[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 4, 2001
_______________
THOMAS K. KAHN
CLERK
No. 00-13980
_______________
D. C. Docket No. 99-00023-2-CV-RLV
STEPHEN A. MOBLEY,
Petitioner-Appellant,
versus
FREDERICK J. HEAD, Warden,
Georgia Diagnostic and
Classification Center,
Respondent-Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Georgia
______________________________
(October 4, 2001)
Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.
BIRCH, Circuit Judge:
Stephen A. Mobley appeals the district court’s denial of his petition for a
writ of habeas corpus. Two issues were certified to us on appeal from the district
court’s denial of habeas corpus relief: (1) whether Mobley was denied effective
assistance of counsel through his attorney’s use of a “genetic deficiency” defense,
and (2) whether Mobley was denied due process and effective assistance of counsel
because the Georgia Supreme Court’s opinion in Sabel v. State, 282 S.E.2d 61 (Ga.
1981), requiring the defense to turn over all expert opinions, including those that
the defense does not intend to use at trial, had a chilling effect on his counsel that
prevented him from retaining experts to develop mitigating psychiatric testimony.
Because we find that the Georgia Supreme Court reasonably applied the relevant
law to determine that Mobley had received effective assistance of counsel at his
trial and his due process claim is procedurally barred, we AFFIRM.
I. BACKGROUND
In early 1991, Mobley stole a Walther .380 pistol from a car belonging to an
acquaintance. On 17 February 1991, John Collins was working as the night
manager at a Domino’s Pizza franchise in Hall County, Georgia, when Mobley
entered the store and robbed him at gunpoint. After emptying the cash register,
Mobley moved Collins from the front of the store to the back office, took
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additional money from the office and then shot Collins in the back of the head
before fleeing out a side door.
Mobley subsequently committed six additional armed robberies of various
restaurants and drycleaners over a period of three weeks. He was apprehended
after a high-speed chase as he fled the scene of an attempted armed robbery. Once
in custody, Mobley confessed to the robberies and the murder of Collins. A
Walther .380 found on the side of the road along the chase route matched the
ballistics of the murder weapon.
Mobley was indicted for malice murder, felony murder, armed robbery,
aggravated assault and possession of a firearm during the commission of a crime.
Daniel Summer and Andrew Maddox were assigned by the court to defend
Mobley. His first trial ended in a mistrial. Following an interim appeal on several
issues, Mobley was tried a second time. Summer was also lead counsel for
Mobley’s second trial, but Charles Taylor replaced Maddox as Summer’s co-
counsel.
In bifurcated proceedings, the jury returned a verdict of guilty on charges of
malice murder, felony murder, armed robbery, aggravated assault and possession
of a firearm during commission of a crime. At the sentencing phase of his trial,
evidence was introduced that, while in pre-trial detention, Mobley sexually
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assaulted another inmate on two occasions. Evidence at the sentencing phase also
included testimony that Mobley tattooed the word “domino” on his shoulder, hung
a Domino’s pizza box lid on his cell wall and threatened a guard by saying he
looked more and more like a Domino’s delivery boy every day.
In their mitigation presentation, Summer and Taylor called Mobley’s father,
Charles Mobley, to testify. Ex. 12, Vol. X, at 2540. After relaying a brief history
of the schools and institutions to which he sent Mobley as a child, Charles Mobley
asked for mercy for his son. Id. at 2551. Counsel also called Doctor J. Stephen
Ziegler, the psychologist who treated Mobley at the last facility where he was
treated before reaching his eighteenth birthday. Id. at 2564. Ziegler testified that,
at age 16, Mobley had a conduct disorder which is the equivalent of an adult
antisocial personality disorder, and that persons with this disorder can become less
violent and antisocial with age. Id. at 2598-99. Counsel also called Mobley’s aunt,
Joyce Ann Childers, who was the family historian. Ex. 12, Vol. XI, at 2683.
Childers testified about a family history over several generations of violent
behavior, alcoholism, abuse and other antisocial behavior among male and female
members of the Mobley family tree. Id. at 2685-2710. Counsel also introduced
evidence that, since his arrest, Mobley had attempted several times to plead guilty
to all charges against him in exchange for a life sentence.
