Wellons v. Hall

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 5, 2009
No. 07-13086 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 01-01296-CV-WBH

MARCUS WELLONS,

Petitioner-Appellant,

versus

HILTON HALL, Warden,
Georgia Diagnostic and
Classification Prison,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 5, 2009)
(As Amended 2/5/09)

Before TJOFLAT, BLACK and WILSON, Circuit Judges.

WILSON, Circuit Judge:
 Marcus Wellons, an inmate sentenced to death in Georgia for the malice

murder and rape of 15-year-old India Roberts, appeals the district court’s denial of

his petition for a writ of habeas corpus. Wellons raises five issues from his

certificate of appealability that we group and address under the following headings:

(1) Judge, Juror, and Bailiff Misconduct; (2) Sabel Discovery Error; (3) Ineffective

Assistance of Counsel; and (4) Constitutionality of Georgia’s Death Penalty

System. Because neither the Georgia Supreme Court nor habeas court’s decisions

are contrary to, or an unreasonable application of, clearly established Supreme

Court law, we affirm the district court’s denial of federal habeas relief.

I. BACKGROUND

A. Factual Background 1

Throughout the summer of 1989, Wellons lived with his girlfriend,
Gail Saunders, in her townhouse apartment in Cobb County. Early that
summer, Saunders’ 14–year–old son Tony also lived in the apartment. Tony
and the victim, who lived in a neighboring apartment with her mother, were
friends. The victim occasionally visited Tony inside Saunders’ apartment,
where the two youths would watch television or play Nintendo. Wellons
encouraged Tony to date the victim, remarking several times that she was a
good looking girl. At some point during the summer, Tony moved to
Chattanooga to live with his grandparents. The victim continued to spend
time with Saunders occasionally. Saunders described herself as the victim’s
“play mommy” with whom the victim shared confidences.
Wellons and Saunders had become acquainted at the hospital where
both worked, Wellons as a counselor in the psychiatric ward. Wellons

1
We draw the facts as summarized by the Supreme Court of Georgia’ opinion affirming
Wellons’s conviction and sentence on direct appeal.

2
moved in with Saunders on the pretense that he owned a home but was
unable to occupy it, because an ex-girlfriend had moved there with her two
young daughters, and he could not in good conscience turn them out. Over
the summer Wellons proposed marriage to Saunders. However, by then
Saunders had become wary of Wellons, who was increasingly hostile and
abusive. She verbally accepted his proposal out of fear, all the while seeking
an escape from her predicament.
On the evening of August 30, 1989, Saunders told Wellons that their
relationship was over and that he must move out of her apartment. Wellons,
who had recently been fired from his job, purchased a one-way ticket to
Miami for a flight departing on the evening of August 31. Fearing to be
alone with Wellons the night before his departure, Saunders told Wellons
that she was going to Chattanooga to spend the night with her parents and
enroll Tony in school. Instead, Saunders went to the home of a female
friend.
That evening, Wellons began making desperate attempts to reach
Saunders by telephone. He called her mother in Chattanooga repeatedly,
only to be told that Saunders had not arrived. Wellons then called Saunders’
friends, but no one knew or revealed her whereabouts. He called his mother
and told her he suspected that Saunders was with another man. Wellons
became increasingly angry and began drinking. He ransacked Saunders’
apartment. He overturned potted plants and furniture, threw flour onto the
floor, and poured bleach over all of Saunders’ clothes, carefully sparing his
and Tony’s belongings in the process.
After the apartment was demolished, Wellons began attempts to cover
up his deed. He broke a window, from the inside out, cutting his hand in the
process and smearing blood around the apartment. He stacked electronic
equipment by the door. He then called 911 at approximately 3:00 a.m. on
August 31 to report a burglary. When a police officer arrived, Wellons told
the officer that he had come home to find the apartment ransacked, although
no items were missing. Wellons explained to the officer that he cut his hand
while struggling to uncover a stash of money to determine if it had been
taken. Sometime after the officer left, Wellons wrote a racial slur across the
wall in Saunders’ bedroom.
Several hours later, at approximately 8:00 a.m., the victim said
goodbye to her mother and walked from her apartment, past Saunders’ door,
toward the school bus stop. Shortly thereafter, Saunders’ next door neighbor
heard muffled screams from inside Saunders’ apartment.

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 The apartment building was close to a wooded area, beyond which
was a grocery store. At approximately 2:00 p.m., Wellons approached an
acquaintance who was employed at the grocery store and asked to borrow a
car. The acquaintance refused. Wellons told the acquaintance that when he
(Wellons) returned home the previous night, he encountered two white men
who were burglarizing the apartment. Wellons said that he successfully
fought off the intruders but explained that he had in the process sustained the
injuries to his hand.
About half an hour later, Theodore Cole, a retired military police
officer, was driving near the wooded area behind the apartment complex.
He spotted in the distance a person carrying what appeared to be a body
wrapped in a sheet. He distinctly saw feet dangling from the bottom of the
sheet. Cole drove on but then returned for a second look. He drove around
in the parking lot of the apartment complex and saw nothing. As he was
driving away, however, he saw a man in his rear view mirror walk along the
road and throw a sheet into the woods. Cole drove directly to the grocery
store, where he called 911. Police officers arrived quickly and began a
search of the woods.
The police first discovered sheets, clothing and notebooks bearing
Tony’s name. Then, upon close inspection of a pile of tree branches near
where he had seen the man carrying the sheet, Cole spotted the body of India
Roberts. When the branches were removed, the officers discovered that the
victim was completely unclothed, with cuts on one side of her face and ear
and bruises on her neck.
During the search of the woods, Cole spotted a black man with a
bundle under his arm near the apartment building and identified him as the
man Cole had seen carrying the sheet. Cole and an officer chased the man,
but as they approached the building, the man turned the corner and Cole and
the officer heard a door shut. The officer learned from a passerby which
apartment was occupied by a man fitting the description given by Cole. He
knocked on Saunders’ door and announced his presence, but there was no
answer. He returned to join the other officers, who were investigating the
scene in full force, with helicopters overhead.
Wellons, now trapped inside Saunders’ apartment with residual
evidence of his crime, gave up his attempt to dispose of the evidence in the
woods. He first tried to clean the apartment and his clothes. He then
abandoned that project, changed into swim wear, grabbed an old, yellowed
newspaper and a cup of wine, partially barricaded and locked the door, and

