Carl J. ISAACS, Petitioner-Appellant, v. Frederick J. HEAD, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellee, 300 F.3d 1232

ANDERSON, Circuit Judge: In 1985, this Court granted a writ of habeas corpus based on constitutional infirmities with Carl Isaacs’ 1974 state murder trial. See Isaacs v. Kemp, 778 F.2d 1482 (11th Cir.1985). Afterwards, the State of Georgia retried Isaacs in 1988 on six counts of murder, and Isaacs was again convicted and sentenced to death. Isaacs was denied relief from his conviction and sentence through direct appellate review and through state collateral review, and the case has now made its way to the federal courts again.

After Isaacs filed his federal habeas petition, pursuant to 28 U.S.C. § 2254, the district court denied Isaacs any relief, but granted him a certificate of appealability as to numerous issues. Isaacs then filed this appeal contending that his second trial and sentencing hearing did not satisfy minimal constitutional guarantees. We disagree, and affirm the district court’s denial of habeas relief. I. BACKGROUND A.

Facts The historical facts concerning Isaacs’ case, as concisely recounted by the Georgia Supreme Court, are as follows: In May of 1973, Carl Isaacs escaped from a Maryland penal institution and, accompanied by his younger brother Billy Isaacs, his half-brother Wayne Coleman and a friend, George Dungee, drove to Florida. On the afternoon of May 14, 1973, they were in Seminole County, Georgia, and their car was almost out of gas. They thought they saw a gas pump behind the rural mobile home belonging to Jerry Alday and Mary Alday and stopped to investigate it.

They discovered there was no pump; however, the trailer was empty, and they decided to burglarize it. Dungee remained in the car while the defendant and Wayne Coleman entered the trailer. While they were inside, Billy Isaacs warned them two men were approaching in a jeep. Jerry Alday and his father Ned Alday pulled in behind the trailer, unaware that it was being burglarized. Carl Isaacs met them and ordered them inside at gunpoint. After their pockets were emptied, Jerry Alday was taken into the south bedroom of the trailer while Ned was taken to the north bedroom.

Carl Isaacs shot and killed Jerry Alday, and then both he and Coleman shot and killed Ned Alday. Soon afterward, Jimmy Alday (Jerry Al-day’s brother) drove up on a tractor, walked to the back door, and knocked on the door. Coleman answered the door, “stuck a pistol up in the guy’s face,” and ordered him inside. He was taken into the living room and forced to lie on the sofa. Carl Isaacs shot and killed him. After Carl Isaacs went outside to move the tractor, which was parked in front of their car, Mary Alday (Jerry Alday’s wife) drove up. Carl Isaacs entered the trailer behind her and accosted her.

Meanwhile, Chester Alday (Jerry Al-day’s brother) and Aubrey Alday (Jerry Alday’s uncle) drove up in a pickup truck. Leaving Coleman and Dungee to watch Mary Alday, Carl and Billy Isaacs went outside to confront the two men, and forced them at gunpoint into the trailer. Once inside, Aubrey was taken to the south bedroom where Carl Isaacs shot and killed him, while Chester Alday was taken to the north bedroom and killed by Coleman. Coleman and Carl Isaacs raped Mary Alday on her kitchen table. Afterward, they drove to a heavily wooded area several miles away where Mary Alday was raped again. Dungee killed her.

They abandoned their car in the woods and took Mary Alday’s car, which they later abandoned in Alabama. They stole another car there, and were arrested a few days later in West Virginia, in possession of guns later identified as the murder weapons, and property belonging to the victims. After his original trial, Carl Isaacs was interviewed by a film maker who was producing a documentary about the case. The defendant admitted shooting Jerry, Ned, Aubrey and Jimmy Alday, raping Mary Alday, and burglarizing the trailer. These admissions were introduced in evidence at the retrial. Isaacs v.

