Cook v. Warden, Georgia Diagnostic Prison

                                                                 [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                   FILED
                    _____________________________          U.S. COURT OF
                                                              APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 10-13334                  APRIL 20, 2012
                    _____________________________            JOHN LEY

                   D. C. Docket No. 5:09-cv-00025-CAR


ANDREW ALLEN COOK,

                                                         Petitioner-Appellant,

     versus

WARDEN, GEORGIA DIAGNOSTIC PRISON,

                                                        Respondent-Appellee.

              _________________________________________

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

                              (April 20, 2012)


Before DUBINA, Chief, Judge, EDMONDSON and PRYOR, Circuit Judges.



PER CURIAM:
      Petitioner, a state prisoner, appeals the District Court’s denial of his habeas

corpus petition. We affirm the denial.



                                     Background



      In Georgia, Petitioner was tried and convicted of two counts of malice

murder and two counts of felony murder. Petitioner received a death sentence for

one of the killings and a life imprisonment sentence for the other. The exact reason

behind the killings is somewhat unclear, but some evidence shows that Petitioner

killed the Victims just to see if he “could get away with it.”

      A lengthy investigation eventually led authorities to suspect Petitioner.

Petitioner confessed to various persons, including two confessions to his father,

who was a Special Agent with the FBI. One of the confessions occurred when

Petitioner was in custody. Petitioner’s father testified at both the guilt phase and

the penalty phase. Petitioner’s father was not on duty or acting in an official

capacity when Petitioner confessed to the killings.

      After the jury verdict and sentencing, Petitioner directly appealed within the

state courts. The Georgia Supreme Court affirmed his convictions and sentences,

and the U.S. Supreme Court denied his petition for certiorari.


                                           2
      Petitioner then filed a petition for writ of habeas corpus in state court.

Finding ineffective assistance of trial counsel, the state habeas court vacated the

capital sentence but affirmed the convictions. By a studied opinion, the Georgia

Supreme Court affirmed the denial of guilt-phase habeas relief but reversed the

grant of penalty-phase relief. The Georgia Supreme Court reinstated Petitioner’s

death sentence. Schofield v. Cook, 663 S.E.2d 221, 232 (Ga. 2008).

      Petitioner next sought habeas relief in federal court. The District Court

denied all relief but granted Petitioner a certificate of appealability on three issues,

which are now before this Court: (1) whether Petitioner’s trial counsel failed to

conduct an adequate investigation and presentation of mitigation evidence during

the penalty phase of the trial; (2) whether trial counsel failed to prepare adequately

John Cook, Petitioner’s father, to testify during the penalty phase; and (3) whether

the trial court improperly admitted inculpatory statements Petitioner made to his

father. We affirm the denial of habeas relief.



                                 Standard of Review



      Petitioner’s habeas petition is subject to the provisions of the Antiterrorism

and Effective Death Penalty Act of 1996, Pub L. 104-132, 110 Stat. 1214 (1996)


                                            3
(codified in scattered sections of Title 28 of the U.S. Code) (“the AEDPA”).

      To obtain habeas relief under the AEDPA, Petitioner must demonstrate that

the state court’s post-conviction ruling was (1) “contrary to, or involved an

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

Supreme Court of the United States;” or (2) “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)(1), (2). The AEDPA imposes an “exacting

standard.” Maharaj v. Sec’y for the Dep’t of Corr., 432 F.3d 1292, 1308 (11th Cir.

2005).

      We review de novo the District Court’s legal conclusions and its conclusions

on mixed questions of law and fact. Boyd v. Allen, 592 F.3d 1274, 1293 (11th Cir.

2010). The AEDPA affords a presumption of correctness to a factual

determination made by a state court. 28 U.S.C. § 2254(e).



                                     Discussion



      Petitioner argues that the Georgia Supreme Court’s decision was contrary to

the United States Supreme Court’s decision in Strickland v. Washington, 104 S.

Ct. 2052 (1984), and its progeny. Petitioner also contends the state supreme


                                          4
court’s decision was an unreasonable application of Strickland (and its progeny)

and was based on an unreasonable determination of the facts.