4
 headed for the pool. On his way, Wellons caught sight of a police officer
and stopped abruptly. The officer began questioning him. Initially evasive,
Wellons did ultimately tell officers that the injuries to his hand, and new
scratches to his face, were sustained during a scuffle with two men whom he
had caught burglarizing Saunders’ apartment.
While investigating the scene, officers had asked Cole whether either
of two black males was the man Cole had seen carrying the sheet. Cole
immediately ruled out each of the men. Then, while officers were
questioning Wellons, one officer standing at a distance from the questioning
asked Cole whether Wellons was the man he had seen. Cole said that
although Wellons was wearing different clothing from the man he had seen
carrying the sheet, and whom he had again seen near the complex, Cole was
75 to 80 percent certain that Wellons was the same man.
Later that day, officers searched Saunders’ apartment. Inside, they
found numerous items of evidence including the victim’s notebooks and
earrings. In Tony’s room, they discovered the victim’s panties. They also
found blood on Tony’s mattress and box springs. The mattress had been
flipped so that the bloody portion was facing downward, and the bed had
been remade.
The autopsy revealed that the victim died from manual strangulation,
which in itself would have taken several minutes. The autopsy also showed
that Wellons had attempted to strangle the victim with a ligature, possibly a
telephone cord, and that he had bruised her and cut her face and ear with a
sharp object. The evidence suggested that Wellons had dragged or
otherwise forcibly moved the victim from the kitchen up the stairs to Tony’s
bedroom. Finally, the autopsy revealed a vaginal tear and copious amounts
of what appeared to be seminal fluid within the victim’s vagina. She had
defensive wounds to her hands, and her blouse was stained with her own
blood.

Wellons v. State, 463 S.E.2d 868, 873–75 (Ga. 1995).

B. Procedural History

1. Trial and Sentencing Phases

Wellons was charged with the malice murder and rape of India Roberts.

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Wellons did not dispute his participation in the crimes, but pleaded not guilty by

reason of insanity or guilty but mentally ill. During pre-trial proceedings, the state

moved for the disclosure of the identities, addresses, and written reports of any

experts consulted by defense counsel, arguing that under Sabel v. State, 282 S.E.2d

61 (Ga. 1981), the prosecution was entitled to full discovery from these experts

whether or not the defense intended to have them testify at trial. The defense

argued that such disclosure would effectively chill Wellons’s consultation with

mental health experts and impede defense efforts to prepare for both the guilt and

penalty phases of trial, in violation of Wellons’s federal constitutional rights to due

process and the effective assistance of counsel. Over the defense’s forceful

objections, the court ruled in favor of the state and ordered the defense to disclose

the names, addresses, and written reports of any experts consulted.

Wellons moved for interim review, arguing that the discovery violated due

process because it granted the prosecution broader discovery rights against

Wellons than he had against the state. Wellons explained that the Sabel ruling

prevented defense counsel from consulting with experts to understand the scientific

matters involved with his defense, decide what further lines of investigation to

pursue as necessary, discern which defenses or theories and theories were viable,

and assist in the cross-examination and rebuttal of the state’s medical experts. The

6
defense also argued that while Wellons needed to speak candidly with mental

health experts during his examination, such unreserved disclosure to the experts

may compromise Wellons’s privilege against self-incrimination in light of the

Sabel ruling.2 The court rejected these arguments and denied the request for

interim review.

Nine days before jury selection, the defense requested the court to clarify its

Sabel order. The defense had consulted three experts, none of whom had yet

written reports. The defense contended that any reports that would be prepared

should be exempt from the court’s Sabel ruling because they are not “scientific”

reports under Caldwell v. State, 393 S.E.2d 436 (Ga. 1990).3 The court ruled that

any reports from the three experts—a psychiatrist, psychologist, and

sociologist—would be scientific reports and must be disclosed to the prosecution

pursuant to the Sabel order. After the court denied Wellons’s motion to reconsider,

defense counsel disclosed the identities of the mental health experts consulted. To

2
Dr. Bary Scanlon, an expert psychiatrist consulted by the defense, submitted an ex parte
affidavit in support of defense motions against the Sabel order explaining that he was unable to
render an official opinion as to Wellons’s mental state because Wellons would not discuss the
facts and circumstances surrounding the crime during the interview.
3
In holding that DNA identification evidence is admissible in a criminal trial, the
Georgia Supreme Court reaffirmed that the test for the admissibility of “scientific” evidence is
“‘whether the procedure or technique in question has reached a scientific stage of verifiable
certainty.’” Caldwell, 393 S.E.2d at 441 (quoting Harper v. State, 292 S.E.2d 389, 395 (Ga.
1982)).

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avoid any further disclosures, however, defense counsel refrained from having the

experts prepare any written reports.

In light of the Sabel rulings, Wellons’s counsel decided not to present any

mental health expert testimony during the guilt phase of trial. On June 6, 1993, a

jury convicted Wellons of malice murder and rape.

During the penalty phase, Wellons presented seventeen mitigation witnesses,

including an expert sociologist and an expert psychologist. The lay

witnesses—especially members of Wellons’s immediate family—testified about

the physical abuse Wellons suffered at the hands of his father and about Wellons’s

history of substance abuse. Dr. Marti Loring, the expert sociologist, wrote a report

for the penalty phase and testified about the typical effects of child abuse and the

impact Wellons’s history of abuse may have had on him. Dr. Steven O’Hagen, the

expert psychologist, testified—on the basis of Dr. Loring’s written report and his

own interview with Wellons—that Wellons suffers from post-traumatic stress

disorder, a mixed personality disorder, and substance abuse, but does not suffer

from brain damage and is not psychotic. Dr. O’Hagen acknowledged the court-

appointed psychiatrist’s conclusions that Wellons is an intelligent, well-educated

man with a significant personality disorder but who suffers neither pyschosis nor

brain damage. On cross-examination, Dr. O’Hagen admitted that at defense

8
counsel’s request, he did not put his findings and conclusions in writing. The

prosecution made this admission the center of its impeachment of Dr. O’Hagen’s

testimony, dubbing Dr. O’Hagen’s conclusions “mystery findings.”

On June 8, 1993, Wellons was sentenced to death for the murder of India

Roberts, the jury having found as statutory aggravating circumstances that the

murder was wantonly vile and horrible and involved torture and depravity of mind.

Wellons received a sentence of life imprisonment for the rape conviction.

