Terry Michael MINCEY, Petitioner-Appellant, v. Frederick J. HEAD, Respondent-Appellee, 206 F.3d 1106

TJOFLAT, Circuit Judge: In this case, Petitioner Terry Mincey seeks a writ of habeas corpus vacating his convictions for murder, aggravated battery, and armed robbery, and, alternatively, setting aside the death sentence he received for the murder. His principle grounds for relief (among twenty-five grounds) are that the police obtained incriminating statements from him after he asked for a lawyer, that the prosecution withheld evidence favorable to his defense, and that his attorneys rendered ineffective assistance of counsel. The district court denied relief. We affirm. I.

On the afternoon of April 12, 1982, Terry Mincey drove his motorcycle to Robert Jones’ trailer-home in the Cross Creek Trailer Park on the outskirts of Macon, Georgia. After parking his motorcycle, he joined Jones in Jones’ 1969 Ford Mustang automobile and together they drove to the Forest Place Trailer Park, located a short distance away, to meet Mincey’s girlfriend. When they arrived, they encountered “a bunch of people” standing at the entrance of the trailer park. One was Timothy Jenkins, who lived at the park with his wife of three weeks.

Mincey and Jenkins knew each other; Jones and Jenkins were barely acquainted. All three were the same age, around twenty-two. As they stood around talking, they decided to rob a drug dealer they knew in Macon. Each was armed: Mincey was carrying a .38 caliber semi-automatic Llama pistol, Jones a .12 gauge bolt-action shotgun, and Jenkins a .38 caliber Arminius revolver. With Jones behind the wheel, they drove in Jones’ Mustang to Macon. The drug dealer they intended to rob was not at his usual place of business, so they went to Jones’ trailer-home to plan their next step.

At the trailer-home, Mincey and Jenkins talked about their need for cash. While that discussion was taking place, Mincey and Jones, using a hacksaw blade, sawed off the barrel of Jones’s shotgun to twelve inches and altered the stock so that it resembled a pistol grip. The talk then turned to robbery, and they headed back to Macon in Jones’ Mustang. En route, they passed a Ramada Inn, and Jenkins suggested that they rob it. Mincey and Jones rejected the idea, however, noting that the area was too congested. An Exxon gas station appeared to be a good prospect, but it was closed.

They next considered a Kwickee Food Store, but Mincey quickly dismissed it; a store employee was one of Mincey’s trailer park neighbors. Time was running out; it was after 10:00 p.m. and most establishments were closing. As they passed a Mini Food Store, located at the corner of Houston Avenue and Hartley Bridge Road, Mincey had Jones turn the car around so that he, Mincey, could go in and “case” the store. Jones pulled into the parking lot, and Mincey entered the store and purchased a pack of gum.

After observing who was in the store, a cashier and two teenagers, Mincey returned to the car, and they parked on a dirt road a short distance away to discuss what to do next. Mincey proposed that they rob the Mini Food Store.

When asked what to do about the two teenagers, Mincey said (according to Jones and Jenkins, who copped pleas and testified for the prosecution at Mincey’s trial), “we ain’t going to leave no bunch of witnesses. [I will] have to waste them.” Jenkins replied, “we ain’t going back and shoot nobody,” to which Mincey responded, “if you are talking about not wasting nobody, you are in the wrong [expletive] car for that.” With that, the conversation ended, and they decided to rob the Mini Food Store. They drove there in silence and parked in front of the store, leaving the motor running.

Mincey and Jenkins got out of the car; Jones remained behind the wheel. Jenkins positioned himself beside an ice machine outside the store; from there he could see the counter area through the storefront window. Mincey entered the store. As he went through the door, Min-cey pulled his pistol out from under his coat. The two teenagers he had seen before, Mischell McCook, who was fourteen, and her brother Bubba, who was fifteen, were still in the store.

Brandishing his weapon, Mincey told them to get into the car parked outside; then he instructed Paulette Riggs, the cashier, to empty the contents of the cash register into the bag he was carrying. When the McCook siblings exited the store, Jenkins, who was still standing by the ice machine, told them to stay put. At that moment, Russell Peterman, a Bibb County firefighter, driving a Ford pick-up truck, pulled up to the gas pumps in front of the store and began filling his tank.

While he was pumping gas, Mincey escorted Riggs from the store at gun point, told her to stand beside Jenkins, and headed towards Peterman. As he approached Pe-terman from behind, Mincey said, “come go with me.” Peterman turned to see who was speaking and found Mincey pointing a gun at him. Surprised, Peterman failed to respond, and, as Peterman testified at the trial, Mincey exhibited a “flash of anger” and said “you think I’m joking, don’t you.” Mincey then fired once, hitting Peterman in the chest. Peterman hit the ground and lay there motionless but still conscious.

From point-blank range, Mincey fired again, at Peterman’s head. As the second shot rang out, the McCook siblings began running toward a field behind the store. Believing that the second shot had killed Peterman, Mincey headed for the Mustang. As he was going toward the car, Riggs started to run (in the direction of the field behind the store), and Mincey shot at her. The bullet entered her left ear, and she fell near a dumpster behind the store. Mincey walked to where Riggs was lying, shot her in the head, and ran to the Mustang. Jenkins was already in the car, and, after Mincey got in, the three men sped away.

As they drove west on Hartley Bridge Road, Jones asked Mincey if Riggs and Peterman were dead, and Mincey answered, “yes, they are dead. I know they are dead, I shot both of them.” Mincey then asked Jones and Jenkins what they had done with the two teenagers. Jenkins answered that they were “back there,” to which Mincey responded, “what you mean?

In the trunk?” Jenkins told him, “no, back at the store.” Realizing that the teenagers had gotten away, Mincey replied, “well, I just got a death sentence ... a murder rap for $40.” As the robbery was taking place, Larry Ballard, who lived next door to the Mini Food Store and had retired for the night, heard two gun shots. He got out of bed, told his wife to call the sheriff, and ran out of the house. Once outside, he heard someone scream and then another gun shot.

Moments later, he saw two white males get into a distinctive looking Mustang — the hood was missing, the car was covered with primer paint, and the muffler was loud — and speed away. At 10:50 p.m., two Bibb County Sheriffs officers arrived at the store, obtained a detailed description of the getaway car, learned from a passerby that it belonged to Jones, and, a short time later, determined his address. Meanwhile, Jones drove his Mustang to the Cross Creek Trailer Park. There, Mincey got out, retrieved his motorcycle, and rode it to his mother’s trailer-home at the Hill-N-Dale Trailer Park.

After letting Mincey out, Jones drove to the Forest Place Trailer Park and dropped Jenkins off. After that, Jones threw his shotgun into a nearby creek and headed west to the trailer-home of a close friend, Joey Holcomb, in adjoining Crawford County. A sheriffs office investigator who had been dispatched to the scene of the crime, Bob Boren, knew Jones, and was acquainted with his criminal record. Jones had done time in a Georgia penitentiary for crimes committed in Bibb County: armed robbery, burglary, and theft of automobile parts. Boren also knew Holcomb.

Suspecting that Holcomb might know of Jones’ whereabouts, Boren contacted Holcomb’s sister who said that her brother and Jones were still “running” together. She gave Boren directions to Holcomb’s trailer-home, and at 2:30 a.m. the following day, April 13, Boren found Jones there and placed him under arrest. After being advised of his Miranda rights, Jones told Boren about the robbery and shootings at the Mini Food Store. Jones said that Mincey was the triggerman and that, when he dropped Mincey off at the Cross Creek Trailer Park, Mincey had the gun and his share of the robbery proceeds in his possession.

Jones gave Boren a telephone number where Mincey could be reached and described Mincey’s motorcycle. Boren traced the phone number to a trailer-home at the Hill-N-Dale Trailer Park. Shortly after 4:15 a.m., the sheriff dispatched several officers to the trailer park. They located the trailer-home and Mincey’s motorcycle; it was parked in front. A short time after the officers arrived, a woman stepped out of the trailer-home. An officer asked her who she was, and she replied that she was Mrs. Mincey and that she was on her way to visit a neighbor.

