Payne v. Allen

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-15674 AUGUST 13, 2008
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 01-00090-CV-LSC-JEO

MAX LANDON PAYNE,

Petitioner-Appellant,

versus

RICHARD F. ALLEN, Commissioner,
Alabama Department of Corrections,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 13, 2008)

Before BARKETT, HULL and MARCUS, Circuit Judges.

HULL, CIRCUIT JUDGE:
 In this capital case, petitioner Max Landon Payne (“Payne”) appeals the

district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus.

After review and oral argument, we affirm.

I. BACKGROUND

A. The Crimes

Payne robbed, abducted, and brutally murdered Braxton Brown. See Payne

v. State, 683 So.2d 440, 442-47 (Ala. Crim. App. 1995). On March 23, 1992, the

evening Payne murdered Brown, Payne was at his sister Wilma Faye Easterly’s

house with his girlfriend, Sandra Walker, and Easterly. Payne left the house with a

double-barreled shotgun. Id. at 443. Payne said he was taking the shotgun in case

“somebody fucks with me.” Id. Around 8:25 or 8:30 p.m., two customers saw

Payne at West Point Grocery, which Brown owned. Id.

Around 8:30 p.m., an alarm company operator received a “hold-up alarm”

from West Point Grocery and called the sheriff’s department. Id. The responding

deputy discovered the store door open and saw Marlboro packs scattered on the

floor, but found no one there. Id.

Payne had robbed the store, kidnapped Brown, and taken Brown at gunpoint

to Easterly’s house. Easterly was still there with Walker. Id. Walker testified

Brown appeared very nervous and scared, and Payne had a gun, stood right next to

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Brown, and had an arm sling. Payne ordered Brown to give Easterly money. Id.

Brown laid $20 on a table. Id. Walker overheard Easterly begging Payne “don’t

do this” several times. Id.

Easterly asked Payne to leave Brown with her or take him back to his store

and said “maybe [Brown] would forget about this.” Id. at 444. Brown nodded

nervously. Id. Payne rejected Easterly’s suggestion, stating, “No, I am going to do

this.” Id. Payne forced Brown to leave Easterly’s house with him. Id.

Around 9:15 p.m., Payne went to George Cleghorn’s house and asked to use

the telephone. Id. Payne called someone and asked for bullets for a .22 rifle. Id.

Payne also asked Cleghorn if he had any bullets. Id. During this time, Payne’s

other sister Alma Thomas went to West Point Grocery and informed police her

brother had been seen with Brown and described the car Payne was driving. Id.

Around 10:00 p.m., a police investigator taking pictures at West Point

Grocery received a call that gunshots had been heard. Id. He attempted to locate

the origin of the shots but failed. Id. When the investigator returned to West Point

Grocery, he received a call that Brown had been seen with Payne. Id. Following

the report of gunshots, an investigator arrived at Easterly’s house and found the car

Payne had used that evening. Id. Inside the car were two spent and several

unspent shotgun shells. Id. Around midnight, Payne purchased a bus ticket to

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Florida. Id. The ticket agent noticed Payne wore torn blue jeans with blood stains

and had cuts on his face. Id.

On the morning of March 24, 1992, a volunteer fireman found a partial

dental plate on a bridge over Crooked Creek and noticed dark red stains on the

bridge and railing. Id. at 445. The search team discovered Brown’s body in the

creek. Id. Most of Brown’s face was gone due to two shotgun blasts to the face.

Id. He had two large holes in his face: one in his forehead and one in his mouth.

Id. An autopsy later retrieved 466 shotgun pellets from Brown’s skull. Id. at 446.

A forensic examiner testified Brown was shot with a shotgun from a distance of

one to one-and-a-half feet away. Id.

On March 25, 1992, following a call from Alabama authorities, a Miami

police detective met Payne’s bus when it arrived in Miami. Id. at 445. Items

found on Payne included Brown’s handgun; a jeweler’s invoice made out to West

Point Grocery; a vehicle registration in Brown’s name; three cartons of Marlboro

cigarettes; three bank deposit bags containing numerous checks written to West

Point Grocery, credit card receipts, rings, and food stamps; bank receipts in

Brown’s name; and a total of $1,085.84. Id. at 445-46. Brown’s son identified

many items as coming from West Point Grocery. Id. Forensic testing matched

human tissue recovered from Payne’s arm sling to Brown’s blood type. Id. at 446.

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 Payne was indicted for three counts of capital murder arising from Brown’s

death.1 An Alabama jury unanimously convicted Payne on all counts and

recommended a death sentence by an 11-1 vote. The state trial judge sentenced

Payne to death.

B. Pre-trial Motions

Prior to trial, defense counsel Greg Nicholas and Robert Sapp moved ex

parte for funds to investigate the crimes and mitigating circumstances. The court

granted the motion and defense counsel hired Johnny Nesmith, a retired Alabama

Bureau of Investigation agent. Counsel also moved for a court-ordered psychiatric

exam to determine Payne’s competency to stand trial and his mental and emotional

state at the time of the offenses. The trial court held an evidentiary hearing on the

motion.

Nicholas and Sapp attended the hearing, but Sapp questioned the witnesses.

Family witnesses testified about Payne’s difficult childhood, his health problems,

and the physical abuse he suffered from his stepfather. Payne’s mother also

1
The counts are: (1) intentional murder committed during an abduction with the intent to
accomplish or aid the commission of robbery or flight therefrom; (2) intentional murder during
an abduction with the intent to inflict serious physical injury; and (3) intentional murder during a
robbery in the first degree. See Ala. Code. §§ 13A-5-40(a)(1)-(2), 13A-6-2, 13A-6-43, 13A-8-
41. A person commits robbery in the first degree when he, in the course of committing a theft,
(1) uses force with intent to overcome physical resistance or threatens the imminent use of force
with intent to compel acquiescence to the taking of or escaping with the property; and (2) is
armed with a deadly weapon or dangerous instrument or causes serious physical injury to
another. Ala. Code §§ 13A-8-41, 13A-8-43.

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discussed the stomach surgery Payne had as a child, and Payne’s behavior around

the time of the murder. Easterly testified about their abusive stepfather, Payne’s

medication for nerve problems, and Payne’s irrationality the day before the

murder. Alma Thomas discussed how Payne attempted suicide and how, after the

murder, Payne was out of his mind when she drove him to the bus station. The

court granted the mental evaluation motion.

Dr. Maier, a clinical psychologist and certified forensic examiner, examined

Payne and found no evidence of mental illness, diminished mental capacity, or

cognitive impairment. Dr. Maier reviewed Payne’s psychological and psychiatric

history, including Payne’s history of substance abuse and current medications.

Payne denied any history of hospitalization or contact with a mental health

professional for psychiatric or substance abuse reasons, but reported a long history

of alcohol abuse and street drug usage. Payne was a heavy drinker since age

fifteen or sixteen and for several years drank a case of beer a day. He was drinking

heavily at the time of the crimes. Payne had problems with a nervous stomach

since childhood and received medical help for that.

Dr. Maier’s clinical assessment noted that nothing in Payne’s history offered

any organic explanations for Payne’s alleged blackouts and rages, but that

blackouts and anger outbursts were not uncommon during intoxication. Dr. Maier

6
found no evidence of cognitive impairment, memory problems, hallucinations, or

delusions. Payne was oriented in time, place, and purpose, his speech was normal,

and he had average or better intellectual functioning. Payne’s affective state was

within normal limits, and he had normal abstractive thinking and fair judgment and

insight. Dr. Maier saw no sign of remorse for the crimes. Using the DSM-III, Dr.

Maier diagnosed Payne as having Axis I alcohol dependence and Axis II

personality disorder.