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At the conclusion of the sentencing phase of the trial, the jury recommended
a sentence of death. Mobley raised several enumerations of error on appeal, but his
conviction was affirmed.1 See Mobley v. State, 455 S.E.2d 61 (Ga. 1995). Mobley
filed a writ of habeas corpus with the Superior Court of Butts County, Georgia. At
the habeas hearing, Mobley presented testimony from two mental health experts,
psychiatrist Michael Gomez and psychologist Hugh Anthony Semone. Ex. 26,
Vol. I, at 29, 87. Based on his interview with Mobley and a review of Mobley’s
records, Doctor Gomez concluded that Mobley’s antisocial personality disorder
was the result of his childhood environment, including abuse, neglect and
inconsistent punishment. Id. at 38, 43-44. Doctor Semone also interviewed
Mobley and other family members including Mobley’s maternal grandmother. Id.
at 101, 106. He also concluded that Mobley’s “dysfunctional and disorganized and
punitive” family structure was the most significant factor in Mobley’s violent
behavior pattern. Id. at 171. Mobley’s grandmother, Mary Walraven, testified that
her daughter was verbally and emotionally abusive to Mobley. Id. at 243-47. The
Superior Court upheld the conviction but vacated Mobley’s sentence on the
grounds that Mobley was denied effective assistance of counsel for two main
1
A detailed discussion of the history of the case is not necessary here. Further details are
set forth in the Georgia Supreme Court’s opinion affirming his conviction and sentence on direct
appeal. See Mobley v. State, 455 S.E.2d 61, 65, n. 1 (Ga. 1995).
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reasons: (1) his counsel presented a genetic defect theory to explain Mobley’s
violent and anti-social behavior without the assistance of an expert; and (2) his
counsel failed to present other mitigating psychiatric evidence. Ex. 27, at 27-32.
The Georgia Supreme Court reversed and reinstated Mobley’s death
sentence. See Turpin v. Mobley, 502 S.E.2d 458, 461 (Ga. 1998). Reviewing the
lower court’s findings and the evidence produced at the habeas hearing, the court
found that Mobley’s counsel had conducted an extensive investigation, interviewed
several witnesses, and obtained all available records from every school and
treatment facility Mobley attended. Id. at 463-64. The court noted that, when
interviewed by counsel in preparation for trial, Mobley denied that he had ever
been abused or neglected, as did his parents and sister. Id. Based on the evidence
developed by counsel, the court concluded that the sentencing phase strategy was
reasonable, and, accordingly, denied Mobley’s ineffective assistance claim. The
court also found that Mobley’s claim regarding the Sabel order was barred because
that issue was addressed and rejected on direct appeal. Id. at 461-62. The federal
district court also denied the writ.
II. STANDARD OF REVIEW
Mobley’s habeas petition was filed in federal district court in February 1999.
Accordingly, this appeal is governed by the Antiterrorism and Effective Death
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Penalty Act of 1996 (“AEDPA”), and specifically 28 U.S.C. § 2254. Because a
state court initially considered the petition on the merits, we must deny the writ
unless one of two exceptions applies. First, we may grant the writ if the state court
rendered a decision “that was contrary to, or involved an unreasonable application
of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). We may also grant
the writ if the state court’s decision “was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.” Id. at
§2254(d)(2). In conducting our review, the state court’s factual findings are
presumed correct unless rebutted by clear and convincing evidence. Id. at
§2254(e)(1).
III. DISCUSSION
The Georgia Supreme Court denied Mobley’s petition for habeas relief on
the two claims before us, finding that Mobley’s due process claim was
procedurally barred and his ineffective assistance claims lacked merit. The federal
district court also denied the writ, finding that the Georgia Supreme Court had
reasonably applied federal law. We address each issue in turn.
A. Due Process Claim
Mobley argues that he is entitled to habeas relief because his right to due
process was violated by the trial court’s entry of a Sabel order. At the time of
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Mobley’s trial, the Georgia Supreme Court’s opinion in Sabel required that the
defense turn over to the prosecution a report by every expert consulted, whether or
not the defense intended to call the expert at trial. See Turpin, 502 S.E.2d at 461
(explaining effect of Sabel opinion). A Sabel order was duly entered in Mobley’s
case over his counsel’s objection. After Mobley’s trial, but prior to the filing of his
direct appeal, the Georgia Supreme Court amended its position to require that the
defense only turn over reports for experts it planned to use at trial. See Rower v.