The officer asked her if she knew where her son was, and she replied that Mincey was asleep inside. She inquired why the police were there, and the officer said that her son was a suspect in an armed robbery and a homicide. At the officer’s request, Mrs. Mincey went to the neighbor’s trailer-home, called her son on the telephone, and handed the phone to the officer. He informed Mincey that he was a suspect in a homicide and an armed robbery and asked him to step outside.

Mincey did so, was placed under arrest, and was taken by Boren and sheriffs office investigator Clifton Spires to the Bibb County Law Enforcement Center (the “LEC”). During the trip to the LEC, Boren read Mincey his Miranda rights. At the LEC, Mincey was informed of his rights once again. After that, he decided to talk and made several incriminating statements. Later in the day, the sheriffs office obtained a warrant to search Mrs. Mincey’s trailer-home. Inspector Boren executed the warrant at 4:20 p.m. With Mrs.

Min-cey’s assistance, he seized a .38 caliber Llama pistol, which had been placed in a plastic bread wrapper and hidden under the kitchen sink. He also obtained several articles of clothing and some shoes, all of which were blood-stained. Prior to the search of Mrs. Mincey’s trailer-home, Investigator Spires arrested Jenkins, read him his rights, and took him to the LEC. Like Jones, Jenkins quickly confessed to the events that had taken place at the Mini Food Store; he blamed Mincey for everything that happened. II. A.

On the afternoon of April 13, 1982, the Indigent Defense Coordinator for the Bibb County Superior Court appointed J. Robert Daniel to represent Mincey. The next day, at 4:30 p.m., a Bibb County grand jury returned a three count indictment against Mincey, Jones, and Jenkins, charging them with the murder of Paulette Riggs, the aggravated battery of Russell Peterman, and the armed robbery of the Mini Food Store. On April 22, Jones and Jenkins, pursuant to plea agreements with the Bibb County District Attorney, entered pleas of guilty in the Bibb County Superior Court.

Jones pled guilty to all three counts of the indictment, and Jenkins plead guilty to aggravated battery and armed robbery. With these pleas in hand and the promises of Jones and Jenkins to testify against Mincey, the district attorney informed Daniel that the State would be seeking the death penalty against his client. At the “first pretrial hearing” held in the superior court on April 23, Daniel informed the court that the State was seeking the death penalty, that he had met with Claude R. Cook, who had tried a capital case, and that Cook had agreed to serve as co-counsel.

Daniel also informed the court that he would be asking for the appointment of a psychiatrist to examine Mincey. Daniel had learned that Mincey was a frequent drug user, and he suspected that Mincey may have been using acid or LSD the day of the crime.

He also knew that Mincey had suffered serious “head injuries” a few years earlier and had experienced “blackouts.” On April 26, Daniel, using a form provided by the superior court, filed with the district attorney’s office a “Petition for Psychological Examination.” The petition asked that Mincey be evaluated for “[Competency to stand trial” and “[Responsibility for actions at the time of the alleged offense.” In response to a statement on the form, “[ojbservations which led to this request,” Daniel inserted the following; “

(1) Never injured anyone before; (2) history of drug abuse; (3) history of head injuries and blackouts.” Mincey signed the form, thereby assenting to the psychological evaluation and its submission to the court. The district attorney also signed the form. On April 28, the petition was presented to the superior court. The court granted the petition and ordered that Mincey be examined for (1) “competency to stand trial” and (2) “the degree of [his] criminal responsibility” by a “qualified psychologist and/or psychiatrist,” and that a report of the examination be provided to the court and counsel for the parties.

After the court entered this order, Daniel and Cook had second thoughts about having Mincey examined pursuant to the court order. They were concerned that, because the prosecutor would receive a copy of the examiner’s report, any incriminating information that Mincey might divulge to the examiner might find its way into the report and be used against him at trial. Until they could present the matter to the court and obtain a definitive answer, they decided to postpone Mincey’s court-ordered examination.

Meanwhile, on April 30, Daniel moved the court for the provision of funds so that an independent mental health expert could be employed to examine Mincey. At about the same time, a psychologist, Dr. Dan Johnson, as a favor to Mincey’s father, examined Mincey and reported his findings to Mincey’s attorneys. In his report, Dr. Johnson found no signs of organic brain damage or a basis for an insanity defense. At a pretrial conference on April 30, the court entertained several motions, one being the defendant’s April 28 motion for the provision of funds for an independent psychological examination.

The court deferred ruling on that motion pending the results of the court-ordered examination (if conducted). On May 3, at a hearing requested by Mincey’s attorneys, the court, Daniel, Mincey, and the prosecutor discussed whether, if Mincey submitted to the court-ordered examination, any incriminating information he provided the examiner could be used against him at trial and, if so, whether the court should limit the scope of the questions the examiner could put to Mincey.

The court refused to limit the questions, but stated that Mincey could invoke his Fifth Amendment right against self incrimination during the examination. It reserved ruling, however, on whether Daniel could be present while the examiner questioned Mincey. Following the May 3 hearing, Mincey’s attorneys decided that Mincey should submit to the court-ordered examination. The attorneys were concerned that if the examination did not go forward, they might subsequently be accused of providing constitutionally ineffective assistance of counsel. To avoid that problem, they had Min-cey submit to the examination.

On May 17, the forensic team wrote the court, with copy to counsel, that it had examined Mincey and found him competent to stand trial. It also concluded that he was sane at the time of the offense. The team reached these conclusions because Mincey showed “no evidence of thought disorder,” he had received “no previous psychiatric treatment or mental health care,” “his speech was logical, relevant and coherent,” and he was “in good contact with reality.” The team’s “most significant finding [was Mincey’s] abuse of drugs and his history of antisocial behavior.” B.

Georgia law recognizes the defenses of insanity and delusional compulsion. To establish the former defense, the defendant must establish by a preponderance of the evidence that, “at the time of the act ... constituting the crime, [he] did not have mental capacity to distinguish between right and wrong in relation to such act....” Ga.Code Ann. § 16-3-2 (1999); Grace v. Hopper, 566 F.2d 507, 510 (5th Cir.1978) (stating that under Georgia law insanity is an affirmative defense that the defendant must prove by a preponderance of the evidence); Adams v. State, 254 Ga. 481, 330 S.E.2d 869, 872 (1985) (same).

To establish the latter defense, the defendant must show that “at the time of the act ... [he], because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.” Ga.Code Ann. § 16-3-3 (1999); Freeman v. State, 132 Ga.App. 742, 209 S.E.2d 127, 130 (1974) (holding that in order to claim such a defense, the defendant must show both that the act was the result of a delusion and that the defendant acted in such a way that the facts, as he believed them to be, would have justified his act).

In light of the forensic team’s findings and their investigation into what occurred at the Mini Food Store on the night of the crime, Mincey’s attorneys concluded that it would not be possible to establish either of these defenses. They also decided that attempting to mitigate Mincey’s criminal responsibility for his acts by implying that he was strung out on acid on the night of the crime might backfire.

Mincey had told someone at the jail that he had been taking acid that day and wanted to present an insanity defense based on his use of acid, and counsel were concerned that if they relied on excessive drug use as an excuse for Mincey’s conduct, the prosecutor would destroy their defense. Thus, counsel’s strategy in the guilt phase of the trial would be to put the State to its proof and attempt to create a reasonable doubt as to whether Mincey, as opposed to Jenkins, had killed Riggs (since both were carrying guns that used .38 caliber ammunition). Mincey went to trial on August 23, 1982.

On the morning of August 26, the jury found him guilty as charged. The penalty phase of the trial began and ended the same day; the jury, by a unanimous vote, returned the death penalty. The court, being bound by the verdict, then sentenced Mincey to death. C. Pursuant to Georgia’s unified appeal procedure, Ga.Code Ann. § 17-10-36, Min-cey appealed his convictions and death sentence to the Georgia Supreme Court. In his appeal, Mincey asserted two of the claims that we discuss in

part III, infra: (1) that he was convicted on the basis of evidence obtained following a warrantless arrest proscribed by the Fourth Amendment, and (2) that he was convicted on the basis of statements he made to the police after the police denied his request for a lawyer, in violation of the Fifth Amendment. The Georgia Supreme Court rejected Mincey’s claims of error and affirmed. See Mincey v. State, 251 Ga. 255, 304 S.E.2d 882 (1983). Mincey then petitioned the United States Supreme Court for a writ of certiorari. The Court denied his petition on November 7, 1983. See Mincey v.