Dr. Maier also administered the Competency to Stand Trial Assessment

Instrument test and found Payne was competent to stand trial. Dr. Maier noted that

of the thirteen areas that the test measures, Payne had mild impairment in six areas.

Payne was aware of the charges against him and the consequences of a conviction.

He understood the duties of court personnel, courtroom procedure, the essential

basics of plea-bargaining, and the difference between a misdemeanor and a felony.

Dr. Maier believed Payne had adequate trust and rapport with his attorneys. As to

Payne’s mental state at the time of the crimes, Dr. Maier concluded, “Payne was

highly intoxicated from alcohol, combined with ‘13 or 14 pain pills.’” Payne

admitted consuming a case to a case and a half of beer during the six to eight hours

before the crimes and drinking on his way to Florida. Dr. Maier found no evidence

of any significant mental illness other than Payne’s alcohol abuse problem.

7
Payne’s report of things he remembered and his behavior after the crimes

suggested “he did know that what he did was wrong and against the law.” As to

Payne’s claims of blackout in recalling events surrounding the kidnapping, Dr.

Maier saw no explanation for it “except that such a loss works to defendant’s

advantage, and could reflect temporary cerebral impairment due to the effects of

alcohol-caused intoxication.” Payne was “able to understand and appreciate the

nature and consequence of his actions at the time of the alleged offenses.” Dr.

Maier concluded Payne could understand the charges against him and the court

procedures and could cooperate with his attorneys. Dr. Maier stated Payne was not

in need of immediate psychiatric care.

The trial court found Payne competent to stand trial. Payne’s counsel did

not call Dr. Maier as a witness during the trial.

C. Payne’s Jury Trial

At Payne’s trial, the State presented thirty witnesses, who recounted various

details of the crimes. The defense presented eleven witnesses including two of

Payne’s sisters, his mother, and Nesmith. After the jury unanimously convicted

Payne, the penalty phase began. The State adopted the evidence from the guilt

stage.

Payne’s counsel presented mitigation evidence through five witnesses:

8
Payne’s mother (Gredell Thomas), sisters Easterly and Alma Thomas, Dr. Jack

Coleman, and Dr. David Lairmore. The family witnesses’ testimony covered

Payne’s childhood and dysfunctional family, the neglect by Payne’s biological

father, the physical abuse by Payne’s alcoholic stepfather, Payne’s witnessing

repeated abuse of his mother and sister, and Payne’s use of alcohol at an early age

as well as his extensive alcohol and drug abuse. Witnesses at both the guilt and

penalty phases testified about Payne’s abuse of drugs and alcohol on the day of the

murder.

Because Payne’s federal petition claims his trial counsel was ineffective and

should have presented more evidence about his childhood and substance abuse, we

detail what counsel did present during Payne’s jury trial.

Payne’s mother testified first about Payne’s childhood. Payne was the

youngest of five children. Payne’s mother divorced Payne’s father, an alcoholic,

because he was abusive and violent toward her. Payne’s stepfather, Pervis Mims,

was also an alcoholic. Mims often physically abused Payne and Payne’s siblings.

Payne never received any professional help for the abuse he endured and

witnessed.

Payne was a sickly child who “got made fun of” and beat up by other boys.

Payne began drinking around fifth grade. When he was thirteen, Payne moved

9
away from home so the kids would not pick on him. Payne loved his sisters and

would try and stop his mother from whipping them. His mother identified several

pictures of Payne as a child.

Easterly did not remember their biological father being in the house and did

not know of any contact between their father and Payne until he was about twelve

years old. However, Easterly knew a lot about Payne’s stepfather. Mims

physically abused Payne. Indeed, about once or twice a month, from when Payne

was seven until he left home around age twelve or thirteen, Mims beat Payne in the

face, stomach, or anywhere. Payne even witnessed Mims molest his older sister

Evelyn on several occasions. Payne left home because he could not take this abuse

anymore. Payne was passed from relative to relative. Payne was drinking quite a

bit by age fifteen.

Nonetheless, Payne was always there for Easterly. If Easterly got in trouble,

Payne would tell their mother he did it so their mother would whip Payne instead.

Payne was there for Easterly when she had miscarriages and helped with her

daughter’s doctor bills. The week before the murder, Payne was upset because his

wife said their baby was not his. Payne went to a doctor to get something for his

nerves. Payne’s drinking got worse, going from every two or three days to every

day.

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 Payne’s oldest sister, Alma Thomas, lived with her grandparents from age

twelve and was not around Payne much as a child. However, in the four years

before the murder, Thomas spent a lot of time with Payne. Thomas described

Payne as the best friend she ever had, someone who would do anything for

anybody. Payne was great with Thomas’s fifteen-year-old son, building him a

treehouse and encouraging him to stay in school. The day of the murder, Payne

was acting crazy and did not know what he was doing.

The next witnesses were Dr. Coleman and Dr. Lairmore. About three

months prior to the murder, Dr. Coleman treated Payne for nausea, vomiting,

abdominal pain, and diarrhea. Payne also said he was having anxiety and tension

about some family problems. Dr. Coleman diagnosed Payne with viral

gastroenteritis. Dr. Coleman prescribed medicine for Payne’s stomach problems

and Ativan for the tension and anxiety. Dr. Coleman also explained how Ativan

and alcohol interact. Ativan, a drug similar to Valium, is a calming agent to quiet

down anxiety attacks. When Ativan is combined with alcohol, the drugs have a

sedative effect and cause drowsiness. A person, however, could go through an

excitable phase before he passes out, like how people who come out of anaesthesia

can go through a combative stage. If Payne took the Ativan in excess of the

dosage prescribed and in conjunction with alcohol, Payne could lose his reasoning

11
abilities. Because alcohol and Ativan are both depressants, their combination

could have an effect on what a person would normally do.

A week before the murder, Dr. Lairmore treated Payne after a car accident.

Payne reported neck pain, shoulder pain, and an abrasion on his hand. Payne did

not indicate any mental or domestic problems or exhibit any emotional distress.

Payne was neurologically normal. Dr. Lairmore ordered a sling for Payne to wear

to protect his right shoulder, which was sprained. Dr. Lairmore prescribed twelve

tablets of Tylenol 3, which is a combination of codeine and acetaminophen.

Codeine depresses a person’s mental status and causes the brain to feel less pain,

but also lowers a person’s mental state and makes him drowsy.

Dr. Lairmore explained alcohol’s effect on the brain, how it decreases a

person’s reaction time and causes drowsiness and depression, and that one

symptom of an alcohol overdose is blackouts. A person of Payne’s general health,

age, and physical status who consumed twelve to sixteen cans of beer over six or

seven hours would probably be legally intoxicated. The person’s reasoning ability

could be altered, especially in combination with a narcotic like codeine. Alcohol

and codeine together produce a multiplied effect.

The State called no rebuttal witnesses. After the jury recommended a death

sentence, the state trial judge held a separate sentencing hearing a month later.

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D. State Trial Court’s Sentencing

The state trial court considered the evidence presented at trial and the

sentencing hearings, the jury’s advisory verdict, and Payne’s presentence

investigation report. The court found one statutory aggravating circumstance: the

capital offense was committed while the defendant was engaged in robbery and

kidnapping offenses. The court found one statutory mitigating circumstance:

Payne was then 21 years old.

The court also found four nonstatutory mitigating circumstances: (1) Payne

was under the influence of prescription drugs and alcohol at the time of the

offenses; (2) Payne was undergoing emotional problems concerning the alleged

non-paternity of a child he thought was his; (3) Payne’s childhood experience was

bad because of his stepfather’s alcohol problems and “assaulting” of Payne’s sister,

his mother’s numerous marriages, and a generally poor childhood environment;

and (4) Payne currently appeared to have a good relationship with his family. The

court concluded “the mitigating circumstances in this case do not outweigh the sole

aggravating circumstance” and imposed the death sentence.