      To demonstrate the ineffective assistance of counsel, Strickland requires that

a lawyer’s performance be both deficient objectively and prejudicial to the ultimate

fairness and reliability of the proceeding. For deficiency, Petitioner must show

counsel’s performance “fell below an objective standard of reasonableness.” Id. at

2064. For prejudice, Petitioner must show that a “reasonable probability” exists

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

have been different.” Id. at 2068.

      Petitioner claims the Georgia Supreme Court contravened or unreasonably

applied Strickland and its progeny because, for sentencing, Petitioner’s counsel

failed (1) adequately to investigate and present mental health evidence; (2)

adequately to investigate and present evidence about Petitioner’s upbringing; and

(3) adequately to prepare a key witness -- Petitioner’s father John Cook.



Mental Health Evidence



      About mental health evidence, the Georgia Supreme Court concluded that

counsel’s strategic decision to forgo presentation of mental health evidence was


                                          5
not unreasonable, based upon the information trial counsel had uncovered at the

time. This Court has said that “[w]hich witnesses, if any, to call, and when to call

them, is the epitome of a strategic decision, and it is one that we will seldom, if

ever, second guess.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en

banc).

         Counsel made the decision to forgo the presentation of mental health

evidence because his investigation of his client’s mental health revealed many

pieces of potentially damaging evidence that could have been presented in rebuttal:

episodes of alleged malingering; admissions by Petitioner that he was exaggerating

or otherwise faking mental disturbances; a history of childhood violence; episodes

of alleged cruelty to animals; medical records and statements by medical

professionals that Petitioner was manipulative or otherwise seeking to seem more

unstable than he actually was, and so on.

         Given the danger of these negative pieces of information coming in, trial

counsel made the reasonable choice of bypassing the presentation of mental health

evidence and instead opting for a different strategy. The state supreme court’s

decision was not contrary to or an unreasonable application of Strickland. Nor

was the state supreme court’s decision an unreasonable determination of the facts,

given the damaging potential evidence that existed.


                                            6
      The Georgia Supreme Court also considered whether counsel’s decision to

forgo the presentation of mental health evidence “was corrupted by insufficient

investigation and, if so, whether actual prejudice to the outcome of [Petitioner’s]

case resulted.” 663 S.E.2d at 227. For this analysis, the state supreme court

assumed deficient performance (about the non-discovery of the “River Edge”

records, which are discussed below), but nevertheless concluded that no legally

significant prejudice could be shown.

      The Georgia Supreme Court’s determination of no prejudice did not

contravene or unreasonably apply Strickland and its progeny, nor was the finding

based on an unreasonable determination of the facts.

      In assessing whether prejudice exists, the reviewing court must “reweigh the

evidence in aggravation against the totality of available mitigating evidence.”

Wiggins v. Smith, 123 S. Ct. 2527, 2542 (2003). The “reviewing court must

consider all the evidence -- the good and the bad -- when evaluating prejudice.”

Wong v. Belmontes, 130 S. Ct. 383, 390 (2009).

      In addition to other supposedly beneficial mental health evidence, Petitioner

points especially to one set of mental health records -- the River Edge records. The

River Edge records come from Petitioner’s 1997 treatment (while incarcerated

awaiting trial) at the River Edge Behavioral Health Center. Petitioner’s trial


                                          7
counsel did not know of the River Edge records and did not present the River Edge

records to Petitioner’s psychologist, Dr. Shapiro. The River Edge records feature a

diagnostic impression of “major depression with psychotic features.”

      Petitioner says the presentation of the River Edge records would have had a

reasonable probability of changing the outcome of the sentencing phase. Petitioner

points to habeas-proceeding testimony from Dr. Shapiro -- a mental health expert

who evaluated Petitioner before trial. Dr. Shapiro -- during state habeas

proceedings -- expressed a willingness to have revisited portions of his earlier

evaluation of Petitioner had he known the information contained in the River Edge

records.

      But Dr. Shapiro also acknowledged that when he evaluated Petitioner before

sentencing, Dr. Shapiro knew much of what was contained in the River Edge

records. For example, Dr. Shapiro knew that Petitioner had been previously

diagnosed with major depression (in 1984), had been hospitalized for depression,

had sleeping issues, and that Petitioner claimed various kinds of emotional and

physical abuse. The River Edge records did contain a new allegation of sexual

abuse. Dr. Shapiro also testified on cross-examination in the state habeas

proceedings that Petitioner’s sexual abuse allegations would not necessarily have

changed all of Dr. Shapiro’s medical conclusions. And the changes that would


                                          8
have come, Georgia’s Supreme Court concluded, would have created “no

reasonable probability of a different outcome.”