Georgia, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983), reh’g den., 464 U.S. 1064, 104 S.Ct. 749, 79 L.Ed.2d 206 (1984). On March 5, 1984, Mincey, represented by counsel, Michael R. Hauptman, petitioned the Butts County Superior Court for a writ of habeas corpus. In his petition, Mincey' claimed that his attorneys, Daniel and Cook, denied him his Sixth Amendment right to the effective assistance of counsel at both the guilt and penalty phases of his trial and on appeal.

He alleged that counsel failed to investigate the case or to call witnesses who would have provided evidence favorable to Mincey in both phases of the trial. In the brief he submitted to the court in support of Mincey’s petition, Hauptman was more specific concerning counsel’s failures: There was substantial evidence that Petitioner suffered from a head injury as a result of a motorcycle collision. As a result of this collision, Petitioner had a personality change, in which he would become moody and often explode into a violent outrage.

It was this very type of outrage that one of the victems [sic] testified to at trial. Notwithstanding this, counsel had a minimal psychological evaluation performed on Petitioner. Defense counsel reviewed Petitioner’s medical records and he found no evidence of an [sic] neurological problems. Defense counsel based his expertise on his prior handling of personal injury claims. However, he had no formal training in this highly complex area of law. Counsel did not seek a physical examination of petitioner. Nor, did counsel present any psychological experts to testify on behalf of the Petitioner.

Virtually, this entire defense was left untouched. Certainly, there [can be] no more mitigating evidence than some sort of organic brain damage or mental deficiency. The superior court held an evidentiary hearing on Mincey’s petition. During the hearing, Daniel and Cook testified in response to Mincey’s ineffective assistance claim. After considering their testimony and other evidence adduced, the court found no merit in Mincey’s ineffective assistance claim or in any of the other allegations in the petition and, in a formal order entered on February 7, 1988, denied relief.

The Georgia Supreme Court subsequently denied Mincey’s application for a certificate of probable cause to appeal. On October 3, 1988, the United States Supreme Court denied his petition for a writ of certiorari. See Mincey v. Georgia, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 155 (1988), reh’g den., 488 U.S. 977, 109 S.Ct. 522, 102 L.Ed.2d 555 (1988). On February 9,1989, Mincey, represented by Michael Garrett and M. Elizabeth Wells, petitioned the United States District Court for the Middle District of Georgia for a writ of habeas corpus. See 28 U.S.C. § 2254 (1994).

His petition in-eluded claims that he had not presented to the Georgia courts. One of those claims was that the prosecution had withheld material favorable to the defense — specifically, hand written notes the prosecutor made of a conversation he had (prior to Mincey’s trial) with a member of the Central State Hospital forensic team that evaluated Min-cey’s competency to stand trial and his sanity at the time of the offense — in disregard of the Supreme Court’s directive in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Concluding that the Georgia courts would still adjudicate the merits of these claims, the district court dismissed Mincey’s petition without prejudice for failure to exhaust his state remedies. Accordingly, on December 7, 1989, Min-cey, now being represented by James W. Purcell, Jeanne M. Hyder, Mark E. Olive, and Gary A. Alexion, once again petitioned the Butts County Superior Court for habeas corpus relief. On November 30,1993, Mincey amended his petition, and the court subsequently heard oral argument on the State’s motion to dismiss the petition as successive.

Of particular concern at the hearing was the question whether Mincey could have filed his Brady claim — involving the prosecutor’s notes— on March 5, 1984, when he filed his first habeas petition. The court concluded that Mincey could have raised his Brady claim at that time. The court further concluded that the remaining claims in Mincey’s petition were barred either because, like the Brady claim, they could have been raised earlier or they had already been litigated on appeal or in the first habeas proceeding.

The.court, on March 3, 1994, therefore dismissed Mincey’s petition on the ground that it was successive and, as such, barred by Georgia’s abuse of the writ statute. See Ga.Code Ann. § 9-14-51 (1993). On October 27, 1994, the Georgia Supreme Court denied Mincey’s application for a certificate of probable cause. On June 19, 1995, the United States Supreme Court denied Mincey’s petition for a writ of cer-tiorari. See Mincey v. Thomas, 515 U.S. 1147, 115 S.Ct. 2588, 132 L.Ed.2d 836 (1995), reh’g den., 515 U.S. 1180, 116 S.Ct. 25, 132 L.Ed.2d 907 (1995). D.

On April 24, 1996, Mincey, having exhausted all of his claims, returned to the United States District Court for the Middle District of Georgia and filed a new petition for habeas corpus relief. His petition, signed by attorneys Michael Garrett and M. Elizabeth Wells, contained nineteen claims of constitutional error. On September 19, 1996, Mincey amended his petition, adding six claims, for a total of twenty-five.

After the state responded to Mincey’s petition, the district court concluded that, based on the State’s response and the records of the state court proceedings (submitted with the response), it could dispose of Mincey’s claims without an evidentiary hearing, and it did so. On May 7, 1997, the court, in a comprehensive order, rejected each of Mincey’s claims and entered judgment for the State. Mincey thereafter moved the court pursuant to Rule 59(

e) of the Federal Rules of Civil Procedure to alter or amend its judgment. Mincey asked the court to revisit its holding that he had procedurally defaulted his Brady claim (involving the prosecutor’s notes); given an evidentiary hearing, he represented, he could show “cause” for the procedural default and resulting “prejudice.” On August 26,1997, having concluded that an evidentiary hearing was unnecessary, the district court denied Mincey’s Rule 59(

e) motion. On September 26, 1997, Mincey appealed both the May 7 judgment and the August 26 order. A month later, the district court entered an order substituting Amy Gershenfeld Donnella and Robert Rosen-thal for Garrett and Wells as Mincey’s counsel. We conclude that twenty-one of Mincey’s twenty-five claims are either procedurally defaulted (in which case we decline to address their merits) or are merit-less, and therefore, dispose of them in the margin. We review the remaining claims in

part III infra. In subpart A, we consider Mincey’s claim that his warrantless arrest violated the Fourth Amendment; therefore, Mincey contends, the evidence thereafter seized (pursuant to a search warrant) from his mother’s trailer-home and the statements he made to the police following his arrest should have been suppressed as fruit of a poisonous tree. In subpart B, we consider the claim that Min-cey was convicted on the basis of statements he made to the police after he asked for, and was denied, the presence of a lawyer, in violation of the Fifth Amendment.

In subpart C, we consider whether the prosecutor denied Mincey due process of law by not turning over to the defense prior to trial, as required by Brady, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, the notes he had made during a meeting with a member of the forensic team following its evaluation of Mincey’s competency to stand trial and his sanity at the time of the robbery and shootings. Finally, in subpart D, we consider whether Mincey was denied his Sixth Amendment right to the effective assistance of counsel during both the guilt and penalty phases of his trial. III. A.

In order to review Mincey’s Fourth Amendment claim, we must conclude that he did not have a full and fair opportunity to litigate his claim in a state court proceeding. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Stone instructs that where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his-trial.

In this context the contribution of the exclusionary rule, if any, to the ef-fectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force. Id. 428 U.S. at 494-95, 96 S.Ct. at 3052-53 (footnotes omitted). For a claim to be fully and fairly considered by the state courts, where there are facts in dispute, full and fair consideration requires consideration by the fact-finding court, and at least the availability of meaningful appellate review by a higher state court.

Where, however, the facts are undisputed, and there is nothing to be served by ordering a new evidentiary hearing, the full and fair consideration requirement is satisfied where the state appellate court, presented with an undisputed factual record, gives full consideration to defendant’s Fourth Amendment claims. Tukes v. Dugger, 911 F.2d 508, 513-14 (11th Cir.1990) (quoting Morgan v. Estelle, 588 F.2d 934, 941 (5th Cir.1979)); see also Redden v. Wainwright, 558 F.2d 784, 786 (5th Cir.1977).