E. Direct Appeal

Ten days after sentencing in 1994, the state trial court appointed new

counsel for Payne. At that time, Alabama had a procedural rule, established by Ex

13
parte Jackson, 598 So. 2d 895 (Ala. 1992), which required new appellate counsel

to raise ineffective-trial-counsel claims in a motion for new trial and then on direct

appeal (as opposed to waiting until collateral proceedings). However, Payne’s new

appellate counsel did not file a motion for new trial and did not raise any

ineffective-trial-counsel claims on direct appeal.2

The Alabama Court of Criminal Appeals (the “Alabama Appeals Court”)

and the Alabama Supreme Court affirmed Payne’s convictions and death sentence.

See Payne, 683 So. 2d at 458; Ex parte Payne, 683 So. 2d 458, 474 (Ala. 1996).

The United States Supreme Court denied certiorari. See Payne v. Alabama, 520

U.S. 1146, 117 S. Ct. 1319 (1997).

F. Rule 32 Petition and First Appeal

Payne, through another new counsel, filed a post-conviction-relief petition

pursuant to Alabama Rule of Criminal Procedure 32.3 Payne’s Rule 32 petition

raised claims of: (1) ineffective assistance of trial counsel for failure to investigate

2
Under Alabama’s procedure, new appellate counsel must obtain the trial transcript in
order to be able to raise ineffective-trial-counsel claims on direct appeal. The Alabama Supreme
Court in Jackson recognized that when new counsel is appointed to represent a defendant on
direct appeal, “it is unlikely that the reporter’s transcript will be made available to him before the
30-day period within which to file a motion for a new trial has expired.” Jackson, 598 So. 2d at
897. The Jackson court instructed that if new appellate counsel is appointed, that counsel may
file a motion with the trial court within 14 days of appointment to suspend the running of the 30-
day period to file a motion for new trial until the court reporter has filed the trial transcript. Id.
After appellate counsel receives the trial transcript, “[a]ppellate counsel will then have the means
to raise all appropriate issues before the trial court” in a motion for new trial. Id.
3
The same counsel represented Payne in the state and federal collateral proceedings.

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and present expert mental health evidence and adequate mitigation evidence; and

(2) ineffective assistance of appellate counsel for not pursuing ineffective-trial-

counsel claims in a motion for new trial or on direct appeal. The state Rule 32

court denied Payne’s petition.

The Rule 32 court held Payne’s ineffective-trial-counsel claims were barred

because Payne’s appellate counsel did not raise those claims in a motion for new

trial or on direct appeal as required by Alabama law in Jackson. See Jackson, 598

So. 2d at 897. The Rule 32 court also denied Payne’s ineffective-appellate-counsel

claims. Payne appealed. The Alabama Appeals Court affirmed the Rule 32 court’s

denial of Payne’s ineffective-trial-counsel claims, noting “the procedure outlined

in Ex parte Jackson, 598 So. 2d 895 (Ala. 1992), was in effect” for Payne’s case.

Payne v. State, 791 So. 2d 383, 389-90 (Ala. Crim. App. 1999). The Alabama

Appeals Court concluded Payne’s ineffective-trial-counsel claims were

procedurally barred because they were not raised in a motion for new trial or on

direct appeal. Id. at 390.

The Alabama Appeals Court remanded the case to the Rule 32 court for an

evidentiary hearing on Payne’s ineffective-appellate-counsel claim. Id. at 393.

G. Evidentiary Hearing on Rule 32 Remand

On remand, the Rule 32 court held an evidentiary hearing on Payne’s

15
ineffective-appellate-counsel claims. Because we ultimately must determine if

Payne’s Rule 32 evidence was new or simply cumulative of what the jury and

sentencing judge heard, we detail Payne’s Rule 32 evidence at length.

The first witness, Gregory Nicholas, was one of Payne’s trial attorneys. He

testified about his experience, trial preparation, and strategy. Nicholas began law

practice in 1985, was a solo practitioner, and had a general practice, a third of

which was criminal cases. He had handled felony and violent felony cases, and

this was his first capital case. Nicholas was appointed in 1992 and received some

assistance from Capital Resources, an organization assisting lawyers in capital

trials. Nicholas also attended a seminar hosted by Capital Resources at least a year

before the trial. Capital Resources provided a notebook full of sample motions, the

most current case law, and information on the guilt phase, penalty phase, and

evidentiary issues. Nicholas used the information from Capital Resources in

preparing Payne’s case. During Nicholas and his co-counsel’s preparation, they

also contacted Capital Resources with specific questions.

Nicholas moved for a court-ordered mental exam because Payne had issues

as a child and “to make sure all the bases were covered,” stating:

I talked with [Payne] early on. There had been some issues that he
had as a child that certainly we wanted all those explored. I’m not a
mental health professional and we just wanted to make sure all the
bases were covered. We wanted that assistance. . . . I didn’t have any

16
 real concerns about [Payne]’s competency to stand trial after talking
with him. But again, we wanted to make sure we had done the things
we needed to do. If there were some underlying problems, we wanted
some assistance with them.

Nicholas used court-supplied funds to hire Nesmith. Nicholas believed Nesmith

“contacted some folks in Mobile and Saraland, but I’m not sure.” These included a

doctor who testified at trial about treating Payne in 1991 and one of Payne’s good

friends.4

As to the penalty phase, Nicholas explained their strategy was to highlight

Payne’s difficult life, stating:

[Payne] had had a very difficult upbringing, to say the least. He had
had a traumatic childhood. His father was very abusive at a very early
age. [Payne] had started drinking when he was in the fifth or sixth
grade. He had left home and went out on his own at a very early
age . . . . Right before this incident had occurred with Braxton Brown,
[Payne] had had some upsetting news regarding a son that he had. I
believe [Payne] had just learned that his wife’s child may not have
been his child. And that another individual that [Payne] had a
relationship with, may have a child that was [Payne]’s child. I mean,
[Payne] loved kids and that was obviously upsetting to him also.

The defense interviewed Payne’s family members and friends, including his

mother, two sisters, a brother-in-law, and a couple of friends. The defense

introduced evidence about Payne’s traumatic childhood and physical abuse, his

4
Nicholas believed Nesmith’s charges went over the $1500 limit and Nesmith spent more
than the allotted 50 hours. Since Payne’s trial, Nicholas moved residences and law offices and
was unable to locate his trial file for this case.

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drinking, his discovery his child may not have been his, and how upsetting this was

to Payne.

Nicholas decided not to present evidence of Payne’s prior employment

history because it “had not been real good. [Payne] had not had a job that he had

held for a long period of time.” They decided not to present evidence of Payne’s

jail behavior because of an incident that occurred “that we did not want the jury to

really know about,” and they were concerned it would come out if jail personnel

testified.5

Nicholas and Sapp considered Payne’s medical history, and decided to

present the evidence through Dr. Coleman and Dr. Lairmore. Nicholas knew

Payne was in an accident, but did not specifically recall a head injury. Dr.

Coleman treated Payne for his nervous stomach. Dr. Lairmore, who examined

Payne after his accident, gave no indication of a head injury or that Payne was

complaining of a head injury. Dr. Lairmore testified about substance abuse.

Nicholas tried to obtain information about Payne’s alcohol and drug abuse.

Because Payne had never been hospitalized or treated for his drug or alcohol abuse,

5
During the Rule 32 hearing, Payne’s counsel called jail administrator Bryan Bueglar.
Bueglar remembered some disciplinary incidents involving Payne, but could find no records.
Bueglar testified that Payne was “high risk . . . violating every kind of security rule or regulation
that we had that could be imagined.” Bueglar testified that “[f]rom time to time [Payne] would
get angry, and we would have to move him from his cell to another cell. Really, he was a
management problem for us.”