State, 259 Ga. 717, 718-19, 386 S.E.2d 316, 320 (1989). Neither party disputes these facts. B. Procedural History After we granted Isaacs a writ of habeas corpus following his first conviction, Isaacs was retried in Houston County, Georgia in 1988, and was again convicted of six counts of murder and sentenced to death. On appeal, the Georgia Supreme Court affirmed the conviction and sentence, Isaacs v. State, 259 Ga. 717, 386 S.E.2d 316 (1989), and the U.S. Supreme Court denied certiorari. Isaacs v.

Georgia, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 805, reh’g denied, 497 U.S. 1051, 111 S.Ct. 19, 111 L.Ed.2d 832 (1990). In 1991, Isaacs filed a petition seeking state habeas corpus relief, and the Butts County Superior Court conducted an evidentiary hearing on the petition in 1993. The state court denied Isaacs’ petition, and the Georgia Supreme Court denied Isaacs’ petition for a certificate of probable cause. See Isaacs v. Thomas, No. S95H0164 (Ga. April 14, 1995). The U.S. Supreme Court again denied cert. Isaacs v.

Thomas, 516 U.S. 1002, 116 S.Ct. 548, 133 L.Ed.2d 451, reh’g denied, 516 U.S. 1099, 116 S.Ct. 830, 133 L.Ed.2d 772 (1996). While the rehearing motion was pending in the U.S. Supreme Court, Isaacs filed a motion with the federal district court in the Middle District of Georgia for appointment of habeas counsel pursuant to 21 U.S.C. § 848(q)(4)(B). The district court granted the motion on February 9, 1996. On November 4, 1996, the district court ordered that Isaacs’ § 2254 petition be filed by December 6, 1996, and Isaacs filed it on that day.

Between the time that the district court granted Isaacs’ motion for appointment of habeas counsel and the time that Isaacs actually filed his § 2254 petition, Congress passed the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, which took effect on April 24, 1996. Therefore the timing of Isaacs’ various filings gave rise to one of the issues before the district court and involved in this appeal — whether the more lenient pre-AEDPA standards, or the stricter AEDPA standards, should be applied to Isaacs’ petition.

After briefing by the parties, the district court ruled that it would apply AEDPA to Isaacs’ petition. In February 1999, the district court directed the parties to file briefs on procedural default and on discovery. The court then entered an order ruling on the claims of procedural default, denying discovery, and directing briefing on “all grounds raised.” On August 25, 2000, the district court entered an order denying Isaacs’ request to present evidence as to certain grounds and denying relief based on the merits of all of the claims not previously found to be procedurally barred.

After the district court also denied a motion for reconsideration, Isaacs filed a timely notice of appeal on April 5, 2001. On May 2, 2001, the' district court issued a certificate of appeal-ability, pursuant to 28 U.S.C. § 2253(c), giving Isaacs the right to appeal 16 different issues (all of the ones with respect to which Isaacs requested permission to appeal). II. ISSUES PRESENTED Of the issues for which Isaacs received permission to appeal, he apparently chose to abandon all but eight for purposes of this appeal. Therefore, the only issues before this Court are: A.

Whether the district court correctly determined that AEDPA applied to Isaacs’ § 2254 habeas petition. B. Several issues related to the prayer given at the beginning of Isaacs’ trial, including: 1. Whether Isaacs’ constitutional rights were violated when his trial was opened with a prayer. 2. Whether the district court erred by denying discovery or the presentation of evidence during the federal habeas proceedings concerning the prayer that opened Isaacs’ trial. 3.

Whether Isaacs’ constitutional claims regarding the failure to record the prayer which opened his trial were properly dismissed as procedurally defaulted. 4. Whether the district court correctly determined that Isaacs’ ineffective assistance of counsel claim based on his counsel’s failure to recreate the record of the prayer which opened Isaacs’ trial was procedurally defaulted. C. Whether the admission of statements made by Isaacs while in custody concerning two escape attempts violated his constitutional rights. D.