The record in this case indicates beyond question that Mincey received a full and fair hearing in the Bibb County Superior Court on his claim that the police arrested him in violation of the Fourth Amendment and, therefore, that the evidence obtained following his arrest — the tangible evidence seized from his mother’s trailer-home and the statements he made to the police — should have been suppressed as fruit of an illegal search. Prior to trial, on July 1 and 2, 1982, the court held a hearing on his motion to suppress. Six witnesses testified at the hearing, including Mincey.

Following the hearing, the court entered a written order denying his motion. The order contained comprehensive findings of fact and con-eluded the officers had probable cause to arrest Mincey and that, since exigent circumstances existed, they did not have to obtain an arrest warrant. On direct appeal, the Georgia Supreme Court gave full consideration to the superior court’s ruling and agreed that the officers had probable cause to make the arrest. See Mincey, 304 S.E.2d at 887-89.

The court did not consider whether the presence of exigent circumstances rendered a warrant unnecessary because the arrest was made in a common area of the Hill-N-Dale Trailer Park, in front of Mrs. Mincey’s trailer-home. See id. at 888 (citing United States v. Watson, 423 U.S. 411, 423-24, 96 S.Ct. 820, 827-28, 46 L.Ed.2d 598 (1976) (holding that an officer may make a warrantless arrest in a public place if the officer has probable cause to believe that the suspect has committed a felony)).

Because we have satisfied ourselves that Mincey had a full and fair opportunity to litigate his Fourth Amendment claim in the Georgia courts, we do not review it. B. Mincey contends that the police obtained incriminating statements from him after he asked for a lawyer, in violation of the Fifth Amendment and the rules laid down by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981) (collectively “Miranda rights”).

Accordingly, Mincey argues that the trial court should have granted his motion to suppress the statements. 1. Unless otherwise indicated, at the pretrial suppression hearing, the parties did not dispute the following version of the events surrounding Mincey’s statements to the police. When Mincey was arrested outside his mother’s trailer-home, he was handcuffed and Boren placed him in the back of Spires’ patrol car. Spires drove the car and Boren sat in the back seat with Mincey. As the three men began their drive to the LEC, Boren began advising Mincey of his Miranda rights.

Mincey interrupted him and said that he knew his rights. After the interruption, Boren read Mincey his rights in full. He then asked Mincey if he understood his rights and Mincey said that he did. At this point, Mincey claimed, and Boren and Spires denied, that he told the officers to “go ahead and run the lawyers.” When the three men reached the LEC at approximately 5:15 a.m., Boren and Spires took Mincey to an investigation room; Boren then exited, leaving Spires and Mincey alone. Mincey had known Spires for five years — since 1977, when Spires questioned him about an armed robbery.

As soon as Boren left the room, Spires read Mincey his Miranda rights, using a waiver of rights form. Mincey said that he understood them. Spires then handed the form to Mincey and asked him to read and sign it. Mincey read the form, taking approximately three minutes, but refused to sign it, with these words, “I’m not going to sign anything. I signed the last time. I’m not going to sign anything this time. I did time the last time [referring to his encounter with Spires following the 1977 armed robbery].... You had me for armed robbery before.... Man I’m looking at two murders this time.

I’m not signing anything.” Spires then asked Mincey if he would sign the form if part of it were deleted. Mincey pointed to the phrases “fully understand my right to an attorney” and “to make a statement to the officers,” and Spires crossed them out. Despite these deletions, Mincey still refused to sign the form. “I told him, you know, that I needed a lawyer before I did anything.” Spires acknowledged that Min-cey refused to sign the form but denied that Mincey said he needed a lawyer.

When his attorney asked him to explain why he told Spires to delete the two phrases from the form, but still refused to sign it, Mincey answered “because I knew I needed a lawyer.” After he refused to sign the waiver form, Mincey told Spires about the robbery of the Mini Food Store and the shootings; precisely what he said, however, was not brought out at the hearing. When asked why he was willing to discuss those events with Spires, Mincey testified at the suppression hearing, “I don’t know, I just saw that I wasn’t going to get a lawyer so I figured I had better talk to him because I knew him.

And I didn’t too much want to talk to Boren because he was playing, you know, the rough side of it.” After Mincey spent approximately twenty minutes with Spires, Boren took him to a conference room; there, Boren and Deputy Sheriff Michael Smallwood interviewed Mincey for about forty-five minutes. Before the interview began, Smallwood read Mincey his rights. Mincey responded “I know my rights.” After that, Boren and Smallwood inquired about the events that had taken place at the Mini Food Store. Mincey acknowledged that he had been to the store with Jones and Jenkins and admitted shooting Peterman.

When the officers asked him if he would give them a signed statement, Mincey replied “I’m not going to sign anything, I’m not going to give you anything, nothing written ... I need forty-five lawyers to get out of this stuff.” This was the first and only time during the interview with Boren and Smallwood that Mincey uttered the word “lawyer.” After Mincey made this statement, the officers ceased their questioning.

On cross-examination, Mincey testified that the forty-five lawyer comment “was a wild exaggeration, you know, nothing really specific in it,” and said that “I had told them all at one time or another that I needed a lawyer.

I didn’t bring it straight out and say, you know, go get me one; I just told them, you know, I felt like I needed a lawyer.” Later, in response to further cross-examination, Mincey acknowledged that he knew that he had a right to remain silent and to ask for counsel at any time during his interviews, first with Spires and then with Boren and Smallwood; that his rights were read to him several times; that he was not forced to respond to the officers’ questions about the events at the Mini Food Store; that his statements to the officers were made freely and voluntarily; and that he refused to sign anything because he drew a “sharp distinction” between what he was willing to say and what he was willing to sign.

Finally, he answered “yes” to the question: “you knew that you had a constitutional light as an American citizen not to open your mouth and say one word without a lawyer?” On August 13, 1982, ten days before Mincey went to trial, the court, in a written order containing findings of fact and conclusions of law, denied his motion to suppress the incriminating statements he made to Spires, Boren, and Smallwood. The court found that both Boren and Spires had read Mincey his rights and that Mincey, who was “knowledgeable due to his numerous past contacts with the law enforcement process,” fully understood his rights.

That is, he understood that he had a right to the presence of counsel before the officers questioned him, or at any time during the interview, and that (with or without counsel) he had the right to remain silent. The court found that Mincey waived both rights, and answered the officers questions, knowing that they could be used against him.

Addressing the significance of Mincey’s request that Spires delete certain portions of the waiver of rights form and Mincey’s subsequent refusal to sign the form, the court found that such conduct did not constitute a request for counsel or an invocation of the right to remain silent; rather, it demonstrated that Mincey was simply “toying with Investigator Spires.” Mincey “knew that it would be easier to deny his statements if they were not in writing and that is why he refused to sign the waiver form.” The court acknowledged that Mincey indicated “in the patrol car and again at the LEC that he wanted a lawyer,” but found that he “never asked for a lawyer. [He] knew if he asked, he would get one immediately ... [and his] reference to needing 45 lawyers made towards the end of his interview [with Boren and Smallwood] was not such a request but merely an offhand remark.” Given this factual background, the court concluded that Mincey’s statements were made freely and voluntarily, and therefore, were admissible.

On direct appeal, the Georgia Supreme Court concluded that the trial court’s findings of fact had support in the record and that the court properly concluded that Mincey’s statements were made “freely and voluntarily” after a waiver of Miranda rights. See Mincey, 304 S.E.2d at 889.

Later, in denying Mincey habeas corpus relief, the district court adopted the state trial court’s findings of fact, according them a presumption of correctness pursuant to 28 U.S.C. § 2254(d), and also con-eluded that Mincey’s statements were made freely and voluntarily, after being fully advised of his rights. 2- Mincey seeks habeas corpus relief under the provisions of 28 U.S.C. § 2254 in effect prior to the time the President signed the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.