During their post-trial interviews of the jurors, defense counsel learned that

either during or immediately following the penalty phase, some jury members gave

the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped

as female breasts. Defense counsel also learned that while the jurors were eating

dinner at a local restaurant in a room separated from other diners, the judge entered

their room and spoke to them. Immediately upon learning this information,

Wellons’s counsel moved for a new trial and to recuse the trial judge. The court

denied both motions.

2. Direct Appeal and State Habeas Proceedings

Among the thirty-five claims Wellons raised on direct appeal before the

Georgia Supreme Court, he argued that: (1) the trial court’s Sabel ruling prevented

him from effectively presenting his insanity defense at the guilt and penalty phases

9
of trial by chilling his consultation with mental health experts; (2) the trial judge

should have recused because she and the bailiffs allegedly had improper

communications with the jurors; (3) that Georgia’s death penalty scheme violates

the Equal Protection Clause because unfettered prosecutorial discretion results in

its disproportionate administration; and (4) that the method of execution (at that

time by electrocution) violates the Eighth Amendment as cruel and unusual

punishment. Central among these was Wellons’s Sabel claim—that the ruling

rendered his trial fundamentally unfair because his counsel, faced with the

Hobson’s choice of granting the state full access into the defense’s mental health

investigation and case theory by consulting mental health experts, was compelled

to forgo the expert testimony needed to support Wellons’s defense.

The Georgia Supreme Court concluded that Wellons’s judicial

disqualification and death penalty arguments lacked merit. Wellons, 463 S.E.2d at

880–82. On the first claim, however, the court acknowledged that under Rower v.

State, 443 S.E.2d 839 (Ga. 1994), the trial court’s Sabel ruling was erroneous.

Wellons, 463 S.E.2d at 875–76. In Rower, decided after Wellons’s trial but during

his direct appeals, the Georgia Supreme Court overruled Sabel, holding that the

state is entitled to receive only those scientific reports that the defense intends to

use at trial, and not—as Sabel required—the reports of any experts consulted by

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the defense in preparation for trial. Rower, 443 S.E.2d at 841–42. In so holding,

the court reasoned that Sabel’s disclosure mandate did not provide reciprocal

discovery rights, but rather granted the state greater discovery rights than the

statutory discovery rights provided the defendant. Id. at 842. Because the

discovery system under Sabel did not ensure “‘a balance of forces between the

accused and his accuser,’” the Georgia Supreme Court overruled Sabel as a

violation of a criminal defendant’s right to due process. Id. (quoting Wardius v.

Oregon, 412 U.S. 470, 474, 93 S. Ct. 2208, 2212, 37 L. Ed. 2d 82 (1973)).

Although the Georgia Supreme Court found that the Sabel ruling was

erroneous, Wellons, 463 S.E.2d at 876, it concluded that the error was harmless

because Wellons did not disclose any expert reports. Id. The court found no

prejudice from counsel’s decision not to present any mental health expert

testimony during the guilt phase because “the evidence as a whole demonstrate[d]

that his defenses of insanity and mental illness were simply not viable.” Id. The

Georgia Supreme Court also determined that the Sabel ruling did not prejudice

Wellons during the penalty phase because he presented seventeen mitigation

witnesses, including a sociologist and psychologist, who testified to Wellons’s

abusive family history and psychological state. Id. Ultimately, the Georgia

Supreme Court was not persuaded by the “chilling effect” that Wellons argued

11
denied him due process or the effective assistance of counsel. In affirming

Wellons’s conviction and sentence, the court observed that

the error, though it might well have initially had a chilling effect on
consultation with experts, was ultimately harmless. The chilling effect could
have been and apparently was cured after Wellons decided to raise the
insanity defense. His counsel made an intelligent, strategic choice not to
contest Wellons’ participation in the crimes, to merely introduce the idea of
mental illness in the guilt-innocence phase of trial, and then to bring every
effort to bear in mitigation.

Id. at 876–77. The United States Supreme Court denied Wellons’s petition for writ

of certiorari. Wellons v. Georgia, 519 U.S. 830, 117 S. Ct. 97, 136 L. Ed. 2d 52

(1996).

Wellons subsequently petitioned the Superior Court of Butts County for

state habeas relief. He attacked his conviction and sentence on the grounds that,

among other things, the Sabel ruling created a structural defect depriving him of

due process (Ground One) and denied him the effective assistance of trial counsel

(Ground Six). Wellons also argued that certain incidents of judge, juror, and

bailiff misconduct denied him a fair and impartial trial (Grounds Two–Four); that

his trial and appellate counsel were constitutionally ineffective in the overall

manner in which they investigated and advocated his case (Ground Seven); and

that the Georgia death penalty procedure is unconstitutional both facially and as

applied to him (Ground Sixteen).

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 The state habeas court conducted an evidentiary hearing, noting at the outset

that the due process and ineffectiveness claims related to the Sabel ruling would be

central to its analysis. The court further limited the scope of the hearing by

denying Wellons’s request to present evidence on his claims of judge, juror, and

bailiff misconduct. It determined that those claims were precluded from state

habeas review because the Georgia Supreme Court’s decision on direct appeal

rendered them “res judicata.”

At the hearing, Derek Jones, Wellons’s lead counsel during the trial and

direct appeals, testified that he believed the Sabel rulings placed him in a position

where he was unable to fully and adequately advocate Wellons’s mental heath

defenses in both the guilt and penalty phases of trial. He explained that based on

his experience trying capital cases such as Wellons’s, where the defenses of

insanity and mental illness have been pled, counsel’s consultation with mental

health experts is critical to the defense, irrespective of whether the experts

eventually testify. According to Jones, these experts could have helped him decide

what defenses and lines of investigation to pursue and whether the chosen defenses

were viable. Because the Sabel ruling would have required full disclosure of this

information to the state, however, Jones explained that he felt compelled to forgo

the full psychological and psychiatric consultation he would have otherwise

13
pursued to best defend his client’s case.

In its final order, the Superior Court of Butts County determined that nearly

all of Wellons’s claims were barred from habeas review, either because they were

res judicata or procedurally defaulted. The only claim to survive both procedural

bars was Wellons’s claim that the Sabel ruling rendered his trial and appellate

counsel ineffective. Reviewing that claim under Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the state habeas court found

that Jones ardently contested the Sabel ruling, yet when it became clear that the

ruling would be the law of the case, Jones was “forced to make a determination as

to whether to use experts and risk providing key evidence for the State that it

would not have otherwise had, or to not use experts at all.” Res. Exh. 64 at 26.