      The River Edge records are unhelpful to Petitioner’s case in other ways. For

example, while the records contain sexual abuse allegations by Petitioner,

Petitioner’s sister (the sole identified alleged perpetrator) strongly denied the

allegations in her own habeas testimony. Even if these allegations had prompted

further investigation before sentencing, Petitioner made the sexual abuse

allegations for the first time while incarcerated and awaiting trial for two murders.

Petitioner -- a man with a history of suspected malingering -- had reason then to

draw his mental health in question. For the Georgia high court to determine that

the sexual abuse allegations would likely appear “dubious to the jury” and would

create “no reasonable probability of a different outcome” was not unreasonable.

      That the River Edge records provide a separate diagnostic impression of

major depression (in addition to the 1984 diagnosis) might on its own have been

somewhat helpful to Petitioner’s case at sentencing. But given the entirety of the

evidence, we cannot say that the Georgia Supreme Court contravened or

unreasonably applied Strickland or its progeny by concluding that no prejudice




                                           9
existed.1 And given the other hurtful evidence that tends to undercut any

usefulness the River Edge records may have had to Petitioner’s case, the Georgia

Supreme Court’s determination of no prejudice was a reasonable determination of

the facts.



Evidence about Petitioner’s Background and Upbringing



       Petitioner also claims deficiency and resulting prejudice from his trial

lawyers’ alleged failure in investigating and presenting potentially mitigating

evidence about Petitioner’s upbringing.

       As the record shows (and as the Georgia Supreme Court concluded),

Petitioner’s trial lawyers “took several important steps to investigate Cook’s family

background” and other evidence surrounding his upbringing.2 Counsel adequately

investigated Petitioner’s background and upbringing; and in so finding, the


       1
         Petitioner cites for support Porter v. McCollum, 130 S. Ct. 447 (2009). But Porter is
significantly different from this case for many reasons, especially because the mitigation
evidence Porter’s counsel failed to investigate and present was overwhelmingly stronger than the
evidence Petitioner contends should have been presented in Petitioner’s case.
       2
        Petitioner’s trial lawyers’ investigatory “important steps” included interviewing family
members on many occasions; traveling out of state to conduct interviews of family and potential
witnesses; hiring an investigator to “track down witnesses”; hiring a social worker to investigate;
ordering a “psychosocial assessment”; and seeking and obtaining all of Petitioner’s
psychological records from childhood onward (except for the River Edge records).

                                                10
Georgia Supreme Court did not contravene or unreasonably apply Strickland or

make an unreasonable factual determination.

       Trial counsel also adequately presented evidence of Petitioner’s background

and upbringing. Lay testimony from Petitioner’s family -- including his mother

and father -- about Petitioner’s background, family life, and upbringing was

presented at sentencing. Counsel considered presenting other testimony from

schoolmates and friends; but after investigation and consideration, counsel

concluded that their testimony would be irrelevant or potentially harmful.

Petitioner’s lawyers made the reasonable decision to limit the evidence presented.

       About prejudice, for the Georgia Supreme Court -- based on this record -- to

conclude, as it did, that the other evidence the investigation uncovered would be

harmful or otherwise cumulative of the evidence that Petitioner’s counsel actually

did present was not unreasonable.

       We accept that Petitioner has shown no deficient performance and no

resulting prejudice.3 Therefore, the state supreme court’s rejecting contentions on

ineffective assistance of counsel in investigating and presenting evidence of

Petitioner’s upbringing was not contrary to or an unreasonable application of



       3
         The deferential AEDPA standard of review applies to our review of the state supreme
court’s conclusions about both deficient performance and prejudice.

                                              11
Strickland or later cases.4 And the state supreme court’s decision also is based on

no unreasonable determination of the facts, particularly in the light of the other

evidence about Petitioner’s background that could have been damaging to

Petitioner had it come out.



The Preparation of Witness John Cook



       Petitioner contends that his trial lawyers were ineffective in that they failed

to prepare adequately their “star” witness, FBI Special Agent John Cook,

Petitioner’s father. Petitioner claims counsel “simply called [John Cook] to the

stand, then left him to his own devices.”

