[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 6, 2002
THOMAS K. KAHN
No. 01-11915 CLERK
D. C. Docket No. 96-00084-CV-(WLS)-6
CARL J. ISAACS,
Petitioner-Appellant,
versus
FREDERICK J. HEAD, Warden,
Georgia Diagnostic and
Classification Prison,
Respondent-Appellee.
__________________________
Appeal from the United States District Court
for the Middle District of Georgia
__________________________
(August 6, 2002)
Before EDMONDSON, Chief Judge, ANDERSON and BARKETT, Circuit
Judges.
ANDERSON, Circuit Judge:
In 1985, this Court granted a writ of habeas corpus based on constitutional
infirmities with Carl Isaacs’ 1974 state murder trial. See Isaacs v. Kemp, 778 F.2d
1482 (11th Cir. 1985). Afterwards, the State of Georgia retried Isaacs in 1988 on
six counts of murder, and Isaacs was again convicted and sentenced to death.
Isaacs was denied relief from his conviction and sentence through direct appellate
review and through state collateral review, and the case has now made its way to
the federal courts again. After Isaacs filed his federal habeas petition, pursuant to
28 U.S.C. § 2254, the district court denied Isaacs any relief, but granted him a
certificate of appealability as to numerous issues. Isaacs then filed this appeal
contending that his second trial and sentencing hearing did not satisfy minimal
constitutional guarantees. We disagree, and affirm the district court’s denial of
habeas relief.
I. BACKGROUND
A. Facts
The historical facts concerning Isaacs’ case, as concisely recounted by the
Georgia Supreme Court, are as follows:
In May of 1973, Carl Isaacs escaped from a Maryland penal
institution and, accompanied by his younger brother Billy Isaacs, his
2
half- brother Wayne Coleman and a friend, George Dungee, drove to
Florida. On the afternoon of May 14, 1973, they were in Seminole
County, Georgia, and their car was almost out of gas. They thought
they saw a gas pump behind the rural mobile home belonging to Jerry
Alday and Mary Alday and stopped to investigate it. They discovered
there was no pump; however, the trailer was empty, and they decided
to burglarize it. Dungee remained in the car while the defendant and
Wayne Coleman entered the trailer. While they were inside, Billy
Isaacs warned them two men were approaching in a jeep.
Jerry Alday and his father Ned Alday pulled in behind the trailer,
unaware that it was being burglarized. Carl Isaacs met them and
ordered them inside at gunpoint. After their pockets were emptied,
Jerry Alday was taken into the south bedroom of the trailer while Ned
was taken to the north bedroom. Carl Isaacs shot and killed Jerry
Alday, and then both he and Coleman shot and killed Ned Alday.
Soon afterward, Jimmy Alday (Jerry Alday’s brother) drove up on a
tractor, walked to the back door, and knocked on the door. Coleman
answered the door, “stuck a pistol up in the guy’s face,” and ordered
him inside. He was taken into the living room and forced to lie on the
sofa. Carl Isaacs shot and killed him.
After Carl Isaacs went outside to move the tractor, which was parked
in front of their car, Mary Alday (Jerry Alday’s wife) drove up. Carl
Isaacs entered the trailer behind her and accosted her. Meanwhile,
Chester Alday (Jerry Alday's brother) and Aubrey Alday (Jerry
Alday's uncle) drove up in a pickup truck. Leaving Coleman and
Dungee to watch Mary Alday, Carl and Billy Isaacs went outside to
confront the two men, and forced them at gunpoint into the trailer.
Once inside, Aubrey was taken to the south bedroom where Carl
Isaacs shot and killed him, while Chester Alday was taken to the north
bedroom and killed by Coleman.
Coleman and Carl Isaacs raped Mary Alday on her kitchen table.
Afterward, they drove to a heavily wooded area several miles away
where Mary Alday was raped again. Dungee killed her. They
abandoned their car in the woods and took Mary Alday’s car, which
3
they later abandoned in Alabama. They stole another car there, and
were arrested a few days later in West Virginia, in possession of guns
later identified as the murder weapons, and property belonging to the
victims.
After his original trial, Carl Isaacs was interviewed by a film maker
who was producing a documentary about the case. The defendant
admitted shooting Jerry, Ned, Aubrey and Jimmy Alday, raping Mary
Alday, and burglarizing the trailer. These admissions were introduced
in evidence at the retrial.
Isaacs v. State, 259 Ga. 717, 718-19, 386 S.E.2d 316, 320 (1989). Neither party
disputes these facts.
B. Procedural History
After we granted Isaacs a writ of habeas corpus following his first
conviction, Isaacs was retried in Houston County, Georgia in 1988, and was again
convicted of six counts of murder and sentenced to death. On appeal, the Georgia
Supreme Court affirmed the conviction and sentence, Isaacs v. State, 259 Ga. 717,
386 S.E.2d 316 (1989), and the U.S. Supreme Court denied certiorari. Isaacs v.
Georgia, 497 U.S. 1032, reh’g denied, 497 U.S. 1051 (1990). In 1991, Isaacs filed
a petition seeking state habeas corpus relief, and the Butts County Superior Court
conducted an evidentiary hearing on the petition in 1993. The state court denied
Isaacs’ petition, and the Georgia Supreme Court denied Isaacs’ petition for a
certificate of probable cause. See Isaacs v. Thomas, No. S95H0164 (Ga. April 14,
4
1995). The U.S. Supreme Court again denied cert. Isaacs v. Thomas, 516 U.S.
1002, reh’g denied, 516 U.S. 1099 (1996).
While the rehearing motion was pending in the U.S. Supreme Court, Isaacs
filed a motion with the federal district court in the Middle District of Georgia for
appointment of habeas counsel pursuant to 21 U.S.C. § 848(q)(4)(B). The district
court granted the motion on February 9, 1996. On November 4, 1996, the district
court ordered that Isaacs’ §2254 petition be filed by December 6, 1996, and Isaacs
filed it on that day.
Between the time that the district court granted Isaacs’ motion for
appointment of habeas counsel and the time that Isaacs actually filed his §2254
petition, Congress passed the Anti-terrorism and Effective Death Penalty Act of
1996 (AEDPA), 110 Stat. 1214, which took effect on April 24, 1996. Therefore
the timing of Isaacs’ various filings gave rise to one of the issues before the district
court and involved in this appeal – whether the more lenient pre-AEDPA
standards, or the stricter AEDPA standards, should be applied to Isaacs’ petition.
After briefing by the parties, the district court ruled that it would apply AEDPA to
Isaacs’ petition.
In February 1999, the district court directed the parties to file briefs on
procedural default and on discovery. The court then entered an order ruling on the
5
claims of procedural default, denying discovery, and directing briefing on “all
grounds raised.”
On August 25, 2000, the district court entered an order denying Isaacs’
request to present evidence as to certain grounds and denying relief based on the
merits of all of the claims not previously found to be procedurally barred. After
the district court also denied a motion for reconsideration, Isaacs filed a timely
notice of appeal on April 5, 2001. On May 2, 2001, the district court issued a
certificate of appealability, pursuant to 28 U.S.C. § 2253(c), giving Isaacs the right
to appeal 16 different issues (all of the ones with respect to which Isaacs requested
permission to appeal).
II. ISSUES PRESENTED
Of the issues for which Isaacs received permission to appeal, he apparently
chose to abandon all but eight for purposes of this appeal. Therefore, the only
issues before this Court are:
A. Whether the district court correctly determined that AEDPA applied to
Isaacs’ § 2254 habeas petition.
B. Several issues related to the prayer given at the beginning of Isaacs’ trial,
including:
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1. Whether Isaacs’ constitutional rights were violated when his trial was
opened with a prayer.
2. Whether the district court erred by denying discovery or the
presentation of evidence during the federal habeas proceedings
concerning the prayer that opened Isaacs’ trial.
3. Whether Isaacs’ constitutional claims regarding the failure to record
the prayer which opened his trial were properly dismissed as
procedurally defaulted.
4. Whether the district court correctly determined that Isaacs’ ineffective
assistance of counsel claim based on his counsel’s failure to recreate
the record of the prayer which opened Isaacs’ trial was procedurally
defaulted.
C. Whether the admission of statements made by Isaacs while in custody
concerning two escape attempts violated his constitutional rights.
D. Whether Isaacs’ constitutional rights were violated by the presentation of
evidence, argument and jury instructions concerning his lack of remorse.
E. Whether the district court correctly determined that Isaacs’ challenge to
electrocution as cruel and unusual punishment was procedurally defaulted.
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III. DISCUSSION
A. Applicability of AEDPA to Isaacs’ Petition
The first issue that we will address – whether AEDPA is applicable to
Isaacs’ §2254 petition – affects our review of all of Isaacs’ claims. The relevant
facts, as mentioned above, are that Isaacs filed a motion for appointment of habeas
counsel, and the district court granted that motion, prior to the effective date of
AEDPA. However, Isaacs did not file his actual habeas petition until after the
effective date. The Supreme Court subsequently held that the new AEDPA
standards did not apply to pending cases. See Lindh v. Murphy, 521 U.S. 320, 117
S. Ct. 2059 (1997). So, the critical issue becomes whether Isaacs’ habeas case was
pending, for purposes of AEDPA’s applicability, from the time that Isaacs moved
for appointment of counsel, or only from the later time when he filed his habeas
petition. As a matter of first impression in this Court, we agree with the district
court, and the majority of the other circuits which have addressed this narrow
issue,1 and hold that Isaacs’ habeas case was pending only from the time that he
1
So far five other circuits have addressed the precise issue that is
presented to us. Of those, the Ninth Circuit is the only one to agree with Isaacs’
position that AEDPA should not apply to habeas cases in which the petitioner had
moved for appointment of counsel prior to AEDPA’s effective date, even though
the actual petition was filed subsequent thereto. See Garceau v. Woodford, 275
F.3d 769, 772 n.1 (9th Cir. 2001); Sandoval v. Calderon, 241 F.3d 765, 771 (9th
Cir. 2001); Calderon v. U.S. District Ct. for the Central District of Cal., 163 F.3d
8
filed his actual §2254 petition, and therefore that AEDPA applies to this case.
1. Supreme Court Cases Concerning Applicability of AEDPA
The relevance of determining the point from which Isaacs’ case should be
considered to have been “pending” derives from the Supreme Court’s decision in
Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059 (1997). In that case, the Supreme
Court considered whether the provisions of AEDPA applied retroactively to
pending cases. The Court’s decision that AEDPA should not be applied to most
pending habeas cases was based largely on the fact that § 107(c) of the Act
expressly stated that chapter 154 of AEDPA – a chapter which sets out special
rules expediting §2254 cases when states satisfy certain requirements – should be
applied to pending cases. See id. at 327, 117 S. Ct. at 2063. No such retroactivity
provision was included in AEDPA chapter 153, the chapter applicable to other
§2254 petitions (including Isaacs’ petition, if AEDPA applies). The Court noted
that “[i]f ... Congress was reasonably concerned to ensure that chapter 154 be
530 (9th Cir. 1998) (en banc). On the other hand, the Fifth, Sixth, Seventh and
Tenth Circuits all have held that AEDPA applies unless the habeas petition itself
was filed before the Act became effective. See Foster v. Schomig, 223 F.3d 626,
631 n.2 (7th Cir. 2000); Moore v. Gibson, 195 F.3d 1152 (10th Cir. 1999); Gosier
v. Welborn, 175 F.3d 504 (7th Cir. 1999); Williams v. Coyle, 167 F.3d 1036 (6th
Cir. 1999); Nobles v. Johnson, 175 F.3d 504 (5th Cir. 1997); Williams v. Cain, 125
F.3d 269 (5th Cir. 1997); Holman v. Gilmore, 126 F.3d 876 (7th Cir. 1997).
9
applied to pending cases, it should have been just as concerned about chapter 153,
unless it had the different intent that the latter chapter not be applied to the general
run of pending cases.” Id. at 329, 117 S. Ct. at 2064. Because Congress
considered the two chapters together, the Court stated that the “negative
implications raised by disparate provisions are strong[].” Id. at 330, 117 S. Ct. at
2065. After discussing alternative interpretations of the statutory provisions, the
Court stated: “We hold that the negative implication of § 107(c) is that the new
provisions of chapter 153 generally apply only to cases filed after the Act became
effective.” Id. at 336, 117 S. Ct. at 2068.
Although Lindh clearly establishes that AEDPA does not apply to “pending”
cases, it does not address the issue presented in this case of what event marks the
beginning of a habeas case. In addressing that issue, Isaacs points to other recent
Supreme Court cases interpreting habeas provisions in a way that supports his
contention that a habeas case begins at the time a petition files a motion for
appointment of counsel.
First, Isaacs directs us to the Supreme Court’s opinion in McFarland v.
Scott, 512 U.S. 849, 114 S. Ct. 2568 (1994). In that case, the Supreme Court
considered two statutory provisions related to habeas cases: 21 U.S.C.
§848(q)(4)(B), which creates a statutory right to qualified legal representation for
10
capital defendants in federal habeas proceedings, and 28 U.S.C. §2251, which
grants a federal judge before whom a habeas proceeding is pending the power to
stay any related state court proceeding. The lower courts in McFarland had refused
to appoint habeas counsel for the defendant pursuant to §848(q)(4)(B) because the
defendant had not yet filed a habeas petition. Id. at 851-54, 114 S. Ct. at 2570-71.
The Supreme Court began by noting that §848(q)(4)(B) “grants indigent
capital defendants a mandatory right to qualified counsel and related services ‘[i]n
any [federal] post conviction proceeding,’” but that the statute did not specify how
the right was to be invoked. Id. at 854, 114 S. Ct. at 2571 (quoting § 848(q)(4)(B))
(brackets in original). In particular, the statute did not “define a ‘post conviction
proceeding’ under §2254 or §2255 or expressly state how such a proceeding shall
be commenced.” Id. In light of other related provisions, however, the Court held
that “§848(q)(4)(B) . . . established a right to preapplication legal assistance.” Id.
at 855, 114 S. Ct. at 2572. The Court found that the “interpretation [of the statute
to permit the appointment of counsel prior to the filing of a formal petition] is the
only one that gives meaning to the statute as a practical matter,” and concluded
that:
The language and purposes of §848(q)(4)(B) and its related provisions
establish that the right to appointed counsel includes a right to legal
assistance in the preparation of a habeas corpus application. We
11
therefore conclude that a “post conviction proceeding” within the
meaning of § 848(q)(4)(B) is commenced by the filing of a death row
defendant’s motion requesting the appointment of counsel for his
federal habeas corpus proceeding.