Under these circumstances, Jones’s decision to present no mental health expert

evidence during the guilt innocence phase was not deficient, but rather an

informed, tactical decision.

The state habeas court also found that despite the Sabel ruling, defense

counsel was able to have Dr. O’Hagen conduct psychological tests and officially

diagnose Wellons in preparation to testify at the penalty phase. In all, trial

counsel’s performance was consistent with the actions of a reasonable attorney

under similar circumstances. Finding no deficiency in trial counsel’s performance,

14
the court concluded that Wellons was not entitled to habeas relief.4 On January 9,

2001, the Georgia Supreme Court denied Wellons’s application for a certificate of

probable cause to appeal; it denied his motion for reconsideration on April 13,

2001.

3. Federal Habeas Proceedings

Wellons filed his first petition for writ of federal habeas corpus on May 18,

2001, and an amended petition on March 19, 2004. Along with his petition,

Wellons sought leave to conduct discovery on the judge, juror, and bailiff

misconduct claims, as well as authorization and payment for expert examinations.

In a series of orders, the district court first concluded that Wellons’s claims of

judge, juror, and bailiff misconduct were procedurally barred, and accordingly

denied his motion for an evidentiary hearing on these claims. The court later

vacated that ruling with respect to the bailiff misconduct claim, but nonetheless

denied that claim on the merits. The court also denied Wellons’s request for an

evidentiary hearing on his method of execution claim. In its final order, the district

court concluded that Wellons’s remaining claims—regarding the Sabel ruling,

4
Even though it had denied Wellons’s ineffectiveness claim on Strickland’s deficient-
performance prong, the state habeas court nonetheless proceeded to examine the claim under
Strickland’s second prong assuming, arguendo, Jones’s performance was deficient. As to the
second Strickland prong, the court agreed with the Georgia Supreme Court and found that
Wellons was not prejudiced by the absence of expert testimony during the guilt phase of trial
because his mental health defenses were not viable.

15
ineffective assistance of counsel caused by the Sabel ruling, and method of

execution—did not entitle him to federal habeas relief, and it denied Wellons’s

petition on the merits.

Wellons appeals the district court’s denial of his habeas petition. The

district court also granted a certificate of appealability as to its orders denying

Wellons’s application for an evidentiary hearing and discovery on his judge, juror,

and bailiff misconduct claims and his method of execution claim.

II. FEDERAL HABEAS CORPUS STANDARD OF REVIEW

We review the district court’s denial of a petition for writ of habeas corpus

de novo. Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 687 (11th Cir. 2005).

Likewise, we review the district court’s conclusions of law and mixed questions of

law and fact de novo. Parker v. Head, 244 F.3d 831, 836 (11th Cir. 2001). We

review the district court’s findings of fact for clear error. Id.

Because Wellons timely filed his first petition for federal habeas corpus

relief on May 18, 2001, and is in state custody, his application for habeas relief is

governed by 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104–132, 110 Stat. 1214

(1996). AEDPA establishes a “‘highly deferential standard for reviewing state

court judgments.’” Jamerson, 410 F.3d at 687 (quoting Parker v. Sec’y for Dep’t

16
of Corr., 331 F.3d 764, 768 (11th Cir. 2003)). Thus, pursuant to § 2254(d), we

have the authority to grant a writ of habeas corpus with respect to claims

“adjudicated on the merits in State court proceedings” only when the State court’s

adjudication of those claims

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 . . . 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). The text of § 2254(d) outlines the scope of “clearly

established Federal law” to include only those decisions by the United States

Supreme Court. Id. In Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.

Ed. 2d 389 (2000), the Supreme Court interpreted § 2254(d) to limit federal habeas

analysis to the Court’s holdings, not dicta, as of the time the state court adjudicated

the petitioner’s claims. Id. at 412, 120 S. Ct. at 1523 (opinion of O’Connor, J.).

A state court’s adjudication is “contrary to” federal law if it “arrives at a

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

if the state court decides a case differently than [the Supreme] Court has on a set of

materially indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523. On the other

hand, a state court’s adjudication is “an unreasonable application of” clearly

established federal law if the state court “identifies the correct governing legal

17
principle from th[e] Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.” Id. To issue the writ in either case, the state court’s

application of federal law must be objectively unreasonable; we cannot grant

habeas relief simply because we conclude that the state court applied federal law

erroneously or incorrectly. Id. at 411, 120 S. Ct. at 1522; see also Woodford v.

Visciotti, 537 U.S. 19, 27, 123 S. Ct. 357, 361, 154 L. Ed. 2d 279 (2002) (per

curiam) (“The federal habeas scheme leaves primary responsibility with the state

courts for these judgments[] and authorizes federal-court intervention only when a

state-court decision is objectively unreasonable.”).

In reviewing whether a state court’s decision was based on an “unreasonable

determination of the facts” under § 2254(d)(2), we presume the state court’s factual

findings are correct absent the petitioner’s showing of clear and convincing

evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell,

537 U.S. 322, 340, 123 S. Ct. 1029, 1041, 154 L. Ed. 2d 931 (2003); Parker v.

Head, 244 F.3d at 835–36. This statutory presumption of correctness applies to the

factual determinations of both state trial and appellate courts. Bui v. Haley, 321

F.3d 1304, 1312 (11th Cir. 2003). It does not apply, however, to state-court

determinations on mixed questions of law and fact, which we review de novo.

Parker, 244 F.3d at 836.

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 Finally, we review a federal habeas court’s denial of an evidentiary hearing

for abuse of discretion. Schriro v. Landrigan, — U.S. —, 127 S. Ct. 1933, 1939,

167 L. Ed. 2d 836 (2007). With these standards of review in mind, we now turn to

Wellons’s claims.

III. DISCUSSION

A. Judge, Juror, and Bailiff Misconduct

On appeal, Wellons contends that the jurors’ chocolate “gifts” to the judge

and bailiff and the judge’s conversation with jurors at the restaurant are prima facie

evidence of an inappropriate relationship between the judge, jurors and bailiff, that

if he were allowed to prove at a hearing, would entitle him to habeas relief. He

argues that the district court erred in denying his motions for discovery and an

evidentiary hearing to develop his judge, juror, and bailiff misconduct claims

because they are not procedurally barred.5

5
Wellons further disputes the application of § 2254(e)(2)’s bar to his request for a
hearing. Section 2254(e)(2) provides a federal habeas court shall not hold an evidentiary hearing
on a claim for which the petitioner fails to develop the factual basis unless he can show that (A)
the claim relies on (i) “a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court”; 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). While the district court referenced § 2254(e)(2) in its discussion on the
issue, its denial of Wellons’s motion did not rest on § 2254(e)(2)’s bar, but rather on Wellons’s
failure to demonstrate “cause and prejudice” or “actual innocence” to permit review of the
procedurally barred claims.

