel under §848(q)(4), part of Title
21, is not a case under Chapter 153 of Title 28 – that is, the request is

21
 not a collateral attack on a criminal judgment. This rationale of
Holman was ignored by the ninth circuit, and we are not persuaded by
a decision that avoided the fundamental issue. So we apply the
AEDPA to Gosier’s case.

Gosier v. Welborn, 175 F.3d 504, (7th Cir. 1999) (citations omitted).

The opinions of the other circuits add little to the analysis performed by the

Sixth and Seventh Circuits. In two opinions, both of which pre-dated Hohn, the

Fifth Circuit found that McFarland simply did not address the issue of when a case

was pending for AEDPA purposes, but was instead “intended to resolve practical

procedural problems” related to the two specific statutory provisions at issue in

that case. Williams v. Cain, 125 F.3d 269 (5th Cir. 1997); see also Nobles v.

Johnson, 127 F.3d 409, 414 (5th Cir. 1997) (same). Similarly, in Moore v. Gibson,

195 F.3d 1152 (10th Cir. 1999), the Tenth Circuit agreed that “McFarland focused

on the need to expand the ordinary meaning of a pending case to give effect to

Congressional intent,” and did not address when a case is pending for AEDPA

purposes. Id. at 1162.

3. AEDPA Applies

We conclude that the better reasoned approach is the one taken by the

majority of the other circuits that have faced the issue before us, and we hold that

22
the relevant date for purposes of judging AEDPA’s applicability to a habeas

petition is the date on which the actual §2254 petition was filed.

In reaching this conclusion, we acknowledge that some of the language used

by the Supreme Court in McFarland and in Hohn supports Isaacs’ contention that

his case began with the filing of a motion for appointment of counsel. However,

we think that the best reading of McFarland is that it was concerned only with

interpreting and giving effect to two, narrow statutory provisions. It would be a

stretch to find that the decision indicates that for all purposes, a habeas case is

pending from the time that a motion for appointment of counsel is filed. Nothing

in McFarland precludes the result we reach today.

Likewise, Hohn was limited to the relatively narrow issue of whether an

application for a COA initiated a case or controversy over which appellate courts

could exercise jurisdiction consistent with Article III of the Constitution. We agree

with the Seventh Circuit that “[t]he answer to that question does not bear on . . .

whether an application for counsel . . . is a ‘case pending’ under Chapter 153 of the

Judicial Code – the critical question for application of the AEDPA.” Gosier, 175

F.3d at 506.

We are persuaded that the Seventh Circuit’s approach in Gosier is the correct

one. We agree that, in a sense, the filing of a motion for appointment of counsel or

23
other threshold motions might initiate some form of “case,” at least in the

constitutional sense. However, such a motion does not necessarily mark the

genesis of the habeas case under §2254. A motion for appointment of counsel has

no relation to the merits of a habeas petition and does not seek any form of merits

relief from a district court. Such a motion does not even assure that a habeas case

will ever materialize. For example, an appointed counsel could well conclude that

the would-be petitioner has no colorable claims to present. Therefore, only when

an actual habeas petition is filed seeking relief from a conviction or sentence does

§ 2254 come into play.

Furthermore, the Supreme Court’s opinion in Slack supports the idea that all

proceedings that have any relation to a habeas petition do not have to be viewed as

a unified whole for purposes of AEDPA. Instead, Slack expressly recognized that

a court, in order to determine the applicable law, must determine what is “the

relevant case.” Id. at 482, 120 S. Ct. at 1603. We believe that it follows – from

the Supreme Court’s recognition that an appellate case may be subject to AEDPA

even though the underlying district court proceedings were not – that even though

a motion for appointment of counsel was filed before AEDPA and was not subject

to its provisions, a later-filed habeas petition may nonetheless be governed by the

stricter AEDPA standards that took effect in the interim. The simple fact is, at the

24
time AEDPA became the law, Isaacs’ habeas case was not pending because it had

not yet been filed and he had not asked the district court for any type of merits

relief that could be characterized as habeas relief. We hold that the relevant case

was not pending when AEDPA became effective, and the district court properly

considered Isaacs’ petition under AEDPA’s standards.

B. Issues Related to the Prayer that Opened Isaacs’ Trial

Next we turn to four different issues presented by Isaacs that all relate to the

fact that the trial judge allowed his minister to offer an invocation before voir dire

at the beginning of Isaacs’ trial. Isaacs has contended in his habeas petition that

the prayer violated his constitutional rights under the First, Fifth, Sixth, Eighth, and

Fourteenth Amendments. In this appeal, however, his arguments are limited to the

contention that the giving of the prayer violated his due process rights; therefore he

abandoned any other arguments concerning the prayer. Prior to addressing the

legal issues, it is necessary for us to explain the facts and the state of the record

with respect to the invocation. The court reporter failed to include the content of

the prayer as part of the trial transcript. Therefore, all that the transcript reveals

concerning the prayer is as follows:

January 4, 1988

25
(A discussion was had in chambers between Court and Counsel,
which was not made a part of the record.)

(At 9:30 a.m., court was convened and the following proceedings
were had:)

(Invocation)

MR. JACKSON [defense counsel]: We need to approach the bench,
Your Honor.

THE COURT: Very good.

(Discussion at the bench as follows:)

MR. SCHIAVONE [defense counsel]: Your Honor, we’re going to
move to dismiss the panel on the basis of the statements just made by
this minister. We think that was highly prejudicial.

MR. JACKSON: Your Honor, there’s separation of church and state –

MR. SCHIAVONE: Absolutely, I think that’s –

MR. JACKSON: – and for someone to pray in front of all these jurors
that they all had their ideas of what should be done and that God’s
will should be done, not their individual ideas should be done – which
is the law of this state – prejudiced the panel. And we move for a
mistrial and ask the jury panel to be excluded and excused.

MR. SCHIAVONE: Well, we move for a continuance until we can
impanel a new jury, because we can’t move for a mistrial at this stage
–

MR. JACKSON: That’s right.

MR. SCHIAVONE: – because there’s no jury panel. So we do move
for a continuance, that this panel of jurors has been prejudiced by that

26
 statement.

MR. HILL [prosecutor]: I don’t agree, Your Honor. I think it’s
premature anyway. They have an opportunity to voir dire and
ascertain whether or not this panel has been prejudiced.

THE COURT: Very good. The motion is overruled.

At the time of the prayer, a motion to record all proceedings previously had

been granted, but Isaacs’ trial counsel was not advised that the court reporter failed

to record the prayer. Isaacs asserts that his counsel only discovered months later

that no record had been made (even though Isaacs presented an affidavit from the

court reporter indicating that she stood during the prayer, and defense counsel was

present at the time and presumably could have observed her doing so). However,

the trial transcript was certified on March 6, 1988, so counsel should have been

aware of the omission by the time of the June 1988 proceedings on the motion for a

new trial (the “new trial proceedings”). And we know that counsel was aware at

least by the time of the direct appeal.3

3
According to the court reporter, the trial judge became aware that the
prayer had not been recorded on the same day that it was given. Isaacs states that
he was unaware of this fact prior to the federal habeas case. He argues that if the
judge had promptly informed him that the prayer had not been recorded, he would
have had a better chance of recreating a transcript of the prayer. For example, as
the court reporter’s affidavit pointed out, a media center was set up for the trial
where media could observe and record the proceedings, so there is a likelihood that
the text of the prayer could have been reconstructed if a prompt effort to do so had
27
 Isaacs first challenged the propriety of the invocation during his direct

appeal to the Georgia Supreme Court, but at that time he apparently made no effort

to establish the contents of the prayer. Isaacs, 386 S.E.2d at 327. The court held

that beginning a trial with an invocation is not a per se violation of the constitution,

and that, without more information concerning the content of the prayer, Isaacs

was not entitled to relief. Id.

The first attempt to make a precise record of the contents of the prayer was

apparently during the state habeas proceedings, almost six years after the

invocation was given. On state habeas review, Isaacs claimed that his trial counsel

had been ineffective by allowing the prayer to take place and by not ensuring that

the prayer was recorded. In those proceedings, both parties were allowed to put

forth evidence concerning the contents of the prayer. Isaacs’ trial attorney

testified that he recalled the minister saying: “Lord, we all know why we are

gathered here. We know you know what you want done to this man. Let us do

been made.

But Isaacs has had an opportunity to attempt to recreate the missing portion
of the record on earlier occasions – i.e. during the new trial proceedings and when
the Georgia Supreme Court remanded so that other, unrelated parts of the record
could be recreated. See Isaacs, 386 S.E.2d at 327 (noting that Isaacs had
opportunity to recreate the record during earlier remand). Isaacs apparently made
no effort to recreate a transcript of the invocation on either occasion, even though
he was or should have been aware that it was missing from the trial transcript.
28
your bidding or your will.” He also testified that the prayer referenced “God’s

will” and “man’s law.”

The trial judge also testified concerning the contents of the prayer during the

state habeas proceedings. He stated that he invited his minister to give the

invocation at the beginning of Isaacs’ trial, and that he had given the minister no

“specific instructions” concerning the contents of the prayer. The judge testified

that he did not recall exactly what the minister said in the prayer, but that it was

“very innocuous” and had not, in his opinion, “prejudiced the defense” or “favored

the state.” The prosecutors also testified that they had no specific recollection

regarding the contents of the prayer, but stated that they recalled the prayer as

being of a neutral nature. One prosecutor testified: “I can tell you now that if I

had sensed that something improper was said, given the nature of this case, that I

would have immediately asked that new venire persons be brought in.”

In its order denying habeas relief, the state habeas court “accept[ed] the

recollection of the trial court as to the neutral nature of the prayer offered in this

case, as confirmed by the testimony of [the prosecutor],” and held that Isaacs had

failed to show that he was prejudiced by the invocation. State Habeas Order, p. 17.

After filing his federal habeas petition, Isaacs sought discovery and an

29
evidentiary hearing concerning the prayer. Isaacs pointed to the allegedly new

information provided by the court reporter concerning the trial judge’s early

knowledge that the prayer had not been recorded. Also, in addition to challenging

the prayer itself, Isaacs asserted claims based on the failure to record the prayer and

on the ineffective assistance of his counsel in not ensuring that it was recorded or

promptly reconstructed. The district court denied Isaacs’ request for discovery or

an evidentiary hearing on this issue, pursuant to § 2254(e)(2), and denied on the

merits Isaacs’ claim that the mere giving of the prayer itself violated the

constitution. The court found the “failure to record” claim and the ineffective

assistance claim to be procedurally barred.