Id. at 855-57, 114 S. Ct. at 2572-73.
After reaching that conclusion, the Supreme Court went on to address the
similar issue of whether a federal court has authority to stay state court proceedings
pursuant to 28 U.S.C. § 2251 prior to the filing of a formal habeas petition.
Section 2251 grants any federal judge “before whom a habeas corpus proceeding is
pending” power to enjoin related state court proceedings. 28 U.S.C. §2251.
McFarland argued “that his request for counsel in a ‘post conviction proceeding’
under § 848(q)(4)(B) initiated a ‘habeas corpus proceeding’ within the meaning of
§2251, and that the District Court thus had jurisdiction to enter a stay.”
McFarland, 512 U.S. at 857, 114 S. Ct. at 2573. The Court held that:
The language of these two statutes indicates that the sections refer to
the same proceeding. Section 848(q)(4)(B) expressly applies to “any
post conviction proceeding under section 2254 or 2255” – the precise
“habeas corpus proceeding[s]” that § 2251 involves. The terms “post
conviction” and “habeas corpus” also are used interchangeably in
legal parlance to refer to proceedings under §§ 2254 and 2255. We
thus conclude that the two statutes must be read in pari materia to
provide that once a capital defendant invokes his right to appointed
counsel, a federal court also has jurisdiction under § 2251 to enter a
stay of execution.
Id. at 858, 114 S. Ct. at 2573.
12
Because the McFarland Court held with respect to both §848 and §2251that
habeas proceedings were commenced with the filing of a motion for appointment
of counsel, Isaacs argues that we should also find that his habeas case was pending,
for purposes of determining whether AEDPA applies, as of the time he filed his
motion for appointment of counsel. If we were to do so then it would follow, of
course, that AEDPA would not apply to his petition.
The second Supreme Court case on which Isaacs relies is Hohn v. United
States, 524 U.S. 236, 118 S. Ct. 1969 (1998). In Hohn, the Court considered
whether it had jurisdiction to review a decision by a court of appeals denying an
application for a certificate of appealability (COA). To resolve this issue, the
Court had to decide whether a court of appeals’ consideration of a COA
application constituted a “case.” Id. at 241, 118 S. Ct. at 1972. The Court
concluded that it did, stating:
There can be little doubt that Hohn’s application for a certificate of
appealability constitutes a case under § 1254(1). As we have noted,
“[t]he words ‘case’ and ‘cause’ are constantly used as synonyms in
statutes ..., each meaning a proceeding in court, a suit, or action.”
Blyew v. United States, 13 Wall. 581, 595, 20 L. Ed. 638 (1871). The
dispute over Hohn’s entitlement to a certificate falls within this
definition. It is a proceeding seeking relief for an immediate and
redressable injury, i.e., wrongful detention in violation of the
Constitution. There is adversity as well as the other requisite qualities
of a “case” as the term is used in both Article III of the Constitution
and the statute here under consideration. This is significant, we think,
13
for cases are addressed in the ordinary course of the judicial process,
and, as a general rule, when the district court has denied relief and
applicable requirements of finality have been satisfied, the next step is
review in the court of appeals.
Id.
The Hohn Court also rejected the suggestion that an application for a COA
was a threshold matter separate from the merits and over which appellate courts
lack jurisdiction, stating:
Precedent forecloses this argument. In Ex parte Quirin, 317 U.S. 1, 63
S. Ct. 1, 87 L. Ed. 3 (1942), we confronted the analogous question
whether a request for leave to file a petition for a writ of habeas
corpus was a case in a district court for the purposes of the then-extant
statute governing court of appeals review of district court decisions.
See 28 U.S.C. § 225(a) First (1940 ed.) (courts of appeals had
jurisdiction to review final decisions “[i]n the district courts, in all
cases save where a direct review of the decision may be had in the
Supreme Court”). We held the request for leave constituted a case in
the district court over which the court of appeals could assert
jurisdiction, even though the district court had denied the request. We
reasoned, “[p]resentation of the petition for judicial action is the
institution of a suit. Hence the denial by the district court of leave to
file the petitions in these causes was the judicial determination of a
case or controversy, reviewable on appeal to the Court of Appeals.”
317 U.S., at 24, 63 S. Ct., at 9.
Id. at 246, 118 S. Ct. at 1974-75. Isaacs contends that, in light of McFarland and
Hohn, the Court should hold that he instituted his habeas case at the time that he
filed his motion for appointment of counsel.
Arguably pointing in the other direction, however, is another recent Supreme
14
Court case that has not yet been discussed by any of the other circuits in
connection with the issue before us. In Slack v. McDaniel, 529 U.S. 473, 120 S.
Ct. 1595 (2000), the Supreme Court addressed whether pre- or post-AEDPA rules
should apply to an appeal filed pursuant to §2253 after AEDPA became effective,
when the original petition was filed with the district court before AEDPA.2 The
Court noted that just as § 2254 was directed to petitions filed in district courts after
AEDPA, Section 2253 was directed to proceedings initiated in appellate courts
after the Act’s effective date. Id. at 481, 120 S. Ct. at 1602. Therefore, the Court
concluded that AEDPA’s rules applied to appeals filed after AEDPA, even though
appellate courts would be required “to apply pre-AEDPA law in reviewing the trial
court’s ruling.” Id.
As the State points out, the Slack Court’s holding indicates that, at least
when a case moves from the district court to appellate court level, it may be
divisible so that AEDPA would apply to one aspect of the proceeding, but not to
other. The Supreme Court recognized this fact, explaining:
While an appeal is a continuation of the litigation started in the trial
court, it is a distinct step. We have described proceedings in the
courts of appeals as “appellate cases.” Under AEDPA, an appellate
2
Section 2253 is the provision governing appeals from a district court’s
final order in a habeas case. It requires that a COA be granted before an appeal
will be entertained. 28 U.S.C. §2253.
15
case is commenced when the application for a COA is filed.
When Congress instructs us (as Lindh says it has) that application of a
statute is triggered by the commencement of a case, the relevant case
for a statute directed to appeals is the one initiated in the appellate
court. Thus, § 2253(c) governs appellate court proceedings filed after
AEDPA’s effective date.
Id. at 481-82, 120 S. Ct. at 1602-03 (citations and quotations omitted). Therefore,
a case isn’t always just a case. Instead this Court must consider the “relevant case”
in order to determine which set of standards apply.
2. Other Circuits’ Approaches to this Issue
Having set out the Supreme Court authority relevant to the issue of whether
AEDPA applies to Isaacs’ petition, we will now discuss the competing approaches
taken by our sister circuits in this regard.
As mentioned above, five circuits have considered this exact issue, and all
but one have found AEDPA to be applicable under these circumstances. The only
circuit so far to have accepted Isaacs’ position on when a habeas case is instituted
is the Ninth. In Calderon, the en banc Ninth Circuit overruled the position
announced in previous decisions and held that, for purposes of determining
whether a case was pending when AEDPA took effect in April 1996, courts should
look to the date on which the defendant filed a motion for appointment of counsel.
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163 F.3d at 539-40. Its previous cases had interpreted the Supreme Court’s
McFarland decision as applying only to the two statutory provisions presented in
that case (the provisions allowing for appointment of habeas counsel and providing
district courts with authority to stay state court proceedings), but not to the
question of whether a “case” was pending for AEDPA purposes. Id. at 539
(discussing cases). The Calderon court found, however, that the Supreme Court’s
intervening decision in Hohn required it to revisit and reverse its position.
In Calderon, the Ninth Circuit interpreted Hohn as indicating that a habeas
case may be initiated by the filing of an application for a COA. Id. The court
focused on the Supreme Court’s rejection of the notion that a COA is a threshold
matter separate from the merits of a habeas case. Id. The court then reasoned
that:
In the wake of Hohn, we must overrule [the Ninth Circuit precedent]
holding that a habeas corpus “case” is not pending until the habeas
petition itself has been filed. Hohn’s holding, as well as its reliance on
Ex Parte Quirin that a threshold request for leave to file a petition for
habeas corpus commences the habeas “case,” is simply irreconcilable
with [those cases]. Like a request for leave to file a habeas petition, a
petition for the appointment of counsel to prepare and file a petition
for a writ of habeas corpus, accompanied by a motion for a stay of
execution under McFarland, is a threshold action that presents a
“case” to the district court. By analogy to Hohn, it follows that a
petition for appointment of counsel under McFarland creates a
pending habeas case. Accordingly, we overrule those [cases] that held
that a habeas corpus case is pending only when the habeas petition
17
itself has been filed. A petition for the appointment of counsel to
prepare and file a habeas petition, coupled with a motion for a stay of
execution, also suffices.
Id. at 540. See also Garceau v. Woodford, 275 F.3d 769, 772 n.1 (9th Cir. 2001)
(following Calderon); Sandoval v. Calderon, 241 F.3d 765, 771 (9th Cir. 2001).
Contrary to the Ninth Circuit, four courts of appeals have held that AEDPA
applies to § 2254 petitions filed after the Act became effective, even if the
defendant had filed a motion for appointment of counsel or for a stay prior to the
effective date. The courts which have taken this position have found the Supreme
Court cases discussed above distinguishable for several reasons.
The Sixth Circuit’s decision in Williams v. Coyle, 167 F.3d 1036 (6th Cir.
1999), is a good example that contains most of the reasons cited by the other
circuits for the conclusion that a habeas case is only pending from the time that an
actual petition is filed. The Williams court began by noting that “[i]n ordinary
usage a case is pending when a complaint or petition is filed.” Id. at 1038. Also,
the Sixth Circuit noted that habeas cases are generally subject to the Federal Rules
of Civil Procedure, see Rule 11 of the Rules Governing §2254 Cases, and Rule 3 of
those rules states that “[a] civil action is commenced by the filing of a complaint
with the court.” Id. After stating that no habeas rules address the specific issue,
the court “conclude[d] that Fed. R. Civ. P. 3 yields a presumption that a federal
18
habeas corpus case is filed with the filing of an application for the writ.” Id. The
court found that “[t]his presumption is reinforced by the language of the habeas
corpus provisions,” because, for example, Section 2254(e) refers to “a proceeding
instituted by an application for a writ of habeas corpus.” Id.
After discussing these reasons to believe that a habeas case is only pending
after a petition is filed, the Williams court turned to the Supreme Court cases
discussed above. The court noted that McFarland “held that a motion for the
appointment of counsel constitutes a post conviction proceeding for purposes of 21
U.S.C. §848(q)(4)(B),” and that “a motion for appointment of counsel was
sufficient to enable a district court to stay an execution pursuant to 28 U.S.C.
2251, which literally grants this power to a judge ‘before whom a habeas corpus
proceeding is pending.’” Id. The Sixth Circuit concluded that McFarland did not
indicate that a habeas case was pending, for purposes of AEDPA’s applicability,
simply because a motion for appointment of counsel had been filed, stating:
[B]oth holdings of McFarland appear to rest on the necessity of
expanding the ordinary meaning of a “pending case” in order to give
effect to clear congressional intent. By contrast, we perceive no
compelling reason to depart from plain meaning in the present case.
The problem the Court addressed in McFarland was of an ongoing
nature and had nothing to do with the effective date of any statutory
provision. In the present case, on the other hand, the defendant faces
additional procedural hurdles post-AEDPA, but there is no ongoing
rationale for stretching the “pending” period to reach prior to the
19
actual filing of the application as there was in McFarland. Once all
cases in which a petitioner initiated some habeas corpus-related legal
action prior to the effective date of the AEDPA have been resolved,
the point at which a § 2254 case is “filed” will become irrelevant.
Id. at 1039. Williams acknowledged that McFarland contains language which
could be interpreted as meaning that a §2254 case in general begins with the filing
of a motion for appointment of counsel, but rejected such a broad reading,
concluding instead that “this reading is warranted only to the extent necessary to
give effect to §848(q)(4)(B).” Id.
The Sixth Circuit then turned to the Ninth Circuit’s decision in Calderon,
and rejected the Ninth Circuit’s interpretation of the effect of the Supreme Court’s
Hohn decision. Id. The court stated that:
In our opinion Hohn and Ex parte Quirin stand only for the
proposition that the denial by the district court of a motion for the
issuance of a COA, a motion for leave to file a petition for the writ, or,
as in our case, a motion for the appointment of counsel pursuant to 21
U.S.C. §848(q)(4)(B) would constitute an appealable case. This does
not imply, however, that the petitioner’s habeas corpus case has been
initiated by the filing of such a preliminary motion. Although the
Court in Hohn rejected the contention that the filing of a preliminary
motion “should be regarded as a threshold inquiry separate from the
merits,” Hohn, 118 S. Ct. at 1974-75, the holding and logic of the case
were limited to the determination that the rejection by the district
court of the preliminary motion constitutes an appealable case. Thus,
we do not believe that Hohn dictates the result sought by Williams.
Id. at 1040.
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Having rejected an interpretation of Hohn that would have the motion for
appointment of counsel mark the beginning of a habeas case, the Sixth Circuit then
stated that it agreed with a pre-Hohn Seventh Circuit opinion that stated:
Although it is linguistically possible for this “preapplication legal
assistance” to open a “case” having some affinity to a petition under
§2254 . . . the motion for counsel is not itself a petition, because it
does not call for (or even permit) a decision on the merits. And it is
“the merits” that the amended § 2254(d)(1) is all about.
Id. (quoting Holman v. Gilmore, 126 F.3d 876, 880 (7th Cir. 1997)). Therefore, the
Sixth Circuit concluded that “a federal habeas corpus case is filed or pending for
purposes of Lindh and the AEDPA only when the petition for the writ is filed.” Id.
More recently, the Seventh Circuit addressed the effect of Hohn and the
Ninth Circuit’s Calderon opinion, and Judge Easterbrook stood by the court’s
earlier approach, stating:
The question in Hohn was whether an application for a certificate of
appealability is a “case” in the court of appeals, and therefore
amenable to review on writ of certiorari under 28 U.S.C. § 1254. The
answer to that question does not bear on the issue in Holman and
Calderon: whether an application for counsel under 21 U.S.C.