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 “A habeas petitioner, unlike the usual civil litigant in federal court, is not

entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S.

899, 904, 117 S. Ct. 1793, 1796–97, 138 L. Ed. 2d 97 (1997). Thus, while the

Federal Rules of Civil Procedure do not apply in federal habeas, the Supreme

Court has fashioned certain discovery rules for habeas pursuant to its authority

under the All Writs Act, 28 U.S.C. § 1651. Bracy, 520 U.S. at 904, 117 S. Ct. at

1797. The most pertinent rule provides:

A party shall be entitled to invoke the processes of discovery available under
the 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.

Rule 6(a), Rules Governing § 2254 Cases (quoted in Bracy, 520 U.S. at 904, 117 S.

Ct. at 1797).

When deciding whether to grant a federal habeas petitioner’s request for an

evidentiary hearing, “a federal court must consider whether such a hearing could

enable an applicant to prove the petition’s factual allegations, which, if true, would

entitle the applicant to federal habeas relief.” Landrigan, —U.S.—, 127 S. Ct. at

1940. Because AEDPA provides great deference to state-court determinations, “a

federal court must take into account those standards [of review] in deciding

whether an evidentiary hearing is appropriate.” Id. “It follows that if the record

refutes the applicant’s factual allegations or otherwise precludes habeas relief, a

20
district court is not required to hold an evidentiary hearing.” Id.

Wellons was not entitled to discovery or an evidentiary hearing because the

record reveals that his claims of judge, juror, and bailiff misconduct are

procedurally barred from federal habeas review. With due consideration of comity

and finality on collateral review of state criminal convictions, “federal courts will

not disturb state court judgments based on adequate and independent state law

procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392, 124 S. Ct. 1847, 1852,

158 L. Ed. 2d 659 (2004); see also Wainwright v. Sykes, 433 U.S. 72, 86–87, 97 S.

Ct. 2497, 2506, 53 L. Ed. 2d 594 (1977). Because principles of fundamental

fairness rest at the core of the writ of habeas corpus, the Court has “recognized an

equitable exception to the bar when a habeas applicant can demonstrate cause and

prejudice for the procedural default.” Haley, 541 U.S. at 393, 124 S. Ct. at 1852.

And, to guard against a fundamental miscarriage of justice, a petitioner may still be

entitled to habeas absent a showing of cause and prejudice if he is actually

innocent. Id. Under this narrow “actual innocence” exception, the petitioner must

establish “‘by clear and convincing evidence that, but for a constitutional error, no

reasonable juror would have found the petitioner eligible for the death penalty

under the applicable state law.’” Id. (quoting Sawyer v. Whitley, 505 U.S. 333,

336, 112 S. Ct. 2514, 2517, 120 L. Ed. 2d 269 (1992)).

21
 When Wellons first learned of the chocolate “gifts” and the judge’s

conversation with jurors at the restaurant during defense counsel’s post-trial

interviews of the jurors, Wellons immediately moved for a new trial and to recuse

the trial judge, who denied both motions. Wellons later raised the claims on direct

appeal, and the Georgia Supreme Court rejected these claims as meritless. See

Wellons, 463 S.E.2d at 880. On state habeas review, the Superior Court of Butts

County did not address these claims, concluding that the Georgia Supreme Court’s

decision on direct review rendered them res judicata. As the state habeas court’s

ruling regarding these claims rests on an adequate and independent state procedural

ground, the district court correctly found these claims procedurally barred from

federal habeas review.6

Nevertheless, the district court allowed Wellons, in another round of

briefing, to respond to the procedural bar with a showing of cause and prejudice.

Wellons never presented such arguments. Because Wellons has demonstrated

neither “cause and prejudice” nor “actual innocence” to overcome the procedural

bar, his claims of judge, juror, and bailiff misconduct were not properly before the

district court. We therefore conclude that the district court did not abuse its

6
Contrary to Wellons’s argument, whether the state habeas court properly concluded that
these claims were barred pursuant to Georgia’s procedural default rules or the state’s doctrine of
res judicata is irrelevant to our procedural default analysis. Under either scenario, the state
habeas court’s ruling rested on independent and adequate procedural grounds.

22
discretion in denying Wellons’s requests for discovery or an evidentiary hearing on

these procedurally barred claims.

Even if we assume that Wellons’s misconduct claims are not procedurally

barred, they do not entitle Wellons to habeas relief. The constitutional minimum

established by the Due Process Clause requires that a criminal defendant receive a

“fair trial in a fair tribunal, before a judge with no actual bias against the defendant

or interest in the outcome of his particular case.” Bracy, 520 U.S. at 904–05, 117

S. Ct. at 1797 (internal quotation marks and citation omitted). Due process also

ensures the right to an impartial jury and that the fate of a defendant in a capital

case not be decided by jurors harboring racial bias against him. Morgan v. Illinois,

504 U.S. 719, 729–31, 112 S. Ct. 2222, 2230, 119 L. Ed. 2d 492 (1992).

Wellons’s alleged evidence of the jury’s racial bias against him is grounded

in his speculation as to the meaning underlying the jurors’ chocolate “gifts” to the

judge and bailiff. Wellons’s claims of bias by the judge and bailiff are also

grounded in the surmise attached to their passive receipt of these gifts. The

Georgia Supreme Court reviewed Wellons’s claims under Uniform Superior Court

Rule 25.1, which requires a trial judge presented with a motion to recuse to

“determine whether, assuming the truth of any of the facts alleged, a reasonable

person might conclude that the judge harbors a bias, stemming from an extra-

23
judicial source, which is of such a nature and intensity that it would impede the

exercise of impartial judgment.” Wellons, 463 S.E.2d at 880. After examining

Wellons’s supporting affidavits, the Georgia court concluded that, assuming that

Wellons’s allegations regarding the gifts and the trial judge’s communication with

the jurors in a restaurant were true, there was no basis for finding that judicial bias

existed. In light of the evidence presented before the Georgia Supreme Court, its

determination is not based on an unreasonable determination of the facts.