       Petitioner’s lawyers, however, in fact had frequent contact with John Cook.

The lawyers believed John Cook would be the most important witness -- the person

who could most likely save his son from the death penalty. And Petitioner’s trial



       4
        Petitioner cites for support Williams v. Taylor, 120 S. Ct. 1495 (2000). For many
reasons, however, the facts of Williams are too different from the facts of Petitioner’s case. For
example, in Williams, counsel conducted exceptionally minimal investigation into what the
Supreme Court called Williams’ “nightmarish childhood” and failed to present significant
mitigation evidence. Here, by contrast, counsel conducted a far better investigation into
Petitioner’s background and upbringing and -- informed by that thorough investigation -- chose
to present certain evidence and to leave out certain evidence. “Williams [] create[s] no
mechanistic rule of law at all for investigation or for presentation of evidence in capital cases.”
Chandler v. United States, 218 F.3d 1305, 1317 n.21 (11th Cir. 2000) (en banc).

                                                 12
lawyer testified in state habeas proceedings that he had discussions with John Cook

“about the case and had discussions about the sentencing phase and if we got to a

sentencing phase, what that would involve.” The Georgia Supreme Court’s

decision sets out some of the father’s trial testimony. And that court observed that

habeas-proceeding records reflected that most persons in the courtroom were in

tears during John Cook’s testimony. The actual testimony given was determined to

be an effective try to spare Petitioner’s life.

      Based on the complete evidence, the state supreme court’s conclusion (of

both no deficient performance and no prejudice) is consistent with a reasonable

application of Strickland and later cases. And the state supreme court based its

decision on no unreasonable determination of the facts.



Admissibility of Petitioner’s Confession to his Father



      Petitioner contends that he confessed without being warned of his right

against self-incrimination and right to counsel. Petitioner says the Georgia

Supreme Court’s decision therefore contravenes and unreasonably applies Miranda

v. Arizona5 (and related cases) and is based on an unreasonable factual


      5
       86 S. Ct. 1602 (1966).

                                            13
determination.

      Miranda states that the prosecution may not use statements “stemming from

custodial interrogation of the defendant unless it demonstrates the use of

procedural safeguards effective to secure the privilege against self-incrimination.”

Id. at 1612. “Custodial interrogation” means “questioning initiated by law

enforcement officers after a person has been taken into custody[.]” Id. And we

have written that no Miranda violation occurs when a suspect confesses to a family

member who is employed in law enforcement, even when the family member --

acting in his private capacity -- urges the suspect to speak. United States v. Gaddy,

894 F.2d 1307, 1312-13 (11th Cir. 1990). Such circumstances are “not the

functional equivalent of government interrogation,” and the suspect’s statements in

Gaddy were “not given at the urging of or due to the exploitation by a

[government] agent.” Id. at 1313.

      Here, like in Gaddy, the particular facts and circumstances show no violation

of Miranda despite the lack of warnings.6 First, although John Cook happens to

have been an FBI agent, he was chiefly acting as Petitioner’s father; John Cook

had no involvement in the investigation of the murders. Before Petitioner

confessed, Petitioner requested both his father and a lawyer. John Cook never


      6
       At least one meeting with his father occurred while Petitioner was in custody.

                                              14
“offered” -- that is, put himself forward to the state to act as a state agent -- to

speak with his son. Petitioner asked to speak to his father, and the father also

merely asked permission to speak with his son: the father was not directed by a

superior. John Cook also testified that he was not thinking of his job as an FBI

agent at the pertinent time; instead he wanted to protect his son and possibly to

convince his son to cooperate for leniency. At the meeting between father and son,

there was crying, shaking, and hugging on the part of both men; such acts are

typically absent in custodial interrogations. Georgia’s high court determined that

the father was acting as a father rather than as a law enforcement officer.

      According to the Georgia Supreme Court, no government coercion caused

Petitioner to confess: Petitioner freely confessed to his father. The Georgia

Supreme Court decision does not contravene or apply unreasonably Miranda (or

later cases) and also makes no unreasonable determination of the facts.



                                       Conclusion



      Given the record and the pre-existing law from the nation’s highest court,

Georgia’s high court decision on the issues now before us was completely

reasonable. The District Court’s order denying Petitioner’s habeas petition is


                                            15
affirmed.

      AFFIRMED.




                  16