§848(q)(4) is a “case pending” under Chapter 153 of the Judicial Code
– the critical question for application of the AEDPA. We did not
doubt in Holman that a request for counsel is a “case” in the sense that
it is subject to appellate review (and, if need be, review by the
Supreme Court). Indeed, Gosier’s request for counsel was reviewed
by this court on appeal, after the district judge dismissed his
application. But a request for counsel under §848(q)(4), part of Title
21, is not a case under Chapter 153 of Title 28 – that is, the request is
21
not a collateral attack on a criminal judgment. This rationale of
Holman was ignored by the ninth circuit, and we are not persuaded by
a decision that avoided the fundamental issue. So we apply the
AEDPA to Gosier’s case.
Gosier v. Welborn, 175 F.3d 504, (7th Cir. 1999) (citations omitted).
The opinions of the other circuits add little to the analysis performed by the
Sixth and Seventh Circuits. In two opinions, both of which pre-dated Hohn, the
Fifth Circuit found that McFarland simply did not address the issue of when a case
was pending for AEDPA purposes, but was instead “intended to resolve practical
procedural problems” related to the two specific statutory provisions at issue in
that case. Williams v. Cain, 125 F.3d 269 (5th Cir. 1997); see also Nobles v.
Johnson, 127 F.3d 409, 414 (5th Cir. 1997) (same). Similarly, in Moore v. Gibson,
195 F.3d 1152 (10th Cir. 1999), the Tenth Circuit agreed that “McFarland focused
on the need to expand the ordinary meaning of a pending case to give effect to
Congressional intent,” and did not address when a case is pending for AEDPA
purposes. Id. at 1162.
3. AEDPA Applies
We conclude that the better reasoned approach is the one taken by the
majority of the other circuits that have faced the issue before us, and we hold that
22
the relevant date for purposes of judging AEDPA’s applicability to a habeas
petition is the date on which the actual §2254 petition was filed.
In reaching this conclusion, we acknowledge that some of the language used
by the Supreme Court in McFarland and in Hohn supports Isaacs’ contention that
his case began with the filing of a motion for appointment of counsel. However,
we think that the best reading of McFarland is that it was concerned only with
interpreting and giving effect to two, narrow statutory provisions. It would be a
stretch to find that the decision indicates that for all purposes, a habeas case is
pending from the time that a motion for appointment of counsel is filed. Nothing
in McFarland precludes the result we reach today.
Likewise, Hohn was limited to the relatively narrow issue of whether an
application for a COA initiated a case or controversy over which appellate courts
could exercise jurisdiction consistent with Article III of the Constitution. We agree
with the Seventh Circuit that “[t]he answer to that question does not bear on . . .
whether an application for counsel . . . is a ‘case pending’ under Chapter 153 of the
Judicial Code – the critical question for application of the AEDPA.” Gosier, 175
F.3d at 506.
We are persuaded that the Seventh Circuit’s approach in Gosier is the correct
one. We agree that, in a sense, the filing of a motion for appointment of counsel or
23
other threshold motions might initiate some form of “case,” at least in the
constitutional sense. However, such a motion does not necessarily mark the
genesis of the habeas case under §2254. A motion for appointment of counsel has
no relation to the merits of a habeas petition and does not seek any form of merits
relief from a district court. Such a motion does not even assure that a habeas case
will ever materialize. For example, an appointed counsel could well conclude that
the would-be petitioner has no colorable claims to present. Therefore, only when
an actual habeas petition is filed seeking relief from a conviction or sentence does
§ 2254 come into play.
Furthermore, the Supreme Court’s opinion in Slack supports the idea that all
proceedings that have any relation to a habeas petition do not have to be viewed as
a unified whole for purposes of AEDPA. Instead, Slack expressly recognized that
a court, in order to determine the applicable law, must determine what is “the
relevant case.” Id. at 482, 120 S. Ct. at 1603. We believe that it follows – from
the Supreme Court’s recognition that an appellate case may be subject to AEDPA
even though the underlying district court proceedings were not – that even though
a motion for appointment of counsel was filed before AEDPA and was not subject
to its provisions, a later-filed habeas petition may nonetheless be governed by the
stricter AEDPA standards that took effect in the interim. The simple fact is, at the
24
time AEDPA became the law, Isaacs’ habeas case was not pending because it had
not yet been filed and he had not asked the district court for any type of merits
relief that could be characterized as habeas relief. We hold that the relevant case
was not pending when AEDPA became effective, and the district court properly
considered Isaacs’ petition under AEDPA’s standards.
B. Issues Related to the Prayer that Opened Isaacs’ Trial
Next we turn to four different issues presented by Isaacs that all relate to the
fact that the trial judge allowed his minister to offer an invocation before voir dire
at the beginning of Isaacs’ trial. Isaacs has contended in his habeas petition that
the prayer violated his constitutional rights under the First, Fifth, Sixth, Eighth, and
Fourteenth Amendments. In this appeal, however, his arguments are limited to the
contention that the giving of the prayer violated his due process rights; therefore he
abandoned any other arguments concerning the prayer. Prior to addressing the
legal issues, it is necessary for us to explain the facts and the state of the record
with respect to the invocation. The court reporter failed to include the content of
the prayer as part of the trial transcript. Therefore, all that the transcript reveals
concerning the prayer is as follows:
January 4, 1988
25
(A discussion was had in chambers between Court and Counsel,
which was not made a part of the record.)
(At 9:30 a.m., court was convened and the following proceedings
were had:)
(Invocation)
MR. JACKSON [defense counsel]: We need to approach the bench,
Your Honor.
THE COURT: Very good.
(Discussion at the bench as follows:)
MR. SCHIAVONE [defense counsel]: Your Honor, we’re going to
move to dismiss the panel on the basis of the statements just made by
this minister. We think that was highly prejudicial.
MR. JACKSON: Your Honor, there’s separation of church and state –
MR. SCHIAVONE: Absolutely, I think that’s –
MR. JACKSON: – and for someone to pray in front of all these jurors
that they all had their ideas of what should be done and that God’s
will should be done, not their individual ideas should be done – which
is the law of this state – prejudiced the panel. And we move for a
mistrial and ask the jury panel to be excluded and excused.
MR. SCHIAVONE: Well, we move for a continuance until we can
impanel a new jury, because we can’t move for a mistrial at this stage
–
MR. JACKSON: That’s right.
MR. SCHIAVONE: – because there’s no jury panel. So we do move
for a continuance, that this panel of jurors has been prejudiced by that
26
statement.
MR. HILL [prosecutor]: I don’t agree, Your Honor. I think it’s
premature anyway. They have an opportunity to voir dire and
ascertain whether or not this panel has been prejudiced.
THE COURT: Very good. The motion is overruled.
At the time of the prayer, a motion to record all proceedings previously had
been granted, but Isaacs’ trial counsel was not advised that the court reporter failed
to record the prayer. Isaacs asserts that his counsel only discovered months later
that no record had been made (even though Isaacs presented an affidavit from the
court reporter indicating that she stood during the prayer, and defense counsel was
present at the time and presumably could have observed her doing so). However,
the trial transcript was certified on March 6, 1988, so counsel should have been
aware of the omission by the time of the June 1988 proceedings on the motion for a
new trial (the “new trial proceedings”). And we know that counsel was aware at
least by the time of the direct appeal.3
3
According to the court reporter, the trial judge became aware that the
prayer had not been recorded on the same day that it was given. Isaacs states that
he was unaware of this fact prior to the federal habeas case. He argues that if the
judge had promptly informed him that the prayer had not been recorded, he would
have had a better chance of recreating a transcript of the prayer. For example, as
the court reporter’s affidavit pointed out, a media center was set up for the trial
where media could observe and record the proceedings, so there is a likelihood that
the text of the prayer could have been reconstructed if a prompt effort to do so had
27
Isaacs first challenged the propriety of the invocation during his direct
appeal to the Georgia Supreme Court, but at that time he apparently made no effort
to establish the contents of the prayer. Isaacs, 386 S.E.2d at 327. The court held
that beginning a trial with an invocation is not a per se violation of the constitution,
and that, without more information concerning the content of the prayer, Isaacs
was not entitled to relief. Id.
The first attempt to make a precise record of the contents of the prayer was
apparently during the state habeas proceedings, almost six years after the
invocation was given. On state habeas review, Isaacs claimed that his trial counsel
had been ineffective by allowing the prayer to take place and by not ensuring that
the prayer was recorded. In those proceedings, both parties were allowed to put
forth evidence concerning the contents of the prayer. Isaacs’ trial attorney
testified that he recalled the minister saying: “Lord, we all know why we are
gathered here. We know you know what you want done to this man. Let us do
been made.
But Isaacs has had an opportunity to attempt to recreate the missing portion
of the record on earlier occasions – i.e. during the new trial proceedings and when
the Georgia Supreme Court remanded so that other, unrelated parts of the record
could be recreated. See Isaacs, 386 S.E.2d at 327 (noting that Isaacs had
opportunity to recreate the record during earlier remand). Isaacs apparently made
no effort to recreate a transcript of the invocation on either occasion, even though
he was or should have been aware that it was missing from the trial transcript.
28
your bidding or your will.” He also testified that the prayer referenced “God’s
will” and “man’s law.”
The trial judge also testified concerning the contents of the prayer during the
state habeas proceedings. He stated that he invited his minister to give the
invocation at the beginning of Isaacs’ trial, and that he had given the minister no
“specific instructions” concerning the contents of the prayer. The judge testified
that he did not recall exactly what the minister said in the prayer, but that it was
“very innocuous” and had not, in his opinion, “prejudiced the defense” or “favored
the state.” The prosecutors also testified that they had no specific recollection
regarding the contents of the prayer, but stated that they recalled the prayer as
being of a neutral nature. One prosecutor testified: “I can tell you now that if I
had sensed that something improper was said, given the nature of this case, that I
would have immediately asked that new venire persons be brought in.”
In its order denying habeas relief, the state habeas court “accept[ed] the
recollection of the trial court as to the neutral nature of the prayer offered in this
case, as confirmed by the testimony of [the prosecutor],” and held that Isaacs had
failed to show that he was prejudiced by the invocation. State Habeas Order, p. 17.
After filing his federal habeas petition, Isaacs sought discovery and an
29
evidentiary hearing concerning the prayer. Isaacs pointed to the allegedly new
information provided by the court reporter concerning the trial judge’s early
knowledge that the prayer had not been recorded. Also, in addition to challenging
the prayer itself, Isaacs asserted claims based on the failure to record the prayer and
on the ineffective assistance of his counsel in not ensuring that it was recorded or
promptly reconstructed. The district court denied Isaacs’ request for discovery or
an evidentiary hearing on this issue, pursuant to § 2254(e)(2), and denied on the
merits Isaacs’ claim that the mere giving of the prayer itself violated the
constitution. The court found the “failure to record” claim and the ineffective
assistance claim to be procedurally barred.
1. The Permissibility of Discovery or an Evidentiary Hearing Regarding
the Contents of the Prayer
We will first address the issue of whether the district court erred by denying
Isaacs’ request for discovery and/or an evidentiary hearing concerning the contents
of the invocation. In particular, Isaacs sought permission to take discovery from
the media sources who were present at his trial to determine whether they had any
records of the contents of the prayer. We conclude that the district court properly
30
denied Isaacs’ requests for discovery or a hearing under the standards imposed by
28 U.S.C. §2254(e)(2).
The Supreme Court has recognized that “[a] habeas petitioner, unlike the
usual civil litigant in federal court, is not entitled to discovery as a matter of
course.” Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793, 1796-97 (1997).
Rule 6(a) of the Rules Governing § 2254 Cases states:
A party shall be entitled to invoke processes of discovery available
under Federal Rules of Civil Procedure if, and to the extent that, the
judge in the exercise of his discretion and for good cause shown
grants leave to do so, but not otherwise.
In interpreting the “good cause” portions of this rule, the Supreme Court noted that
“where specific allegations before the court show reason to believe that the
petitioner may, if the facts are fully developed, be able to demonstrate that he is . . .
entitled to relief, it is the duty of the court to provide the necessary facilities and
procedures for an adequate inquiry.” Id. at 908-09, 117 S. Ct. at 1799 (citation and
quotation omitted). The Court has noted that the rules “afford the district court
substantial discretion in the conduct of a case,” including “a degree of discretion in
determining whether to hold an evidentiary hearing.” Lonchar v. Thomas, 517
U.S. 314, 326, 116 S. Ct. 1293, 1300 (1996).
31
In passing AEDPA,4 however, Congress modified the discretion afforded to
the district court and erected additional barriers limiting a habeas petitioner’s right
to discovery or an evidentiary hearing. Section 2254(e)(2) states:
If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that–
(A) the claim relies on–
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
28 U.S.C. §2254(e)(2).
The Supreme Court interpreted §2254(e)(2) in its opinion in Michael
Williams v. Taylor, 529 U.S. 420, 120 S. Ct. 1479 (2000). The Court considered
whether the “failed to develop” language in the opening clause of the provision
indicates that the §2254(e)(2) bar is only applicable when a habeas petitioner has
4
Even before AEDPA, the Supreme Court in Keeney v. Tamayo-
Reyes, 504 U.S. 1, 112 S. Ct. 1715 (1992), had limited the discretion of federal
judges in this regard.
32
not been sufficiently diligent in his efforts to develop a record in state courts. The
Court concluded that this language imported a “threshold standard of diligence,”
such that the discovery provisions of §2254(e)(2) only apply if the petitioner was
not reasonably diligent in trying to develop the factual record while in state court.
Id. at 433-34, 120 S. Ct. at 1489. The Court held that “[d]iligence for purposes of
the opening clause depends upon whether the prisoner made a reasonable attempt,
in light of information available at the time, to investigate and pursue claims in
state court.” Id. at 435, 120 S. Ct. at 1490. The applicability of the provision is
not dependant on “whether those efforts could have been successful.” Id. See
also Breedlove v. Moore, 279 F.3d 952, 959-60 (11th Cir. 2002) (discussing
Michael Williams and application of §2254(e)(2)).
