[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)
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(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
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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
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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
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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).
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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.
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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).
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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).
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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.
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“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
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affirmed.
AFFIRMED.
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