1. The Permissibility of Discovery or an Evidentiary Hearing Regarding
the Contents of the Prayer

We will first address the issue of whether the district court erred by denying

Isaacs’ request for discovery and/or an evidentiary hearing concerning the contents

of the invocation. In particular, Isaacs sought permission to take discovery from

the media sources who were present at his trial to determine whether they had any

records of the contents of the prayer. We conclude that the district court properly

30
denied Isaacs’ requests for discovery or a hearing under the standards imposed by

28 U.S.C. §2254(e)(2).

The Supreme Court has recognized that “[a] habeas petitioner, unlike the

usual civil litigant in federal court, is not entitled to discovery as a matter of

course.” Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793, 1796-97 (1997).

Rule 6(a) of the Rules Governing § 2254 Cases states:

A party shall be entitled to invoke processes of discovery available
under Federal Rules of Civil Procedure if, and to the extent that, the
judge in the exercise of his discretion and for good cause shown
grants leave to do so, but not otherwise.

In interpreting the “good cause” portions of this rule, the Supreme Court noted that

“where specific allegations before the court show reason to believe that the

petitioner may, if the facts are fully developed, be able to demonstrate that he is . . .

entitled to relief, it is the duty of the court to provide the necessary facilities and

procedures for an adequate inquiry.” Id. at 908-09, 117 S. Ct. at 1799 (citation and

quotation omitted). The Court has noted that the rules “afford the district court

substantial discretion in the conduct of a case,” including “a degree of discretion in

determining whether to hold an evidentiary hearing.” Lonchar v. Thomas, 517

U.S. 314, 326, 116 S. Ct. 1293, 1300 (1996).

31
 In passing AEDPA,4 however, Congress modified the discretion afforded to

the district court and erected additional barriers limiting a habeas petitioner’s right

to discovery or an evidentiary hearing. Section 2254(e)(2) states:

If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that–

(A) the claim relies on–

(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or

(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.

28 U.S.C. §2254(e)(2).

The Supreme Court interpreted §2254(e)(2) in its opinion in Michael

Williams v. Taylor, 529 U.S. 420, 120 S. Ct. 1479 (2000). The Court considered

whether the “failed to develop” language in the opening clause of the provision

indicates that the §2254(e)(2) bar is only applicable when a habeas petitioner has

4
Even before AEDPA, the Supreme Court in Keeney v. Tamayo-
Reyes, 504 U.S. 1, 112 S. Ct. 1715 (1992), had limited the discretion of federal
judges in this regard.
32
not been sufficiently diligent in his efforts to develop a record in state courts. The

Court concluded that this language imported a “threshold standard of diligence,”

such that the discovery provisions of §2254(e)(2) only apply if the petitioner was

not reasonably diligent in trying to develop the factual record while in state court.

Id. at 433-34, 120 S. Ct. at 1489. The Court held that “[d]iligence for purposes of

the opening clause depends upon whether the prisoner made a reasonable attempt,

in light of information available at the time, to investigate and pursue claims in

state court.” Id. at 435, 120 S. Ct. at 1490. The applicability of the provision is

not dependant on “whether those efforts could have been successful.” Id. See

also Breedlove v. Moore, 279 F.3d 952, 959-60 (11th Cir. 2002) (discussing

Michael Williams and application of §2254(e)(2)).

After discussing the meaning of §2254(e)(2), the Supreme Court went on to

find that an evidentiary hearing was not required with respect to the claims of

which Williams was on notice while in state court, but that discovery was required

as to a claim of juror and prosecutorial misconduct of which the petitioner had no

reason to know while in state courts. Michael Williams, 529 U.S. at 438-445, 120

S. Ct. at 1491-94.

Isaacs argues that his request for discovery is similar to the ones which the

Supreme Court found should have been permitted in Michael Williams. He

33
contends that, as with the petitioner in Michael Williams, he had no reason to know

the extent of his claim while in state court because he only found out during federal

habeas that the trial judge had been aware from the first day of trial that the prayer

had not been recorded.

We conclude that the district court did not err under either Rule 6(a) or

§2254(e)(2) by finding that Isaacs was not entitled to discovery or an evidentiary

hearing on his prayer-related claims. As the district court pointed out, Isaacs was

aware of the failure to record the prayer at least by the time of his direct appeal.

He had opportunities to reconstruct the contents of the prayer both during the new

trial proceedings, which were conducted more than five months after conviction

and sentence, and again when the Georgia Supreme Court remanded the case to the

trial court to permit the reconstruction of another portion of the record. On both

occasions he failed to do so. Isaacs was also allowed to present evidence

concerning the contents of the invocation during state habeas proceedings, at which

time he was able to question several of the relevant participants from his trial.

Therefore, we believe that any failure to reconstruct the contents of the prayer at

this stage, over 10 years after he became aware of the omission from the trial

transcript, must be attributed to Isaacs’ lack of diligence during the state court

proceedings.

34
 We also find of no consequence Isaacs’ allegation that he only learned after

his federal habeas petition was filed that the trial court had become aware of the

failure to record the prayer on the same day that it happened. We do not see the

relevance of that discovery given that Isaacs asserts no separate claim based on

any improper action by the trial court in this regard. Instead he simply asserts the

same claims that he had previously asserted. Moreover, even if that issue were

relevant, it could have been discovered and explored during the new trial

proceedings, or on the initial remand from the Georgia Supreme Court at which

time other portions of the record were reconstructed, or at the evidentiary hearing

held by the state habeas court. The trial judge actually testified during the latter

proceeding, and Isaacs had the opportunity to cross-examine him.5

We also do not agree that the Supreme Court’s decision in Dobbs v. Zant,

506 U.S. 357, 113 S. Ct. 835 (1993) shows that Isaacs is entitled to the discovery

or evidentiary hearing that he seeks. In that case, the Supreme Court found that

this Court had erred by failing to allow the petitioner to supplement the record to

include the transcript of closing arguments that the parties thought had been lost,

5
Indeed, the fact that the trial judge was aware of the failure to record
earlier than Isaacs may be barred from our consideration by §2254(e)(2) because it
was not developed in state court. In light of our view that the fact is without
significance for the merits of the issues before us, we need not address that.
35
but was subsequently found. Id. The Court stated that it had “emphasized the

importance of reviewing capital sentences on a complete record,” and noted that

the supplement to the record should have been permitted because “[t]here can be

no doubt as to the transcript’s relevance” to the decisions of the lower courts. Id. at

358-59, 113 S. Ct. at 836.

In contrast to Dobbs, Isaacs is not in possession of, nor is he likely to gain

possession of, a transcript of the prayer given at trial. He does not explain why the

discovery that he seeks now is any different from the discovery that was available

to him in state courts. Under these circumstances, we conclude that the district

court properly denied Isaacs’ request to conduct additional discovery concerning

the prayer because he neither exercised sufficient diligence to satisfy the

requirements of §2254(e)(2) nor showed “good cause” as required by Rule 6(a).

2. The Constitutional Permissibility of the Invocation

Next, we consider Isaacs’ contention that the invocation given prior to voir

dire violated his due process rights. When this issue was presented to the Georgia

Supreme Court on direct appeal, the court noted that it lacked a record of the

content of the prayer, and held that the giving of a prayer at the beginning of a

criminal trial was not a per se violation of the constitution. Isaacs, 386 S.E.2d at

36
327. Then during the state habeas proceedings, after Isaacs put forth evidence

concerning the contents of the prayer, the state court accepted the testimony of the

trial judge to the effect that the invocation was “neutral” and had not “prejudiced

the defense” or “favored the state.” Therefore, the state habeas court held that the

actual prayer given at Isaacs’ trial had not violated his constitutional rights. As we

will explain below, we must accept these rulings and findings by the state courts,

and, consequently, Isaacs is not entitled to relief on this claim.

As we explained above, the strict standards adopted by Congress in AEDPA

apply to Isaacs’ habeas petition. Therefore, we look to § 2254(d) and 2254(e)(1) to

determine the permissible scope of our review. Section 2254(d), which addresses

our treatment of state court adjudications of federal constitutional claims, states:

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

28 U.S.C. §2254(d).

In addition, Section 2254(e)(1) addresses the deference that federal courts

37
must give to fact-finding by the state courts, stating:

In a proceeding instituted by an application for a writ of habeas corpus
by a person in custody pursuant to the judgment of a State court, 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).

The Supreme Court addressed the meaning of §2254(d)(1) in Williams v.

Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000). The Court recognized that the

provision “places a new constraint on the power of a federal habeas court to grant a

state prisoner’s application for a writ of habeas corpus with respect to claims

adjudicated on the merits in state court.” Id. at 412, 120 S. Ct. at 1495. We

recently summarized the Williams holding and other standards applicable to

§2254(d), stating:

The “contrary to” and “unreasonable application” clauses of §
2254(d)(1) are separate bases for reviewing a state court’s decisions.
A state court decision is “contrary to” clearly established federal law
if either (1) the state court applied a rule that contradicts the governing
law set forth by Supreme Court case law, or (2) when faced with
materially indistinguishable facts, the state court arrived at a result
different from that reached in a Supreme Court case.

A state court conducts an “unreasonable application” of clearly
established federal law if it identifies the correct legal rule from
Supreme Court case law but unreasonably applies that rule to the facts
of the petitioner’s case. An unreasonable application may also occur if

38
 a state court unreasonably extends, or unreasonably declines to
extend, a legal principle from Supreme Court case law to a new
context. Notably, an “unreasonable application” is an “objectively
unreasonable” application.

Lastly, § 2254(d)(1) provides a measuring stick for federal habeas
courts reviewing state court decisions. That measuring stick is “clearly
established Federal law.” 28 U.S.C. § 2254(d). Clearly established
federal law is not the case law of the lower federal courts, including
this Court. Instead, in the habeas context, clearly established federal
law “refers to the holdings, as opposed to the dicta, of [the Supreme
Court’s] decisions as of the time of the relevant state court decision.”

Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001) (citations and quotations

omitted).

In applying the “contrary to” prong of §2254(d), we have recognized that

where no Supreme Court precedent is on point, “we cannot say that the state

court’s conclusion . . . is contrary to clearly established Federal law as determined

by the U.S. Supreme Court.” McIntyre v. Williams, 216 F.3d 1254, 1258 (11th

Cir. 2000).

We first address whether the Georgia Supreme Court’s holding that the

invocation was not a per se violation of the constitution constituted a “decision that

was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§2254(d)(1). Isaacs has pointed to no Supreme Court precedent which has held

39
that the giving of a prayer at trial is a per se violation of the constitution, and we

have found none. Thus, we hold that the Georgia Supreme Court’s decision was

not contrary to clearly established federal law as determined by the Supreme Court.

We next consider whether the Georgia Supreme Court’s decision involved

an unreasonable application of such federal law. In support of his position, Isaacs

cites Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633 (1985) (finding an

Eighth Amendment violation when the sentencer in a capital case is led to believe

that the ultimate responsibility for determination of the sentence rests elsewhere).