After discussing the meaning of §2254(e)(2), the Supreme Court went on to
find that an evidentiary hearing was not required with respect to the claims of
which Williams was on notice while in state court, but that discovery was required
as to a claim of juror and prosecutorial misconduct of which the petitioner had no
reason to know while in state courts. Michael Williams, 529 U.S. at 438-445, 120
S. Ct. at 1491-94.
Isaacs argues that his request for discovery is similar to the ones which the
Supreme Court found should have been permitted in Michael Williams. He
33
contends that, as with the petitioner in Michael Williams, he had no reason to know
the extent of his claim while in state court because he only found out during federal
habeas that the trial judge had been aware from the first day of trial that the prayer
had not been recorded.
We conclude that the district court did not err under either Rule 6(a) or
§2254(e)(2) by finding that Isaacs was not entitled to discovery or an evidentiary
hearing on his prayer-related claims. As the district court pointed out, Isaacs was
aware of the failure to record the prayer at least by the time of his direct appeal.
He had opportunities to reconstruct the contents of the prayer both during the new
trial proceedings, which were conducted more than five months after conviction
and sentence, and again when the Georgia Supreme Court remanded the case to the
trial court to permit the reconstruction of another portion of the record. On both
occasions he failed to do so. Isaacs was also allowed to present evidence
concerning the contents of the invocation during state habeas proceedings, at which
time he was able to question several of the relevant participants from his trial.
Therefore, we believe that any failure to reconstruct the contents of the prayer at
this stage, over 10 years after he became aware of the omission from the trial
transcript, must be attributed to Isaacs’ lack of diligence during the state court
proceedings.
34
We also find of no consequence Isaacs’ allegation that he only learned after
his federal habeas petition was filed that the trial court had become aware of the
failure to record the prayer on the same day that it happened. We do not see the
relevance of that discovery given that Isaacs asserts no separate claim based on
any improper action by the trial court in this regard. Instead he simply asserts the
same claims that he had previously asserted. Moreover, even if that issue were
relevant, it could have been discovered and explored during the new trial
proceedings, or on the initial remand from the Georgia Supreme Court at which
time other portions of the record were reconstructed, or at the evidentiary hearing
held by the state habeas court. The trial judge actually testified during the latter
proceeding, and Isaacs had the opportunity to cross-examine him.5
We also do not agree that the Supreme Court’s decision in Dobbs v. Zant,
506 U.S. 357, 113 S. Ct. 835 (1993) shows that Isaacs is entitled to the discovery
or evidentiary hearing that he seeks. In that case, the Supreme Court found that
this Court had erred by failing to allow the petitioner to supplement the record to
include the transcript of closing arguments that the parties thought had been lost,
5
Indeed, the fact that the trial judge was aware of the failure to record
earlier than Isaacs may be barred from our consideration by §2254(e)(2) because it
was not developed in state court. In light of our view that the fact is without
significance for the merits of the issues before us, we need not address that.
35
but was subsequently found. Id. The Court stated that it had “emphasized the
importance of reviewing capital sentences on a complete record,” and noted that
the supplement to the record should have been permitted because “[t]here can be
no doubt as to the transcript’s relevance” to the decisions of the lower courts. Id. at
358-59, 113 S. Ct. at 836.
In contrast to Dobbs, Isaacs is not in possession of, nor is he likely to gain
possession of, a transcript of the prayer given at trial. He does not explain why the
discovery that he seeks now is any different from the discovery that was available
to him in state courts. Under these circumstances, we conclude that the district
court properly denied Isaacs’ request to conduct additional discovery concerning
the prayer because he neither exercised sufficient diligence to satisfy the
requirements of §2254(e)(2) nor showed “good cause” as required by Rule 6(a).
2. The Constitutional Permissibility of the Invocation
Next, we consider Isaacs’ contention that the invocation given prior to voir
dire violated his due process rights. When this issue was presented to the Georgia
Supreme Court on direct appeal, the court noted that it lacked a record of the
content of the prayer, and held that the giving of a prayer at the beginning of a
criminal trial was not a per se violation of the constitution. Isaacs, 386 S.E.2d at
36
327. Then during the state habeas proceedings, after Isaacs put forth evidence
concerning the contents of the prayer, the state court accepted the testimony of the
trial judge to the effect that the invocation was “neutral” and had not “prejudiced
the defense” or “favored the state.” Therefore, the state habeas court held that the
actual prayer given at Isaacs’ trial had not violated his constitutional rights. As we
will explain below, we must accept these rulings and findings by the state courts,
and, consequently, Isaacs is not entitled to relief on this claim.
As we explained above, the strict standards adopted by Congress in AEDPA
apply to Isaacs’ habeas petition. Therefore, we look to § 2254(d) and 2254(e)(1) to
determine the permissible scope of our review. Section 2254(d), which addresses
our treatment of state court adjudications of federal constitutional claims, states:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. §2254(d).
In addition, Section 2254(e)(1) addresses the deference that federal courts
37
must give to fact-finding by the state courts, stating:
In a proceeding instituted by an application for a writ of habeas corpus
by a person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
28 U.S.C. §2254(e)(1).
The Supreme Court addressed the meaning of §2254(d)(1) in Williams v.
Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000). The Court recognized that the
provision “places a new constraint on the power of a federal habeas court to grant a
state prisoner’s application for a writ of habeas corpus with respect to claims
adjudicated on the merits in state court.” Id. at 412, 120 S. Ct. at 1495. We
recently summarized the Williams holding and other standards applicable to
§2254(d), stating:
The “contrary to” and “unreasonable application” clauses of §
2254(d)(1) are separate bases for reviewing a state court’s decisions.
A state court decision is “contrary to” clearly established federal law
if either (1) the state court applied a rule that contradicts the governing
law set forth by Supreme Court case law, or (2) when faced with
materially indistinguishable facts, the state court arrived at a result
different from that reached in a Supreme Court case.
A state court conducts an “unreasonable application” of clearly
established federal law if it identifies the correct legal rule from
Supreme Court case law but unreasonably applies that rule to the facts
of the petitioner’s case. An unreasonable application may also occur if
38
a state court unreasonably extends, or unreasonably declines to
extend, a legal principle from Supreme Court case law to a new
context. Notably, an “unreasonable application” is an “objectively
unreasonable” application.
Lastly, § 2254(d)(1) provides a measuring stick for federal habeas
courts reviewing state court decisions. That measuring stick is “clearly
established Federal law.” 28 U.S.C. § 2254(d). Clearly established
federal law is not the case law of the lower federal courts, including
this Court. Instead, in the habeas context, clearly established federal
law “refers to the holdings, as opposed to the dicta, of [the Supreme
Court’s] decisions as of the time of the relevant state court decision.”
Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001) (citations and quotations
omitted).
In applying the “contrary to” prong of §2254(d), we have recognized that
where no Supreme Court precedent is on point, “we cannot say that the state
court’s conclusion . . . is contrary to clearly established Federal law as determined
by the U.S. Supreme Court.” McIntyre v. Williams, 216 F.3d 1254, 1258 (11th
Cir. 2000).
We first address whether the Georgia Supreme Court’s holding that the
invocation was not a per se violation of the constitution constituted a “decision that
was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§2254(d)(1). Isaacs has pointed to no Supreme Court precedent which has held
39
that the giving of a prayer at trial is a per se violation of the constitution, and we
have found none. Thus, we hold that the Georgia Supreme Court’s decision was
not contrary to clearly established federal law as determined by the Supreme Court.
We next consider whether the Georgia Supreme Court’s decision involved
an unreasonable application of such federal law. In support of his position, Isaacs
cites Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633 (1985) (finding an
Eighth Amendment violation when the sentencer in a capital case is led to believe
that the ultimate responsibility for determination of the sentence rests elsewhere).
The Georgia Supreme Court noted that the record did not disclose the content of
the prayer, even though the case had been remanded on motion by the defendant
for purposes of completion of the record. With no indication of the content of the
prayer before the Georgia Supreme Court, and thus with no indication that the
jury’s sense of responsibility was undermined, we cannot conclude that the
decision of the Georgia Supreme Court involved an unreasonable application of
Caldwell.
Isaacs also cites Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971),
and a Fourth Circuit case, North Carolina Civil Liberties Union Legal Foundation
v. Constangy, 947 F.2d 1145 (4th Cir. 1991) (applying Lemon’s test for
determining whether there has been an establishment of religion). We readily
40
conclude that the Georgia Supreme Court’s decision – that beginning a criminal
trial with a prayer does not warrant a per se reversal of a criminal conviction –
does not involve an unreasonable application of Lemon.
With no record of the content of the prayer, the Georgia Supreme Court was
addressing a claim with respect to which Isaacs had proven no prejudice. The
Fourth Circuit’s decision in Constangy involved an attempt to enjoin a trial judge’s
practice of opening trials with a prayer delivered by the judge himself. The
challenge was pursuant to the Establishment Clause with respect to which the court
noted that it was not necessary to prove actual prejudice. See Constangy, 947 F.2d
at 1152 (distinguishing United States v. Bakker, 925 F.2d 728 (4th Cir. 1991),
which had vacated a sentence because a judge’s personal religious views entered
into the sentencing process). We note, of course, that the Fourth Circuit cases are
not determinations by the Supreme Court, and thus cannot guide our analysis.
Moreover, nothing in the Fourth Circuit cases indicates that a conviction violates
the constitution and must be set aside merely because the trial was begun with a
prayer with respect to which no prejudice has been proven. See also the case cited
by the Georgia Supreme Court, United States v. Walker, 696 F.2d 277 (4th Cir.
1982) (holding that even if beginning a criminal trial with a prayer violated the
First Amendment, reversal was not warranted unless the prayer substantially
41
impaired the fairness of the trial).
We note that in his opening brief on appeal, Isaacs’ challenge to the state
courts’ decisions with respect to the prayer focuses on the decision of the Supreme
Court of Georgia, and not the decision of the state habeas court.6 However, his
argument assumes his own version of the content of the prayer, and ignores the
findings of fact in this regard by the state habeas court. For the first time in his
reply brief, Isaacs acknowledges the finding of the state habeas court; he argues
that it was a legal conclusion and not a factual determination.7 Despite Isaacs’
urging that we accept the testimony of his trial counsel concerning the words used
6
Thus, as an alternative holding, we hold that Isaacs has waived any
challenge that the decision of the state habeas court involved an unreasonable
application of clearly established federal law as determined by the Supreme Court.
See United States v. Ardley, 242 F.3d 989 (11th Cir. 2001) (“[W]e apply our
well-established rule that issues and contentions not timely raised in the briefs are
deemed abandoned.”); Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir.1995)
(“We note that issues that clearly are not designated in the initial brief ordinarily
are considered abandoned.” (citations and quotations omitted)).
7
We reject Isaacs’ argument that the finding of neutrality was not a
finding of fact. At the evidentiary hearing before the state habeas judge, there was
testimony with respect to the contents of the prayer by Isaacs’ trial attorney, the
prosecutors and the trial judge. There was substantial inconsistency between the
testimony of Isaacs’ trial counsel, on the one hand, and, on the other hand, the
testimony of the trial judge and the prosecutors. The state habeas judge expressly
accepted the recollection of the trial judge that the nature of the prayer was neutral.
The habeas court also noted that the trial judge’s testimony was confirmed by the
testimony of one of the prosecutors. This is a finding of fact; moreover, it appears
to be based upon credibility choices.
42
by the minister, we find that we are constrained by §2254(e)(1) to credit the state
habeas court’s findings of fact in this regard. As mentioned above, this provision
requires that we presume a state court’s findings of fact to be correct unless a
petitioner shows otherwise by clear and convincing evidence. In this case, Isaacs
has not carried that burden, and therefore we accept as true the state habeas court’s
finding that the prayer was neutral in nature. We also take into account the
uncontested facts that the prayer was given prior to voir dire, that the defense was
permitted to and did question jurors about the prayer or other religious issues
during voir dire, and that the invocation occurred 26 days before the jury sentenced
Isaacs to death.8
In light of these facts concerning the content and context of the invocation,
we cannot conclude that the state habeas court acted contrary to, or unreasonably
applied, existing Supreme Court precedent in holding that the prayer did not
violate Isaacs’ due process rights. See 28 U.S.C. §2254(d)(1).
3. Procedural Default of Claim Regarding Failure to Record Prayer
Next, we turn to Isaacs’ claim that the failure to record the invocation
8
See Walker, 696 F.2d at 282, considering that the jury’s deliberations
did not begin until 6 days after the prayer as a factor influencing its finding that a
prayer given at the beginning of a criminal trial was not prejudicial.
43
violated his constitutional rights. Both the state habeas court and the district court
found this claim to have been procedurally barred by Isaacs’ failure to raise the
claim on direct appeal. Isaacs maintains that the failure to record issue was not
procedurally defaulted because his 764-page direct appeal brief, enumerating 153
separate errors (not including this one), contained a footnote which stated:
Appellant had filed and had granted (mot. 9/28/87, p. 90) a motion to
record all proceedings (R-202. 638). Nevertheless the “invocation”
was not recorded. It is believed however that uncontradicted
objections set out the objectional [sic] statements, preserve this issue,
and idea of an invocation is a death penalty trial. [sic] Error is, of
course, hereby claimed in the failure to record and transcribe same.
See Wilson v. State, 246 Ga. 672, 273, S.E.2d 9 (1980); Parrott v.
State, 134 Ga. App. 160 (1975), State v. Graham, 246 Ga. 341, 271
S.E.2d 627 (1980).
Isaacs’ Opening Brief on Direct Appeal, p.306 n.28. The Georgia Supreme Court
did not address this issue in its decision.
We agree that Isaacs’ failure to record claim is procedurally defaulted. On
facts more favorable to a federal habeas petitioner than the facts of this case, the
Supreme Court held that the petitioner had failed to fairly present a federal claim to
the state courts. See Duncan v. Henry, 513 U.S. 364, 115 S. Ct. 887 (1995). The
Court stated:
In Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L.
Ed.2d 438 (1971), we said that exhaustion of state remedies requires
that petitioners “fairly presen[t]” federal claims to the state courts in
44
order to give the State the “ ‘opportunity to pass upon and correct’
alleged violations of its prisoners’ federal rights” (some internal
quotation marks omitted). If state courts are to be given the
opportunity to correct alleged violations of prisoners’ federal rights,
they must surely be alerted to the fact that the prisoners are asserting
claims under the United States Constitution. If a habeas petitioner
wishes to claim that an evidentiary ruling at a state court trial denied
him the due process of law guaranteed by the Fourteenth Amendment,
he must say so, not only in federal court, but in state court.