No. 104-134, 110 Stat. 1214 (1996) (the “AED-PA”) into law, because he filed his habeas petition before that signing took place, We agree. In this case, as noted above, the district court presumed the state trial court’s findings of historical fact to be correct and adopted them as its findings of historical fact. The district court was entitled to indulge the presumption because the state court held a “full, fair, and adequate hearing” on Mincey’s claim (regarding the incriminating statements he made to the police) and the record before that court fairly supported its findings of fact.

See 28 U.S.C. § 2254(d); Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir.1995); Weeks v. Jones, 26 F.3d 1030, 1033-34 (11th Cir.1994). In short, we are bound by the state court’s findings of historical fact. We review de novo, however, the district court’s resolution of questions of law and of mixed questions of law and fact. See Cunningham v. Zant, 928 F.2d 1006, 1011 (11th Cir.1991). Whether a suspect in custody has been informed of his Miranda rights is a question of fact. See United States v. Barbour, 70 F.3d 580, 584 (11th Cir.1995).

Whether Mincey knowingly and intelligently waived his rights to the presence of counsel and to remain silent, and, if so, whether his subsequent admissions to the police were voluntary are questions of law. Id. Mincey does not dispute the trial court’s finding that he was fully advised of his Miranda rights and that he understood them. He knew from the outset — when Boren read him his rights in the back seat of the patrol car — that he did not have to submit to questioning and that he had the right to an attorney upon demand.

Min-cey contends, instead, that he did not waive his right to remain silent and his right to counsel. His claim that he did not waive his right to remain silent is without merit. Min-cey admitted at the suppression hearing that he spoke to the officers of his own free will.

As the trial court found at the conclusion of the suppression hearing, “[Mincey] was willing to talk and knew that any oral communications could be used against him. [He] also knew it would be easier to deny his statements if they were not in writing and that is why he refused to sign the waiver form.” And, as the district court correctly observed, “[t]here is no evidence [in the record of the suppression hearing] that [Mincey] was bullied or tricked into answering questions, or that any promises were made.” Given these circumstances, it seems to us that what Mincey is really contending is that he invoked his right to the presence of counsel and that, after he did so, the officers continued their questioning.

When a suspect undergoing custodial interrogation asserts his right to counsel, the interrogation must cease. See Miranda, 384 U.S. 436 at 474, 86 S.Ct. 1602 at 1628, 16 L.Ed.2d 694. “Although a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994) (internal quotation marks and citation omitted).

The Court in Davis found the statement, “Maybe I should talk to a lawyer,” not to be an unequivocal request for counsel. Id. at 462, 114 S.Ct. at 2857. Such a statement, the Court stated, extended Miranda’s prophylactic rule too far, requiring police officers to guess whether a suspect wanted a lawyer present. The Court therefore concluded, “[i]f the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.” Id. at 461-62, 114 S.Ct. at 2356.

The state trial court found that Mincey “indicate[d] in the patrol car and again at the LEC that he wanted a lawyer ... but that he never asked for a lawyer.” The court was apparently referring to

(1) Mincey’s statement, “go ahead and run the lawyers,” which Mincey claims to have made en route to the LEC, and

(2) Mincey’s statement to Boren and Smallwood that “it would take forty-five lawyers to get out of this [expletive].” Since Boren and Smallwood (and Mincey) agree that the interview ended immediately after Mincey made the second statement, Mincey’s claim — that the officers (first Spires, then Boren and Smallwood) questioned him after he asked for an attorney — turns on whether “go ahead and run the lawyers” constituted an “unambiguous or unequivocal request for counsel.” Davis, 512 U.S. at 462, 114 S.Ct. at 2356. Obviously, it did not.

In his brief, Mincey argues that his refusal to sign the form constituted — was the equivalent of — an immediate demand for counsel, and that Spires should have recognized it as such. We are not persuaded. Although a refusal to sign a waiver of rights form may indicate that the suspect is invoking his right to counsel, it is not conclusive proof that he has invoked the right. See North Carolina v. Butler, 441 U.S. 369, 375-76, 99 S.Ct. 1755, 1758-59, 60 L.Ed.2d 286 (1979); U.S. v.

Boon San Chong, 829 F.2d 1572, 1574 (11th Cir.1987) (“Courts have for some time rejected the argument that a refusal to sign a waiver form automatically renders subsequent questioning improper.”).

In this case, the trial court, in determining whether Mincey had invoked his right to counsel, gave due consideration to his refusal to sign the waiver of rights form and found, in light of all of the surrounding circumstances, see Edwards, 451 U.S. at 482, 101 S.Ct. at 1884; Butler, 441 U.S. at 374-75, 99 S.Ct. at 1758, that he “was toying with Investigator Spires.” In addition, the court found that Mincey “drew a sharp distinction between what he was willing to say and what he was willing to sign.” Mincey was willing to talk to the officers in the absence of counsel; “it would be easier [for him] to deny his statements if they were not in writing and that is why he refused to sign the waiver form.” C.

Mincey’s third claim concerns a prosecutor’s obligation to give the defense exculpatory evidence in his possession or under his control, as required by the Due Process Clause and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny (the “Brady rule”). In Brady, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. 373 U.S. at 87, 83 S.Ct. at 1196-97.

Mincey contends that the prosecutor broke the Brady rule when he withheld from the defense notes he had made during a pretrial interview with a member of the Central State Hospital forensic team that evaluated Mincey to determine his competency to stand trial and his sanity at the time of the offense. In its report dated May 17, 1982, the forensic team found no evidence of mental illness: Mincey could “communicate with his lawyer[] in a sufficiently rational manner to aid in his defense and ... [had] an understanding of the legal proceedings against him....

As to his criminal responsibility ... he was able to distinguish between right and wrong and was not acting under the influence of a delusional compulsion.” The forensic team’s “most significant finding [was] his abuse of drugs and his history of antisocial behavior.” The team had “no recommendations for treatment.” After receiving a copy of the forensic team’s report, the prosecutor met with the team’s psychiatrist, Dr. James Craig. During that meeting, the prosecutor made some notes.

The following notations, Min-cey contends, would have aided his attorneys in the conduct of his case at trial, in both the guilt and penalty phases: D said to them on day of killing that high on quaaludes or L.S.D. — didn’t say where got.... Said took L.S.D. and quaaludes all the time[.] Over period of time.... Brain damage in auto accident. Reflexes more active on 1 side. This indicates motor muscle power differential. It is possible he might now be more susceptible to irrational behavior. Mincey raised his Brady claim for the first time in his first habeas petition to the district court.

The court dismissed the petition because Mincey had not exhausted the claim (and other claims as well). Min-cey thereupon returned to the Butts County Superior Court with a second habeas petition, which included his Brady claim. The superior court, however, did not consider the claim. Instead, the court dismissed the petition as successive and thus barred by Georgia law. Following this disposition, Mincey filed a second habeas petition in the district court. The petition contained his Brady claim. It read in relevant part as follows: CLAIM XIV THE DISTRICT ATTORNEY ...

FAILED TO DISCLOSE TO DEFENSE COUNSEL EXCULPATORY INFORMATION REGARDING PETITIONER’S MENTAL HEALTH IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT [sic] TO THE UNITED STATES CONSTITUTION This claim is evidenced by the following facts: 2. Mr. Mincey was denied his constitutional rights ... when the District Attorney failed to disclose to defense counsel exculpatory information regarding [his] mental health. 3. In May, 1982, Mr. Mincey was evaluated by the out patient forensic evaluation team from Central State Hospital. The team included a psychiatrist, a psychologist and a forensic nurse.

Shortly after the evaluation, the members of the team met with the District Attorney ... and reported their findings. Notes of this conversation were made and kept in the file of the District Attorney. These notes were hidden in the file of the District Attorney’s file until post-conviction counsel discovered them through the State Open Records Act. 4. The hidden notes reveal that Dr. James Craig, the psychiatrist, found that Mr. Mincey suffered from brain damage which was the result of a motor vehicle accident in 1980. Specifically, the notes state: Brain damage in auto accident. Reflexes more active on 1 side.