The other misconduct claim stems from the trial judge’s ex parte

conversation with the jurors at the restaurant, which the judge never recounted on

the record. Ex parte communications between the judge and jury are improper and,

where they are of serious concern, the prejudice caused by such communications

may mandate habeas relief. See Rushen v. Spain, 464 U.S. 114, 119, 104 S. Ct.

453, 456, 78 L. Ed. 2d 267 (1983) (per curiam). Improper though it may be, the

occurrence of an unrecorded ex parte communication between a trial judge and

juror, standing alone, does not require that a conviction be overturned. See id. at

117–18, 104 S. Ct. at 455 (explaining that the deprivation of a criminal defendant’s

right to personal presence at all critical stages is subject to harmless error analysis

and stating, “the Constitution does not require a new trial every time a juror has

been placed in a potentially compromising situation” (internal quotation marks

24
omitted)).

As the Supreme Court has recognized, the day-to-day realities of courtroom

life make it “virtually impossible to shield jurors from every contact or influence

that might theoretically affect their vote.” Id. at 118, 104 S. Ct. at 456 (internal

quotation marks omitted). With respect to judge-juror contact, “[t]here is scarcely

a lengthy trial in which one or more jurors do not have occasion to speak to the

trial judge about something, whether it relates to a matter of personal comfort or to

some aspect of the trial.” Id., 104 S. Ct. at 455–56. Generally, if the

communication relates to some aspect of the trial, the judge should disclose it to

counsel for all parties, and—especially in the context of a murder trial—she should

do so on the record. See id. at 119, 104 S. Ct. at 456. In this case, Wellons argues

that the judge’s failure to disclose the communication perpetuated a veil of secrecy

over the jurors’ bias against him. Any prejudice caused by a judge’s failure to

make this disclosure “can normally be determined by a post-trial hearing[;] [t]he

adequacy of any remedy is determined solely by its ability to mitigate

constitutional error, if any, that has occurred.” Id. at 119–20, 104 S. Ct. at 455.

While there was no immediate post-trial hearing in this case that recounted the

factual basis of the claim, the issues related to the judge’s ex parte communication

and the jurors’ alleged bias were heard by the Georgia Supreme Court, which

25
found no basis for concluding judicial bias existed. Wellons, 463 S.E.2d at 880.

The Georgia Supreme Court’s judgment as to the substance and effect of the ex

parte communication is a finding of fact to which we apply a presumption of

correctness and may overturn “only if it lacks even fair support in the record.”

Spain, 464 U.S. at 120, 104 S. Ct. at 456 (internal quotation marks and alteration

omitted). There is no indication in the record that the communication created

judicial or juror bias so as to deprive Wellons of a fair trial. Thus, even if these

claims were properly before us on habeas review, we would not disturb the

Georgia Supreme Court’s conclusion on the merits of these claims.

B. Sabel Claim

Wellons argues that the trial court’s Sabel ruling violated his due process

right to present his insanity and mentally ill defenses. He claims that the ruling

amounted to constitutional error under Wardius v. Oregon, 412 U.S. 470, 93 S. Ct.

2208, 37 L. Ed. 2d 82 (1973), and argues that this error is not harmless because the

risk of full disclosure to the prosecution chilled his investigation and consultation

with mental health experts, which were critical to his defense.

In Wardius, the Supreme Court addressed the constitutionality of an Oregon

trial court’s ruling that prevented a criminal defendant from presenting any alibi

evidence as a sanction for the defense’s failure to comply with the state’s notice-

26
of-alibi discovery rule that did not provide for reciprocal discovery. 412 U.S. at

471–72, 93 S. Ct. at 2210–11. Although the Court had previously upheld the

constitutionality of notice-of-alibi rules as a general matter, see Williams v.

Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970), the Court

“emphasized that the constitutionality of such rules might depend on ‘whether the

defendant enjoys reciprocal discovery against the State,’” Wardius, 412 U.S. at

471, 93 S. Ct. at 2210 (quoting Williams, 399 U.S. at 82 n.11, 90 S. Ct. at 1896

n.11). Deciding the issue left open in Williams, the Supreme Court held that

notice-of-alibi rules that do not provide for reciprocal discovery rights between the

defendant and the prosecution violate the Due Process Clause of the Fourteenth

Amendment. Wardius, 412 U.S. at 472, 93 S. Ct. at 2211. The Oregon notice-of-

alibi rule at issue granted no discovery rights to the defendant, with the possible

exception of allowing the defendant to view written statements by the defendant

and state witnesses in police possession. Id. at 475 & n.8, 93 S. Ct. at 2212 & n.8.

Consequently, the Court struck down the Oregon rule, “hold[ing] that in the

absence of a strong showing of state interests to the contrary, discovery must be a

two-way street. The State may not insist that trials be run as a ‘search for truth’ so

far as defense witnesses are concerned, while maintaining ‘poker game’ secrecy for

its own witnesses.” Id. at 475, 93 S. Ct. at 2212. The Court made clear that while

27
the Due Process Clause does not reach so far as to prescribe specific discovery

rules in a criminal trial, “[i]t is fundamentally unfair to require a defendant to

divulge the details of his own case while at the same time subjecting him to the

hazard of surprise concerning refutation of the very pieces of evidence which he

disclosed to the State.” Id. at 476, 93 S. Ct. at 2212–13.

In this case, the trial court maintained that pursuant to Sabel, the defense

must disclose the identities and reports of any mental health experts consulted

regardless of whether they would testify at trial. While Wellons’s direct appeals

were pending, however, the Georgia Supreme Court overruled Sabel, holding that

the prosecution is only entitled to discover those scientific reports by expert

witnesses that the defense intends to call at trial. Rower, 443 S.E.2d at 842. The

Georgia Supreme Court reasoned that while the Due Process Clause does not

prevent a state from implementing broad discovery systems in criminal cases so

long as there is a “balance of forces” between the state and the defendant, “the

discovery rights granted to the state under Sabel are not reciprocal, but are, in fact,

greater than the statutory discovery rights granted to the defendant by O.C.G.A. §

17-7-211.” Rower, 443 S.E.2d at 842 (quoting Wardius, 412 U.S. at 474, 93 S. Ct.

at 2211–12). Because Rower was decided on interim review, however, the Georgia

Supreme Court had no occasion to address the prejudicial effect, if any, caused by

28
the trial court’s Sabel ruling.