Id. at 365-66, 115 S. Ct. at 888. In light of Duncan, we agree with the district court
that Isaacs did not “fairly present” to the state court a failure to record claim
cognizable in federal habeas corpus proceedings. The footnote from Isaacs’ direct
appeal brief, quoted above, seems to be intended as an indication that Isaacs’
prayer claim had been preserved for appeal, and does not seem to have been
intended as the statement of a separate and independent failure to record claim.
Such a claim is contained, if at all, in a single sentence: “Error is, of course,
hereby claimed in the failure to record and transcribe same.” This purported one-
sentence claim is supported only by citations to state cases. No federal cases were
cited, and no language was used by Isaacs which would have alerted the Georgia
Supreme Court to the fact that Isaacs was asserting a federal constitutional claim,
separate and independent from his prayer claim. Under these circumstances, we
readily conclude that Isaacs failed to “fairly present” to the Georgia Supreme Court
a federal constitutional claim of failure to record, and thus that the claim is
45
procedurally defaulted.
We also conclude that Isaacs cannot demonstrate “cause” and “prejudice” or
“a fundamental miscarriage of justice” in order to excuse the default. “A habeas
petitioner can escape the procedural default doctrine either through showing cause
for the default and prejudice, or establishing a fundamental miscarriage of justice.”
Bailey v. Nagle, 172 F.3d 1299, 1306 (11th Cir. 1999) (citations and quotations
omitted). In order to show the type of “miscarriage of justice” that will excuse a
procedural bar, a petitioner must make “a colorable showing of actual innocence.”
Id. (citations and quotations omitted).
Isaacs argues that “cause” exists to excuse the procedural default of the
failure to record claim because of the information which he allegedly received after
the completion of the state court proceedings concerning the timing of when the
trial judge learned that the prayer had not been recorded. We can assume arguendo
that the trial judge noticed that the court reporter stood up during the prayer, and
therefore did not record the prayer, or that the judge otherwise promptly became
aware thereof. And we can assume arguendo that that trial defense counsel did not
observe that fact and did not become aware thereof during the trial itself.
Nevertheless, we do not find those facts significant in light of the fact that counsel
was, or should have been, aware that the prayer had not been recorded at least as of
46
the time of the new trial proceedings, but failed to reconstruct the record, and in
light of the fact that counsel clearly had such knowledge as of the time of the initial
remand from the Supreme Court of Georgia and again failed to reconstruct the
record.9
Nor can Isaacs demonstrate “prejudice” to excuse his procedural default. As
noted above, the state habeas court considered the evidence adduced by Isaacs with
respect to the content of the prayer, and found that the content of the prayer was
neutral. Thus, we conclude that Isaacs cannot demonstrate “prejudice” with
respect to the procedural default in failing to preserve the failure to record claim.10
Isaacs also argues that there was no procedural bar because the state habeas
court ruled on the merits of this claim. The basis for his argument is that, after
explaining why the issue was procedurally defaulted, the state habeas court
finished with a conclusory statement to the effect that the ground was without
merit. Given the context in which the statement appears (i.e. at the end of a
discussion of procedural default), and in light of the fact that there is absolutely no
9
For the reasons discussed below, Isaacs also cannot demonstrate
“cause” on account of ineffective assistance of counsel for failure to recreate the
record of the prayer. See infra, at part B.4.
10
Isaacs has not argued that the “miscarriage of justice” exception, with
its actual innocence requirement, applies.
47
discussion of the underlying merits of the claim, we conclude that the statement
does not indicate a ruling on the merits. Instead, the state court was merely
indicating that Isaacs was not entitled to relief with respect to the claim in light of
the procedural bar. Therefore, the claim is procedurally defaulted.
4. Procedural Default of Ineffective Assistance Claim Regarding Failure
to Recreate Record of Prayer
In his final claim related to the prayer, Isaacs contends that the district court
erred in finding procedurally defaulted his claim that he received ineffective
assistance of counsel during his new trial proceedings and on appeal in that his
counsel failed to recreate the record of the prayer while memories were fresh.11
The district court found that this claim was not raised in state court, and therefore
was procedurally defaulted. We agree. The claim in state court challenged
counsel’s performance for “failing to assure that such prayer was recorded by the
11
Although Isaacs’ petition lumps this allegation together with others
challenging both trial and appellate counsel, his brief clarifies that, with respect to
this claim, he is not challenging the performance of counsel during the trial itself.
Accordingly, we construe his claim as challenging only the performance of counsel
during the new trial proceedings and on direct appeal.
48
court reporter.”12 This claim in the state habeas petition refers to counsel during
the trial itself, and his failure to assure that the prayer was recorded. The claim as
presented to the state habeas court makes no reference to the subsequent
performance of counsel during the new trial proceedings or on remand from direct
appeal, and does not challenge counsel’s performance for failure to recreate the
record.
By contrast, the claim raised for the first time in federal court challenges the
performance of counsel for failing “to create an accurate record of this invocation
on a timely basis when memories were fresh, when it became clear that the
invocation apparently was not recorded by the court reporter.”13 Thus for the first
12
The claim, Ground 104(c), states in full: “Counsel negligently failed
to prevent the trial from starting with a prayer absolving the jurors of responsibility
for their decision and compounded this error by failing to assure that such prayer
was recorded by the court reporter thus preventing a realistic view on appeal of the
prejudicial effect of the prayer.” Supplemental State Habeas Petition, p.3.
13
Ground 31(q) of Isaacs’ federal habeas petition states: “Counsel
failed to insure that a complete record was made at all proceedings, including the
invocation at the beginning of trial, or to create an accurate record of this
invocation on a timely basis when memories were fresh, when it became clear that
the invocation apparently was not recorded by the court reporter and made part of
the record for direct appeal. Counsel was further ineffective for not conducting
and adequate investigation as to what was said in the prayer by talking with eye
witnesses to the prayer, including media sources, and presenting this evidence as a
motion for a new trial hearing or upon remand for completion of the record by the
Georgia Supreme Court.” Federal §2254 Petition, p. 51-52.
49
time in federal court, Isaacs challenges the performance of counsel during the new
trial proceedings and on direct appeal, and for the first time challenges the
performance for failure to recreate the record.
Having found a procedural default,14 we address whether or not Isaacs can
demonstrate “cause” and “prejudice,” or alternatively whether the “miscarriage of
justice” exception applies. See Bailey v. Nagle, 172 F.3d 1299, 1306 (11th Cir.
1999). We readily conclude that Isaacs cannot demonstrate “cause”; the failure of
his state habeas counsel to present this claim cannot constitute “cause.” See
Gonzalez v. Abbott, 967 F.2d 1499 (11th Cir. 1992); Toles v. Jones, 888 F.2d 95,
99-100 (11th Cir.1989), vacated and reh’g en banc granted, 905 F.2d 346 (11th
14
Isaacs argues that there was no procedural bar because the state
habeas court ruled on all of his claims of ineffective assistance of counsel, and that
there is no bar where the state court has ruled on the merits. We need not address
Isaacs’ attempt to circumvent our decision in Footman v. Singletary, 978 F.2d
1207 (11th Cir. 1992) (holding that petitioner must raise specific instances of
ineffective assistance of counsel in state court and that the bar resulting from
failure to raise specific instance of ineffective assistance in state court was not
excused where there was no indication that the state court “necessarily” evaluated
the entire record), because, as pointed out in the text, Isaacs made no claim in state
court of ineffective assistance of counsel for failure to recreate the record, and
because the state habeas court did not rule on the merits of any ineffective
assistance of counsel claims other than those presented to it. State Habeas Order,
p. 22-23. Nor is there any indication that the state habeas court reviewed the entire
record searching for other instances of ineffective assistance of counsel. Thus,
there has been no ruling on the merits of the instant claim as presented in federal
court.
50
Cir.1990), reinstated, 951 F.2d 1200, 1201 (11th Cir.1992) (en banc) (per curiam).
Also, we conclude that Isaacs cannot demonstrate “prejudice.” As noted above,
Isaacs had a full opportunity to prove the content of the prayer during the state
habeas corpus proceedings, but those proceedings resulted in a finding of fact that
the content of the prayer was neutral. Therefore, we conclude that Isaacs could not
in any event have demonstrated that the failure to record a neutral prayer
prejudiced him.15 Isaacs has not attempted to show “actual innocence,” supporting
the “miscarriage of justice” exception to procedural default. Therefore, this claim
is barred.
C. The Admission of Statements Regarding Escape Attempts Taken
From Isaacs While in Custody
We now turn to Isaacs’ claim that his constitutional rights under the 5th and
14th Amendments were violated by the admission into evidence of statements,
given while in custody, concerning two escape attempts. The statements came
years after he asserted his right to speak with the police only through counsel at
and before the time of his trial. Isaacs maintains that the admission of these
15
For the same reasons, Isaacs would have been unable to satisfy the
prejudice prong of the ineffective assistance of counsel claim, even if it had not
been procedurally barred.
51
statements during the sentencing phase of his trial, and arguments by the State
related to them, violated the Supreme Court’s decisions in Edwards v. Arizona,
451 U.S. 477, 101 S. Ct. 1880 (1981), and Arizona v. Roberson, 486 U.S. 675, 108
S. Ct. 2093 (1988). The Georgia Supreme Court rejected this claim on direct
appeal, and we conclude for the reasons that follow that its adjudication of the
claim was neither contrary to, nor an unreasonable application of, established
Supreme Court precedent.
The custodial statements that are the basis for Isaacs’ claim concern two
prison escape attempts in which Isaacs was involved. The first occurred in July
1980 when four death row inmates, but not Isaacs, escaped from Reidsville State
Prison. Isaacs was involved in the planning of that escape attempt, but did not
escape with the other inmates because he was transferred earlier in the day of the
escape. The second escape attempt happened in November 1985, but no inmates
were successful. Therefore, the two escape attempts, and the statements made by
Isaacs, occurred years after Isaacs’ original conviction in 1974 or his initial
invocation, in 1973, of his right to speak with police only through counsel.
The facts related to the custodial statements made by Isaacs are as follows.
Following each of the 1980 and 1985 escape attempts, Isaacs was required by
prison authorities to meet with Agent Robert Ingram of the Georgia Bureau of
52
Investigations. According to Agent Ingram, prior to interrogating Isaacs, he read
Isaacs his Miranda rights, and Isaacs agreed to waive his rights and talk.
According to Isaacs, at the time that he was interrogated, he was represented by
counsel with regard to the charges for which he was in custody, and the prison had
the names and contact information for his attorneys, but his attorneys were not
contacted before the interrogations.16
At his retrial in 1988,17 Isaacs moved to suppress the statements concerning
the escape attempt, arguing that the statements were taken in violation of Edwards
v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981). After conducting a Jackson-
Denno hearing,18 the trial court overruled Isaacs’ motion. Afterwards, during the
sentencing phase of the trial, the prosecution introduced six statements from Isaacs
in order to show both his future dangerousness and his lack of remorse. One of the
16
Isaacs also argued that he was “prohibited” from consulting with his
attorneys before these interrogations. The trial court implicitly rejected this
allegation when it denied Isaacs’ motion to suppress and ruled that his statements
were given “freely and voluntarily” after he was informed of his Miranda rights
and agreed to waive them.
17
Isaacs was retried pursuant to the December 9, 1985 decision of this
Court granting the writ of habeas corpus and thus necessitating the retrial.
18
Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964) (holding that
trial judge must determine, at a separate hearing, that a confession is voluntary
before it may be heard by a jury).
53
statements was a 48-page, handwritten statement by Isaacs concerning his
involvement in the 1980 escape. Another was an hour-long recorded statement
concerning the 1985 escape attempt. The prosecution also put on evidence of a
statement to the effect that Isaacs said “that he would continue his efforts to escape
from confinement.” The State focused on this statement in its arguments to the
jury in support of the death penalty.
On direct appeal, the Georgia Supreme Court considered Isaacs’ challenge to
the admissibility of the custodial statements and found that they had been admitted
properly because Isaacs had voluntarily waived his Miranda rights with respect to
the investigations of the escape attempts. Isaacs, 386 S.E.2d 326-27. In reaching
this conclusion, the court did not discuss the applicability of Edwards v. Arizona,
451 U.S. 477, 101 S. Ct. 1880 (1981), or of Arizona v. Roberson, 486 U.S. 675,
108 S. Ct. 2093 (1988). In his brief on direct appeal, however, Isaacs had made an
extensive Edwards argument to the Georgia Supreme Court, but did not cite
Roberson, which had been decided only recently.
On federal habeas review, the district court found that the Georgia Supreme
Court’s findings concerning the voluntariness of Isaacs’ waiver of his Miranda
rights was supported by the evidence. The court also rejected Isaacs’ reading of
Roberson, concluding that it did not prohibit police from initiating interrogations
54
of prisoners after they have been convicted of the original crime with respect to
which they asserted a right to counsel. Therefore, the court rejected Isaacs’
contention.
On appeal, Isaacs does not challenge the district court’s findings regarding
the voluntariness of his consent to interrogation or the facts supporting the Georgia
Supreme Court’s decision. Instead, he limits his argument to the issue of whether
his statements were inadmissible in light of the Supreme Court’s decisions in
Edwards and Roberson.
1. AEDPA’s Limitations on Our Review
Before reaching the merits of Isaacs’ claim, we must again consider the
extent to which AEDPA circumscribes our review. As discussed above, §
2254(d)(1) prevents us from upsetting a state court adjudication of federal claims
unless that adjudication is contrary to, or amounts to an unreasonable application
of, established Supreme Court precedent. With respect to Isaacs’ Edwards claim,
however, we are confronted with the situation in which Isaacs’ brief to the state
court argued the Edwards decision, but the state court’s opinion did not mention it.
Therefore, the question becomes whether we should defer to such an adjudication,
as long as it is not contrary to, or an unreasonable application of, the relevant
55
Supreme Court decisions.