State, 443 S.E.2d 839, 842 (Ga. 1994).
On direct appeal, Mobley argued that this order “exceeded the permissible
scope [of discovery] as outlined in Rower” and requested a new trial. Ex. 14, at
100. Mobley’s assertion of error was conclusory, however, and no allegation of a
chilling effect was made. The Georgia Supreme Court ruled that entry of the Sabel
order was error, but that the error was harmless because “Mobley does not assert,
nor does the record reflect, that Mobley was required to provide or did in fact
provide the state with any scientific reports in violation of the Rower rule.”
Mobley, 455 S.E.2d at 66.
Mobley did not raise the chilling effect argument until he filed his habeas
petition, at which time he argued that his trial counsel would have consulted a
mental health expert to assist him in the sentencing phase but decided not to take
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the risk of having to turn over a damaging psychiatric evaluation to the prosecutor.
Ex. 24, at 8-18. The habeas court found this argument persuasive. Ex. 27, at 29.
The court reasoned that the Georgia Supreme Court’s analysis of the issue on
direct appeal was “based on an obsolete test that was overruled after petitioner’s
direct appeal.” Id. The court relied on a subsequent Georgia Supreme Court
decision, Childress v. State, 467 S.E.2d 865, 871-72 (Ga. 1996), which recognized
that a Sabel order can have a chilling effect on counsel’s decision to retain an
expert. The habeas court decided that the harmless error test had changed since
Mobley’s direct appeal and granted relief. Id.
The Georgia Supreme Court reversed. See Turpin, 502 S.E.2d at 461-62.
The court noted that Mobley failed to argue on direct appeal that the Sabel order
had a chilling effect. The court went on to find that, contrary to the habeas court’s
interpretation, “[l]ater cases did not change the harmless error test for Sabel
discovery orders.” Id. at 461. Furthermore, the court found that, because Mobley
did not argue that the order had a chilling effect when he raised the error on direct
appeal, the claim was procedurally barred. Id.
The federal district court also denied the writ, finding that the Georgia
Supreme Court’s ruling was a reasonable application of the law. R2-24, at 22-25.
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The district court noted that the experts whose testimony was proffered at
Mobley’s habeas hearing based their opinions on disputed facts.
Mobley’s experts based much of their conclusions on their belief that
Mobley was physically abused by both his parents, that he was
molested or was in fear of being molested at the Anneewakee
treatment facility, that his father was an alcoholic, and that his mother
was cruel to him. However, Mobley’s sister testified that neither her
father nor her mother had ever abused Mobley. . . . The only evidence
of “physical abuse” was that Mobley’s parents spanked him and that
his father had occasionally spanked him with a belt. Additionally,
there was no evidence that Mobley was ever sexually abused at
Anneewakee.
R2-24, at 24-25. Because the factual basis for the experts’ testimony was disputed,
the district court found that the Georgia Supreme Court’s rulings were not
“unreasonable” applications of law warranting habeas relief. Id.
Mobley now argues that the Georgia Supreme Court unreasonably applied
federal law in denying his due process claim. However, Mobley failed to raise his
chilling effect argument on direct appeal, and, accordingly, the issue is not
properly before us for review. See Cobb v. Wainwright, 666 F.2d 966, 968 n.1 (5th
Cir. 1982). Assuming, however, that Mobley’s conclusory assertion of a due
process violation on direct appeal was sufficient to preserve federal habeas review,
we also conclude that any error was harmless. As discussed in Part II.B. of this
opinion, infra, any failure by Mobley’s counsel to retain an expert was colored by
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Mobley’s denial of any childhood abuse or trauma. We agree with the district
court that no reversible error exists.
B. Ineffective Assistance Claims
Mobley also raises two ineffective assistance of counsel claims. First, he
argues that the trial court’s entry of the Sabel order denied him effective assistance
of counsel because the chilling effect of the order prevented his attorney from
consulting with experts who might have assisted in preparing mitigating evidence.
Mobley also argues that his trial counsel was ineffective at the sentencing phase
because he attempted to put forward a “genetic deficiency” theory to explain
Mobley’s behavior, but did so without the benefit of an expert in genetics.