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Nicholas obtained the information from Payne. Payne’s mother and sisters

testified about Payne’s history of drinking at a young age and another witness was

aware Payne was drinking and taking medication.

Nicholas considered presenting evidence of cognitive impairments. When

asked whether he believed Payne was mentally impaired based on his two years of

interaction with Payne, Nicholas stated, “I don’t believe that he was mentally

impaired as far as having any kind of mental illness. At the time of the offense, I

believe he was probably intoxicated and was using the drugs and alcohol.”

Nicholas did not see any indication of impairment regarding education or possible

mental retardation. Both Nicholas and Sapp received Dr. Maier’s report, which

indicated Payne was competent to stand trial and did not need psychiatric care. Dr.

Maier’s report noted Payne was drinking heavily at the time of the crimes, but

contained no indication Payne was under duress or domination by another person.

Had there been indications of duress or domination in the report, Nicholas would

have presented that to the jury.

Nicholas and Sapp presented evidence about emotional stress and Payne’s

intoxication at the time of the offenses. In using Payne’s family members,

Nicholas and Sapp “wanted to highlight as much as possible how tragic [Payne’s]

early life was.” All the evidence from the guilt phase was also part of the penalty-

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phase evidence. After Payne was sentenced, Nicholas withdrew and new appellate

counsel was appointed.

Easterly also testified about Payne’s family history and childhood. Payne

was the youngest, and she was his closest sibling. Easterly lived with her mother

when Payne was born and grew up with him. When Easterly married at age

seventeen, Payne moved with her. Easterly had no memory of her father. Her first

memory of her stepfather was that he backhanded her over a recliner. Payne was a

sickly child who “never was real popular,” never played sports, and “was more like

a loner.” Payne was generally smaller than other children his age. Payne was

always in fights; other boys would push him down, face first in the gravel. Payne

started some of these fights, although one time it was for a mentally retarded boy

who was getting picked on.

Easterly first saw Payne drink alcohol when he was seven or eight. Payne’s

stepfather Mims supplied Payne with alcohol. Easterly described weekend trips to

turkey shoots that Payne often went on with his stepfather as “basically fifty or

more or less drunk men.” Payne witnessed Mims molest his sister Evelyn, which

bothered Payne. One time he was going to try and call 911 to stop the abuse and

“got beat up pretty bad for that.”

Payne was around two or three years old when their stepfather Mims first hit

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him. Mims also turned a china cabinet over on their mother and kicked and broke

her ribs. Payne would either jump into the fighting or run away and hide. Their

mother spanked Payne with a belt. Payne received no counseling for witnessing

the physical abuse of his mother, the sexual abuse of his sister, or his early alcohol

use.6

Payne’s Rule 32 counsel also submitted affidavits from: (1) Dr. Frank Gersh,

(2) Dr. Lawrence Maier, and (3) Payne’s mother.7 Frank Gersh, a

licensed psychologist, detailed what he had learned about Payne’s social history,

head injuries, substance abuse, stress at the time of the murder, and stepfather’s

physical abuse of multiple family members and sexual abuse of one sister. Gersh

never met Payne and based his opinion on conversations with Payne’s attorney and

his review of the state court criminal record. Gersh opined that given Payne’s

background, “there is a substantial basis for concluding that a

psychological/neuropsychological evaluation should have been conducted prior to

trial” and “a reasonably competent attorney would have obtained an expert

6
Payne’s Rule 32 counsel also proffered that Easterly would provide testimony about an
incident in which Payne’s mother, hospitalized with broken ribs because of Mims, ripped the IVs
out of her arms to come home from the hospital and stop Mims from beating Easterly. Easterly
would also testify about seeing Mims beat her sister Evelyn.
7
Although the parties argue about the admissibility of the affidavits, the Rule 32 court
ruled that “all affidavits will be admitted.” Other relevant evidence before the Rule 32 court
included Dr. Maier’s pre-trial report, Payne’s medical records, Payne’s jail medical records, and
two letters from Payne to Buegler regarding jail visitation.

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evaluation in the case at hand.” Gersh’s supplemental affidavit explained he would

not want to offer an opinion on Payne’s case “without neuropsychological

assessment to determine whether or not there is normal brain functioning, and

personality assessment to look at personality functioning.”

In his affidavit, Dr. Maier had no personal recollection of examining Payne

and did not have a copy of his written report. All of Dr. Maier’s data and notes

from his 1992 evaluations had been destroyed. Dr. Maier reviewed the court

orders in the case and stated he “would have performed an evaluation only with

regards to the two issues of whether the defendant was mentally competent to stand

trial and whether the defendant was insane at the time of the offense.” His report

would not directly address the issue of diminished capacity or any mitigation

issues. “In order to perform a thorough evaluation with respect to factors of

mitigation, more extensive social, medical, and educational history regarding the

defendant would have been required and a more extensive interview and testing

process conducted.”

An affidavit from Payne’s mother discussed his childhood. While pregnant

with Payne, she smoked a pack of cigarettes a day and drank alcohol occasionally.

When she was six months pregnant, her brother struck her forcefully in the

stomach. She does not recall anything else unusual about her pregnancy or

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Payne’s birth. She separated from Payne’s father Patrick because of Patrick’s

heavy drinking and physical abuse. Payne’s father was gone before Payne was a

year old and saw Payne only a half-dozen times before Payne was twelve. Payne’s

stepfather physically assaulted her in Payne’s presence and physically abused

Payne. Payne’s male role models were alcoholic and physically violent.

Payne did okay in school through the third grade. Payne was smart before

he started school and was able to do his sister’s math problems at a young age. In

the fourth grade, Payne started to exhibit behavior problems. Payne’s mother was

called in several times to talk with teachers about Payne’s behavior. Payne was

always a small child and sick from age nine to eleven. Payne had trouble eating

and frequent, severe stomach pain. The doctors recommended Payne not engage in

physical activity so he could not play ball or ride bikes. He was bullied and teased

by other children. Payne came home from school almost every day in the fourth

grade with torn clothes, bruises, or scrapes. Payne’s mother described him as “the

whipping boy in the neighborhood.” Payne lost interest in school and began to

exhibit poor performance.

When Payne was eleven, he had surgery to correct his intestines. Payne’s

mother hired a tutor to teach him at home. Even then, children would stand on the

edge of the property and tease Payne. Payne did not complete eighth grade. At

23
age twelve, he went to live with his father in Texas, returned briefly, then went

back to Texas. During this time, Payne’s mother divorced Mims because of the

physical violence which Payne witnessed. Mims also physically abused Payne.

Payne’s mother sought medical treatment only once for all the abuse she received.

Payne never received counseling or treatment for substance abuse, being a victim

of physical abuse, or seeing his stepfather abuse his mother and sisters.

H. State Rule 32 Court’s Second Order

After the evidentiary hearing, the Rule 32 court denied Payne’s Rule 32

petition, concluding Payne’s appellate counsel was not ineffective. The court

found trial counsel was not deficient in obtaining and presenting mitigation

evidence or expert mental health evidence, and thus new appellate counsel was not

ineffective for failing to raise those trial-counsel claims. In addition, the court

found Payne “has not shown that the deficient performance prejudiced [him].”