The Georgia Supreme Court noted that the record did not disclose the content of

the prayer, even though the case had been remanded on motion by the defendant

for purposes of completion of the record. With no indication of the content of the

prayer before the Georgia Supreme Court, and thus with no indication that the

jury’s sense of responsibility was undermined, we cannot conclude that the

decision of the Georgia Supreme Court involved an unreasonable application of

Caldwell.

Isaacs also cites Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971),

and a Fourth Circuit case, North Carolina Civil Liberties Union Legal Foundation

v. Constangy, 947 F.2d 1145 (4th Cir. 1991) (applying Lemon’s test for

determining whether there has been an establishment of religion). We readily

40
conclude that the Georgia Supreme Court’s decision – that beginning a criminal

trial with a prayer does not warrant a per se reversal of a criminal conviction –

does not involve an unreasonable application of Lemon.

With no record of the content of the prayer, the Georgia Supreme Court was

addressing a claim with respect to which Isaacs had proven no prejudice. The

Fourth Circuit’s decision in Constangy involved an attempt to enjoin a trial judge’s

practice of opening trials with a prayer delivered by the judge himself. The

challenge was pursuant to the Establishment Clause with respect to which the court

noted that it was not necessary to prove actual prejudice. See Constangy, 947 F.2d

at 1152 (distinguishing United States v. Bakker, 925 F.2d 728 (4th Cir. 1991),

which had vacated a sentence because a judge’s personal religious views entered

into the sentencing process). We note, of course, that the Fourth Circuit cases are

not determinations by the Supreme Court, and thus cannot guide our analysis.

Moreover, nothing in the Fourth Circuit cases indicates that a conviction violates

the constitution and must be set aside merely because the trial was begun with a

prayer with respect to which no prejudice has been proven. See also the case cited

by the Georgia Supreme Court, United States v. Walker, 696 F.2d 277 (4th Cir.

1982) (holding that even if beginning a criminal trial with a prayer violated the

First Amendment, reversal was not warranted unless the prayer substantially

41
impaired the fairness of the trial).

We note that in his opening brief on appeal, Isaacs’ challenge to the state

courts’ decisions with respect to the prayer focuses on the decision of the Supreme

Court of Georgia, and not the decision of the state habeas court.6 However, his

argument assumes his own version of the content of the prayer, and ignores the

findings of fact in this regard by the state habeas court. For the first time in his

reply brief, Isaacs acknowledges the finding of the state habeas court; he argues

that it was a legal conclusion and not a factual determination.7 Despite Isaacs’

urging that we accept the testimony of his trial counsel concerning the words used

6
Thus, as an alternative holding, we hold that Isaacs has waived any
challenge that the decision of the state habeas court involved an unreasonable
application of clearly established federal law as determined by the Supreme Court.
See United States v. Ardley, 242 F.3d 989 (11th Cir. 2001) (“[W]e apply our
well-established rule that issues and contentions not timely raised in the briefs are
deemed abandoned.”); Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir.1995)
(“We note that issues that clearly are not designated in the initial brief ordinarily
are considered abandoned.” (citations and quotations omitted)).
7
We reject Isaacs’ argument that the finding of neutrality was not a
finding of fact. At the evidentiary hearing before the state habeas judge, there was
testimony with respect to the contents of the prayer by Isaacs’ trial attorney, the
prosecutors and the trial judge. There was substantial inconsistency between the
testimony of Isaacs’ trial counsel, on the one hand, and, on the other hand, the
testimony of the trial judge and the prosecutors. The state habeas judge expressly
accepted the recollection of the trial judge that the nature of the prayer was neutral.
The habeas court also noted that the trial judge’s testimony was confirmed by the
testimony of one of the prosecutors. This is a finding of fact; moreover, it appears
to be based upon credibility choices.
42
by the minister, we find that we are constrained by §2254(e)(1) to credit the state

habeas court’s findings of fact in this regard. As mentioned above, this provision

requires that we presume a state court’s findings of fact to be correct unless a

petitioner shows otherwise by clear and convincing evidence. In this case, Isaacs

has not carried that burden, and therefore we accept as true the state habeas court’s

finding that the prayer was neutral in nature. We also take into account the

uncontested facts that the prayer was given prior to voir dire, that the defense was

permitted to and did question jurors about the prayer or other religious issues

during voir dire, and that the invocation occurred 26 days before the jury sentenced

Isaacs to death.8

In light of these facts concerning the content and context of the invocation,

we cannot conclude that the state habeas court acted contrary to, or unreasonably

applied, existing Supreme Court precedent in holding that the prayer did not

violate Isaacs’ due process rights. See 28 U.S.C. §2254(d)(1).

3. Procedural Default of Claim Regarding Failure to Record Prayer

Next, we turn to Isaacs’ claim that the failure to record the invocation

8
See Walker, 696 F.2d at 282, considering that the jury’s deliberations
did not begin until 6 days after the prayer as a factor influencing its finding that a
prayer given at the beginning of a criminal trial was not prejudicial.
43
violated his constitutional rights. Both the state habeas court and the district court

found this claim to have been procedurally barred by Isaacs’ failure to raise the

claim on direct appeal. Isaacs maintains that the failure to record issue was not

procedurally defaulted because his 764-page direct appeal brief, enumerating 153

separate errors (not including this one), contained a footnote which stated:

Appellant had filed and had granted (mot. 9/28/87, p. 90) a motion to
record all proceedings (R-202. 638). Nevertheless the “invocation”
was not recorded. It is believed however that uncontradicted
objections set out the objectional [sic] statements, preserve this issue,
and idea of an invocation is a death penalty trial. [sic] Error is, of
course, hereby claimed in the failure to record and transcribe same.
See Wilson v. State, 246 Ga. 672, 273, S.E.2d 9 (1980); Parrott v.
State, 134 Ga. App. 160 (1975), State v. Graham, 246 Ga. 341, 271
S.E.2d 627 (1980).

Isaacs’ Opening Brief on Direct Appeal, p.306 n.28. The Georgia Supreme Court

did not address this issue in its decision.

We agree that Isaacs’ failure to record claim is procedurally defaulted. On

facts more favorable to a federal habeas petitioner than the facts of this case, the

Supreme Court held that the petitioner had failed to fairly present a federal claim to

the state courts. See Duncan v. Henry, 513 U.S. 364, 115 S. Ct. 887 (1995). The

Court stated:

In Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L.
Ed.2d 438 (1971), we said that exhaustion of state remedies requires
that petitioners “fairly presen[t]” federal claims to the state courts in

44
 order to give the State the “ ‘opportunity to pass upon and correct’
alleged violations of its prisoners’ federal rights” (some internal
quotation marks omitted). If state courts are to be given the
opportunity to correct alleged violations of prisoners’ federal rights,
they must surely be alerted to the fact that the prisoners are asserting
claims under the United States Constitution. If a habeas petitioner
wishes to claim that an evidentiary ruling at a state court trial denied
him the due process of law guaranteed by the Fourteenth Amendment,
he must say so, not only in federal court, but in state court.

Id. at 365-66, 115 S. Ct. at 888. In light of Duncan, we agree with the district court

that Isaacs did not “fairly present” to the state court a failure to record claim

cognizable in federal habeas corpus proceedings. The footnote from Isaacs’ direct

appeal brief, quoted above, seems to be intended as an indication that Isaacs’

prayer claim had been preserved for appeal, and does not seem to have been

intended as the statement of a separate and independent failure to record claim.

Such a claim is contained, if at all, in a single sentence: “Error is, of course,

hereby claimed in the failure to record and transcribe same.” This purported one-

sentence claim is supported only by citations to state cases. No federal cases were

cited, and no language was used by Isaacs which would have alerted the Georgia

Supreme Court to the fact that Isaacs was asserting a federal constitutional claim,

separate and independent from his prayer claim. Under these circumstances, we

readily conclude that Isaacs failed to “fairly present” to the Georgia Supreme Court

a federal constitutional claim of failure to record, and thus that the claim is

45
procedurally defaulted.

We also conclude that Isaacs cannot demonstrate “cause” and “prejudice” or

“a fundamental miscarriage of justice” in order to excuse the default. “A habeas

petitioner can escape the procedural default doctrine either through showing cause

for the default and prejudice, or establishing a fundamental miscarriage of justice.”

Bailey v. Nagle, 172 F.3d 1299, 1306 (11th Cir. 1999) (citations and quotations

omitted). In order to show the type of “miscarriage of justice” that will excuse a

procedural bar, a petitioner must make “a colorable showing of actual innocence.”

Id. (citations and quotations omitted).

Isaacs argues that “cause” exists to excuse the procedural default of the

failure to record claim because of the information which he allegedly received after

the completion of the state court proceedings concerning the timing of when the

trial judge learned that the prayer had not been recorded. We can assume arguendo

that the trial judge noticed that the court reporter stood up during the prayer, and

therefore did not record the prayer, or that the judge otherwise promptly became

aware thereof. And we can assume arguendo that that trial defense counsel did not

observe that fact and did not become aware thereof during the trial itself.

Nevertheless, we do not find those facts significant in light of the fact that counsel

was, or should have been, aware that the prayer had not been recorded at least as of

46
the time of the new trial proceedings, but failed to reconstruct the record, and in

light of the fact that counsel clearly had such knowledge as of the time of the initial

remand from the Supreme Court of Georgia and again failed to reconstruct the

record.9

Nor can Isaacs demonstrate “prejudice” to excuse his procedural default. As

noted above, the state habeas court considered the evidence adduced by Isaacs with

respect to the content of the prayer, and found that the content of the prayer was

neutral. Thus, we conclude that Isaacs cannot demonstrate “prejudice” with

respect to the procedural default in failing to preserve the failure to record claim.10

Isaacs also argues that there was no procedural bar because the state habeas

court ruled on the merits of this claim. The basis for his argument is that, after

explaining why the issue was procedurally defaulted, the state habeas court

finished with a conclusory statement to the effect that the ground was without

merit. Given the context in which the statement appears (i.e. at the end of a

discussion of procedural default), and in light of the fact that there is absolutely no

9
For the reasons discussed below, Isaacs also cannot demonstrate
“cause” on account of ineffective assistance of counsel for failure to recreate the
record of the prayer. See infra, at part B.4.
10
Isaacs has not argued that the “miscarriage of justice” exception, with
its actual innocence requirement, applies.
47
discussion of the underlying merits of the claim, we conclude that the statement

does not indicate a ruling on the merits. Instead, the state court was merely

indicating that Isaacs was not entitled to relief with respect to the claim in light of

the procedural bar. Therefore, the claim is procedurally defaulted.