This indicates motor muscle power differential. It is possible he might now be more susceptible to irrational behavior. [Notes of District Attorney], In addition, the hidden notes indicate that Mr. Mincey was under the influence of LSD and quaaludes on the night of the crime and that he had a substantial history of LSD use. 5. In its final report to the court, via a letter dated May 17, 1982, the Central State Hospital evaluators only discussed Mr. Mincey’s competency to stand trial. The letter omits any mention that Mr.

Mincey suffered from brain damage and says nothing about the LSD and quaa-lude use on the night of the crime. Instead of commenting on the effects of Mr. Mincey’s use of hallucinogenic drugs on the night of the offense, the State evaluators mention only that Mr. Mincey had abused drugs. 6. Thus, the Central State Hospital evaluators told the District Attorney that Mr. Mincey suffered from brain damage, but refused to disclose this information to the Court or to defense counsel. This action clearly violates Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Moreover, the District Attorney knew that the report to the court and defense counsel was misleading and had left out evidence which would have been critical to the defense of the case. Rather than fulfill its obligations to disclose this exculpatory evidence, the District Attorney hid his notes containing the real diagnosis for over eight years until they were discovered by post-conviction counsel. 8.

In order to make out a successful Brady claim, Petitioner must show: (1) evidence in the possession of the state was not disclosed to the defense; (2) the suppressed evidence was favorable to the defense; and (3) the suppressed evidence was material. Jacobs v. Singletary, 952 F.2d 1282, 1288 (11th Cir.1992).... Evidence is material when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles v. Whitley, 115 S.Ct. at 1565 (quoting United States v. Bagley, 473 U.S. at 678, 105 S.Ct. 3375).

And a “ ‘reasonable probability’ is a[sic] probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. at 682, 105 S.Ct. 3375. 9. Mr. Mincey has satisfied the Jacobs requirements. Notes in the possession of the district attorney were not disclosed to Mr. Mincey until post-conviction when the Open Records Act was enacted; these notes are favorable to Mr. Mincey; these notes are material to Mr. Mincey’s mental health claims. Had this evidence been disclose to Mr. Mincey in a timely fashion, he would not have been convicted and sentenced to death.

In its response to Mincey’s petition, the State represented that the Butts County Superior Court had dismissed Claim XIV because it was barred by Georgia’s successive petition rule; accordingly, the State asked the district court to dismiss the claim as procedurally defaulted. Mincey did not seek leave of court to amend his petition to allege that he had defaulted the claim but that he could show cause for the default and resulting prejudice.

Because the record demonstrated conclusively that the state superior court had dismissed Mineey’s Brady claim as successive, the district court, honoring Georgia’s procedural default rule, dismissed the claim on May 7, 1997, without reaching the merits. Mincey thereafter moved the court pursuant to Rule 59(

e) to alter or amend the judgment, contending that, if given an evi-dentiary hearing, he could demonstrate cause for the procedural default of his Brady claim and resulting prejudice. The court assumed that Mincey could show cause for defaulting the claim but that his showing of resulting prejudice was inadequate as a matter of law. The court, on August 26, 1997, therefore adhered to its earlier ruling rejecting the claim. We review the district court’s treatment of Mincey’s Brady claim in two parts.

First, we consider whether the court erred in dismissing the claim as procedurally defaulted when it entered its final judgment denying Mincey habeas relief. Then, we consider whether the court abused its discretion when it denied Mincey’s Rule 59(

e) relief. 1. We review de novo the district court’s conclusion (in its order granting the State final judgment) that Mincey procedurally defaulted his Brady claim, and therefore, it could not be disposed of on the merits under federal law. See Lusk v. Singletary, 112 F.3d 1103, 1105 (11th Cir.1997). It is well-settled that federal habeas courts may not consider claims that have been defaulted in state court pursuant to an adequate and independent state procedural rule, unless the petitioner can show “cause” for the default and resulting “prejudice,” or “a fundamental miscarriage of justice.” See Coleman v.

Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991); McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992). Under Georgia law, a prisoner seeking a writ of habeas corpus vacating his conviction must present all of his grounds for relief in his original petition. See Ga.Code Ann. § 9-14-51 (1993). The Georgia Supreme Court has explained that the purpose of this procedural rule is to bar successive petitions. See Hunter v. Brown, 236 Ga. 168, 223 S.E.2d 145, 146 (1976). Moreover, we have repeatedly recognized that not complying with this rule precludes federal habeas review.

See McCoy, 953 F.2d at 1257-62; Lancaster v. Newsome, 880 F.2d 362, 372-74 (11th Cir.1989); Presnell v. Kemp, 835 F.2d 1567, 1773 (11th Cir.1988). Mincey failed to comply with Georgia’s successive petition rule on March 5, 1984 when he neglected to present his Brady claim in his original habeas petition to the Butts County Superior Court.

The district court was therefore precluded from addressing the merits of Mincey’s Brady claim unless he showed “cause” for not raising it in his original habeas petition to the Butts County Superior Court and resulting prejudice, or that a manifest injustice would result if he were denied relief. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2564-65. Mincey failed this test.

When faced with a State response that he had defaulted his Brady claim by not presenting it in his first state habeas petition, Mincey made no attempt to avoid the consequence of the default by trying to show cause and prejudice or manifest injustice in either a motion for leave to amend his petition or some other communication to the court. Instead, he simply sat on his claim as pled in his petition. Under the circumstances, we could hardly fault the district court for not entertaining his claim on the merits.

In sum, we find no error in the district court’s decision to deny the claim as procedurally defaulted. 2. Next, we consider whether the district court abused its discretion when it refused to alter or amend the May 7 final judgment under Rule 59(

e) and grant Mincey relief on his Brady claim. The decision whether to alter or amend a judgment pursuant to Rule 59(

e) is “committed to the sound discretion of the district judge.” American Home Assurance Co. v. Glenn Estess & Assocs., 763 F.2d 1237, 1238-39 (11th Cir.1985). As noted above, Mineey used his Rule 59(

e) motion to contend for the first time that, given an evidentiary hearing in the district court, he could demonstrate cause for having defaulted his Brady claim and resulting prejudice. As cause, Mineey represented that he was not able to gain access to the prosecutor’s file, which contained the notes at issue, until a 1989 Georgia Supreme Court decision, Parker v.

Lee, 259 Ga. 195, 378 S.E.2d 677 (1989), rendered law enforcement files available to the public through a request pursuant to the Georgia Open Record Act, Ga.Code Ann. § 50-18-72 to - 76; hence, he could not have included his Brady claim in his first state habeas petition.

As prejudice, Mineey represented that the information disclosed by the notes would have led to the discovery of evidence that would have enabled him to establish, in the guilt phase of the trial, that he was either insane at the time of the offense or functioning with “diminished capacity” and therefore incapable of committing malice murder; and, in the penalty phase, that his mental condition mitigated against the imposition of the death penalty.

According to Mineey, the prosecutor’s notes would have enabled him to show that his 1980 motorcycle accident caused brain damage and that such damage coupled with his excessive use of drugs rendered him criminally unaccountable for his actions at the Mini Food Store on the night of April 12, 1982. Alternatively, the evidence would have convinced the jury to reject the death penalty in favor of a life sentence. The district court assumed that Mineey could demonstrate cause for his procedural default, thus eliminating the need for an evidentiary hearing on Sykes ’ “cause” prong.

It then proceeded to the question whether the evidence Mincey had proffered satisfied Sykes ’ “prejudice” prong — that is, whether defense counsel’s possession of the prosecutor’s notes would have created “a reasonable probability that the result of [his] trial would have been different if the [notes] had been disclosed to the defense.” Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 1952, 144 L.Ed.2d 286 (1999) (internal quotation marks omitted).

Stated another way, “ ‘the question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence,’ ” Strickler, 119 S.Ct. at 1952 (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995)), or “whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” Id. (quoting Kyles, 514 U.S. at 435, 115 S.Ct. at 1566).

Mincey’s proof that he was unaccountable for his actions comes in the form of an affidavit of Dr. James Larson, a clinical psychologist practicing in Pensacola, Florida. In his affidavit, which was executed on September 28, 1993 and presented to the Butts County Superior Court in support of Mincey’s second habeas petition, Dr. Larson said this: As a result of Mr.