In order to establish ineffective assistance of counsel, Mobley must
demonstrate that his counsel’s performance “fell below an objective standard of
reasonableness” and that he suffered prejudice as a result. Williams v. Taylor, 529
U.S. 362, 390-91, 120 S. Ct. 1495, 1511-12 (2000) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 104 S. Ct. 2052 (1984)). Thus, in order to obtain
habeas relief, Mobley must show that the Georgia Supreme Court’s application of
the ineffective-assistance test was an unreasonable one. Williams, 529 U.S. at 391,
120 S. Ct. at 1512. See also § 2254.
1. The Sabel Order
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The Georgia Supreme Court correctly found that Mobley failed to
demonstrate prejudice as a result of the entry of the Sabel order.2 The experts that
Mobley presented at the habeas hearing based their testimony on their
understanding that Mobley’s father was an alcoholic, that his parents abused him
and that his mother was cruel and controlling. This testimony was contradicted by
testimony from Mobley’s sister that neither parent was abusive toward him.
Furthermore, when counsel originally investigated Mobley’s background for
possible mitigating evidence, Mobley denied that he was ever abused by his
parents. Summer testified at the habeas hearing that one of the reasons he chose
not to hire a mental health expert was the lack of mitigating evidence and his fear
of a damaging report. In light of all of these factors, we do not find that the
Georgia Supreme Court’s evaluation of the claim was unreasonable or contrary to
established law. Mobley’s ineffective assistance claim based on the Sabel order
fails.
For similar reasons, Mobley also cannot demonstrate that the Georgia
Supreme Court erred in its application of the ineffective-assistance standard to
2
We need not address the issue of counsel’s effectiveness if prejudice is lacking. See
Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (“[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant . . . If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed.”).
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evaluate his claim regarding trial counsels’ presentation of mitigating evidence.
Mobley essentially argues that his trial counsel chose the wrong strategy and
should not have attempted to put forward a genetic deficiency theory without the
benefit of an expert in genetics. As discussed above, the Georgia Supreme Court
found that
Mobley’s counsel sought to find what they called “traditional
mitigation evidence.” They interviewed Mobley’s mother, father, and
sister, all of whom reported that there was no physical or sexual abuse
in Mobley’s childhood. Mobley’s parents also denied any birth
trauma or alcohol abuse. Mobley himself denied that he had ever
been physically abused, sexually abused or neglected.
Turpin, 502 S.E.2d at 463.
Mobley’s counsel also obtained records from every school and institution
Mobley attended and reviewed them. Id. They spoke with some of the individuals
who had treated Mobley. Id. Counsel also sought court funding for genetic testing
of Mobley and for an expert geneticist to assist him in preparing mitigation
testimony, but it was denied by the court. See Ex. 10, at 18.
Mobley now argues that his trial counsel pursued the wrong strategy. That
strategy was informed, however, by the information provided by Mobley himself.
“[W]hen a defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless . . . counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.” Strickland, 466 U.S.
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at 691, 104 S. Ct. at 2066. Trial counsel sought evidence that Mobley had been
abused or neglected in the hopes of putting forward such information as an
explanation for Mobley’s apparent sociopathic tendencies. Mobley denied that he
was abused or neglected. He cannot now complain that trial counsel failed to
present such evidence to the jury.
Nor can Mobley successfully challenge trial counsels’ ultimate decision to
proceed with a genetic defense. Faced with almost no mitigating evidence, counsel
attempted to put forward a genetic explanation based on evidence of a family
history of violent temperaments and abusive behavior. Counsel did not use a
genetic expert because he was denied funding for one. Our inquiry is limited to
whether counsel’s strategic decisions were reasonable ones at the time they were
made. Chandler v. United States, 218 F.3d 1305, 1315 n. 16, 1318 (11th Cir. 2000)
(en banc). Given that trial counsel had almost no other mitigating evidence to
work with, we cannot say that it was unreasonable to pursue the genetic deficiency
theory that counsel presented to the jury. This ineffective assistance claim fails.
III. CONCLUSION
Because the Georgia Supreme Court’s decision did not involve an
unreasonable application of, or a decision contrary to, federal law, we AFFIRM the
denial of the writ of habeas corpus by the federal district court.
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