4. Procedural Default of Ineffective Assistance Claim Regarding Failure
to Recreate Record of Prayer

In his final claim related to the prayer, Isaacs contends that the district court

erred in finding procedurally defaulted his claim that he received ineffective

assistance of counsel during his new trial proceedings and on appeal in that his

counsel failed to recreate the record of the prayer while memories were fresh.11

The district court found that this claim was not raised in state court, and therefore

was procedurally defaulted. We agree. The claim in state court challenged

counsel’s performance for “failing to assure that such prayer was recorded by the

11
Although Isaacs’ petition lumps this allegation together with others
challenging both trial and appellate counsel, his brief clarifies that, with respect to
this claim, he is not challenging the performance of counsel during the trial itself.
Accordingly, we construe his claim as challenging only the performance of counsel
during the new trial proceedings and on direct appeal.
48
court reporter.”12 This claim in the state habeas petition refers to counsel during

the trial itself, and his failure to assure that the prayer was recorded. The claim as

presented to the state habeas court makes no reference to the subsequent

performance of counsel during the new trial proceedings or on remand from direct

appeal, and does not challenge counsel’s performance for failure to recreate the

record.

By contrast, the claim raised for the first time in federal court challenges the

performance of counsel for failing “to create an accurate record of this invocation

on a timely basis when memories were fresh, when it became clear that the

invocation apparently was not recorded by the court reporter.”13 Thus for the first

12
The claim, Ground 104(c), states in full: “Counsel negligently failed
to prevent the trial from starting with a prayer absolving the jurors of responsibility
for their decision and compounded this error by failing to assure that such prayer
was recorded by the court reporter thus preventing a realistic view on appeal of the
prejudicial effect of the prayer.” Supplemental State Habeas Petition, p.3.

13
Ground 31(q) of Isaacs’ federal habeas petition states: “Counsel
failed to insure that a complete record was made at all proceedings, including the
invocation at the beginning of trial, or to create an accurate record of this
invocation on a timely basis when memories were fresh, when it became clear that
the invocation apparently was not recorded by the court reporter and made part of
the record for direct appeal. Counsel was further ineffective for not conducting
and adequate investigation as to what was said in the prayer by talking with eye
witnesses to the prayer, including media sources, and presenting this evidence as a
motion for a new trial hearing or upon remand for completion of the record by the
Georgia Supreme Court.” Federal §2254 Petition, p. 51-52.
49
time in federal court, Isaacs challenges the performance of counsel during the new

trial proceedings and on direct appeal, and for the first time challenges the

performance for failure to recreate the record.

Having found a procedural default,14 we address whether or not Isaacs can

demonstrate “cause” and “prejudice,” or alternatively whether the “miscarriage of

justice” exception applies. See Bailey v. Nagle, 172 F.3d 1299, 1306 (11th Cir.

1999). We readily conclude that Isaacs cannot demonstrate “cause”; the failure of

his state habeas counsel to present this claim cannot constitute “cause.” See

Gonzalez v. Abbott, 967 F.2d 1499 (11th Cir. 1992); Toles v. Jones, 888 F.2d 95,

99-100 (11th Cir.1989), vacated and reh’g en banc granted, 905 F.2d 346 (11th

14
Isaacs argues that there was no procedural bar because the state
habeas court ruled on all of his claims of ineffective assistance of counsel, and that
there is no bar where the state court has ruled on the merits. We need not address
Isaacs’ attempt to circumvent our decision in Footman v. Singletary, 978 F.2d
1207 (11th Cir. 1992) (holding that petitioner must raise specific instances of
ineffective assistance of counsel in state court and that the bar resulting from
failure to raise specific instance of ineffective assistance in state court was not
excused where there was no indication that the state court “necessarily” evaluated
the entire record), because, as pointed out in the text, Isaacs made no claim in state
court of ineffective assistance of counsel for failure to recreate the record, and
because the state habeas court did not rule on the merits of any ineffective
assistance of counsel claims other than those presented to it. State Habeas Order,
p. 22-23. Nor is there any indication that the state habeas court reviewed the entire
record searching for other instances of ineffective assistance of counsel. Thus,
there has been no ruling on the merits of the instant claim as presented in federal
court.
50
Cir.1990), reinstated, 951 F.2d 1200, 1201 (11th Cir.1992) (en banc) (per curiam).

Also, we conclude that Isaacs cannot demonstrate “prejudice.” As noted above,

Isaacs had a full opportunity to prove the content of the prayer during the state

habeas corpus proceedings, but those proceedings resulted in a finding of fact that

the content of the prayer was neutral. Therefore, we conclude that Isaacs could not

in any event have demonstrated that the failure to record a neutral prayer

prejudiced him.15 Isaacs has not attempted to show “actual innocence,” supporting

the “miscarriage of justice” exception to procedural default. Therefore, this claim

is barred.

C. The Admission of Statements Regarding Escape Attempts Taken
From Isaacs While in Custody

We now turn to Isaacs’ claim that his constitutional rights under the 5th and

14th Amendments were violated by the admission into evidence of statements,

given while in custody, concerning two escape attempts. The statements came

years after he asserted his right to speak with the police only through counsel at

and before the time of his trial. Isaacs maintains that the admission of these

15
For the same reasons, Isaacs would have been unable to satisfy the
prejudice prong of the ineffective assistance of counsel claim, even if it had not
been procedurally barred.
51
statements during the sentencing phase of his trial, and arguments by the State

related to them, violated the Supreme Court’s decisions in Edwards v. Arizona,

451 U.S. 477, 101 S. Ct. 1880 (1981), and Arizona v. Roberson, 486 U.S. 675, 108

S. Ct. 2093 (1988). The Georgia Supreme Court rejected this claim on direct

appeal, and we conclude for the reasons that follow that its adjudication of the

claim was neither contrary to, nor an unreasonable application of, established

Supreme Court precedent.

The custodial statements that are the basis for Isaacs’ claim concern two

prison escape attempts in which Isaacs was involved. The first occurred in July

1980 when four death row inmates, but not Isaacs, escaped from Reidsville State

Prison. Isaacs was involved in the planning of that escape attempt, but did not

escape with the other inmates because he was transferred earlier in the day of the

escape. The second escape attempt happened in November 1985, but no inmates

were successful. Therefore, the two escape attempts, and the statements made by

Isaacs, occurred years after Isaacs’ original conviction in 1974 or his initial

invocation, in 1973, of his right to speak with police only through counsel.

The facts related to the custodial statements made by Isaacs are as follows.

Following each of the 1980 and 1985 escape attempts, Isaacs was required by

prison authorities to meet with Agent Robert Ingram of the Georgia Bureau of

52
Investigations. According to Agent Ingram, prior to interrogating Isaacs, he read

Isaacs his Miranda rights, and Isaacs agreed to waive his rights and talk.

According to Isaacs, at the time that he was interrogated, he was represented by

counsel with regard to the charges for which he was in custody, and the prison had

the names and contact information for his attorneys, but his attorneys were not

contacted before the interrogations.16

At his retrial in 1988,17 Isaacs moved to suppress the statements concerning

the escape attempt, arguing that the statements were taken in violation of Edwards

v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981). After conducting a Jackson-

Denno hearing,18 the trial court overruled Isaacs’ motion. Afterwards, during the

sentencing phase of the trial, the prosecution introduced six statements from Isaacs

in order to show both his future dangerousness and his lack of remorse. One of the

16
Isaacs also argued that he was “prohibited” from consulting with his
attorneys before these interrogations. The trial court implicitly rejected this
allegation when it denied Isaacs’ motion to suppress and ruled that his statements
were given “freely and voluntarily” after he was informed of his Miranda rights
and agreed to waive them.
17
Isaacs was retried pursuant to the December 9, 1985 decision of this
Court granting the writ of habeas corpus and thus necessitating the retrial.
18
Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964) (holding that
trial judge must determine, at a separate hearing, that a confession is voluntary
before it may be heard by a jury).
53
statements was a 48-page, handwritten statement by Isaacs concerning his

involvement in the 1980 escape. Another was an hour-long recorded statement

concerning the 1985 escape attempt. The prosecution also put on evidence of a

statement to the effect that Isaacs said “that he would continue his efforts to escape

from confinement.” The State focused on this statement in its arguments to the

jury in support of the death penalty.

On direct appeal, the Georgia Supreme Court considered Isaacs’ challenge to

the admissibility of the custodial statements and found that they had been admitted

properly because Isaacs had voluntarily waived his Miranda rights with respect to

the investigations of the escape attempts. Isaacs, 386 S.E.2d 326-27. In reaching

this conclusion, the court did not discuss the applicability of Edwards v. Arizona,

451 U.S. 477, 101 S. Ct. 1880 (1981), or of Arizona v. Roberson, 486 U.S. 675,

108 S. Ct. 2093 (1988). In his brief on direct appeal, however, Isaacs had made an

extensive Edwards argument to the Georgia Supreme Court, but did not cite

Roberson, which had been decided only recently.

On federal habeas review, the district court found that the Georgia Supreme

Court’s findings concerning the voluntariness of Isaacs’ waiver of his Miranda

rights was supported by the evidence. The court also rejected Isaacs’ reading of

Roberson, concluding that it did not prohibit police from initiating interrogations

54
of prisoners after they have been convicted of the original crime with respect to

which they asserted a right to counsel. Therefore, the court rejected Isaacs’

contention.

On appeal, Isaacs does not challenge the district court’s findings regarding

the voluntariness of his consent to interrogation or the facts supporting the Georgia

Supreme Court’s decision. Instead, he limits his argument to the issue of whether

his statements were inadmissible in light of the Supreme Court’s decisions in

Edwards and Roberson.

1. AEDPA’s Limitations on Our Review

Before reaching the merits of Isaacs’ claim, we must again consider the

extent to which AEDPA circumscribes our review. As discussed above, §

2254(d)(1) prevents us from upsetting a state court adjudication of federal claims

unless that adjudication is contrary to, or amounts to an unreasonable application

of, established Supreme Court precedent. With respect to Isaacs’ Edwards claim,

however, we are confronted with the situation in which Isaacs’ brief to the state

court argued the Edwards decision, but the state court’s opinion did not mention it.

Therefore, the question becomes whether we should defer to such an adjudication,

as long as it is not contrary to, or an unreasonable application of, the relevant

55
Supreme Court decisions.

We have previously brushed up against this issue in two recent cases. First,

in Romine v. Head, 253 F.3d 1349, 1365 (11th Cir. 2001), we discussed the effect

of §2254(d)(1) where it was unclear whether a state court had adjudicated a federal

claim. In the earlier state supreme court opinion, “[the] entire three-sentence

discussion of the issue simply [found] ‘no reversible error’ based upon the bare

conclusion that ‘nowhere did the prosecutor seriously overstep his bounds,’” and

this conclusion was supported only by a string citation to five state court decisions.