The court pointed out trial counsel moved for a psychiatric exam to

determine Payne’s competency to stand trial and mental state at the time of the

offenses. After examining Payne, Dr. Maier reported Payne was drinking heavily

at the time of the crimes and had a history of alcohol abuse. Dr. Maier found no

evidence of mental disease, defect, or diminished capacity. The court found trial

counsel had made pre-trial investigation of Dr. Lairmore, Dr. Coleman, and family

24
members, and presented their testimony to the jury. The court noted trial counsel

filed a motion for funds to hire an investigator, which was granted.8

The Rule 32 court pointed out both new appellate counsel and prior trial

counsel Sapp had not been called as witnesses and “Nicholas stated that it was

Sapp who handled the mental/psychological part of the pretrial motions while

Nicholas handled the change of venue motion.” The court noted (1) only Nicholas

testified but he had lost his files since the trial and (2) Payne, although present at

the hearing, did not testify as to his relationship and preparations with his trial

counsel, nor any deficiencies in counsel’s performance.

The court determined the Rule 32 petition “deals not so much with the fact

that certain evidence was not brought out, but that it was not presented in precisely

the same manner, or in the same detail as Rule 32 counsel would have liked.” The

court found trial counsel’s decisions about whether to present evidence of mental

impairment, alcohol abuse, family dysfunction and non-family testimony as

mitigation evidence “were all trial strategy decisions based upon the investigations

8
The Rule 32 court quoted trial counsel’s pre-trial motion as stating: “Counsel is required
to obtain information [relevant] to Mr. Payne’s medical history, educational history,
employment[ and] training history, family and social history, [and any] religious and cultural
influences. [Therefore, c]ounsel must direct an investigator to obtain records from all doctors,
hospitals, schools, [and] employers, [and] interview people with knowledge of the[se] aspects of
Mr. Payne’s background.” Trial counsel’s motion does say this, as modified by the few words
shown in brackets. During the Rule 32 hearing, Nicholas testified that Nesmith’s investigation
ultimately focused “primarily on investigating fact witnesses . . . for the guilt phase.”

25
of the attorneys and the investigator, discussions and conferences with the family

members and the evidence which counsel knew that the prosecution possessed.”

The court found, in any event, that Payne had not shown any deficient performance

prejudiced him. Payne appealed.

I. Alabama Appeals Court’s Second Rule 32 Decision

The Alabama Appeals Court affirmed the denial of Payne’s Rule 32 petition.

Payne v. State, 791 So. 2d 383, 394, 401 (Ala. Crim. App. 2000).9 The Alabama

Appeals Court noted that to succeed on his ineffective-appellate-counsel claims,

Payne must establish his underlying ineffective-trial-counsel claims were

meritorious and had they been raised, the outcome of his direct appeal would have

been different. Id.

The Alabama Appeals Court reviewed the Rule 32 court’s findings and

observed the Rule 32 court found: (1) Payne underwent a psychiatric exam to

determine his competency to stand trial and his mental state at the time of the

offenses; (2) information regarding the investigation of Payne’s head trauma from

an automobile accident was made available to the jury; (3) trial counsel believed

Payne was competent to stand trial, but requested a mental evaluation because of

9
Both the Alabama Appeals Court’s first opinion remanding the case to the Rule 32 court,
dated July 9, 1999, and its second opinion, dated February 25, 2000, are in the same published
document. See Payne v. State, 791 So. 2d 383 (Ala. Crim. App. 1999).

26
Payne’s unusual childhood and underlying mental problems; and (4) no expert

findings suggested Payne suffered mental or emotional duress at the time of the

offenses or that he could not appreciate the criminality of his conduct. Id. at 400-

01, 407.

As to expert mental health evidence, the Alabama Appeals Court concluded

“Payne has not shown that his trial counsel’s failure to present expert testimony on

his mental health was outside the wide range of reasonable professional

assistance.” Id. at 401 (quotation marks omitted). As to the prejudice prong, the

Alabama Appeals Court stated that “[a]dditionally, Payne ha[s] not shown that

additional testimony about his mental health would have changed the outcome of

his trial.” Id. Because Payne’s underlying ineffective-trial-counsel claims were

not meritorious, the Alabama Appeals Court concluded Payne “failed to prove by a

preponderance of the evidence that his appellate counsel was ineffective for failing

to present [those claims].” Id.

As to mitigation evidence generally, the Alabama Appeals Court concluded

the Rule 32 court “adequately assessed and rejected the evidence presented to

support Payne’s contention that his trial [counsel] fail[ed] to investigate and to

present adequate mitigation evidence.” Id. at 405. The Alabama Appeals Court

adopted, and quoted at length from, the Rule 32 court’s second order discussing (1)

27
trial counsel’s investigation into Payne’s medical, educational, employment,

family, and social history; (2) the amount of background material gathered on

Payne’s life and presented to the jury by Payne’s mother and sister; (3) the failure

to call appellate counsel as a witness at the Rule 32 hearing; and (4) how trial

counsel’s decisions about whether to present evidence of mental impairment,

alcohol abuse, family dysfunction, and non-family testimony were trial strategy

decisions. Id. at 405-07.10

The Alabama Appeals Court rejected Payne’s argument that trial counsel

presented insufficient mitigation evidence, stating:

Numerous witnesses testified during the guilt phase about
Payne’s consumption of alcohol on the day of the offense and about
the various forms of physical abuse that Payne suffered and
witnessed. Additionally, evidence was presented from Payne’s
physicians concerning his mental and emotional faculties and the
effects of drug and alcohol consumption [on] his faculties. That
evidence was also placed before the jury during the penalty phase. In
light of the evidence presented during the guilt phase and the penalty
phase of the trial, we conclude that Payne’s trial counsel was not
ineffective for not presenting additional evidence. Thus, appellate
counsel was not ineffective for not raising such a claim.

Id. at 407-08. Because Payne’s trial counsel was not ineffective, and thus his

appellate counsel was not ineffective for failing to raise ineffective-trial-counsel

10
As to Payne’s argument that trial counsel should have presented evidence of his
confinement history, the Alabama Appeals Court noted trial counsel decided not to present the
evidence because Payne violated jail policies and rules. 791 So. 2d at 407.

28
claims, the Alabama Appeals Court affirmed the denial of Payne’s Rule 32 claims.

Id. at 408. The Alabama Supreme Court denied certiorari. Ex parte Payne, 791

So. 2d 408 (Ala. 2000).

J. Federal Habeas Petition

Payne’s § 2254 petition then challenged his death sentence, claiming his trial

and appellate counsel were ineffective. The district court rejected Payne’s

ineffective-trial-counsel claims as procedurally barred under Alabama’s Jackson

rule. The district court also rejected Payne’s argument that his allegedly

ineffective appellate counsel constituted cause and prejudice for his failure to

timely raise the ineffective-trial-counsel claims.

Alternatively, the district court addressed the merits of Payne’s ineffective-

trial-counsel claims, but mainly through the lens of whether appellate counsel was

ineffective for failing to raise those trial-counsel claims. The district court

reviewed the state courts’ determinations that Payne’s trial counsel was not

ineffective in investigating and presenting mental health and adequate mitigation

evidence, and thus appellate counsel was not ineffective for not raising such

claims. The district court concluded Payne failed to show the state courts’

decisions are contrary to, or involved an unreasonable application of, Supreme

Court precedent or are based on an unreasonable determination of the facts. The

29
district court denied Payne’s § 2254 petition and application for a COA.

This Court granted Payne a COA on whether his ineffective-trial-counsel

claims were procedurally barred under Alabama’s Jackson rule and on his

ineffective counsel claims as to expert mental health and mitigation evidence.

II. STANDARD OF REVIEW

In examining a district court’s denial of a § 2254 habeas petition, “we

review questions of law and mixed questions of law and fact de novo, and findings

of fact for clear error.” Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1208

(11th Cir. 2007). We review de novo whether a particular claim is procedurally

defaulted. See Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001).

Payne filed his federal habeas petition after April 24, 1996, and thus the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.