We have previously brushed up against this issue in two recent cases. First,
in Romine v. Head, 253 F.3d 1349, 1365 (11th Cir. 2001), we discussed the effect
of §2254(d)(1) where it was unclear whether a state court had adjudicated a federal
claim. In the earlier state supreme court opinion, “[the] entire three-sentence
discussion of the issue simply [found] ‘no reversible error’ based upon the bare
conclusion that ‘nowhere did the prosecutor seriously overstep his bounds,’” and
this conclusion was supported only by a string citation to five state court decisions.
Id. at 1365 (citation omitted). Therefore, we noted that: “To begin with, it is far
from clear what, if any, rule of federal law the Georgia Supreme Court applied.”
Id. Moreover, the State conceded to this Court that the state supreme court had not
applied federal law to Romine’s claim. Id. Therefore, we concluded:
Given all these factors, especially the State’s concession, we have
grave doubt that the Georgia Supreme Court applied federal law at all,
let alone the governing law set down in Supreme Court decisions.
Failure to apply that governing law (or the same rule in state law) is
tantamount to applying a rule that contradicts governing law, for these
purposes. And under Williams that means the federal habeas court
will be unconstrained by § 2254(d)(1) because the state-court decision
falls within that provision’s “contrary to” clause. In other words,
when there is grave doubt about whether the state court applied the
correct rule of governing federal law, § 2254(d)(1) does not apply.
That is what we have here, so we proceed to decide the issue de novo,
as the district court did.
56
Romine, 253 F.3d at 1365 (citations, quotations and footnote omitted).
After Romine, we more recently addressed the issue of the application of
§2254(d)(1) in the much more common context of a state court’s rejection without
discussion of a federal claim presented to it by a defendant. See Wright v.
Secretary for Dept. of Corrections, 278 F.3d 1245 (11th Cir. 2002). In Wright, we
acknowledged that Romine had “brushed up against” the same issue, but
recognized that Romine was a narrow decision, characterizing it as follows:
In that case, it was unclear whether the federal constitutional issue had
been raised and decided in state court – we expressed “grave doubt”
that it had been – and the attorneys representing the State insisted that
the state court had not addressed the federal issue. In those
circumstances, we held that no deference was due the state court’s
decision of the federal constitutional issue for the simple reason that
the state court probably had not decided it. We would not defer to
that which did not exist.
Id. at 1254 (citation omitted). In contrast, we stated in Wright that it was not
disputed that the issue before us had been presented to and decided by the state
court, though without discussion, and we did not “gravely doubt that it was.” Id.
Finding Romine distinguishable, we continued in Wright by stating that the
issue was “whether the state court’s summary, which is to say unexplicated,
rejection of the federal constitutional issue qualifies as an adjudication under
§2254(d) so that it is entitled to deference.” Id. Siding with six other circuits that
57
had “squarely addressed that question,” we concluded that “the summary nature of
a state court’s decision does not lessen the deference that it is due.” Id.
In reaching this conclusion, we first focused on the fact that “[t]he plain
language of § 2254(d)(1) requires only that the federal claim have been
‘adjudicated on the merits in State court proceedings’ and have ‘resulted in a
decision’ that is neither contrary to nor involves an unreasonable application of
Supreme Court precedent.” Id. In light of these requirements, and noting that “[a]
judicial decision and a judicial opinion are not the same thing,” we concluded that
“[t]he statutory language focuses on the result, not on the reasoning that led to the
result, and nothing in that language requires the state court adjudication that has
resulted in a decision to be accompanied by an opinion that explains the state
court’s rationale.” Id. at 1255. Therefore, we held that in order for the §2254(d)(1)
bar to apply, “all that is required is a rejection of the claim on the merits, not an
explanation.” Id.
We also noted that, “[t]o conclude otherwise on this issue would be writing
into §2254(d)(1) an additional requirement that Congress did not put there – a
requirement that the state courts explain the rationale of their decisions,” and stated
that Congress, and not federal courts, would have to impose such a requirement.
Id. The Court observed that telling state courts how they must handle cases would
58
run contrary to notions of federalism and comity. Id. Therefore, we concluded:
“In §2254(d) Congress meant to, and did, mandate deference to state court
adjudications on the merits of federal constitutional issues, and a decision that does
not rest on procedural grounds alone is an adjudication on the merits regardless of
the form in which it is expressed.” Id. at 1255-56.
The instant case is analogous to Wright, and not to Romine. Here, it is
apparent to us that the Georgia Supreme Court considered Edwards inapplicable in
the context of an interrogation of an inmate in the penitentiary, conducted after a
waiver of his Miranda rights, and conducted six to eleven years after his conviction
and sentence (and even longer after his pre-trial invocation of the right to counsel
during interrogation). As did the panel in Wright, we believe Romine is
inapposite. Here, there was no concession by the State that the Georgia Supreme
Court failed to address the federal claim. Here, we have no doubt but that the
Georgia Supreme Court fairly considered Isaacs’ argument that the Edwards
elaboration on Miranda should apply, and decided that it did not. Thus, the
Georgia Supreme Court cited only Miranda and not Edwards.
Accordingly, Section 2254(d)(1) applies to the Georgia Supreme Court’s
adjudication, and Isaacs is only entitled to relief if that court’s rejection of his
claim was contrary to, or an unreasonable application of, the Supreme Court’s
59
decisions in Edwards and Roberson. As we will explain, we cannot conclude that
it was.
2. The Precedent Concerning Custodial Interrogations
The principal case on which Isaacs bases his claim is Edwards v. Arizona, a
decision handed down by the Supreme Court after the 1980 interrogation of Isaacs,
but before the 1985 interrogation. In Edwards, the defendant asserted his right to
counsel after having been taken into custody. 451 U.S. at 478, 101 S. Ct. at 1881-
82. At that time the police stopped interrogating Edwards, but they reinitiated
questioning the following morning, and Edwards subsequently confessed his guilt.
451 U.S. at 479, 101 S. Ct. at 1882. The Supreme Court considered whether the
police ran afoul of Miranda by reinitiating interrogation after the defendant’s
invocation of the right to counsel.
The Edwards Court noted that Miranda rights may be waived, but that
“waivers of counsel must not only be voluntary, but also constitute a knowing and
intelligent relinquishment or abandonment of a known right or privilege, a matter
which depends in each case upon the particular facts and circumstances
surrounding that case, including the background, experience, and conduct of the
accused.” Id. at 482, 101 S. Ct. at 1884 (citations and quotations omitted). The
60
Court proceeded a step further, however, concluding that an additional,
prophylactic rule protecting the right to counsel was called for, stating:
[A]lthough we have held that after initially being advised of his
Miranda rights, the accused may himself validly waive his rights and
respond to interrogation, the Court has strongly indicated that
additional safeguards are necessary when the accused asks for
counsel; and we now hold that when an accused has invoked his right
to have counsel present during custodial interrogation, a valid waiver
of that right cannot be established by showing only that he responded
to further police-initiated custodial interrogation even if he has been
advised of his rights. We further hold that an accused, such as
Edwards, having expressed his desire to deal with the police only
through counsel, is not subject to further interrogation by the
authorities until counsel has been made available to him, unless the
accused himself initiates further communication, exchanges, or
conversations with the police.
Id. at 484-85, 101 S. Ct. at 1884-85. The Supreme Court commented that this
approach was consistent with Miranda’s recognition that “the assertion of the right
to counsel was a significant event and that once exercised by the accused, the
interrogation must cease until an attorney is present.” Id. at 485, 101 S. Ct. at
1885. The Court then concluded: “We reconfirm these views and, to lend them
substance, emphasize that it is inconsistent with Miranda and its progeny for the
authorities, at their instance, to reinterrogate an accused in custody if he has clearly
asserted his right to counsel.” Id.
The Supreme Court built on Edwards in subsequent cases, including in
61
Arizona v. Roberson,486 U.S. 675, 108 S. Ct. 2093 (1988), a decision released
after Isaacs’ conviction but before his direct appeal was completed. In Roberson,
the defendant was arrested at the scene of a just-completed burglary, and indicated
to the police that he “wanted a lawyer before answering any questions.” 486 U.S.
at 678, 108 S. Ct at 2096. Three days later, while the defendant was still in
custody pursuant to the original arrest, a different police officer interrogated him
about a different burglary. Id. The officer conducting the second interrogation
was not aware that Roberson had requested the assistance of counsel after he was
arrested. Id.
The question before the Supreme Court in Roberson was whether the re-
initiation by the police of interrogation concerning a separate offense from the one
for which the defendant invoked the right to counsel violated Edwards. The Court
held that, after a person in custody invokes the right to counsel, the police cannot
initiate interrogation, even if it concerns offenses other than ones for which the
person is being held. The Court noted that “the prophylactic protections that the
Miranda warnings provide to counteract the ‘inherently compelling pressures’ of
custodial interrogation and to ‘permit a full opportunity to exercise the privilege
against self-incrimination,’ are implemented by the application of the Edwards
corollary that if a suspect believes that he is not capable of undergoing such
62
questioning without advice of counsel, then it is presumed that any subsequent
waiver that has come at the authorities’ behest, and not at the suspect’s own
instigation, is itself the product of the ‘inherently compelling pressures’ and not the
purely voluntary choice of the suspect.” 486 U.S. at 681, 108 S. Ct. at 2097
(citations and quotations omitted).
The Roberson Court stated that the Miranda and Edwards “bright-line
rule[s]” have the benefit of providing “‘clear and unequivocal’ guidelines to the
law enforcement profession.” Id. at 682, 108 S. Ct. at 2098. The Court then went
on to hold that “the bright-line, prophylactic Edwards rule” applies even if the
police-initiated interrogation concerns a different investigation. Id. The Court
stated that:
As a matter of law, the presumption raised by a suspect’s request for
counsel – that he considers himself unable to deal with the pressures
of custodial interrogation without legal assistance – does not
disappear simply because the police have approached the suspect, still
in custody, still without counsel, about a separate investigation. . . .
Roberson’s unwillingness to answer any questions without the advice
of counsel, without limiting his request for counsel, indicated that he
did not feel sufficiently comfortable with the pressures of custodial
interrogation to answer questions without an attorney. This discomfort
is precisely the state of mind that Edwards presumes to persist unless
the suspect himself initiates further conversation about the
investigation; unless he otherwise states, there is no reason to assume
that a suspect’s state of mind is in any way investigation-specific.
Id. at 683-84, 108 S. Ct. at 2099 (citations and quotations omitted).
63
The Roberson Court went on to note that the Fifth Amendment right to
counsel is different from the offense-specific, Sixth Amendment right, because the
Fifth Amendment right “is protected by the prophylaxis of having an attorney
present to counteract the inherent pressures of custodial interrogation, which arise
from the fact of such interrogation and exist regardless of the number of crimes
under investigation or whether those crimes have resulted in formal charges.” Id.
at 685, 108 S. Ct. at 2100. The Supreme Court held that the Fifth Amendment,
Edwards concerns are not overcome by simply re-apprizing the defendant of
Miranda rights before interrogation or by the fact that the later investigation is
conducted by a different law enforcement organization. Id. at 686-87, 108 S. Ct. at
2101. Therefore, the Court concluded that the request for counsel must be
observed “[w]hether a contemplated reinterrogation concerns the same or a
different offense, or whether the same or different law enforcement authorities are
involved in the second investigation.” Id. at 678-88, 108 S. Ct. at 2101. As the
Court stated in a later case again distinguishing the Fifth Amendment right to
counsel from the offense-specific Sixth Amendment right, “[t]he purpose of the
Miranda-Edwards guarantee . . . is to protect a quite different interest [from the
Sixth Amendment]: the suspect’s ‘desire to deal with the police only through
counsel.’” McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S. Ct. 2204, 2209 (1991)
64
(citation omitted).
The year after Roberson, the Supreme Court revisited Edwards and again
extolled the benefits of its “clear and unequivocal” guidelines. See Minnick v.
Mississippi, 498 U.S. 146, 151, 111 S. Ct. 486, 490 (1990).18 In Minnick, the
defendant was arrested for murder, and he indicated his desire to have an attorney
present. Id. at 498 U.S. at 148, 111 S. Ct. at 488. The defendant met with an
attorney the following day, and then, two days after that, police initiated an
interrogation during which time he made incriminating statements. Id. at 149, 111
S. Ct. at 488-89. The Supreme Court considered whether the reinterrogation
violated Edwards, or whether the protections of Edwards cease after a defendant
has the opportunity to consult with an attorney.
In answering this question, the Minnick Court began by reiterating that the
purpose behind the Edwards rule was to prevent the badgering of defendants by the
police, and to ensure that statements are not the result of coercive pressures by the
police. Id. at 150-51, 111 S. Ct. at 489-90. The Court stated:
Edwards is “designed to prevent police from badgering a defendant
into waiving his previously asserted Miranda rights.” The rule ensures
that any statement made in subsequent interrogation is not the result
18
We note that the Minnick decision was released after Isaacs’
conviction became final in August 1990. See Isaacs v. Georgia, 497 U.S. 1032,
reh’g denied, 497 U.S. 1051 (1990) (denying cert).
65
of coercive pressures.
Id. (citations omitted).
The Court then stated that “[t]he merit of the Edwards decision lies in the
clarity of its command and the certainty of its application,” and held that the
“protection of Edwards [does not] terminate[] once counsel has consulted with the
suspect.” Id. Instead, the Court held that:
In our view, a fair reading of Edwards and subsequent cases
demonstrates that we have interpreted the rule to bar police-initiated
interrogation unless the accused has counsel with him at the time of
questioning. Whatever the ambiguities of our earlier cases on this
point, we now hold that when counsel is requested, interrogation must
cease, and officials may not reinitiate interrogation without counsel
present, whether or not the accused has consulted with his attorney.
Id. at 153, 111 S. Ct. at 491.19 Therefore, on several occasions, the Supreme Court
has interpreted Edwards broadly in order to provide “clear and unequivocal” rules
designed to prevent the badgering of defendants by the police.
Although we have never addressed the applicability of Edwards or Roberson
to a defendant in Isaacs’ position, this Court has applied these cases in other
contexts on several occasions. See Tukes v. Dugger, 911 F.2d 508, 515 (11th Cir.
19
In dissent, Justice Scalia criticized the Court for creating an
“irrebuttable presumption that a criminal suspect, after invoking his Miranda right
to counsel, can never validly waive that right during any police-initiated encounter,
even after the suspect has been provided multiple Miranda warnings and has
actually consulted his attorney.” Id. at 156, 111 S. Ct. at 493.