Id. at 1365 (citation omitted). Therefore, we noted that: “To begin with, it is far

from clear what, if any, rule of federal law the Georgia Supreme Court applied.”

Id. Moreover, the State conceded to this Court that the state supreme court had not

applied federal law to Romine’s claim. Id. Therefore, we concluded:

Given all these factors, especially the State’s concession, we have
grave doubt that the Georgia Supreme Court applied federal law at all,
let alone the governing law set down in Supreme Court decisions.
Failure to apply that governing law (or the same rule in state law) is
tantamount to applying a rule that contradicts governing law, for these
purposes. And under Williams that means the federal habeas court
will be unconstrained by § 2254(d)(1) because the state-court decision
falls within that provision’s “contrary to” clause. In other words,
when there is grave doubt about whether the state court applied the
correct rule of governing federal law, § 2254(d)(1) does not apply.
That is what we have here, so we proceed to decide the issue de novo,
as the district court did.

56
Romine, 253 F.3d at 1365 (citations, quotations and footnote omitted).

After Romine, we more recently addressed the issue of the application of

§2254(d)(1) in the much more common context of a state court’s rejection without

discussion of a federal claim presented to it by a defendant. See Wright v.

Secretary for Dept. of Corrections, 278 F.3d 1245 (11th Cir. 2002). In Wright, we

acknowledged that Romine had “brushed up against” the same issue, but

recognized that Romine was a narrow decision, characterizing it as follows:

In that case, it was unclear whether the federal constitutional issue had
been raised and decided in state court – we expressed “grave doubt”
that it had been – and the attorneys representing the State insisted that
the state court had not addressed the federal issue. In those
circumstances, we held that no deference was due the state court’s
decision of the federal constitutional issue for the simple reason that
the state court probably had not decided it. We would not defer to
that which did not exist.

Id. at 1254 (citation omitted). In contrast, we stated in Wright that it was not

disputed that the issue before us had been presented to and decided by the state

court, though without discussion, and we did not “gravely doubt that it was.” Id.

Finding Romine distinguishable, we continued in Wright by stating that the

issue was “whether the state court’s summary, which is to say unexplicated,

rejection of the federal constitutional issue qualifies as an adjudication under

§2254(d) so that it is entitled to deference.” Id. Siding with six other circuits that

57
had “squarely addressed that question,” we concluded that “the summary nature of

a state court’s decision does not lessen the deference that it is due.” Id.

In reaching this conclusion, we first focused on the fact that “[t]he plain

language of § 2254(d)(1) requires only that the federal claim have been

‘adjudicated on the merits in State court proceedings’ and have ‘resulted in a

decision’ that is neither contrary to nor involves an unreasonable application of

Supreme Court precedent.” Id. In light of these requirements, and noting that “[a]

judicial decision and a judicial opinion are not the same thing,” we concluded that

“[t]he statutory language focuses on the result, not on the reasoning that led to the

result, and nothing in that language requires the state court adjudication that has

resulted in a decision to be accompanied by an opinion that explains the state

court’s rationale.” Id. at 1255. Therefore, we held that in order for the §2254(d)(1)

bar to apply, “all that is required is a rejection of the claim on the merits, not an

explanation.” Id.

We also noted that, “[t]o conclude otherwise on this issue would be writing

into §2254(d)(1) an additional requirement that Congress did not put there – a

requirement that the state courts explain the rationale of their decisions,” and stated

that Congress, and not federal courts, would have to impose such a requirement.

Id. The Court observed that telling state courts how they must handle cases would

58
run contrary to notions of federalism and comity. Id. Therefore, we concluded:

“In §2254(d) Congress meant to, and did, mandate deference to state court

adjudications on the merits of federal constitutional issues, and a decision that does

not rest on procedural grounds alone is an adjudication on the merits regardless of

the form in which it is expressed.” Id. at 1255-56.

The instant case is analogous to Wright, and not to Romine. Here, it is

apparent to us that the Georgia Supreme Court considered Edwards inapplicable in

the context of an interrogation of an inmate in the penitentiary, conducted after a

waiver of his Miranda rights, and conducted six to eleven years after his conviction

and sentence (and even longer after his pre-trial invocation of the right to counsel

during interrogation). As did the panel in Wright, we believe Romine is

inapposite. Here, there was no concession by the State that the Georgia Supreme

Court failed to address the federal claim. Here, we have no doubt but that the

Georgia Supreme Court fairly considered Isaacs’ argument that the Edwards

elaboration on Miranda should apply, and decided that it did not. Thus, the

Georgia Supreme Court cited only Miranda and not Edwards.

Accordingly, Section 2254(d)(1) applies to the Georgia Supreme Court’s

adjudication, and Isaacs is only entitled to relief if that court’s rejection of his

claim was contrary to, or an unreasonable application of, the Supreme Court’s

59
decisions in Edwards and Roberson. As we will explain, we cannot conclude that

it was.

2. The Precedent Concerning Custodial Interrogations

The principal case on which Isaacs bases his claim is Edwards v. Arizona, a

decision handed down by the Supreme Court after the 1980 interrogation of Isaacs,

but before the 1985 interrogation. In Edwards, the defendant asserted his right to

counsel after having been taken into custody. 451 U.S. at 478, 101 S. Ct. at 1881-

82. At that time the police stopped interrogating Edwards, but they reinitiated

questioning the following morning, and Edwards subsequently confessed his guilt.

451 U.S. at 479, 101 S. Ct. at 1882. The Supreme Court considered whether the

police ran afoul of Miranda by reinitiating interrogation after the defendant’s

invocation of the right to counsel.

The Edwards Court noted that Miranda rights may be waived, but that

“waivers of counsel must not only be voluntary, but also constitute a knowing and

intelligent relinquishment or abandonment of a known right or privilege, a matter

which depends in each case upon the particular facts and circumstances

surrounding that case, including the background, experience, and conduct of the

accused.” Id. at 482, 101 S. Ct. at 1884 (citations and quotations omitted). The

60
Court proceeded a step further, however, concluding that an additional,

prophylactic rule protecting the right to counsel was called for, stating:

[A]lthough we have held that after initially being advised of his
Miranda rights, the accused may himself validly waive his rights and
respond to interrogation, the Court has strongly indicated that
additional safeguards are necessary when the accused asks for
counsel; and we now hold that when an accused has invoked his right
to have counsel present during custodial interrogation, a valid waiver
of that right cannot be established by showing only that he responded
to further police-initiated custodial interrogation even if he has been
advised of his rights. We further hold that an accused, such as
Edwards, having expressed his desire to deal with the police only
through counsel, is not subject to further interrogation by the
authorities until counsel has been made available to him, unless the
accused himself initiates further communication, exchanges, or
conversations with the police.

Id. at 484-85, 101 S. Ct. at 1884-85. The Supreme Court commented that this

approach was consistent with Miranda’s recognition that “the assertion of the right

to counsel was a significant event and that once exercised by the accused, the

interrogation must cease until an attorney is present.” Id. at 485, 101 S. Ct. at

1885. The Court then concluded: “We reconfirm these views and, to lend them

substance, emphasize that it is inconsistent with Miranda and its progeny for the

authorities, at their instance, to reinterrogate an accused in custody if he has clearly

asserted his right to counsel.” Id.

The Supreme Court built on Edwards in subsequent cases, including in

61
Arizona v. Roberson,486 U.S. 675, 108 S. Ct. 2093 (1988), a decision released

after Isaacs’ conviction but before his direct appeal was completed. In Roberson,

the defendant was arrested at the scene of a just-completed burglary, and indicated

to the police that he “wanted a lawyer before answering any questions.” 486 U.S.

at 678, 108 S. Ct at 2096. Three days later, while the defendant was still in

custody pursuant to the original arrest, a different police officer interrogated him

about a different burglary. Id. The officer conducting the second interrogation

was not aware that Roberson had requested the assistance of counsel after he was

arrested. Id.

The question before the Supreme Court in Roberson was whether the re-

initiation by the police of interrogation concerning a separate offense from the one

for which the defendant invoked the right to counsel violated Edwards. The Court

held that, after a person in custody invokes the right to counsel, the police cannot

initiate interrogation, even if it concerns offenses other than ones for which the

person is being held. The Court noted that “the prophylactic protections that the

Miranda warnings provide to counteract the ‘inherently compelling pressures’ of

custodial interrogation and to ‘permit a full opportunity to exercise the privilege

against self-incrimination,’ are implemented by the application of the Edwards

corollary that if a suspect believes that he is not capable of undergoing such

62
questioning without advice of counsel, then it is presumed that any subsequent

waiver that has come at the authorities’ behest, and not at the suspect’s own

instigation, is itself the product of the ‘inherently compelling pressures’ and not the

purely voluntary choice of the suspect.” 486 U.S. at 681, 108 S. Ct. at 2097

(citations and quotations omitted).

The Roberson Court stated that the Miranda and Edwards “bright-line

rule[s]” have the benefit of providing “‘clear and unequivocal’ guidelines to the

law enforcement profession.” Id. at 682, 108 S. Ct. at 2098. The Court then went

on to hold that “the bright-line, prophylactic Edwards rule” applies even if the

police-initiated interrogation concerns a different investigation. Id. The Court

stated that:

As a matter of law, the presumption raised by a suspect’s request for
counsel – that he considers himself unable to deal with the pressures
of custodial interrogation without legal assistance – does not
disappear simply because the police have approached the suspect, still
in custody, still without counsel, about a separate investigation. . . .
Roberson’s unwillingness to answer any questions without the advice
of counsel, without limiting his request for counsel, indicated that he
did not feel sufficiently comfortable with the pressures of custodial
interrogation to answer questions without an attorney. This discomfort
is precisely the state of mind that Edwards presumes to persist unless
the suspect himself initiates further conversation about the
investigation; unless he otherwise states, there is no reason to assume
that a suspect’s state of mind is in any way investigation-specific.

Id. at 683-84, 108 S. Ct. at 2099 (citations and quotations omitted).