Whether Isaacs’ constitutional rights were violated by the presentation of evidence, argument and jury instructions concerning his lack of remorse. E. Whether the district court correctly determined that Isaacs’ challenge to electrocution as cruel and unusual punishment was procedurally defaulted. III. DISCUSSION A. Applicability of AEDPA to Isaacs’ Petition The first issue that we will address—whether AEDPA is applicable to Isaacs’ § 2254 petition—affects our review of all of Isaacs’ claims.

The relevant facts, as mentioned above, are that Isaacs filed a motion for appointment of habeas counsel, and the district court granted that motion, prior to the effective date of AEDPA. However, Isaacs did not file his actual habeas petition until after the effective date. The Supreme Court subsequently held that the new AEDPA standards did not apply to pending cases. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

So, the critical issue becomes whether Isaacs’ habeas case was pending, for purposes of AEDPA’s applicability, from the time that Isaacs moved for appointment of counsel, or only from the later time when he filed his habeas petition. As a matter of first impression in this Court, we agree with the district court, and the majority of the other circuits which have addressed this narrow issue, and hold that Isaacs’ habeas case was pending only from the time that he filed his actual § 2254 petition, and therefore that AEDPA applies to this case. 1.

Supreme Court Cases Concerning Applicability of AEDPA The relevance of determining the point from which Isaacs’ case should be considered to have been “pending” derives from the Supreme Court’s decision in Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). In that case, the Supreme Court considered whether the provisions of AEDPA applied retroactively to pending cases. The Court’s decision that AEDPA should not be applied to most pending habeas cases was based largely on the fact that § 107(

c) of the Act expressly stated that

chapter 154 of AEDPA — a

chapter which sets out special rules expediting § 2254 cases when states satisfy certain requirements — should be applied to pending cases. See id. at 327, 117 S.Ct. at 2063. No such retroactivity provision was included in AEDPA

chapter 153, the

chapter applicable to other § 2254 petitions (including Isaacs’ petition, if AEDPA applies). The Court noted that “[i]f ... Congress was reasonably concerned to ensure that

chapter 154 be applied to pending cases, it should have been just as concerned about

chapter 153, unless it had the different intent that the latter

chapter not be applied to the general run of pending cases.” Id. at 329, 117 S.Ct. at 2064. Because Congress considered the two chapters together, the Court stated that the “negative implications raised by disparate provisions are strong[].” Id. at 330, 117 S.Ct. at 2065. After discussing alternative

interpretations of the statutory provisions, the Court stated: “We hold that the negative implication of § 107(

c) is that the new provisions of

chapter 153 generally apply only to cases filed after the Act became effective.” Id. at 336, 117 S.Ct. at 2068. Although Lindh clearly establishes that AEDPA does not apply to “pending” cases, it does not address the issue presented in this case of what event marks the beginning of a habeas case. In addressing that issue, Isaacs points to other recent Supreme Court cases interpreting habeas provisions in a way that supports his contention that a habeas case begins at the time a petitioner files a motion for appointment of counsel. First, Isaacs directs us to the Supreme Court’s opinion in McFarland v.

Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). In that case, the Supreme Court considered two statutory provisions related to habeas cases: 21 U.S.C. § 848(q)(4)(B), which creates a statutory right to qualified legal representation for capital defendants in federal habeas proceedings, and 28 U.S.C. § 2251, which grants a federal judge before whom a ha-beas proceeding is pending the power to stay any related state court proceeding. The lower courts in McFarland had refused to appoint habeas counsel for the defendant pursuant to § 848(q)(4)(

B) because the defendant had not yet filed a habeas petition. Id. at 851-54, 114 S.Ct. at 2570-71. The Supreme Court began by noting that § 848(q)(4)(B) “grants indigent capital defendants a mandatory right to qualified counsel and related services ‘[i]n any [federal] post conviction proceeding,’ ” but that the statute did not specify how the right was to be invoked. Id. at 854, 114 S.Ct. at 2571 (quoting § 848(q)(4)(B)) (brackets in original). In particular, the statute did not “define a ‘post conviction proceeding’ under § 2254 or § 2255 or expressly state how such a proceeding shall be commenced.” Id.