Mincey’s serious head injury suffered during his motorcycle accident in 1980, it is my opinion that at the time of the offense Terry Mincey would have met the criteria for Organic Mental Disorder, Not Otherwise Specified and probably an additional diagnosis of Organic Personality Disorder.... Mr. Mincey’s personality changed considerably after the motorcycle accident, and Mr. Mincey’s behavior became unpredictable after the accident. He had difficulty with both short-term and long-term memory.... While today Mr.

Mincey has learned to get around many of his impairments, at the time of the offense in 1982, it is my opinion that his cognitive functioning was compromised by changes caused by his documented closed head injury. The closed head injury would have altered Mr. Mincey’s cognitive and personality functioning resulting in additional impairments of impulse control, increased frustration, impaired judgement, impaired memory and concentration, and increased irritability .... it is my opinion that Mr. Mincey’s ability to control his behavior and actions on the day of the offense was seriously impaired.

In addition, the stress of a robbery would have aggravated Mr. Mincey’s deficits and impaired his ability to act in a rational manner. In the final sentence of his affidavit, Dr. Larson stated that “Mr. Mincey’s head injury was a significant factor in the case — a factor which when considered establishes that Mr. Mincey’s actions on the night of the offense were the irrational impulsive actions of a brain damaged individual and not the actions of a cold, calculated, and premeditated murderer.” a. In his Rule 59(

e) motion, Mincey contended that Dr. Larson’s affidavit, if presented in the form of live testimony at trial, would have warranted a jury instruction (at the conclusion of the guilt phase of the trial) on the affirmative defenses of insanity or of “diminished capacity.” We know of no Georgia case, however, and Mincey has cited none, that recognizes the defense of diminished capacity. As noted in

part II.B. supra, Georgia does recognize, in addition to the conventional defense of insanity (the inability to distinguish right from wrong), the defense of “delusional compulsion.” We, therefore, assume that in using the term diminished capacity, Mincey actually meant delusional compulsion. Dr. Larson’s testimony, as proffered, would have established neither affirmative defense. To make out an insanity defense, a defendant must prove that he did not have the “mental capacity to distinguish between right and wrong in relation to [the criminal] act” at issue. See Ga.Code Ann. § 16-3-2; see, e.g., Moore v.

State, 142 Ga.App. 145, 235 S.E.2d 577, 577-78 (1977) (charging the jury on an insanity defense is not required where the evidence does not indicate that the defendant lacked the mental capacity to distinguish right from wrong); Jackson v. State, 149 Ga.App. 253, 253 S.E.2d 874, 877 (1979) (holding that evidence that defendant was released from his commitment at a state mental institution, that defendant was under doctor’s care and on medication, and that defendant did not remember alleged assault was insufficient to require a jury instruction on an insanity defense). Dr.

Larson’s testimony did not rise to the level prescribed by Georgia law. To make out a delusional compulsion defense, the defendant must prove that “because of mental disease, injury, or congenital deficiency, [he] acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.” See Ga.Code Ann. § 16-3-3. The evidence must “show both that the act was the result of delusion and also that the delusion was as to a fact which, if true, would justify the act.” Freeman, 209 S.E.2d at 130. It is plain to us that Dr.

Larson’s testimony fell far short of this mark. In sum, then, the prosecutor’s failure to give Mincey his notes prior to trial did not prejudice his defense; that is, “petitioner has not convinced us that there is a reasonable probability that the jury would have returned a different verdict” had the notes been disclosed. Strickler, 119 S.Ct. at 1955. In other words, our confidence in the jury’s verdict at the conclusion of the guilt phase of the trial is not undermined. See id. at 1952.

It follows, then, that the district court did not abuse its discretion in concluding that the prosecutor’s failure to produce his notes did not prejudice Min-cey’s case in the guilt phase by depriving him of an affirmative defense of insanity or of delusional compulsion. b. We now turn to the question whether the absence of the prosecutor’s notes prejudiced the penalty phase of Mincey’s trial. The argument here is that the notes would have lead defense counsel to hire an expert such as Dr.

Larson, and that the absence of such an expert’s testimony during the penalty phase deprived Mineey of “a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Strickler, 119 S.Ct. at 1952 (quoting Kyles, 514 U.S. at 434, 115 S.Ct. at 1556). To satisfy this deprivation-of-a-fair-trial standard, Mineey must “show that there is a reasonable probability that his ... sentence would have been different had [the prosecutor’s notes] been disclosed” to the defense. Id. at 1955.

In order to determine whether Mineey has met this “reasonable probability” test, we look to the evidence presented during the penalty phase of Mincey’s trial and then to the proffer of evidence Mineey made to the district court in support of his Rule 59(

e) motion. The prosecution began the penalty phase of the trial by establishing that Min-cey had been convicted of three armed robberies in 1977. On April 23 of that year, he robbed a Gulf gas station, a Seven-Eleven convenience store, and a Majik Market convenience store. After establishing Mincey’s convictions, the prosecution called Durwood Shores to the stand; Shores had been convicted for his participation in all three offenses. The Majik Market robbery took place late at night.

Shores testified that, as he and Mineey were robbing the cashier at gun point, a car pulled out of the parking lot and Min-cey ran outside and began shooting at the vehicle. Mineey said that “he had to shoot at the car because it had pulled up .... [The occupants of the vehicle] shouldn’t have been out — they didn’t have any business out that time of night, anyway.” While imprisoned (for the armed robbery offenses), Shores and Mineey talked about committing more robberies after their release.

They agreed that “if we ever did another one, we would make sure we didn’t leave any witnesses behind to identify us.” The prosecution rested its case after Shores testified. Mincey’s case followed and consisted of the testimony of six witnesses: Mincey’s mother, his father, who was a United Methodist minister, Mincey’s two sisters, the secretary at his father’s church, and a minister who was a friend of the Mineey family.

They portrayed Min-cey as a decent person who had had a difficult childhood: because his father was a Methodist minister, his family was forced to move frequently; then in 1975, when Mineey was fifteen years old, his parents divorced and he dropped out of school. Mineey also began abusing drugs. In addition, his family testified about the effects the 1980 motorcycle accident had on Min-cey’s behavior. We set out in the margin their testimony in this regard. That testimony brought out that after the accident, Mincey’s personality changed. He became very moody, impulsive, and prone to anger.

He also had difficulty remembering things. Dr. Larson’s affidavit, the essence of Mincey’s Rule 59(

e) proffer, corroborated the personality changes these witnesses described and attributed the changes to the motorcycle accident. According to Dr. Larson, after the accident, Mincey was “impulsive” and “unpredictable,” and his “ability to control his behavior and actions” was “seriously impaired.” Thus, “Mincey’s actions on the night of the offense were the irrational, impulsive actions of a brain damaged individual, and not the actions of a cold, calculated, and premeditated murderer.” The question the district court had to decide in ruling on Mincey’s Rule 59(

e) motion was whether expert testimony such as Dr. Larson’s would have affected the outcome of the sentencing phase of Mincey’s trial to the extent required by Sykes and its progeny. The district court held that it would not, and we agree. Implicit in Dr. Larson’s affidavit is the notion that, prior to the accident, Mincey was not “impulsive” and “unpredictable,” and his “ability to control his behavior and actions” was not “seriously impaired.” The motorcycle accident changed all of that, Dr. Larson contends; hence, but for the accident, he would not have acted as he did on the evening of April 12, 1982.

Such a notion, however, is belied by the evidence, and the district court obviously perceived this. Prior to the accident, Min-cey’s behavior was irrational and violent. The armed robbery spree he engaged in (with Shores and Jones) on April 23, 1977, confirmed this — especially the robbery of the Majik Market. There, without provocation, Mincey ran out of the market and shot at a car leaving the parking lot. His conduct on April 12, 1982 mirrored his conduct on April 23, 1977.