63
 The Roberson Court went on to note that the Fifth Amendment right to

counsel is different from the offense-specific, Sixth Amendment right, because the

Fifth Amendment right “is protected by the prophylaxis of having an attorney

present to counteract the inherent pressures of custodial interrogation, which arise

from the fact of such interrogation and exist regardless of the number of crimes

under investigation or whether those crimes have resulted in formal charges.” Id.

at 685, 108 S. Ct. at 2100. The Supreme Court held that the Fifth Amendment,

Edwards concerns are not overcome by simply re-apprizing the defendant of

Miranda rights before interrogation or by the fact that the later investigation is

conducted by a different law enforcement organization. Id. at 686-87, 108 S. Ct. at

2101. Therefore, the Court concluded that the request for counsel must be

observed “[w]hether a contemplated reinterrogation concerns the same or a

different offense, or whether the same or different law enforcement authorities are

involved in the second investigation.” Id. at 678-88, 108 S. Ct. at 2101. As the

Court stated in a later case again distinguishing the Fifth Amendment right to

counsel from the offense-specific Sixth Amendment right, “[t]he purpose of the

Miranda-Edwards guarantee . . . is to protect a quite different interest [from the

Sixth Amendment]: the suspect’s ‘desire to deal with the police only through

counsel.’” McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S. Ct. 2204, 2209 (1991)

64
(citation omitted).

The year after Roberson, the Supreme Court revisited Edwards and again

extolled the benefits of its “clear and unequivocal” guidelines. See Minnick v.

Mississippi, 498 U.S. 146, 151, 111 S. Ct. 486, 490 (1990).18 In Minnick, the

defendant was arrested for murder, and he indicated his desire to have an attorney

present. Id. at 498 U.S. at 148, 111 S. Ct. at 488. The defendant met with an

attorney the following day, and then, two days after that, police initiated an

interrogation during which time he made incriminating statements. Id. at 149, 111

S. Ct. at 488-89. The Supreme Court considered whether the reinterrogation

violated Edwards, or whether the protections of Edwards cease after a defendant

has the opportunity to consult with an attorney.

In answering this question, the Minnick Court began by reiterating that the

purpose behind the Edwards rule was to prevent the badgering of defendants by the

police, and to ensure that statements are not the result of coercive pressures by the

police. Id. at 150-51, 111 S. Ct. at 489-90. The Court stated:

Edwards is “designed to prevent police from badgering a defendant
into waiving his previously asserted Miranda rights.” The rule ensures
that any statement made in subsequent interrogation is not the result

18
We note that the Minnick decision was released after Isaacs’
conviction became final in August 1990. See Isaacs v. Georgia, 497 U.S. 1032,
reh’g denied, 497 U.S. 1051 (1990) (denying cert).
65
 of coercive pressures.

Id. (citations omitted).

The Court then stated that “[t]he merit of the Edwards decision lies in the

clarity of its command and the certainty of its application,” and held that the

“protection of Edwards [does not] terminate[] once counsel has consulted with the

suspect.” Id. Instead, the Court held that:

In our view, a fair reading of Edwards and subsequent cases
demonstrates that we have interpreted the rule to bar police-initiated
interrogation unless the accused has counsel with him at the time of
questioning. Whatever the ambiguities of our earlier cases on this
point, we now hold that when counsel is requested, interrogation must
cease, and officials may not reinitiate interrogation without counsel
present, whether or not the accused has consulted with his attorney.

Id. at 153, 111 S. Ct. at 491.19 Therefore, on several occasions, the Supreme Court

has interpreted Edwards broadly in order to provide “clear and unequivocal” rules

designed to prevent the badgering of defendants by the police.

Although we have never addressed the applicability of Edwards or Roberson

to a defendant in Isaacs’ position, this Court has applied these cases in other

contexts on several occasions. See Tukes v. Dugger, 911 F.2d 508, 515 (11th Cir.

19
In dissent, Justice Scalia criticized the Court for creating an
“irrebuttable presumption that a criminal suspect, after invoking his Miranda right
to counsel, can never validly waive that right during any police-initiated encounter,
even after the suspect has been provided multiple Miranda warnings and has
actually consulted his attorney.” Id. at 156, 111 S. Ct. at 493.
66
1990) (applying Edwards and Roberson); Kight v. Singletary, 50 F.3d 1539, 1548

(11th Cir. 1995) (applying Edwards and Roberson, and noting that the 5th

Amendment rights protected by these decisions are not offense-specific). In

addition to these cases applying Edwards and Roberson in a straightforward

manner, we also considered limitations on the Edwards rule in Dunkins v. Thigpen,

854 F.2d 394 (11th Cir. 1988). In that case, we held that “a break in custody

dissolves a defendant’s Edwards claim.” Id. at 397.

It is in light of this framework that we must decide whether the Georgia

Supreme Court unreasonably applied Supreme Court precedent in holding that the

Edwards and Roberson protections do not extend to a defendant in Isaacs’ position

– one who has already been tried and convicted of the crime for which he was

taken into custody and with respect to which he asserted a right to counsel.

Although we have not had occasion to address this particular issue, some other

courts have.

We have found only two cases from our sister circuits addressing the issue

of whether the Edwards protections continue to apply to a prisoner who is in

custody following conviction for the crime for which he or she initially asserted the

right to deal with the police only through counsel, the Eighth Circuit in United

States v. Arrington, 215 F.3d 855 (8th Cir. 2000), and the Sixth Circuit in United

67
States v. Hall, 905 F.2d 959 (6th Cir. 1990).

The Eighth Circuit agreed with the Sixth Circuit’s earlier decision in Hall

that the Edwards protections do not continue indefinitely just because a person

remains in custody. Arrington, 215 F.3d at 856. In doing so, the Arrington court

rejected the defendant’s argument for suppression of statements which he gave to a

federal agent while in confinement for a conviction on an unrelated offense. After

reciting the Edwards and Roberson holdings, the court reasoned:

Although the Fifth Amendment right to counsel continues throughout
the duration of police custody, we find no support in Edwards or
Roberson for Arrington’s contention that the right also “continu[es] ad
infinitum,” and certainly not where, as here, the accused has entered a
guilty plea and has begun serving his sentence. When Arrington was
arrested on state charges, he validly invoked his Fifth Amendment
right to counsel and that right was scrupulously honored throughout
the state proceedings. After pleading guilty to the state flight charge,
Arrington was transferred from police custody to correctional custody
to serve his sentence. At that point, Arrington was no longer “‘in
custody’ as that term has been used in the context of Edwards and
Roberson,” and Edwards and Roberson were no longer applicable as a
basis for suppressing Arrington’s statement to the ATF agent. Thus,
the district court properly denied Arrington’s motion to suppress his
statement.

Id. at 856-57 (citations and quotations omitted). See also United States v. Hall,

905 F.2d 959 (6th Cir. 1990) (the two judges in the majority limiting the reach of

Edwards and Roberson by focusing on factual differences including the short time

period in the Supreme Court cases between the invocation of the right to counsel

68
and the challenged interrogations, as compared to the three-month time period in

Hall, and the fact that Hall was in the penitentiary as a convicted prisoner, unlike

the defendants in Edwards and Roberson).

In addition to these two decisions by federal circuit courts, a Maryland

appeals court recently addressed at length the issue before us. See Clark v. State,

781 A.2d 913 (Md. App. 2001). The Clark court discussed the various approaches

taken by other courts confronting the issue of whether Edwards protections extend

indefinitely, and recognized that courts, including this one,20 have drawn a

distinction between “Miranda custody” and incarceration following a conviction.

Id. 945-46. Based on this distinction, the Clark court held that there is a “break in

custody,” for purposes of determining whether Edwards applies, after a defendant

is convicted and released to the general prison population, stating: “But the

extended period of time during which the inmate was incarcerated but was not in

Miranda custody is a break in custody that has the effect, like any other break in

custody, of allowing his question-proof status to end.” Id. at 947 (citations and

20
In Garcia v. Singletary, 13 F.3d 1487 (11th Cir. 1994), we held that “a
person’s status as an inmate does not automatically constitute ‘in custody,’ for
Miranda purposes.” Id. at 1490-91. Based on this, we held that a prison guard was
not required to provide an inmate with a Miranda warning prior to “on-the-scene
questioning” after the guard observed the inmate starting a fire because the inmate
was not in custody for purposes of Miranda. Id. at 1492.
69
quotations omitted). The court concluded that Edwards and its progeny were

distinguishable, stating:

Edwards, Roberson, and Minnick were all cases in which
reinterrogation took place within three days of the prisoner’s
invocations of their right to counsel. The evil sought to be avoided
was police badgering. But with a gap of more than five years between
police interrogation sessions, it is impossible to say that the
Montgomery County police “badgered” Clark into waiving his right to
counsel. Application of the Edwards rule to cases like the one at hand
would not help achieve Edwards’s goal of preventing police
badgering, nor would it accomplish any other discernable public good.

Common sense dictates that, if a rule is devised to prevent badgering a
suspect into giving up his right to counsel, and because of an immense
time gap, no badgering even arguably occurred, then blind obedience
to the rule is not required. Put another way, when, as here, the factual
circumstances of a case fall into a predictable, potentially recurring
pattern to which the underlying policy of Miranda and Edwards cease
to apply, then so too does the bright-line of Edwards cease to shine.

Id. at 947-48 (citations and quotations omitted). See also Laurie Magid,

Questioning the Question-Proof Inmate: Defining Miranda Custody for

Incarcerated Suspects, 58 Ohio S. L. R. 883(1997) (discussing Edwards cases, and

endorsing approach subsequently adopted by the Clark court).

In contrast to these decisions, some state courts have held that the Edwards

and Roberson protections continue even after a defendant has pleaded guilty to,

and been incarcerated for, the charge with respect to which he originally invoked

his Fifth Amendment right to counsel. In United States v. Green, 592 A.2d 985

70
(D.C. Ct. App. 1991), the D.C. Court of Appeals found that this conclusion was

required in light of the Supreme Court’s repeated focus on the “clear and

unequivocal” and “prophylactic” nature of the Edwards and Roberson rules. Id. at

987-89. The court noted that, as in Isaacs’ case, considerable time had passed

since the original invocation of the right to counsel, but the court concluded that:

[W]e think only the Supreme Court can explain whether the Edwards
rule is time-tethered and whether a five-month interval, during which
no efforts at custodial interrogation took place, is too long a period to
justify a continuing irrebuttable presumption that any police-initiated
waiver was invalid. Until the Court provides further guidance, we are
persuaded that so long as the defendant remains in custody the fact
that the police did not reinitiate interrogation until five months after
he invoked his right to counsel cannot be adequate reason, alone or
combined with the factors already treated, to justify a departure from
Edwards’ command.

Id. at 989-90. The Green court also noted that it was significant that the important

intervening event in that case – the guilty plea to the original charge – was not

inconsistent with the defendant’s expressed desire to only deal with the police with

counsel present. Id. at 990-91. Therefore, the court found that Edwards and

Roberson were still applicable.21 Accord Kochutin v. State, 813 P.2d 298 (Ak.