In light of other related provisions, however, the Court held that “§ 848(q)(4)(B) ... established a right to preapplication legal assistance.” Id. at 855, 114 S.Ct. at 2572. The Court found that the “interpretation [of the statute to permit the appointment of counsel prior to the filing of a formal petition] is the only one that gives meaning to the statute as a practical matter,” and concluded that: The language and purposes of § 848(q)(4)(

B) and its related provisions establish that the right to appointed counsel includes a right to legal assistance in the preparation of a habeas corpus application. We therefore conclude that a “post conviction proceeding” within the meaning of § 848(q)(4)(

B) is commenced by the filing of a death row defendant’s motion requesting the appointment of counsel for his federal ha-beas corpus proceeding. Id. at 855-57,114 S.Ct. at 2572-73. After reaching that conclusion, the Supreme Court went on to address the similar issue of whether a federal court has authority to stay state court proceedings pursuant to 28 U.S.C. § 2251 prior to the filing of a formal habeas petition.

Section 2251 grants any federal judge “before whom a habeas corpus proceeding is pending” power to enjoin related state court proceedings. 28 U.S.C. § 2251. McFarland argued “that his request for counsel in a ‘post conviction proceeding’ under § 848(q)(4)(

B) initiated a ‘habeas corpus proceeding’ within the meaning of § 2251, and that the District Court thus had jurisdiction to enter a stay.” McFarland, 512 U.S. at 857, 114 S.Ct. at 2573. The Court held that: The language of these two statutes indicates that the sections refer to the same proceeding.

Section 848(q)(4)(

B) expressly applies to “any post conviction proceeding under

section 2254 or 2255” — the precise “habeas corpus pro-ceedingfs]” that § 2251 involves. The terms “post conviction” and “habeas corpus” also are used interchangeably in legal parlance to refer to proceedings under §§ 2254 and 2255. We thus conclude that the two statutes must be read in pari materia to provide that once a capital defendant invokes his right to appointed counsel, a federal court also has jurisdiction under § 2251 to enter a stay of execution. Id. at 858, 114 S.Ct. at 2573.

Because the McFarland Court held with respect to both § 848 and § 2251 that habeas proceedings were commenced with the filing of a motion for appointment of counsel, Isaacs argues that we should also find that his habeas case was pending, for purposes of determining whether AEDPA applies, as of the time he filed his motion for appointment of counsel. If we were to do so then it would follow, of course, that AEDPA would not apply to his petition. The second Supreme Court case on which Isaacs relies is Hohn v. United States, 524 U.S. 236, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998).

In Hohn, the Court considered whether it had jurisdiction to review a decision by a court of appeals denying an application for a certificate of appealability (COA). To resolve this issue, the Court had to decide whether a court of appeals’ consideration of a COA application constituted a “case.” Id. at 241, 118 S.Ct. at 1972. The Court concluded that it did, stating: There can be little doubt that Hohn’s application for a certificate of appealability constitutes a case under § 1254(1).

As we have noted, “[t]he words ‘case’ and ‘cause’ are constantly used as synonyms in statutes ..., each meaning a proceeding in court, a suit, or action.” Blyew v. United States, 13 Wall. 581, 595, 20 L.Ed. 638 (1871). The dispute over Hohn’s entitlement to a certificate falls within this definition. It is a proceeding seeking relief for an immediate and redressable injury, ie., wrongful detention in violation of the Constitution. There is adversity as well as the other requisite qualities of a “case” as the term is used in both

Article III of the Constitution and the statute here under consideration. This is significant, we think, for cases are addressed in the ordinary course of the judicial process, and, as a general rule, when the district court has denied relief and applicable requirements of finality have been satisfied, the next step is review in the court of appeals. Id. The Hohn Court also rejected the suggestion that an application for a COA was a threshold matter separate from the merits and over which appellate courts lack jurisdiction, stating: Precedent forecloses this argument.

In Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3 (1942), we confronted the analogous question whether a request for leave to file a petition for a writ of habeas corpus was a case in a district court for the purposes of the then-extant statute governing court of appeals review of district court decisions. See 28 U.S.C. § 225(

a) First (1940 ed.) (courts of appeals had jurisdiction to review final decisions “[i]n the district courts, in all cases save where a direct review of the decision may be had in the Supreme Court”). We held the request for leave constituted a case in the district court over which the court of appeals could assert jurisdiction, even though the district court had denied the request. We reasoned, “[presentation of the petition for judicial action is the institution of a suit.

Hence the denial by the district court of leave to file the petitions in these causes was the judicial determination of a case or controversy, reviewable on appeal to the Court of Appeals.” 317 U.S., at 24, 63 S.Ct., at 9. Id at 246, 118 S.Ct. at 1974-75. Isaacs contends that, in light of McFarland and Hohn, the Court should hold that he instituted his habeas case at the time that he filed his motion for appointment of counsel. Arguably pointing in the other direction, however, is another recent Supreme Court case that has not yet been discussed by any of the other circuits in connection with the issue before us.

In Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), the Supreme Court addressed whether pre or post-AEDPA rules should apply to an appeal filed pursuant to § 2253 after AEDPA became effective, when the original petition was filed with the district court before AEDPA. The Court noted that just as § 2254 was directed to petitions filed in district courts after AEDPA,

Section 2253 was directed to proceedings initiated in appellate courts after the Act’s effective date. Id. at 481, 120 S.Ct. at 1602. Therefore, the Court concluded that AEDPA’s rules applied to appeals filed after AEDPA, even though appellate courts would be required “to apply pre-AEDPA law in reviewing the trial court’s ruling.” Id. As the State points out, the Slack Court’s holding indicates that, at least when a case moves from the district court to appellate court level, it may be divisible so that AEDPA would apply to one aspect of the proceeding, but not to the other.

The Supreme Court recognized this fact, explaining: While an appeal is a continuation of the litigation started in the trial court, it is a distinct step. We have described proceedings in the courts of appeals as “appellate cases.” Under AEDPA, an appellate case is commenced when the application for a COA is filed. When Congress instructs us (as Lindh says it has) that application of a statute is triggered by the commencement of a case, the relevant case for a statute directed to appeals is the one initiated in the appellate court. Thus, § 2253(

c) governs appellate court proceedings filed after AEDPA’s effective date. Id. at 481-82, 120 S.Ct. at 1602-03 (citations and quotations omitted). Therefore, a case isn't always just a case. Instead this Court must consider the “relevant case” in order to determine which set of standards apply. 2. Other Circuits’ Approaches to this Issue Having set out the Supreme Court authority relevant to the issue of whether AEDPA applies to Isaacs’ petition, we will now discuss the competing approaches taken by our sister circuits in this regard.

As mentioned above, five circuits have considered this exact issue, and all but one have found AEDPA to be applicable under these circumstances. The only circuit so far to have accepted Isaacs’ position on when a habeas case is instituted is the Ninth. In Calderon, the en banc Ninth Circuit overruled the position announced in previous decisions and held that, for purposes of determining whether a case was pending when AEDPA took effect in April 1996, courts should look to the date on which the defendant filed a motion for appointment of counsel. 163 F.3d at 539-40. .

Its previous cases had interpreted the Supreme Court’s McFarland decision as applying only to the two statutory provisions presented in that case (the provisions allowing for appointment of habeas counsel and providing district courts with authority to stay state court proceedings), but not to the question of whether a “case” was pending for AEDPA purposes. Id. at 539 (discussing cases). The Calderon court found, however, that the Supreme Court’s intervening decision in Hohn required it to revisit and reverse its position.