Likewise, the shooting of Peterman and Riggs was consistent with the pact he made with Shores while in prison, that “we would make sure that we would not leave any witnesses behind to identify us.” In sum, given Mincey’s consistent behavior before and after the 1980 motorcycle accident, the district court could hardly be faulted for concluding that expert testimony, such as that proffered in Dr. Larson’s affidavit, would have had little, if any, persuasive effect on the jury. We therefore conclude that the district court acted well within its discretion in denying Min-cey Rule 59(

e) relief on his Brady claim. D. Finally, we address Mincey’s claim that he was denied the effective assistance of counsel, guaranteed by the Sixth Amendment, during the guilt and penalty phases of his trial. 1. Whether a criminal defendant has received effective assistance of counsel is a mixed question of fact and law. We review for clear error the district court’s findings of the historical facts underlying the claim. See Bush v. Singletary, 988 F.2d 1082, 1089 (11th Cir.1998). We review de novo the court’s decision on the ultimate issue — whether counsel’s performance passed constitutional muster.

See Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991). 2. To establish a case of ineffective assistance of counsel a petitioner must satisfy a two-prong test: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). When reviewing an ineffective assistance claim in a capital ease, we apply this two-prong test to the penalty phase as well as the guilt phase, because a capital sentencing proceeding ... is sufficiently like a trial in its adversarial format and in the existence of standards for decision ... that counsel’s role in the proceeding is comparable to counsel’s role at trial — to ensure that the adversarial testing process works to produce a just result under the standards governing decision.

Id. at 686-87, 104 S.Ct. at 2064 (citations omitted). With respect to the first prong of the analysis, showing that counsel’s performance was deficient, Mincey had to demonstrate that his defense attorneys’ “representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. We judge the performance of a defense attorney with an eye towards “prevailing professional norms.” We must respect the counsel’s tactical decisions if they seem “reasonable considering all the circumstances.” Id., 104 S.Ct. at 2065.

To that end, we give great deference to counsel’s choices and make every effort “to eliminate the distorting effects of hindsight,.to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. at 2065. We must also bear in mind that “[t]he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.” Id. at 691, 104 S.Ct. at 2066.

Finally, in order to prevail on Strickland’s first prong, the petitioner “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).

In addition to showing that his lawyer’s performance was deficient, the petitioner must satisfy Strickland’s prejudice prong; that is, he “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. The petitioner, however, need not show that his attorney’s deficient performance “more likely than not altered the outcome in the case.” Id. at 693, 104 S.Ct. at 2068. The “more likely than not” standard would be more demanding than what is required under Strickland.

Rather the correct inquiry turns on whether a “reasonable probability” exists in our minds that, had the lawyer not been constitutionally deficient in his representation, the outcome of the trial would have been different. In other words, “a reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. Stated yet another way, the proper inquiry under Strickland is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. at 2064.

Furthermore, in a capital case, where the petitioner is challenging his sentence, he satisfies the prejudice prong if he can establish that “there is a reasonable probability that, absent the errors, the sentencer — including an appellate court ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. at 2069. a. Mincey raises several claims of ineffective assistance that we do not address because we find them to be devoid of merit.

They are that counsel (1) deficiently handled the pretrial motions to suppress the incriminating evidence found in Min-cey’s mother’s trailer-home and the statements Mincey made to the police; (2) failed, at trial, to present a vigorous defense by focusing on the prosecution’s inability to establish that the bullet that killed Riggs was fired by Mincey’s pistol, and the possibility that Jenkins, who was carrying a revolver of the same caliber as Min-cey’s, was the trigger man; and (3) failed to present an adequate appeal to the Georgia Supreme Court.

The state habeas court held an eviden-tiary hearing on Mincey’s claim of ineffective assistance of counsel. In its disposi-tive order rejecting the claim, the court, in its findings of fact, canvassed at length the performance of Mincey’s two attorneys— from the moment they entered their appearances in the trial court through the direct appeal of Mincey’s convictions and death sentence. The district court accorded those findings of fact, which have ample support in the record, a presumption of correctness.

In denying Mincey relief on his ineffective assistance claim, the district court, like the state habeas court, had, in addition to these findings of fact, the record of Mincey’s pretrial and trial proceedings and the briefs counsel filed on direct appeal. Those records and briefs evidence the steps counsel took in Mincey’s defense. On the whole, they handled the pretrial suppression hearing and executed Min-cey’s defense strategy (that Jenkins, not Mincey, killed Riggs) as well as one could expect given the hand they were dealt.

As for the direct appeal, we find nothing that could be labeled constitutionally deficient. b. Mincey claims that, as a result of the head injuries he sustained in the 1980 motorcycle accident and the drugs he took on the day of the crime, he became irrational and impulsive and suffered poor judgment — such that he should not be held accountable for his actions on the night of April 12, 1982.

Had his attorneys conferred with the members of the forensic team that examined him at Central State Hospital or pursued their motion for funds to hire a mental health expert, he contends, they could have devised a different trial strategy. Specifically, he argues that they could have presented the defense of “diminished capacity,” if not insanity, at the guilt phase of the trial, and that the same investigative work would have produced sufficient mitigating evidence to persuade the jury to return a verdict of life imprisonment.

Treating his “diminished capacity" defense as the defense of delusional compulsion, as we did in evaluating Mincey’s Brady claim, we address Min-cey’s contentions in turn. i. Mincey argues that his trial counsel should have contacted Dr. Craig; had they done so, they would have learned what the prosecutor discovered when he conferred with Dr. Craig after receiving the forensic team’s report to the court. According to the prosecutor’s notes, Dr.

Craig said that Mincey had suffered “brain damage” in the 1980 motorcycle accident, which was evidenced by “motor muscle power differential,” and that “[i]t is possible that he might be more susceptible to irrational behavior.” Whether Dr. Craig would have rendered an opinion that the brain damage diminished Mincey’s capacity at the time of the offense is not known; a proffer of Dr. Craig’s testimony is not in the record and habeas counsel has not represented that Dr. Craig would render such an opinion.

We do know, however, that the forensic team concluded that, when he committed the charged offenses, Mincey “was able to distinguish between right and wrong and was not acting under the influence of a delusional compulsion.” In short, we find no dereliction of duty in counsel’s failure to contact Dr. Craig. Assuming that we do, we still could not conclude that Mincey satisfied Strickland’s prejudice prong without knowing what Dr. Craig would say under oath. ii. Mincey’s second contention is that counsel should have pursued their motion for funds to employ an independent mental health expert.

Had they done so, they could have obtained the services of a psychologist, like Dr. Larson, whom Mincey’s habeas attorneys eventually retained. We find no unconstitutional neglect in counsel’s decision not to pursue their motion for funds to employ an independent mental health expert. Their decision was reasonable when considered from the perspective of a hypothetical lawyer standing in counsel’s shoes at the time. Daniel and Cook learned of Mincey’s motorcycle accident very early in the case.

Sensing that the injuries Mineey suffered in the accident might be responsible, at least in part, for his recent behavior, and concerned that he might not be competent to stand trial, they asked the court to have him evaluated. The court granted their request, and a forensic team from Central State Hospital examined Mineey. Meanwhile, Mineey was examined by an independent psychologist, Dr. Dan Johnson, a friend of Mincey’s father. Dr. Johnson found no signs of organic brain damage or severe personality disorder; he also found no basis for a defense of insanity or delusional compulsion.

After receiving his report, the attorneys decided not to call Dr. Johnson as a witness — in either the guilt or penalty phase of the case— since his testimony would probably hurt Mincey’s case. Moreover, if Dr. Johnson were called to the stand, the prosecution would probably be entitled to examine his report before commencing its cross-examination. For all of these reasons, Mincey’s trial attorneys decided not to pursue their motion for the provision of funds to employ an independent mental health expert. They made the decision after considering that Dr.

Johnson’s report corroborated the forensic team’s findings, and altogether foreclosed an insanity defense, and after concluding that Mincey’s story — that he had been high on acid throughout the day of the crime spree — was bogus and, as such, would all but destroy a defense of insanity or delusional compulsion. Under the circumstances, we find no fault with the district court’s observation that counsel’s “decisions were reasonable and reflected the appropriate level of professional diligence and concern for the client’s interest.” iii. Mineey concedes that Dr.

Johnson’s testimony would not have been helpful in either the guilt or the penalty phase of the case. What concerns him is that counsel could have found a better expert, a psychologist like Dr. Larson, to t

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