21
The Supreme Court granted certiorari in Green and considered
whether the Edwards protections should apply to a defendant in his situation. See
United States v. Green, 504 U.S. 908, 112 S. Ct. 1935 (1992). During oral
arguments, “a number of justices asked questions that indicated their concern about
the duration of Green’s question-proof status after he invoked his right to counsel.”
Clark, 781 A.2d at 941. However, before the Supreme Court issued an opinion in
71
App. 1991) (holding that the Edwards protections continue to apply indefinitely to

a defendant who invokes those rights and remains in custody, even after the

defendant is convicted and serving his sentence), vacated by Kochutin v. State, 875

P.2d 778 (Ak. App. 1994) (vacating original decision based on subsequent

determination that there was a break in the defendant’s custody). Cf.

Commonwealth v. Perez, 581 N.E.2d 1010, 1015-17 (Ma. 1991) (assuming but not

deciding that Edwards protection continues following conviction and during

incarceration, but finding that error was harmless).

In light of this precedent, we conclude for a number of reasons that the

Georgia Supreme Court’s adjudication of Isaacs’ Edwards claim may not be

disturbed. As an initial matter, in light of the conflicting authority concerning the

reach of Edwards and Roberson under the circumstances of this case, and in

particular in light of the decisions by the Sixth and Eighth Circuits holding that

Edwards does not apply under facts similar to those in this case, we cannot

conclude that the Georgia Supreme Court unreasonably applied, or acted contrary

to, relevant Supreme Court precedent. To do so would be to discount or disregard

the prevailing trend among the federal circuits as unreasonable.

the case, Green was murdered in prison, and the Court never issued a decision. Id.
at 940.
72
 Moreover, we find reasonable the approach taken by those courts that have

held that Edwards does not apply to a defendant who has been convicted and who

remains in custody only in the sense that he is incarcerated as part of the general

prison population.22 Under such circumstances, we believe that the Georgia

Supreme Court acted reasonably by determining that the facts were sufficiently far

removed from Edwards and its progeny, and that the concerns over police

badgering were sufficiently attenuated, to find that the Edwards protections had

ceased. Edwards is designed to counteract the “coercive pressures” of being in

custody. See Minnick, 498 U.S. at 150-51, 111 S. Ct. at 489-90. But for Isaacs,

and many other inmates who might have invoked the right to counsel at some past

time, incarceration in prison is an accustomed milieu and is far from the

potentially coercive situation that gives rise to concerns over police badgering.

Therefore, the concerns underlying Edwards and its progeny are weaker under the

circumstances of this case.

Similarly, we agree with our sister circuits, as well as the Maryland appellate

court in Clark, that nothing in the existing Supreme Court precedent requires the

conclusion that the Edwards protections continue ad infinitum, thereby perpetually

22
Of course, in light of the restricted scope of our review under
AEDPA, we need not and do not adopt this as the law of our circuit.
73
shielding inmates from questioning regarding crimes unrelated to those which

originally led them to invoke the right to counsel. As the Clark court cogently

observed: “Edwards, Roberson, and Minnick were all cases in which

reinterrogation took place within three days of the prisoner’s invocations of their

right to counsel.” 781 A.2d at 947. Accordingly, we readily conclude that the

decision of the Georgia Supreme Court is not “contrary to” clearly established

Supreme Court precedent. Indeed, it would be quite a stretch from the facts of

those cases to conclude that the same protections continue forever for a defendant

who has been convicted and is serving his time in prison.

Also, we believe that the Georgia Supreme Court’s decision gains additional

support from our decision in Garcia v. Singletary, 13 F.3d 1487 (11th Cir. 1994).

In Garcia, we held that “a person’s status as an inmate does not automatically

constitute ‘in custody,’ for Miranda purposes.” Id. at 1490. In that case, we held

that a prison guard who engaged in “on-the-scene questioning” of an inmate whom

he observed starting a fire, had not violated Miranda by failing first to inform the

inmate of his rights. Id. at 1489-91. We held that the inmate had not been subject

to a custodial interrogation, and that Miranda consequently was not implicated. Id.

at 1492. Although Garcia did not involve an Edwards claim, we did recognize in

that case that, at least for purposes of Miranda (the case on which Edwards is

74
based), incarceration in prison is not necessarily the same as “Miranda custody.”

This approach recognizes that incarceration in the general prison population is the

accustomed milieu for many inmates, rather than the type of coercive situation that

was the source of concern in Miranda and its progeny. We see no reason why the

Georgia Supreme Court could not reasonably conclude that the same type of

reasoning could apply in the Edwards context. If it did so, then the court also

could have reasonably concluded, as the Maryland appellate court did in Clark, that

incarceration following a conviction constitutes a break in Miranda custody,

thereby ending the Edwards protections.

Finally, we are mindful that the Supreme Court has exercised some caution

before expanding any judicially-created prophylactic rule beyond the

circumstances under which the rule was originally created. See Stone v. Powell,

428 U.S. 465, 96 S. Ct. 3037 (1976). Instead, courts first should engage in a

“pragmatic analysis” which takes account of the societal costs of extending such a

rule to a new situation. Id. at 488, 96 S. Ct. 3049. As mentioned above, the

concerns underlying Edwards and its progeny are certainly attenuated under the

facts of this case where there is no evidence of police badgering, the interrogation

initiated by the police occurs while the defendant is serving his sentence, and the

interrogation takes place years after the defendant’s conviction. Under these

75
circumstances, we do not think that the Georgia Supreme Court acted unreasonably

by failing to extend Edwards and its progeny to Isaacs’ situation.

Therefore, we conclude for all these reasons that the Georgia Supreme

Court’s adjudication of Isaacs’ Edwards claim was neither contrary to, nor an

unreasonable application of, established Supreme Court precedent, and it is due to

be affirmed pursuant to §2254(d)(1).

D. Evidence, Argument, and Instructions Regarding Isaacs’ Lack of
Remorse

Next, Isaacs argues that his 5th Amendment rights were violated when the

trial court permitted evidence, argument, and jury instructions at the sentencing

stage of his trial related to his lack of remorse. Isaacs maintains that these

statements violated the Supreme Court’s decision in Griffin v. California, 380 U.S.

609, 85 S. Ct. 1229 (1965), because they reflected negatively on his decision not to

testify at trial.

The facts concerning this issue center around the trial court’s decision to

permit the State, at the sentencing stage of trial, to put on evidence relating to

Isaacs’ lack of remorse in the form of testimony from a television reporter, Mark

Piccard. Isaacs made a pre-trial motion to exclude such remorse evidence, which

76
the trial court denied. Piccard was then called as a witness during the sentencing

hearing and, over objection, testified that during an interview with Isaacs in the

1970s, Piccard asked Isaacs “[i]f he had it to do all over again, would he do it

again.” Piccard then testified that “to the best of [Piccard’s] recollection,” Isaacs

responded that “he would.”

The State utilized Piccard’s testimony concerning Isaacs’ lack of remorse in

its closing argument, stating:

The evidence in this case is showing you something else about Carl
Isaacs. Mark Piccard talked to him – he didn’t know exactly when,
but it was ‘77 or ‘78 – and he asked him about the Alday family. He
asked him about those people. And you remember what Mark Piccard
said? He said, I was stunned by the frankness of his answer, because
he said he would do it again.

After closing arguments, the trial court agreed to give the following jury

instruction concerning remorse:

In considering all of the evidence from both phases of trial, you
should consider all of the aspects of the crime, all aspects of the
defendant’s character, including but not limited to, . . . any evidence
of remorse or lack thereof. . . .

Isaacs objected to this instruction, arguing that it was an improper comment on

Isaacs’ decision not to testify. The State argued that the instruction was

permissible, and pointed to Piccard’s testimony. The trial court agreed with the

State and gave the instruction.

77
 On direct appeal, Isaacs challenged both the prosecutor’s comments

concerning Isaacs’ lack of remorse, and the trial court’s instruction concerning

remorse. The Georgia Supreme Court rejected Isaacs’ arguments, stating:

Contrary to the defendant’s contention, the defendant’s remorse or
lack thereof is a permissible area of inquiry during sentencing. Fair v.
State, 245 Ga. 868(4), 268 S.E.2d 316 (1980). Compare, cf., U.S. v.
Reed, 882 F.2d 147, 150-51 (5th Cir.1989) (approving federal
sentencing guidelines provision for reduction of sentence when
defendant demonstrates “affirmative acceptance of personal
responsibility” manifested by “sincere contrition” (emphasis
supplied)).

Piccard’s testimony was not otherwise inadmissible. See Division 30,
post.

Isaacs, 386 S.E.2d at 323. The later portion of the opinion cited to in this section,

Division 30, supports the proposition that Piccard’s testimony was admissible

because “[t]here is no evidence [Piccard] was acting as an agent of the state, or that

Isaacs’ statement was not voluntary.” Id. at 330. Finally, the Supreme Court

rejected Isaacs’ contention that the prosecutor’s closing argument was improper,

stating Isaacs had not objected to the argument at trial and that the argument did

not entitle Isaacs to relief because it “did not result in the sentence of death being

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

Id. at 333 (citation and quotation omitted).

In his federal habeas petition, Isaacs again pressed these challenges –

78
Ground 15 related to the evidence and prosecutorial argument and Ground 21

related to the jury charge. Isaacs argued that the Fifth, Sixth, Eighth and

Fourteenth Amendments were violated by the remorse evidence, argument and jury

instruction. [RE64:76] The district court held that the Georgia Supreme Court’s

decision was neither an unreasonable application of, nor contrary to, Supreme

Court precedent, and that Isaacs’ claim was therefore due to be denied pursuant to

§2254(d)(1).

As mentioned above, even though the Georgia Supreme Court did not

expressly discuss the Supreme Court’s Griffin decision or any other federal cases

(although the federal constitutional claim was presented) in disposing of Isaacs’

claims relating to remorse, we assume that the court adjudicated those claims, and

we must affirm the denial of habeas unless the result it reached would be contrary

to, or an unreasonable application of, established Supreme Court precedent. See

Wright v. Secretary of Dept. of Corrections, 278 F.3d 1245 (11th Cir. 2002).

To begin with, we will look at the federal case law relevant to Isaacs’ claims.

His claims are based on the Supreme Court’s opinion in Griffin v. California, in

which the Supreme Court addressed whether it was permissible for a trial judge to

instruct the jury in a criminal trial that it could draw an unfavorable inference from

a defendant’s decision to remain silent at trial. 380 U.S. 609, 85 S. Ct. 1229

79
(1965). The Court concluded that a rule permitting such an inference violated the

Fifth Amendment because:

It is in substance a rule of evidence that allows the State the privilege
of tendering to the jury for its consideration the failure of the accused
to testify. No formal offer of proof is made as in other situations; but
the prosecutor’s comment and the court’s acquiescence are the
equivalent of an offer of evidence and its acceptance.