The Georgia Supreme Court addressed that issue in Wellons, 463 S.E.2d

868. After concluding that Rower applied retroactively to Wellons’s appeal

because it was “in the pipeline” when Rower was decided, the court applied

harmless-error analysis to Wellons’s Sabel chilling effect claim. Id. at 876. The

Georgia Supreme Court found that although the trial court’s ruling was erroneous

under Rower, that error was nonetheless harmless because Wellons did not make

any expert disclosures. Id.

Wardius and Rower make clear that the trial court’s Sabel ruling in

Wellons’s case violated the Due Process Clause of Fourteenth Amendment because

it granted the prosecution greater discovery rights than Wellons possessed in

preparing for trial.7 The main question is whether the constitutional error in the

Sabel ruling was harmless error.8

The Supreme Court has declined to adopt a rule that all federal constitutional

7
In fact, as soon as the defense disclosed the identities of the experts they consulted, the
prosecution subpoenaed these witnesses, arguing under Sabel that if the defense did not call
these witnesses, the state may elect to do so.
8
In his initial brief, Wellons argued that harmless-error analysis is inapplicable to his
case because the Sabel ruling was not “trial-type” error, but rather a “structural defect” in his
trial as it “completely precluded him from presenting his defense to the jury.” Brief for
Appellant at 40–41. During oral argument, however, Wellons abandoned this argument by
conceding that harmless-error was the appropriate framework. Therefore, we only address
whether the Georgia Supreme Court’s decision that the Sabel error was harmless is contrary to,
or an unreasonable application of, clearly established federal law.

29
errors committed during the course of a criminal trial require reversal of

subsequent convictions. Chapman v. California, 386 U.S. 18, 21–22, 87 S. Ct.

824, 827, 17 L. Ed. 2d 705 (1967). In Chapman, the Court explained that it has

long been the rule in both state and federal court that “judgments shall not be

reversed for ‘errors or defects which do not affect the substantial rights of the

parties.’ Id. at 22, 87 S. Ct. at 827 (quoting 28 U.S.C. § 2111).

In deciding whether the trial court’s Sabel ruling constituted harmless or

reversible error, we must examine the ruling in the context of Wellons’s trial to

assess the extent of any prejudicial effect. In Brecht v. Abrahamson, 507 U.S. 619,

113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), the Supreme Court held that on federal

habeas, courts must assess the prejudicial impact of constitutional error in a state

criminal trial under the “substantial-and-injurious-effect” standard and not under

Chapman’s “harmless-beyond-a-reasonable-doubt standard.” Id. at 622, 113 S. Ct.

at 1713–14. The history behind the great writ verifies habeas relief as an

extraordinary remedy that serves as “a bulwark against convictions that violate

fundamental fairness.” Id. at 633–34, 113 S. Ct. at 1719 (internal quotation marks

omitted). Because the writ is targeted to prevent a fundamental miscarriage of

justice, “an error that may justify reversal on direct appeal [as in Chapman] will

not necessarily support a collateral attack on a final judgment.” Id. at 634, 133 S.

30
Ct. at 1720 (internal quotation marks omitted). Under Brecht’s “substantial-and-

injurious-effect” standard, “habeas petitioners may obtain plenary review of their

constitutional claims, but they are not entitled to habeas relief based on trial error

unless they can establish that it resulted in ‘actual prejudice.’” Id. at 637, 113 S.

Ct. at 1722.

Although Brecht was decided before Congress’s enactment of AEDPA in

1996, the Supreme Court recently confirmed the application of Brecht’s more

deferential “substantial-and-injurious-effect” standard when assessing the

prejudicial impact of constitutional error on federal habeas review. Fry v. Pliler,

— U.S.—, 127 S. Ct. 2321, 168 L. Ed. 2d 16 (2007). In Fry, the Court rejected the

petitioner’s argument that AEDPA replaced Brecht’s standard for reviewing

constitutional error because AEDPA was designed to further limit the availability

of habeas relief. Id. at 2327. Therefore, the Court deemed it “implausible that,

without saying so, AEDPA replaced the Brecht standard of ‘actual prejudice’ with

the more liberal AEDPA/Chapman standard which requires only that the state

court’s harmless-beyond-a-reasonable-doubt determination be unreasonable.” Id.

(emphasis added) (internal quotation marks and citation omitted).

The Fry Court also rejected the argument that its holding in Mitchell v.

Esparza, 540 U.S. 12, 124 S. Ct. 7, 157 L. Ed. 2d 263 (2003) (per curiam), a post-

31
AEDPA case, eliminated the need to show “actual prejudice.” Fry, 127 S. Ct. at

2326–27. In Esparza, the Court held that where a state court has determined that a

constitutional error is harmless, a federal court may not grant habeas relief under §

2254(d)(1) unless the state court’s harmless error analysis was objectively

unreasonable. 540 U.S. at 17–18, 124 S. Ct. at 11–12. The Fry Court did not

abandon Esparza’s interpretation of AEDPA to review of constitutional errors on

collateral attack, but nonetheless emphasized that Brecht’s “actual prejudice”

standard is the proper lense by which to “assess[] the prejudicial impact of federal

constitutional error in a state-court criminal trial.” Fry, 127 S. Ct. at 2327.

Because the Georgia Supreme Court found the Sabel error harmless,

Wellons will be entitled to receive habeas relief only if the Georgia Supreme

Court’s harmless error determination was objectively unreasonable in light of

clearly established law, viz., Brecht.

The Georgia Supreme Court deemed the Sabel error harmless because the

evidence as a whole demonstrated that Wellons had no viable insanity and mental

illness defense nor a viable actual innocence defense. Wellons, 463 S.E.2d at 876.

Compared to other cases with a “greater showing of mental health problems,” the

court found that “[t]he evidence of guilt was overwhelming.” Id. (citing Bright v.

State, 455 S.E.2d 37 (Ga. 1995)). The court found that despite the Sabel ruling,

32
Wellons presented ample mitigation testimony from 17 witnesses, although he

presented no mental health evidence during the guilt-innocence phase. Id. at 876.

It concluded:

[T]he error, though it might well have initially had a chilling effect on
consultation with experts, was ultimately harmless. The chilling effect could
have been and apparently was cured after Wellons decided to raise the
insanity defense. His counsel made an intelligent, strategic choice not to
contest Wellons’ participation in the crimes, to merely introduce the idea of
mental illness in the guilt-innocence phase of trial, and then to bring every
effort to bear in mitigation.