In Calderon, the Ninth Circuit interpreted Hohn as indicating that a habeas case may be initiated by the filing of an application for a COA. Id. The court focused on the Supreme Court’s rejection of the notion that a COA is a threshold matter separate from the merits of a habe-as case. Id. The court then reasoned that: In the wake of Hohn, we must overrule [the Ninth Circuit precedent] holding that a habeas corpus “case” is not pending until the habeas petition itself has been filed.

Holm’s holding, as well as its reliance on Ex Parte Quirin that a threshold request for leave to file a petition for habeas corpus commences the habeas “case,” is simply irreconcilable with [those cases]. Like a request for leave to file a habeas petition, a petition for the appointment of counsel to prepare and file a petition for a writ of habeas corpus, accompanied by a motion for a stay of execution under McFarland, is a threshold action that presents a “case” to the district court. By analogy to Hohn, it follows that a petition for appointment of counsel under McFarland creates a pending habeas case.

Accordingly, we overrule those [cases] that held that a habeas corpus case is pending only when the habeas petition itself has been filed. A petition for the appointment of counsel to prepare and file a habeas petition, coupled with a motion for a stay of execution, also suffices. Id. at 540. See also Garceau v. Woodford, 275 F.3d 769, 772 n. 1 (9th Cir.2001) (following Calderon); Sandoval v. Calderon, 241 F.3d 765, 771 (9th Cir.2001).

Contrary to the Ninth Circuit, four courts of appeals have held that AEDPA applies to § 2254 petitions filed after the Act became effective, even if the defendant had filed a motion for appointment of counsel or for a stay prior to the effective date. The courts which have taken this position have found the Supreme Court cases discussed above distinguishable for several reasons. The Sixth Circuit’s decision in Williams v.

Coyle, 167 F.3d 1036 (6th Cir.1999), is a good example that contains most of the reasons cited by the other circuits for the conclusion that a habeas case is only pending from the time that an actual petition is filed. The Williams court began by noting that “[i]n ordinary usage a case is pending when a complaint or petition is filed.” Id. at 1038.

Also, the Sixth Circuit noted that habeas cases are generally subject to the Federal Rules of Civil Procedure, see Rule 11 of the Rules Governing § 2254 Cases, and Rule 3 of those rules states that “[a] civil action is commenced by the filing of a complaint with the court.” Id. After stating that no habeas rules address the specific issue, the court “conclude[d] that Fed.

R.Civ.P. 3 yields a presumption that a federal habeas corpus case is filed with the filing of an application for the writ.” Id The court found that “[t]his presumption is reinforced by the language of the habeas corpus provisions,” because, for example,

Section 2254(

e) refers to “a proceeding instituted by an application for a writ of habeas corpus.” Id. After discussing these reasons to believe that a habeas case is only pending after a petition is filed, the Williams court turned to the Supreme Court cases discussed above.

The court noted that McFarland “held that a motion for the appointment of counsel constitutes a post conviction proceeding for purposes of 21 U.S.C. § 848(q)(4)(B),” and that “a motion for appointment of counsel was sufficient to enable a district court to stay an execution pursuant to 28 U.S.C. § 2251, which literally grants this power to a judge ‘before whom a habeas corpus proceeding is pending.’ ” Id.

The Sixth Circuit concluded that McFarland did not indicate that a habeas case was pending, for purposes of AEDPA’s applicability, simply because a motion for appointment of counsel had been filed, stating: [B]oth holdings of McFarland appear to rest on the necessity of expanding the ordinary meaning of a “pending case” in order to give effect to clear congressional intent. By contrast, we perceive no compelling reason to depart from plain meaning in the present case. The problem the Court addressed in McFarland was of an ongoing nature and had nothing to do with the effective date of any statutory provision.

In the present case, on the other hand, the defendant faces additional procedural hurdles post-AEDPA, but there is no ongoing rationale for stretching the “pending” period to reach prior to the actual filing of the application as there was in McFarland. Once all cases in which a petitioner initiated some habeas corpus-related legal action prior to the effective date of the AEDPA have been resolved, the point at which a § 2254 case is “filed” will become irrelevant. Id. at 1039.