Id. at 613, 85 S. Ct. at 1232. The Court noted that the decision to remain silent is

not inconsistent with innocence in our legal system. Id. at 613-15, 85 S. Ct. at

1232-33. It also noted that a jury might draw a negative inference from silence,

even without comment by the prosecutor or judge, but stated: “What the jury may

infer, given no help from the court, is one thing. What it may infer when the court

solemnizes the silence of the accused into evidence is quite another.” Id. at 614, 85

S. Ct. at 1233. Therefore, the Court concluded that:

We . . . hold that the Fifth Amendment, in its direct application to the
Federal Government and in its bearing on the States by reason of the
Fourteenth Amendment, forbids either comment by the prosecution on
the accused’s silence or instructions by the court that such silence is
evidence of guilt.

Id. at 615, 85 S. Ct. at 1233.

Although Griffin involved statements made during the guilt phase of a

bifurcated criminal trial, the Supreme Court has recently confirmed that the Griffin

rule also applies to the sentencing phase of a trial. The Court first suggested that

80
this would be the rule in its decision in Estelle v. Smith, 451 U.S. 454, 101 S. Ct.

1866 (1981), when it discussed whether violation of the Fifth Amendment Miranda

protections required exclusion of evidence during the sentencing stage of a trial.

The Court stated:

The Court has held that the availability of the [Fifth Amendment]
privilege does not turn upon the type of proceeding in which its
protection is invoked, but upon the nature of the statement or
admission and the exposure which it invites. In this case, the ultimate
penalty of death was a potential consequence of what respondent told
the examining psychiatrist. Just as the Fifth Amendment prevents a
criminal defendant from being made “the deluded instrument of his
own conviction,” it protects him as well from being made the
“deluded instrument” of his own execution.

We can discern no basis to distinguish between the guilt and penalty
phases of respondent’s capital murder trial so far as the protection of
the Fifth Amendment privilege is concerned. Given the gravity of the
decision to be made at the penalty phase, the State is not relieved of
the obligation to observe fundamental constitutional guarantees.

Id. at 462-63, 101 S. Ct. at 1873 (citations and quotations omitted).

Then, more recently, the Supreme Court directly held that Griffin’s

reasoning applies to sentencing, as well as liability, phases of a criminal

proceeding. See Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307 (1999).

In Mitchell, the Court considered whether it was permissible for a district court to

draw a negative inference from a defendant’s refusal to testify during a sentencing

hearing after the defendant had pled guilty to the offense. Id. at 327-30, 119 S. Ct.

81
at 1314-16. The Court “decline[d] to adopt an exception [from the rule set out in

Griffin] for the sentencing phase of a criminal case with regard to factual

determinations respecting the circumstances and details of the crime.” Id. at 328,

119 S. Ct. at 1315. The Court stated:

The concerns which mandate the rule against negative inferences at a
criminal trial apply with equal force at sentencing. Without question,
the stakes are high: Here, the inference drawn by the District Court
from petitioner’s silence may have resulted in decades of added
imprisonment. The Government often has a motive to demand a
severe sentence, so the central purpose of the privilege – to protect a
defendant from being the unwilling instrument of his or her own
condemnation – remains of vital importance.

Id. at 329, 119 S. Ct at 1315. See also Tucker v. Francis, 723 F.2d 1504, 1509-13

(11th Cir. 1984) (noting in dicta that Griffin applies to sentencing phase).

We now turn to whether the prosecutor and trial court in this case ran afoul

of Griffin with respect to the evidence, argument, and instruction concerning

Isaacs’ lack of remorse. On several occasions, we have addressed the proper

application of Griffin, recognizing that the standards for evaluating a Griffin claim

as follows:

The Fifth Amendment prohibits a prosecutor from commenting
directly or indirectly on a defendant’s failure to testify. A
prosecutor’s statement violates the defendant’s right to remain silent if
either (1) the statement was manifestly intended to be a comment on
the defendant’s failure to testify; or (2) the statement was of such a
character that a jury would naturally and necessarily take it to be a

82
 comment on the failure of the accused to testify. The question is not
whether the jury possibly or even probably would view the remark in
this manner, but whether the jury necessarily would have done so.
The defendant bears the burden of establishing the existence of one of
the two criteria. The comment must be examined in context, in order
to evaluate the prosecutor’s motive and to discern the impact of the
statement. Because the trial judge is the only person who has the
opportunity to observe the prosecutor’s demeanor firsthand, we
review the district court’s denial of the motion for mistrial for abuse
of discretion.

United States v. Knowles, 66 F.3d 1146 (11th Cir. 1995) (citations, quotations, and

footnotes omitted). See also United States v. LeQuire, 943 F.2d 1554, 1565 (11th

Cir. 1991) (same); Solomon v. Kemp, 735 F.2d 395, 401 (11th Cir. 1984).

In applying Griffin, we have strictly enforced the requirement that a

defendant show that the allegedly offensive comment was either manifestly

intended to be a comment on the defendant’s silence or that the comment naturally

and necessarily related to the defendant’s silence. For example, in Knowles, the

Court considered whether a prosecutor violated Griffin when he pointed out

problems with the defendant’s defense, and then asked, “Did you ever hear an

explanation for that?” 66 F.3d at 1162. The Court held that this statement did not

necessarily relate to the defendant’s silence, because the defendant could have

presented other types of evidence to explain the inconsistency. Id. at 1163.

Therefore, the Court concluded that:

83
 As such, the remark is not so much a comment on Wright’s failure to
testify, but rather on Wright’s counsel’s failure to counter or explain
the [damaging evidence]. It is not error to comment on the failure of
the defense as opposed to the defendant, to counter or explain the
evidence.

Id. at 1163 (citations and quotations omitted).

Likewise, in Solomon v. Kemp, the prosecutor addressed the fact that the

State was not sure which one of two defendants possessed which of two guns

found at a crime scene, and stated: “We don’t know which defendant had which

gun. The only person who can tell us that is [the defendant].” 735 F.2d at 401.

We held that this statement was proper under Griffin, stating:

We find the statement to be rather an attempt to explain why the state
could not match each defendant with one specific gun and to stress
that this fact was not crucial to the state’s case. Although the
statement was an indirect reference to petitioner’s silence, taken in
context it is an objective evaluation of the state of the evidence. As
such, it is permissible under Griffin.

Id.

In light of this precedent, we conclude that the Georgia Supreme Court did

not act contrary to, nor did it unreasonably apply, Supreme Court precedent when

it rejected Isaacs’ claims related to the evidence, arguments, and instructions

concerning his lack of remorse. It is true that some courts have found that remarks

related to a defendant’s lack of remorse may violate Griffin. See Lesko v. Lehman,

84
925 F.2d 1527 (3d Cir. 1991) (holding that prosecutor’s comment on defendant’s

failure to express remorse violated Griffin); Hall v. State, 13 S.W.2d 115, 117

(2000) (“A comment that directly focuses the jury’s attention on the defendant’s

personal feelings of remorse, which can only be supplied through the defendant’s

own testimony, necessarily indicates the defendant’s failure to testify.”); Dickinson

v. State, 685 S.W.2d 320, 324-35 (Tx. Crim. App. 1984) (finding that argument

concerning lack of remorse necessarily reflected on defendant’s decision not to

testify).

However, several other courts have found that, under many circumstances,

arguments or comments related to a lack of remorse do not implicate the

defendant’s decision not to testify because they may relate to other evidence

properly before the jury or to the defendant’s demeanor at trial. See Williams v.

Chrans, 945 F.2d 926, 953-54 (7th Cir. 1991) (finding that comments related to

lack of remorse did not violate Griffin because jury could consider remorse in light

of defendant’s demeanor and testimony); Commonwealth v. Clark, 710 A.2d 31,

39-40 (Pa. 1998) (rejecting approach taken in Lesko and concluding that comments

regarding lack of remorse were reference to defendant’s demeanor at trial and

character evidence); State v. Hamilton, 681 So.2d 1217, 1225 (La. 1996) (holding

that arguments concerning lack of remorse did not necessarily implicate failure to

85
testify because other evidence of remorse could be presented); Odle v. Calderon,

919 F. Supp. 1367, 1397 (N.D. Cal. 1996) (same).

We believe that this is such a case in which the Georgia Supreme Court

reasonably could conclude that the arguments and comments concerning Isaacs’

lack of remorse did not implicate the right not to testify. In particular, the most

damaging evidence concerning Isaacs’ lack of remorse came from his own words

to that effect freely expressed to a reporter, Mark Piccard. There is no suggestion

that Piccard was a state actor when he interviewed Isaacs, or that Isaacs statements

to Piccard were involuntary. We see, and the Georgia Supreme Court found, no

reason why that testimony was not permissible. Therefore, we conclude that the

Georgia Supreme Court acted reasonably in holding that the remorse evidence,

arguments, and instruction did not violate Griffin, but instead were related to the

evidence properly before the jury. Because its holding was not contrary to, or

unreasonable application of Griffin, further review is precluded by § 254(d)(1).

E. Whether the District Court Erred in Holding that a Challenge to
Electrocution as Cruel and Unusual Punishment was Procedurally
Defaulted

Finally, Isaacs asserts that the district court erred by holding that his claim

challenging the constitutionality of electrocution was procedurally barred. In

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Dawson v. State, 554 S.E.2d 137 (Ga. 2001), however, the Georgia Supreme Court

recently held that electrocution was unconstitutional under the Georgia

Constitution. The court went on to conclude that the provision permitting

electrocution was severable from other death penalty provisions, so all Georgia

death sentences could be carried out by lethal injection. In light of this case,

Isaacs’ cruel and unusual punishment claim is moot.

IV. CONCLUSION

For the foregoing reasons, we conclude that AEDPA applies to Isaacs’

petition; that the Georgia state courts did not act contrary to, or unreasonably

apply, established federal law as determined by the U.S. Supreme Court in

rejecting Isaacs’ federal challenges to his conviction and sentence; and that the

district court’s denial of Isaacs’ §2254 habeas petition was otherwise proper.

AFFIRMED.

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EDMONDSON, Chief Judge, concurring in the judgment:

I agree that AEDPA applies. As I understand the law, deciding this case

accurately is no complicated or laborious task. I easily accept that the pertinent

decisions of the Supreme Court of Georgia were not contrary to and did not

involve unreasonable applications of clearly established federal law.

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BARKETT, Circuit Judge, specially concurring:

I concur in the judgment of the Court. While I believe that AEDPA should

not be applied to Isaacs’ petition, see Calderon v. U.S. District Ct. for the Central

District of Cal., 163 F.3d 530 (9th Cir. 1998) (en banc), I conclude that precedent

dictates that Isaacs is not entitled to relief on any of his claims, even under pre-

AEDPA standards of review.

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