104-132, 110 Stat. 1214, governs this appeal. Under AEDPA, our review of a final

state habeas decision is “greatly circumscribed and is highly deferential to the state

courts.” Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002). First, “a

determination of a factual issue made by a State court shall be presumed to be

correct,” and “[t]he applicant shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Henyard

v. McDonough, 459 F.3d 1217, 1240 (11th Cir. 2006), cert. denied, __ U.S. __,

30
127 S. Ct. 1818 (2007). Second, § 2254(d) allows federal habeas relief for any

claim adjudicated on the merits in state court only where the state court

adjudication “(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); Henyard, 459 F.3d at 1240.

III. DISCUSSION

A. Alabama’s Procedural Bar

At the time of Payne’s convictions and sentence in 1994, the Alabama

Supreme Court had a procedural rule that required new appellate counsel to raise

any ineffective-trial-counsel claims in a motion for new trial and on direct appeal

and provided that failure to do so resulted in a bar of that issue in post-conviction

proceedings. See Ex parte Jackson, 598 So. 2d 895, 897 (Ala. 1992); Bryant v.

State, 739 So. 2d 1138, 1140 (Ala. Crim. App. 1998) (discussing how Jackson

required newly appointed appellate counsel to raise ineffective-trial-counsel

claims).

Both the Rule 32 court and the Alabama Appeals Court held Payne’s

31
ineffective-trial-counsel claims were procedurally barred by the Jackson rule.11

See Payne, 791 So. 2d at 389-90. Thus, the Alabama courts rejected Payne’s

ineffective-trial-counsel claims on a state procedural ground. “A state court’s

rejection of a petitioner’s constitutional claim on state procedural grounds will

generally preclude any subsequent federal habeas review of that claim.” See Judd,

250 F.3d at 1313.

Nonetheless, for a state procedural ruling to preclude federal review, the

state ruling must rest upon an “independent and adequate” state ground. Id.; see

Lynd v. Terry, 470 F.3d 1308, 1313 (11th Cir. 2006), cert. denied, __ U.S. __ 128

S. Ct. 232 (2007). Payne does not contest that Alabama’s Jackson rule was an

independent state ground. Instead, Payne claims that Alabama’s Jackson rule is

not an adequate state ground because it was not firmly established and regularly

followed by Alabama courts.12 We agree the state procedural rule, to be an

adequate state ground, must be one that is “firmly established and regularly

followed.” Hurth v. Mitchem, 400 F.3d 857, 858 (11th Cir. 2005).

11
The Alabama Appeals Court unequivocally stated that “[b]ecause Payne was
represented by different counsel at trial and on appeal, any claim of ineffective assistance of trial
counsel should have been raised in a motion for a new trial in order to preserve the issue for
review. Thus, the trial court correctly concluded that Payne’s claims regarding ineffective
assistance of trial counsel are procedurally barred . . . .” Payne, 791 So. 2d at 390 (citations
omitted).
12
The State contends Payne’s particular arguments on appeal about Alabama’s Jackson
rule were not fairly presented to the district court and should not be considered on appeal. We
need not resolve that issue because Payne’s arguments lack merit in any event.

32
 However, after reviewing the Alabama courts’ decisions, we conclude the

Jackson procedural bar was firmly established and regularly followed by the

Alabama state courts. See Alderman v. State, 647 So. 2d 28, 31 (Ala. Crim. App.

1994); Covington v. State, 671 So. 2d 109, 110 (Ala. Crim. App. 1995); Brown v.

State, 681 So. 2d 1102, 1103 (Ala. Crim. App. 1996); Arrington v. State, 716 So.

2d 237, 239 (Ala. Crim. App. 1997); Hartzog v. State, 733 So. 2d 461, 462 n.1

(Ala. Crim. App. 1997); Dyson v. State, 722 So. 2d 782, 787 & n.1 (Ala. Crim.

App. 1997); Bryant v. State, 739 So. 2d at 1140.13 As these cases demonstrate, the

Alabama Appeals Court consistently applied Jackson’s post-conviction procedural

13
See Alderman, 647 So. 2d at 31 (“[The ineffective-trial-counsel claims] are barred from
Rule 32 review because the appellant did not present those claims to the circuit court in his
motion to withdraw the guilty plea or motion for a new trial. . . . ‘Failure to include a reasonably
ascertainable issue in a motion for a new trial will result in a bar to further argument of the issue
on appeal and in post-conviction proceedings.’”) (emphasis omitted) (quoting Jackson, 598 So.
2d at 897); Brown, 681 So. 2d at 1103 (“Ex parte Jackson provided a method whereby newly
appointed appellant counsel could discover and present all issues concerning ineffective
assistance of trial counsel on direct appeal. The procedure outlined in Ex parte Jackson prevents
an appellant from raising ineffective assistance of [trial] counsel in a Rule 32 petition. Here
appellate counsel did not allege ineffective assistance of trial counsel on direct appeal.
Therefore this issue is waived as an issue which could have been raised on direct appeal but was
not.”); Covington, 671 So. 2d at 110 (“We agree that the petition’s claim[] of ineffectiveness of
trial counsel is procedurally barred . . . . Because the appellant was represented by different
counsel at trial and on appeal, any claim of ineffective assistance of trial counsel must be raised
in a motion for a new trial in order to preserve the issue for review.”); Arrington, 716 So. 2d at
239 (“Pursuant to Ex parte Jackson, because the appellant was represented by different counsel
at trial and on appeal, any claim of ineffective assistance of trial counsel should have been raised
in a motion for a new trial in order to preserve the issue for review. Thus, the appellant’s claims
regarding ineffective assistance of trial counsel are procedurally barred . . . .”) (citations
omitted); Hartzog, 733 So. 2d at 462 n.1 (holding Rule 32 petitioner’s ineffective-trial-counsel
claim was procedurally barred by Jackson because new appellate counsel did not raise an
ineffective-trial-counsel claim in a motion for new trial or on direct appeal); Dyson, 722 So. 2d
at 787 & n.1 (same); Bryant, 739 So. 2d at 1140 (same).

33
bar until its overruling in Ex parte Ingram, 675 So. 2d 863 (Ala. 1996).14

Payne cites to Gunn v. State, 619 So. 2d 225 (Ala. Crim. App. 1993), and Ex

parte Perkins, 920 So. 2d 599 (Ala. Crim. App. 2005). However, the conviction

and sentence in Gunn were before Jackson was decided, and Perkins addressed a

mandamus petition about discovery.15

Because Alabama’s Jackson rule was an independent and adequate state

ground, we are barred from habeas review of Payne’s ineffective-trial-counsel

claims unless he shows cause and prejudice to overcome Alabama’s procedural

bar.

B. Cause and Prejudice To Overcome Alabama’s Procedural Bar

Payne claims cause and prejudice exist to overcome Alabama’s procedural

14
The Alabama Appeals Court recognized “Jackson was subsequently overruled by Ex
parte Ingram, 675 So. 2d 863 (Ala. 1996),” but noted Payne was sentenced to death on June 13,
1994, Payne’s trial counsel withdrew, and new appellate counsel was appointed on June 23,
1994, and thus Jackson, decided in 1992, applied to Payne’s case. Payne, 791 So. 2d at 389-90.
Similarly the Alabama Appeals Court applied the Jackson rule in the cases listed in note 13,
supra, as the dates of conviction in those cases were between Jackson and Ingram.
15
We reject Payne’s contention that Hale v. State, 611 So. 2d 1202 (Ala. Crim. App.
1992), implies Jackson’s rule was permissive, not mandatory. Hale involved a direct appeal–not
a post-conviction proceeding–where new appellate counsel did not make a motion for new trial
on the ineffective-trial-counsel claim as required by Jackson but attempted to make the trial-
counsel claim for the first time on direct appeal. Hale, 611 So. 2d at 1205. The Alabama
Appeals Court would not address the trial-counsel claim for the first time on direct appeal
because the petitioner did not follow the Jackson rule. Id. While the Alabama Appeals Court
stated in dicta, “any remedy for the appellant upon this issue lies in a petition for post-conviction
relief,” nothing in Hale holds petitioner would, in fact, receive post-conviction relief and Hale, a
direct appeal case, does not even discuss whether Jackson would present a procedural bar to
post-conviction relief. Id.