66
1990) (applying Edwards and Roberson); Kight v. Singletary, 50 F.3d 1539, 1548
(11th Cir. 1995) (applying Edwards and Roberson, and noting that the 5th
Amendment rights protected by these decisions are not offense-specific). In
addition to these cases applying Edwards and Roberson in a straightforward
manner, we also considered limitations on the Edwards rule in Dunkins v. Thigpen,
854 F.2d 394 (11th Cir. 1988). In that case, we held that “a break in custody
dissolves a defendant’s Edwards claim.” Id. at 397.
It is in light of this framework that we must decide whether the Georgia
Supreme Court unreasonably applied Supreme Court precedent in holding that the
Edwards and Roberson protections do not extend to a defendant in Isaacs’ position
– one who has already been tried and convicted of the crime for which he was
taken into custody and with respect to which he asserted a right to counsel.
Although we have not had occasion to address this particular issue, some other
courts have.
We have found only two cases from our sister circuits addressing the issue
of whether the Edwards protections continue to apply to a prisoner who is in
custody following conviction for the crime for which he or she initially asserted the
right to deal with the police only through counsel, the Eighth Circuit in United
States v. Arrington, 215 F.3d 855 (8th Cir. 2000), and the Sixth Circuit in United
67
States v. Hall, 905 F.2d 959 (6th Cir. 1990).
The Eighth Circuit agreed with the Sixth Circuit’s earlier decision in Hall
that the Edwards protections do not continue indefinitely just because a person
remains in custody. Arrington, 215 F.3d at 856. In doing so, the Arrington court
rejected the defendant’s argument for suppression of statements which he gave to a
federal agent while in confinement for a conviction on an unrelated offense. After
reciting the Edwards and Roberson holdings, the court reasoned:
Although the Fifth Amendment right to counsel continues throughout
the duration of police custody, we find no support in Edwards or
Roberson for Arrington’s contention that the right also “continu[es] ad
infinitum,” and certainly not where, as here, the accused has entered a
guilty plea and has begun serving his sentence. When Arrington was
arrested on state charges, he validly invoked his Fifth Amendment
right to counsel and that right was scrupulously honored throughout
the state proceedings. After pleading guilty to the state flight charge,
Arrington was transferred from police custody to correctional custody
to serve his sentence. At that point, Arrington was no longer “‘in
custody’ as that term has been used in the context of Edwards and
Roberson,” and Edwards and Roberson were no longer applicable as a
basis for suppressing Arrington’s statement to the ATF agent. Thus,
the district court properly denied Arrington’s motion to suppress his
statement.
Id. at 856-57 (citations and quotations omitted). See also United States v. Hall,
905 F.2d 959 (6th Cir. 1990) (the two judges in the majority limiting the reach of
Edwards and Roberson by focusing on factual differences including the short time
period in the Supreme Court cases between the invocation of the right to counsel
68
and the challenged interrogations, as compared to the three-month time period in
Hall, and the fact that Hall was in the penitentiary as a convicted prisoner, unlike
the defendants in Edwards and Roberson).
In addition to these two decisions by federal circuit courts, a Maryland
appeals court recently addressed at length the issue before us. See Clark v. State,
781 A.2d 913 (Md. App. 2001). The Clark court discussed the various approaches
taken by other courts confronting the issue of whether Edwards protections extend
indefinitely, and recognized that courts, including this one,20 have drawn a
distinction between “Miranda custody” and incarceration following a conviction.
Id. 945-46. Based on this distinction, the Clark court held that there is a “break in
custody,” for purposes of determining whether Edwards applies, after a defendant
is convicted and released to the general prison population, stating: “But the
extended period of time during which the inmate was incarcerated but was not in
Miranda custody is a break in custody that has the effect, like any other break in
custody, of allowing his question-proof status to end.” Id. at 947 (citations and
20
In Garcia v. Singletary, 13 F.3d 1487 (11th Cir. 1994), we held that “a
person’s status as an inmate does not automatically constitute ‘in custody,’ for
Miranda purposes.” Id. at 1490-91. Based on this, we held that a prison guard was
not required to provide an inmate with a Miranda warning prior to “on-the-scene
questioning” after the guard observed the inmate starting a fire because the inmate
was not in custody for purposes of Miranda. Id. at 1492.
69
quotations omitted). The court concluded that Edwards and its progeny were
distinguishable, stating:
Edwards, Roberson, and Minnick were all cases in which
reinterrogation took place within three days of the prisoner’s
invocations of their right to counsel. The evil sought to be avoided
was police badgering. But with a gap of more than five years between
police interrogation sessions, it is impossible to say that the
Montgomery County police “badgered” Clark into waiving his right to
counsel. Application of the Edwards rule to cases like the one at hand
would not help achieve Edwards’s goal of preventing police
badgering, nor would it accomplish any other discernable public good.
Common sense dictates that, if a rule is devised to prevent badgering a
suspect into giving up his right to counsel, and because of an immense
time gap, no badgering even arguably occurred, then blind obedience
to the rule is not required. Put another way, when, as here, the factual
circumstances of a case fall into a predictable, potentially recurring
pattern to which the underlying policy of Miranda and Edwards cease
to apply, then so too does the bright-line of Edwards cease to shine.
Id. at 947-48 (citations and quotations omitted). See also Laurie Magid,
Questioning the Question-Proof Inmate: Defining Miranda Custody for
Incarcerated Suspects, 58 Ohio S. L. R. 883(1997) (discussing Edwards cases, and
endorsing approach subsequently adopted by the Clark court).
In contrast to these decisions, some state courts have held that the Edwards
and Roberson protections continue even after a defendant has pleaded guilty to,
and been incarcerated for, the charge with respect to which he originally invoked
his Fifth Amendment right to counsel. In United States v. Green, 592 A.2d 985
70
(D.C. Ct. App. 1991), the D.C. Court of Appeals found that this conclusion was
required in light of the Supreme Court’s repeated focus on the “clear and
unequivocal” and “prophylactic” nature of the Edwards and Roberson rules. Id. at
987-89. The court noted that, as in Isaacs’ case, considerable time had passed
since the original invocation of the right to counsel, but the court concluded that:
[W]e think only the Supreme Court can explain whether the Edwards
rule is time-tethered and whether a five-month interval, during which
no efforts at custodial interrogation took place, is too long a period to
justify a continuing irrebuttable presumption that any police-initiated
waiver was invalid. Until the Court provides further guidance, we are
persuaded that so long as the defendant remains in custody the fact
that the police did not reinitiate interrogation until five months after
he invoked his right to counsel cannot be adequate reason, alone or
combined with the factors already treated, to justify a departure from
Edwards’ command.
Id. at 989-90. The Green court also noted that it was significant that the important
intervening event in that case – the guilty plea to the original charge – was not
inconsistent with the defendant’s expressed desire to only deal with the police with
counsel present. Id. at 990-91. Therefore, the court found that Edwards and
Roberson were still applicable.21 Accord Kochutin v. State, 813 P.2d 298 (Ak.
21
The Supreme Court granted certiorari in Green and considered
whether the Edwards protections should apply to a defendant in his situation. See
United States v. Green, 504 U.S. 908, 112 S. Ct. 1935 (1992). During oral
arguments, “a number of justices asked questions that indicated their concern about
the duration of Green’s question-proof status after he invoked his right to counsel.”
Clark, 781 A.2d at 941. However, before the Supreme Court issued an opinion in
71
App. 1991) (holding that the Edwards protections continue to apply indefinitely to
a defendant who invokes those rights and remains in custody, even after the
defendant is convicted and serving his sentence), vacated by Kochutin v. State, 875
P.2d 778 (Ak. App. 1994) (vacating original decision based on subsequent
determination that there was a break in the defendant’s custody). Cf.
Commonwealth v. Perez, 581 N.E.2d 1010, 1015-17 (Ma. 1991) (assuming but not
deciding that Edwards protection continues following conviction and during
incarceration, but finding that error was harmless).
In light of this precedent, we conclude for a number of reasons that the
Georgia Supreme Court’s adjudication of Isaacs’ Edwards claim may not be
disturbed. As an initial matter, in light of the conflicting authority concerning the
reach of Edwards and Roberson under the circumstances of this case, and in
particular in light of the decisions by the Sixth and Eighth Circuits holding that
Edwards does not apply under facts similar to those in this case, we cannot
conclude that the Georgia Supreme Court unreasonably applied, or acted contrary
to, relevant Supreme Court precedent. To do so would be to discount or disregard
the prevailing trend among the federal circuits as unreasonable.
the case, Green was murdered in prison, and the Court never issued a decision. Id.
at 940.
72
Moreover, we find reasonable the approach taken by those courts that have
held that Edwards does not apply to a defendant who has been convicted and who
remains in custody only in the sense that he is incarcerated as part of the general
prison population.22 Under such circumstances, we believe that the Georgia
Supreme Court acted reasonably by determining that the facts were sufficiently far
removed from Edwards and its progeny, and that the concerns over police
badgering were sufficiently attenuated, to find that the Edwards protections had
ceased. Edwards is designed to counteract the “coercive pressures” of being in
custody. See Minnick, 498 U.S. at 150-51, 111 S. Ct. at 489-90. But for Isaacs,
and many other inmates who might have invoked the right to counsel at some past
time, incarceration in prison is an accustomed milieu and is far from the
potentially coercive situation that gives rise to concerns over police badgering.
Therefore, the concerns underlying Edwards and its progeny are weaker under the
circumstances of this case.
Similarly, we agree with our sister circuits, as well as the Maryland appellate
court in Clark, that nothing in the existing Supreme Court precedent requires the
conclusion that the Edwards protections continue ad infinitum, thereby perpetually
22
Of course, in light of the restricted scope of our review under
AEDPA, we need not and do not adopt this as the law of our circuit.
73
shielding inmates from questioning regarding crimes unrelated to those which
originally led them to invoke the right to counsel. As the Clark court cogently
observed: “Edwards, Roberson, and Minnick were all cases in which
reinterrogation took place within three days of the prisoner’s invocations of their
right to counsel.” 781 A.2d at 947. Accordingly, we readily conclude that the
decision of the Georgia Supreme Court is not “contrary to” clearly established
Supreme Court precedent. Indeed, it would be quite a stretch from the facts of
those cases to conclude that the same protections continue forever for a defendant
who has been convicted and is serving his time in prison.
Also, we believe that the Georgia Supreme Court’s decision gains additional
support from our decision in Garcia v. Singletary, 13 F.3d 1487 (11th Cir. 1994).
In Garcia, we held that “a person’s status as an inmate does not automatically
constitute ‘in custody,’ for Miranda purposes.” Id. at 1490. In that case, we held
that a prison guard who engaged in “on-the-scene questioning” of an inmate whom
he observed starting a fire, had not violated Miranda by failing first to inform the
inmate of his rights. Id. at 1489-91. We held that the inmate had not been subject
to a custodial interrogation, and that Miranda consequently was not implicated. Id.
at 1492. Although Garcia did not involve an Edwards claim, we did recognize in
that case that, at least for purposes of Miranda (the case on which Edwards is
74
based), incarceration in prison is not necessarily the same as “Miranda custody.”
This approach recognizes that incarceration in the general prison population is the
accustomed milieu for many inmates, rather than the type of coercive situation that
was the source of concern in Miranda and its progeny. We see no reason why the
Georgia Supreme Court could not reasonably conclude that the same type of
reasoning could apply in the Edwards context. If it did so, then the court also
could have reasonably concluded, as the Maryland appellate court did in Clark, that
incarceration following a conviction constitutes a break in Miranda custody,
thereby ending the Edwards protections.
Finally, we are mindful that the Supreme Court has exercised some caution
before expanding any judicially-created prophylactic rule beyond the
circumstances under which the rule was originally created. See Stone v. Powell,
428 U.S. 465, 96 S. Ct. 3037 (1976). Instead, courts first should engage in a
“pragmatic analysis” which takes account of the societal costs of extending such a
rule to a new situation. Id. at 488, 96 S. Ct. 3049. As mentioned above, the
concerns underlying Edwards and its progeny are certainly attenuated under the
facts of this case where there is no evidence of police badgering, the interrogation
initiated by the police occurs while the defendant is serving his sentence, and the
interrogation takes place years after the defendant’s conviction. Under these
75
circumstances, we do not think that the Georgia Supreme Court acted unreasonably
by failing to extend Edwards and its progeny to Isaacs’ situation.
Therefore, we conclude for all these reasons that the Georgia Supreme
Court’s adjudication of Isaacs’ Edwards claim was neither contrary to, nor an
unreasonable application of, established Supreme Court precedent, and it is due to
be affirmed pursuant to §2254(d)(1).
D. Evidence, Argument, and Instructions Regarding Isaacs’ Lack of
Remorse
Next, Isaacs argues that his 5th Amendment rights were violated when the
trial court permitted evidence, argument, and jury instructions at the sentencing
stage of his trial related to his lack of remorse. Isaacs maintains that these
statements violated the Supreme Court’s decision in Griffin v. California, 380 U.S.
609, 85 S. Ct. 1229 (1965), because they reflected negatively on his decision not to
testify at trial.
The facts concerning this issue center around the trial court’s decision to
permit the State, at the sentencing stage of trial, to put on evidence relating to
Isaacs’ lack of remorse in the form of testimony from a television reporter, Mark
Piccard. Isaacs made a pre-trial motion to exclude such remorse evidence, which
76
the trial court denied. Piccard was then called as a witness during the sentencing
hearing and, over objection, testified that during an interview with Isaacs in the
1970s, Piccard asked Isaacs “[i]f he had it to do all over again, would he do it
again.” Piccard then testified that “to the best of [Piccard’s] recollection,” Isaacs
responded that “he would.”
The State utilized Piccard’s testimony concerning Isaacs’ lack of remorse in
its closing argument, stating:
The evidence in this case is showing you something else about Carl
Isaacs. Mark Piccard talked to him – he didn’t know exactly when,
but it was ‘77 or ‘78 – and he asked him about the Alday family. He
asked him about those people. And you remember what Mark Piccard
said? He said, I was stunned by the frankness of his answer, because
he said he would do it again.