Id. at 876–77. While the discussion was not framed in the precise language used in

Brecht, this discussion follows the “substantial and injurious effect” analysis. It is

clear that in assessing the effect of the Sabel error on Wellons’s trial, the Georgia

Supreme Court examined the record as a whole. See Brecht, 507 U.S. at 638, 113

S. Ct. at 1722 (“Our inquiry here is whether, in light of the record as a whole, the

State’s improper use for impeachment purposes of petitioner’s post-Miranda

silence . . . ‘had substantial and injurious effect or influence in determining the

jury’s verdict.’”). As such, the Georgia Supreme Court’s harmless error analysis

was not contrary to, or an unreasonable application of Brecht. Consequently, we

cannot grant Wellons relief on the basis of this claim.

C. Ineffective Assistance of Counsel

Wellons’s ineffective assistance of counsel claims overlap with his Sabel

33
arguments. He presents two theories of ineffectiveness. First, he argues that the

Sabel ruling rendered his trial counsel ineffective by having to choose between

risking prejudicial disclosure of negative expert reports or foregoing expert

testimony to support his mental health defense at trial. Second, Wellons argues

that his trial counsel was ineffective in implementing its chosen strategy after it

became clear that the trial court would not reverse its Sabel rulings.

Wellons’s ineffectiveness arguments are governed by test set forth in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Under Strickland’s two-pronged analysis, Wellons must show (1) that his trial

counsel’s performance was deficient, and (2) that the deficiency deprived Wellons

of a fair trial, “a trial whose result is reliable.” Id. at 687, 104 S. Ct. at 2064.

Because we have held that the Georgia Supreme Court’s conclusion that the

Sabel ruling is harmless error is not contrary to, nor an unreasonable application of

Brecht, Wellons’s argument that the Sabel ruling rendered counsel constitutionally

ineffective is foreclosed. Wellons’s alternative ineffectiveness argument—that

trial counsel were constitutionally ineffective in implementing the defense and

mitigation strategies chosen in response to the Sabel ruling—also lacks merit. To

show deficiency under the first prong of his ineffectiveness claim, Wellons must

show that his trial counsel’s performance was not reasonable under the

34
circumstances. Strickland, 466 U.S. 688, 104 S. Ct. at 2065. This is a highly

deferential standard by which we look to “[p]revailing norms of practice as

reflected in American Bar Association standards and the like . . . [as] guides to

determining what is reasonable.” Id. To meet this high burden, “[a] convicted

defendant making a claim of ineffective assistance must identify the acts or

omissions of counsel that are alleged not to have been the result of reasonable

professional judgment.” Id. at 690, 104 S. Ct. at 2066. “The court must then

determine whether, in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance.” Id.

Wellons argues that his trial counsel’s performance was unreasonable

because they did not adequately investigate and present “key witnesses” to testify

about his family history of substance abuse, sexual dysfunction, sexual abuse, and

neurological impairment at both stages of his trial. Wellons argues that had

counsel pressed on in its investigation regardless of the trial court’s Sabel rulings,

counsel would have discovered expert opinions presented by Dr. Wood during the

state habeas proceeding, in which he concluded that Wellons was legally insane

when he killed India Roberts. According to Wellons, trial counsel also would have

had the benefit of Dr. Grant’s expert testimony, which was also presented at the

state habeas proceeding. Dr. Grant testified that Wellons suffers from severe

35
neurological impairments, Post-Traumatic Stress Disorder, and possibly an

epileptiform seizure disorder. As for his ineffectiveness claims at the penalty

phase, Wellons acknowledges that trial counsel interviewed several people and

presented 17 mitigation witnesses—including a sociologist and psychologist—but

nonetheless argues that counsel was deficient in investigating his background.

“A fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

We cannot ignore the circumstances under which counsel made the decision to

forego mental health expert testimony during the guilt phase of trial. Wellons’s

trial counsel faced a very difficult choice as a result of the Sabel ruling. If they

decided to pursue expert testimony, and the expert reports proved unfavorable for

Wellons, the prosecution would have been entitled to these reports and could have

called the very experts Wellons’s counsel declined to present. In light of all this,

the Georgia Supreme Court’s conclusion that Wellons’s counsel “made an

intelligent, strategic choice not to contest Wellons’ participation in the crimes, to

merely introduce the idea of mental illness in the guilt-innocence phase of trial, and

then to bring every effort to bear in mitigation,” Wellons, 463 S.E.2d at 876–77, is

36
neither contrary to, nor an unreasonable application of Strickland.

D. Constitutionality of Georgia’s Death Penalty System

Wellons attacks the constitutionality of Georgia’s use of the three-drug

protocol method of execution by lethal injection. He argues that the three-drug

protocol violates the Eighth Amendment’s prohibition against cruel and unusual

punishment and that the district court erred in denying an evidentiary hearing on

his Eighth Amendment claim. Both of these claims have been foreclosed by Baze

v. Rees, — U.S. —, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008), in which the United

States Supreme Court upheld a similar three-drug lethal injection protocol as not

constituting cruel and unusual punishment under the Eighth Amendment.9

IV. CONCLUSION

We conclude that the district court did not err in denying Wellons’s motions

for discovery and an evidentiary hearing on his judge, juror, and bailiff misconduct

claims. Nor did the district court err in denying Wellons’s due process and

ineffective assistance of counsel claims related to the Sabel error because the state

court’s decisions were neither contrary to, nor an unreasonable application of

9
Wellons also argues that the Georgia death penalty system violates the Equal Protection
Clause of the Fourteenth Amendment because it is administered without uniform and specific
standards. Wellons’s allegations fail to establish a prima facie case of intentional discrimination
against a protected class. As the Supreme Court has emphasized, “there is not ‘any one right
way for a State to set up its capital sentencing scheme.’” Morgan v. Illinois, 504 U.S. 719,
725–26, 112 S. Ct. 2222, 2228, 119 L. Ed. 2d 492 (1992) (quoting Spaziano v. Florida, 468 U.S.
447, 464, 104 S. Ct. 3154, 3164, 82 L. Ed. 2d 340 (1984)).

37
clearly established Supreme Court law, viz., Brecht and Strickland. We also

conclude that the district court did not err in rejecting Wellons’s claims regarding

Georgia’s death penalty system. For the foregoing reasons, we affirm the district

court’s order denying Wellons’s habeas petition.

AFFIRMED.

38