34
bar because his new appellate counsel rendered ineffective assistance.

Specifically, Payne argues his appellate counsel’s ineffective assistance–in not

timely raising his ineffective-trial-counsel claims in state court–caused his

procedural default and prejudiced him. Payne contends his ineffective-appellate-

counsel claims are meritorious and thus he can show the requisite prejudice.

“A petitioner can establish cause by showing that a procedural default was

caused by constitutionally ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668, 690, 104 S. Ct. 2052 . . . (1984).” Fortenberry v.

Haley, 297 F.3d 1213, 1222 (11th Cir. 2002). To show cause for failing to follow

a state procedural rule, the ineffective assistance of counsel must occur during a

stage when a petitioner had a constitutional right to counsel. See, e.g., Mize v.

Hall, __ F.3d __, No. 07-10659, slip. op. at 13 (11th Cir. July 2, 2008)

(“Ineffective assistance during a stage where the petitioner had a right to counsel is

a valid excuse for failing to follow a state procedural rule.”).16 And Payne

obviously had a constitutional right to counsel in his state trial and direct appeal.

Thus, to determine cause and prejudice, we must ascertain whether Payne

16
See Coleman v. Thompson, 501 U.S. 722, 755, 111 S. Ct. 2546, 2567 (1991) (“We
reiterate that counsel’s ineffectiveness will constitute cause only if it is an independent
constitutional violation.”); Mize, No. 07-10659, slip op. at 15 n.5 (instructing that “[t]he
exhaustion doctrine . . . generally requires that a claim of ineffective assistance [of counsel] be
presented to the state courts as an independent claim before it may be used to establish cause for
a procedural default” (ellipsis and second alteration in original) (quoting Murray v. Carrier, 477
U.S. 478, 488-89, 106 S. Ct. 2639, 2646 (1986))).

35
has shown ineffective appellate counsel in not timely raising his ineffective-trial-

counsel claims. And to determine whether Payne has shown ineffective appellate

counsel, we must determine whether Payne has shown underlying meritorious

ineffective-trial-counsel claims. So, at the end of the day, whether through the lens

of cause and prejudice for our procedural bar analysis or through Payne’s

independent ineffective-appellate-counsel claims, we ultimately must examine

whether Payne’s trial counsel was ineffective in the investigation and presentation

of expert mental health evidence and adequate mitigation evidence. We now turn

to the underlying ineffective-trial-counsel issues.

C. Ineffective Assistance of Trial Counsel

Payne contends his trial counsel was ineffective for failing to investigate,

obtain, and present sufficient mitigation evidence in the penalty phase. Payne

focuses on two types of mitigation evidence: (1) expert mental health evidence and

(2) more thorough and graphic detail about his family and social history.17 The

Alabama Appeals Court correctly identified Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064 (1994), and its progeny as the governing Supreme

Court precedent. See Payne, 791 So. 2d at 401.

17
Payne, in passing, also contends his trial counsel failed to investigate and present
evidence of his school records and employment history. Because Payne presented no evidence
of his school records and employment history in his state and federal collateral proceedings, we
readily conclude this claim lacks merit. Indeed, trial counsel Nicholas testified he did not
present evidence of Payne’s employment history because it “had not been real good.”

36
 To obtain relief under Strickland, Payne must show (1) counsel’s

performance was deficient and (2) that deficiency prejudiced him. Strickland, 466

U.S. at 687, 104 S. Ct. at 2064. Counsel’s performance is deficient when it falls

“below an objective standard of reasonableness,” Chandler v. United States, 218

F.3d 1305, 1312 (11th Cir. 2000), which means that it is “outside the wide range of

professionally competent assistance,” Strickland, 466 U.S. at 690, 104 S. Ct. at

2066. Further, “omissions are inevitable. . . . [T]he issue is not what is possible or

‘what is prudent or appropriate, but only what is constitutionally compelled.’”

Chandler, 218 F.3d at 1313 (quoting Burger v. Kemp, 483 U.S. 776, 794, 107 S.

Ct. 3114, 3126 (1987)). Courts conduct a highly deferential review of counsel’s

performance and “‘indulge [the] strong presumption’ that counsel’s performance

was reasonable and that counsel ‘made all significant decisions in the exercise of

reasonable professional judgment.’” Id. at 1314 (alteration in original) (quoting

Strickland, 466 U.S. at 689-90, 104 S. Ct. at 2065-66).

To establish prejudice, “there must be a reasonable probability that, but for

counsel’s deficient performance, the result of the proceedings would have been

different.” Lynd, 470 F.3d at 1315. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694,

104 S. Ct. at 2056. “A petitioner’s burden of establishing that his lawyer’s

37
deficient performance prejudiced his case is also high.” Van Poyck v. Fla. Dep’t

of Corr., 290 F.3d 1318, 1322 (11th Cir. 2002). A petitioner must “affirmatively

prove prejudice.” Strickland, 466 U.S. at 693, 104 S. Ct. at 2067.

In Strickland, the Supreme Court addressed claims that counsel failed to

investigate and present mitigation evidence. Id. at 678, 690, 104 S. Ct. at 2059-60,

2066. As to counsel’s investigation, the Supreme Court explained that

strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other words,
counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.

466 U.S. at 690-91, 104 S. Ct. at 2066. “A counsel’s decision not to investigate

and develop favorable evidence must be reasonable and fall within the range of

professionally competent assistance.” Lynd, 470 F.3d at 1316. However, “even

when trial counsel’s investigation and presentation is less complete than collateral

counsel’s, trial counsel has not performed deficiently when a reasonable lawyer

could have decided, under the circumstances, not to investigate or present

particular evidence.” Grayson v. Thompson, 257 F.3d 1194, 1225 (11th Cir.

2001).

38
1. Performance Prong

As to the performance prong, both the Rule 32 state court and the Alabama

Appeals Court found Payne failed to show his appellate counsel was ineffective in

not raising ineffective-trial-counsel claims as to expert mental health evidence and

adequate mitigation evidence. The Alabama Rule 32 court conducted an extensive

evidentiary hearing on Payne’s ineffective-assistance claims and thereafter issued a

thorough order containing findings of fact, discussing the claims, and then denying

them. In affirming, the Alabama Appeals Court repeated and adopted the Rule 32

court’s findings and legal conclusions, and expanded on them. Payne, 791 So. 2d

at 400-08.

Both state courts decided Payne had not shown his trial counsel’s

investigation and presentation of evidence in the penalty phase was ineffective.

Both courts emphasized trial counsel did obtain a mental evaluation by Dr. Maier,

who found no mental illness, defect, or cognitive impairment. Further, trial

counsel investigated and presented significant evidence from Dr. Coleman and Dr.

Lairmore about Payne’s medical problems and from three family members about

Payne’s difficult childhood and family background, the physical abuse Payne

suffered and witnessed, his medical history, his alcohol abuse, and his mental

anxiety over the paternity of his child. Given all the mitigation evidence from

39
family members and doctors that was presented, the state courts concluded that

because Payne had not shown ineffective trial counsel, his new appellate counsel

was not ineffective in failing to raise ineffective-trial-counsel claims. We conclude

Payne simply has not shown the Alabama courts’ decisions on his ineffective

counsel claims are (1) contrary to, or an unreasonable application of, clearly

established federal law, as determined by the Supreme Court; or (2) based on an

unreasonable determination of the facts in light of the evidence presented in the

Rule 32 proceedings. See 28 U.S.C. § 2254(d).