After closing arguments, the trial court agreed to give the following jury
instruction concerning remorse:
In considering all of the evidence from both phases of trial, you
should consider all of the aspects of the crime, all aspects of the
defendant’s character, including but not limited to, . . . any evidence
of remorse or lack thereof. . . .
Isaacs objected to this instruction, arguing that it was an improper comment on
Isaacs’ decision not to testify. The State argued that the instruction was
permissible, and pointed to Piccard’s testimony. The trial court agreed with the
State and gave the instruction.
77
On direct appeal, Isaacs challenged both the prosecutor’s comments
concerning Isaacs’ lack of remorse, and the trial court’s instruction concerning
remorse. The Georgia Supreme Court rejected Isaacs’ arguments, stating:
Contrary to the defendant’s contention, the defendant’s remorse or
lack thereof is a permissible area of inquiry during sentencing. Fair v.
State, 245 Ga. 868(4), 268 S.E.2d 316 (1980). Compare, cf., U.S. v.
Reed, 882 F.2d 147, 150-51 (5th Cir.1989) (approving federal
sentencing guidelines provision for reduction of sentence when
defendant demonstrates “affirmative acceptance of personal
responsibility” manifested by “sincere contrition” (emphasis
supplied)).
Piccard’s testimony was not otherwise inadmissible. See Division 30,
post.
Isaacs, 386 S.E.2d at 323. The later portion of the opinion cited to in this section,
Division 30, supports the proposition that Piccard’s testimony was admissible
because “[t]here is no evidence [Piccard] was acting as an agent of the state, or that
Isaacs’ statement was not voluntary.” Id. at 330. Finally, the Supreme Court
rejected Isaacs’ contention that the prosecutor’s closing argument was improper,
stating Isaacs had not objected to the argument at trial and that the argument did
not entitle Isaacs to relief because it “did not result in the sentence of death being
imposed under the influence of passion, prejudice, or any other arbitrary factor.”
Id. at 333 (citation and quotation omitted).
In his federal habeas petition, Isaacs again pressed these challenges –
78
Ground 15 related to the evidence and prosecutorial argument and Ground 21
related to the jury charge. Isaacs argued that the Fifth, Sixth, Eighth and
Fourteenth Amendments were violated by the remorse evidence, argument and jury
instruction. [RE64:76] The district court held that the Georgia Supreme Court’s
decision was neither an unreasonable application of, nor contrary to, Supreme
Court precedent, and that Isaacs’ claim was therefore due to be denied pursuant to
§2254(d)(1).
As mentioned above, even though the Georgia Supreme Court did not
expressly discuss the Supreme Court’s Griffin decision or any other federal cases
(although the federal constitutional claim was presented) in disposing of Isaacs’
claims relating to remorse, we assume that the court adjudicated those claims, and
we must affirm the denial of habeas unless the result it reached would be contrary
to, or an unreasonable application of, established Supreme Court precedent. See
Wright v. Secretary of Dept. of Corrections, 278 F.3d 1245 (11th Cir. 2002).
To begin with, we will look at the federal case law relevant to Isaacs’ claims.
His claims are based on the Supreme Court’s opinion in Griffin v. California, in
which the Supreme Court addressed whether it was permissible for a trial judge to
instruct the jury in a criminal trial that it could draw an unfavorable inference from
a defendant’s decision to remain silent at trial. 380 U.S. 609, 85 S. Ct. 1229
79
(1965). The Court concluded that a rule permitting such an inference violated the
Fifth Amendment because:
It is in substance a rule of evidence that allows the State the privilege
of tendering to the jury for its consideration the failure of the accused
to testify. No formal offer of proof is made as in other situations; but
the prosecutor’s comment and the court’s acquiescence are the
equivalent of an offer of evidence and its acceptance.
Id. at 613, 85 S. Ct. at 1232. The Court noted that the decision to remain silent is
not inconsistent with innocence in our legal system. Id. at 613-15, 85 S. Ct. at
1232-33. It also noted that a jury might draw a negative inference from silence,
even without comment by the prosecutor or judge, but stated: “What the jury may
infer, given no help from the court, is one thing. What it may infer when the court
solemnizes the silence of the accused into evidence is quite another.” Id. at 614, 85
S. Ct. at 1233. Therefore, the Court concluded that:
We . . . hold that the Fifth Amendment, in its direct application to the
Federal Government and in its bearing on the States by reason of the
Fourteenth Amendment, forbids either comment by the prosecution on
the accused’s silence or instructions by the court that such silence is
evidence of guilt.
Id. at 615, 85 S. Ct. at 1233.
Although Griffin involved statements made during the guilt phase of a
bifurcated criminal trial, the Supreme Court has recently confirmed that the Griffin
rule also applies to the sentencing phase of a trial. The Court first suggested that
80
this would be the rule in its decision in Estelle v. Smith, 451 U.S. 454, 101 S. Ct.
1866 (1981), when it discussed whether violation of the Fifth Amendment Miranda
protections required exclusion of evidence during the sentencing stage of a trial.
The Court stated:
The Court has held that the availability of the [Fifth Amendment]
privilege does not turn upon the type of proceeding in which its
protection is invoked, but upon the nature of the statement or
admission and the exposure which it invites. In this case, the ultimate
penalty of death was a potential consequence of what respondent told
the examining psychiatrist. Just as the Fifth Amendment prevents a
criminal defendant from being made “the deluded instrument of his
own conviction,” it protects him as well from being made the
“deluded instrument” of his own execution.
We can discern no basis to distinguish between the guilt and penalty
phases of respondent’s capital murder trial so far as the protection of
the Fifth Amendment privilege is concerned. Given the gravity of the
decision to be made at the penalty phase, the State is not relieved of
the obligation to observe fundamental constitutional guarantees.
Id. at 462-63, 101 S. Ct. at 1873 (citations and quotations omitted).
Then, more recently, the Supreme Court directly held that Griffin’s
reasoning applies to sentencing, as well as liability, phases of a criminal
proceeding. See Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307 (1999).
In Mitchell, the Court considered whether it was permissible for a district court to
draw a negative inference from a defendant’s refusal to testify during a sentencing
hearing after the defendant had pled guilty to the offense. Id. at 327-30, 119 S. Ct.
81
at 1314-16. The Court “decline[d] to adopt an exception [from the rule set out in
Griffin] for the sentencing phase of a criminal case with regard to factual
determinations respecting the circumstances and details of the crime.” Id. at 328,
119 S. Ct. at 1315. The Court stated:
The concerns which mandate the rule against negative inferences at a
criminal trial apply with equal force at sentencing. Without question,
the stakes are high: Here, the inference drawn by the District Court
from petitioner’s silence may have resulted in decades of added
imprisonment. The Government often has a motive to demand a
severe sentence, so the central purpose of the privilege – to protect a
defendant from being the unwilling instrument of his or her own
condemnation – remains of vital importance.
Id. at 329, 119 S. Ct at 1315. See also Tucker v. Francis, 723 F.2d 1504, 1509-13
(11th Cir. 1984) (noting in dicta that Griffin applies to sentencing phase).
We now turn to whether the prosecutor and trial court in this case ran afoul
of Griffin with respect to the evidence, argument, and instruction concerning
Isaacs’ lack of remorse. On several occasions, we have addressed the proper
application of Griffin, recognizing that the standards for evaluating a Griffin claim
as follows:
The Fifth Amendment prohibits a prosecutor from commenting
directly or indirectly on a defendant’s failure to testify. A
prosecutor’s statement violates the defendant’s right to remain silent if
either (1) the statement was manifestly intended to be a comment on
the defendant’s failure to testify; or (2) the statement was of such a
character that a jury would naturally and necessarily take it to be a
82
comment on the failure of the accused to testify. The question is not
whether the jury possibly or even probably would view the remark in
this manner, but whether the jury necessarily would have done so.
The defendant bears the burden of establishing the existence of one of
the two criteria. The comment must be examined in context, in order
to evaluate the prosecutor’s motive and to discern the impact of the
statement. Because the trial judge is the only person who has the
opportunity to observe the prosecutor’s demeanor firsthand, we
review the district court’s denial of the motion for mistrial for abuse
of discretion.
United States v. Knowles, 66 F.3d 1146 (11th Cir. 1995) (citations, quotations, and
footnotes omitted). See also United States v. LeQuire, 943 F.2d 1554, 1565 (11th
Cir. 1991) (same); Solomon v. Kemp, 735 F.2d 395, 401 (11th Cir. 1984).
In applying Griffin, we have strictly enforced the requirement that a
defendant show that the allegedly offensive comment was either manifestly
intended to be a comment on the defendant’s silence or that the comment naturally
and necessarily related to the defendant’s silence. For example, in Knowles, the
Court considered whether a prosecutor violated Griffin when he pointed out
problems with the defendant’s defense, and then asked, “Did you ever hear an
explanation for that?” 66 F.3d at 1162. The Court held that this statement did not
necessarily relate to the defendant’s silence, because the defendant could have
presented other types of evidence to explain the inconsistency. Id. at 1163.
Therefore, the Court concluded that:
83
As such, the remark is not so much a comment on Wright’s failure to
testify, but rather on Wright’s counsel’s failure to counter or explain
the [damaging evidence]. It is not error to comment on the failure of
the defense as opposed to the defendant, to counter or explain the
evidence.
Id. at 1163 (citations and quotations omitted).
Likewise, in Solomon v. Kemp, the prosecutor addressed the fact that the
State was not sure which one of two defendants possessed which of two guns
found at a crime scene, and stated: “We don’t know which defendant had which
gun. The only person who can tell us that is [the defendant].” 735 F.2d at 401.
We held that this statement was proper under Griffin, stating:
We find the statement to be rather an attempt to explain why the state
could not match each defendant with one specific gun and to stress
that this fact was not crucial to the state’s case. Although the
statement was an indirect reference to petitioner’s silence, taken in
context it is an objective evaluation of the state of the evidence. As
such, it is permissible under Griffin.
Id.
In light of this precedent, we conclude that the Georgia Supreme Court did
not act contrary to, nor did it unreasonably apply, Supreme Court precedent when
it rejected Isaacs’ claims related to the evidence, arguments, and instructions
concerning his lack of remorse. It is true that some courts have found that remarks
related to a defendant’s lack of remorse may violate Griffin. See Lesko v. Lehman,
84
925 F.2d 1527 (3d Cir. 1991) (holding that prosecutor’s comment on defendant’s
failure to express remorse violated Griffin); Hall v. State, 13 S.W.2d 115, 117
(2000) (“A comment that directly focuses the jury’s attention on the defendant’s
personal feelings of remorse, which can only be supplied through the defendant’s
own testimony, necessarily indicates the defendant’s failure to testify.”); Dickinson
v. State, 685 S.W.2d 320, 324-35 (Tx. Crim. App. 1984) (finding that argument
concerning lack of remorse necessarily reflected on defendant’s decision not to
testify).
However, several other courts have found that, under many circumstances,
arguments or comments related to a lack of remorse do not implicate the
defendant’s decision not to testify because they may relate to other evidence
properly before the jury or to the defendant’s demeanor at trial. See Williams v.
Chrans, 945 F.2d 926, 953-54 (7th Cir. 1991) (finding that comments related to
lack of remorse did not violate Griffin because jury could consider remorse in light
of defendant’s demeanor and testimony); Commonwealth v. Clark, 710 A.2d 31,
39-40 (Pa. 1998) (rejecting approach taken in Lesko and concluding that comments
regarding lack of remorse were reference to defendant’s demeanor at trial and
character evidence); State v. Hamilton, 681 So.2d 1217, 1225 (La. 1996) (holding
that arguments concerning lack of remorse did not necessarily implicate failure to
85
testify because other evidence of remorse could be presented); Odle v. Calderon,
919 F. Supp. 1367, 1397 (N.D. Cal. 1996) (same).
We believe that this is such a case in which the Georgia Supreme Court
reasonably could conclude that the arguments and comments concerning Isaacs’
lack of remorse did not implicate the right not to testify. In particular, the most
damaging evidence concerning Isaacs’ lack of remorse came from his own words
to that effect freely expressed to a reporter, Mark Piccard. There is no suggestion
that Piccard was a state actor when he interviewed Isaacs, or that Isaacs statements
to Piccard were involuntary. We see, and the Georgia Supreme Court found, no
reason why that testimony was not permissible. Therefore, we conclude that the
Georgia Supreme Court acted reasonably in holding that the remorse evidence,
arguments, and instruction did not violate Griffin, but instead were related to the
evidence properly before the jury. Because its holding was not contrary to, or
unreasonable application of Griffin, further review is precluded by § 254(d)(1).
E. Whether the District Court Erred in Holding that a Challenge to
Electrocution as Cruel and Unusual Punishment was Procedurally
Defaulted
Finally, Isaacs asserts that the district court erred by holding that his claim
challenging the constitutionality of electrocution was procedurally barred. In
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Dawson v. State, 554 S.E.2d 137 (Ga. 2001), however, the Georgia Supreme Court
recently held that electrocution was unconstitutional under the Georgia
Constitution. The court went on to conclude that the provision permitting
electrocution was severable from other death penalty provisions, so all Georgia
death sentences could be carried out by lethal injection. In light of this case,
Isaacs’ cruel and unusual punishment claim is moot.
IV. CONCLUSION
For the foregoing reasons, we conclude that AEDPA applies to Isaacs’
petition; that the Georgia state courts did not act contrary to, or unreasonably
apply, established federal law as determined by the U.S. Supreme Court in
rejecting Isaacs’ federal challenges to his conviction and sentence; and that the
district court’s denial of Isaacs’ §2254 habeas petition was otherwise proper.
AFFIRMED.
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EDMONDSON, Chief Judge, concurring in the judgment:
I agree that AEDPA applies. As I understand the law, deciding this case
accurately is no complicated or laborious task. I easily accept that the pertinent
decisions of the Supreme Court of Georgia were not contrary to and did not
involve unreasonable applications of clearly established federal law.
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BARKETT, Circuit Judge, specially concurring:
I concur in the judgment of the Court. While I believe that AEDPA should
not be applied to Isaacs’ petition, see Calderon v. U.S. District Ct. for the Central
District of Cal., 163 F.3d 530 (9th Cir. 1998) (en banc), I conclude that precedent
dictates that Isaacs is not entitled to relief on any of his claims, even under pre-
AEDPA standards of review.
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