We add only a few comments about Payne’s performance claims. As to his

expert-mental-health claim, Payne, in the collateral proceedings, still has not

presented any evidence of what a mental health expert would have said about

Payne’s mental health or how it affected Payne’s behavior or mitigated his crimes.

Thus, on this basis alone, Payne’s mental-health-performance claim fails for lack

of any evidence of what trial counsel would have learned if he had conducted more

investigation. We recognize Payne did file Dr. Gersh’s affidavits, but they do not

contain any expert opinion about Payne’s own mental health. Indeed, Dr. Gersh

has never seen nor examined Payne. More importantly, in his affidavit, Dr. Gersh

himself acknowledged that without conducting a neuropsychological evaluation of

Payne, Dr. Gersh could not give an opinion as to Payne’s mental health. Further,

40
this is not a case where there was no mental evaluation at all of a capital defendant.

The state courts emphasized Dr. Maier found Payne had no cognitive impairment,

mental illness, defect, or diminished capacity other than alcohol abuse and trial

counsel made a strategic decision not to present Dr. Maier’s report.

As to the adequacy of mitigation evidence generally, we note the sentencing

state judge found four non-statutory mitigating circumstances: (1) Payne’s being

under the influence of alcohol and drugs at the time of the offenses; (2) Payne’s

emotional problems over the questionable paternity of his child; (3) Payne’s poor

childhood, particularly his stepfather’s alcoholism and abuse; and (4) Payne’s good

relationship with his family. Thus, the evidence trial counsel did present already

convinced the sentencing judge to find four separate mitigating circumstances, and

this strongly supports the state courts’ decisions that trial counsel’s investigation

and presentation of mitigation evidence was not deficient. The mere fact that the

family members could have presented more thorough and graphic detail about the

physical abuse Payne suffered and witnessed and his early substance abuse does

not render counsel’s performance ineffective, especially where the sentencing

judge already found such circumstances were mitigating factors. The test for

reasonableness is not whether counsel could have done something more or

different; instead courts must consider whether the performance fell “within the

41
‘wide range of reasonable professional assistance.’” Chandler, 218 F.3d at 1313

n.12 (citation omitted). Because trial counsel convinced the sentencing judge of

these four mitigating circumstances, counsel’s conduct did not fall outside this

wide range of reasonable assistance.

In conclusion, given Strickland’s strong presumption that counsel’s

performance was reasonable and AEDPA’s deference to state court adjudications,

we cannot say the Alabama courts’ decisions–that Payne’s trial counsel was not

ineffective and thus his new appellate counsel was not ineffective for not raising

ineffective-trial-counsel claims–are contrary to, or an unreasonable application of,

Supreme Court precedent, or an unreasonable determination of the facts.

2. Prejudice Prong

Even if Payne did demonstrate that his trial and appellate counsel’s

performances were deficient under Strickland, Payne has not carried his burden to

show there is a “reasonable probability” that, but for his trial counsel’s deficient

performance, the result of the penalty phase would have been different and the

sentencer would not have imposed a death sentence. More specifically, “[i]n

assessing prejudice, we reweigh the evidence in aggravation against the totality of

available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct.

2527, 2542 (2003). Thus, “the question is whether there is a reasonable probability

42
that, absent the errors, the sentencer . . . would have concluded that the balance of

aggravating and mitigating circumstances did not warrant death.” Strickland, 466

U.S. at 695, 104 S. Ct. at 2069.18

We have already reviewed at length every bit of Payne’s relevant evidence at

the Rule 32 evidentiary hearing, whether by direct testimony or affidavits, which

now enables us to succinctly evaluate the prejudice prong. For several reasons, we

conclude Payne has not shown a reasonable probability that the result of the

penalty phase would have been different.

First, in the collateral proceedings, Payne simply presented no new expert

evidence as to his mental health or how his mental health affected his behavior or

mitigated his crimes, much less how it would have changed the result of his

penalty phase. Second, there was undisputed evidence of Payne’s tragic childhood,

the physical abuse he suffered and witnessed, and his being distraught over

learning he may not be the father of his child. There was also a wealth of evidence

of his early and longstanding alcohol abuse and his abuse of alcohol and drugs on

18
As to mental health evidence, the Rule 32 court concluded Payne had not shown
deficient performance prejudiced him. The Alabama Appeals Court said Payne had not shown
additional mental health evidence “would have changed the outcome.” Payne, 791 So. 2d at 401.
As to mitigation evidence generally, the Rule 32 court concluded Payne had not shown counsel’s
deficient performance prejudiced him, but the Alabama Appeals Court did not reach the
prejudice prong. See Payne, 791 So. 2d at 407-08.
On the prejudice issue, we need not decide whether we owe AEDPA deference to the
Rule 32 court’s decision or only to that of the Alabama Appeals Court because we conclude that
even under de novo review Payne has not carried his burden to establish the requisite prejudice.

43
the day of his crimes. Indeed, the sentencing judge already found four mitigating

circumstances based on the evidence trial counsel did present. The majority of

Payne’s evidence in the collateral proceedings was cumulative of what the jury and

judge heard at trial.

Third, as we recounted earlier and as the Alabama Appeals Court found, the

evidence of Payne’s guilt was “strong and convincing.” Payne, 683 So. 2d at 443.

And Payne’s murder of Brown was particularly brutal, with Brown being robbed

and then held hostage, only to be shot twice in the face with a shotgun at close

range and dumped in a creek. The strength of the evidence of both Payne’s guilt

and the aggravating nature of the crimes is great. Some more detailed mitigating

evidence about Payne’s childhood, family background, and substance abuse would

not have negated the aggravating nature of this abhorrent murder proven beyond

all doubt by the State. As we have noted, “‘[m]any death penalty cases involve

murders that are carefully planned, or accompanied by torture, rape, or

kidnapping.’” Grayson, 257 F.3d at 1228 (alteration in original) (emphasis

omitted). “In these types of cases, this court has found that the aggravating

circumstances of the crime outweigh any prejudice caused when a lawyer fails to

present mitigating evidence.” Dobbs v. Turpin, 142 F.3d 1383, 1390 (11th Cir.

1998). None of the mitigating circumstances present, nor any that could be found

44
in the more detailed explication of Payne’s background in the Rule 32 proceedings,

would have detracted significantly from the gruesome crimes Payne committed.

Significantly, the sentencing judge even found the four mitigating circumstances

detailed above, but still concluded the multiple mitigating circumstances did not

outweigh the aggravating nature of Payne’s crimes. Thus, under all the facts of

this case, Payne has not carried his burden to establish the requisite prejudice to

prevail on his ineffective-counsel claims.

IV. CONCLUSION

We affirm the district court’s denial of Payne’s § 2254 petition.

AFFIRMED.

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BARKETT, Circuit Judge, specially concurring :

I concur in the majority opinion with the exception of its conclusion that the

performance prong of the test established in Strickland v. Washington, 466 U.S.

668, 688, 691 (1984), was met in this case. Considering the defendant’s aberrant

behavior—for example, handing the victim the clip from his gun during the course

of the kidnapping—as well as his history of family abuse and chemical

dependence, I believe counsel was ineffective for failing to obtain the opinion of a

mental health expert who could have addressed Payne’s conduct and mental health

condition and informed counsel of any relevant mental health mitigation evidence.1

However, because I agree that Payne failed to show prejudice, I concur that he has

not met his burden under Strickland.

1
Both the majority and the state court point to the evaluation conducted by Dr. Maier to
support their respective findings that the performance of Payne’s trial counsel was not deficient.
However, as Maier himself noted, this court-directed examination focused on Payne’s
competency to stand trial and the potential for an insanity defense. It did not investigate other
mental health issues that might have been offered as mitigation evidence.

46