Williams acknowledged that McFarland contains language which could be interpreted as meaning that a § 2254 case in general begins with the filing of a motion for appointment of counsel, but rejected such a broad reading, concluding instead that “this reading is warranted only to the extent necessary to give effect to § 848(q)(4)(B).” Id. The Sixth Circuit then turned to the Ninth Circuit’s decision in Calderon, and rejected the Ninth Circuit’s

interpretation of the effect of the Supreme Court’s Hohn decision. Id. The court stated that: In our opinion Hohn and Ex parte Qui-rin stand only for the proposition that the denial by the district court of a motion for the issuance of a COA, a motion for leave to file a petition for the writ, or, as in our case, a motion for the appointment of counsel pursuant to 21 U.S.C. § 848(q)(4)(

B) would constitute an appealable case. This does not imply, however, that the petitioner’s habe-as corpus case has been initiated by the filing of such a preliminary motion. Although the Court in Hohn rejected the contention that the filing of a preliminary motion “should be regarded as a threshold inquiry separate from the merits,” Hohn, 118 S.Ct. at 1974-75, the holding and logic of the case were limited to the determination that the rejection by the district court of the preliminary motion constitutes an appealable case. Thus, we do not believe that Hohn dictates the result sought by Williams. Id. at 1040. Having rejected an

interpretation of Hohn that would have the motion for appointment of counsel mark the beginning of a habeas case, the Sixth Circuit then stated that it agreed with a pre-Hohn Seventh Circuit opinion that stated: Although it is linguistically possible for this “preapplication legal assistance” to open a “case” having some affinity to a petition under § 2254 ... the motion for counsel is not itself a petition, because it does not call for (or even permit) a decision on the merits. And it is “the merits” that the amended § 2254(d)(1) is all about. Id. (quoting Holman v. Gilmore, 126 F.3d 876, 880 (7th Cir.1997)).

Therefore, the Sixth Circuit concluded that “a federal ha-beas corpus case is filed or pending for purposes of Lindh and the AEDPA only when the petition for the writ is filed.” Id. More recently, the Seventh Circuit addressed the effect of Hohn and the Ninth Circuit’s Calderon opinion, and Judge Easterbrook stood by the court’s earlier approach, stating: The question in Hohn was whether an application for a certificate of appealability is a “case” in the court of appeals, and therefore amenable to review on writ of certiorari under 28 U.S.C. § 1254.

The answer to that question does not bear on the issue in Holman and Calderon: whether an application for counsel under 21 U.S.C. § 848(q)(4) is a “case pending” under

Chapter 153 of the Judicial Code — the critical question for application of the AEDPA. We did not doubt in Holman that a request for counsel is a “case” in the sense that it is subject to appellate review (and, if need be, review by the Supreme Court). Indeed, Gosier’s request for counsel was reviewed by this court on appeal, after the district judge dismissed his application. But a request for counsel under § 848(q)(4), part of Title 21, is not a case under

Chapter 153 of Title 28 — that is, the request is not a collateral attack on a criminal judgment. This rationale of Holman was ignored by the ninth circuit, and we are not persuaded by a decision that avoided the fundamental issue. So we apply the AEDPA to Gosier’s case. Gosier v. Welborn, 175 F.3d 504, (7th Cir.1999) (citations omitted). The opinions of the other circuits add little to the analysis performed by the Sixth and Seventh Circuits.

In two opinions, both of which pre-dated Hohn, the Fifth Circuit found that McFarland simply did not address the issue of when a case was pending for AEDPA purposes, but was instead “intended to resolve practical procedural problems” related to the two specific statutory provisions at issue in that case. Williams v. Cain, 125 F.3d 269 (5th Cir.1997); see also Nobles v. Johnson, 127 F.3d 409, 414 (5th Cir.1997) (same). Similarly, in Moore v.

Gibson, 195 F.3d 1152 (10th Cir.1999), the Tenth Circuit agreed that “McFarland focused on the need to expand the ordinary meaning of a pending case to give effect to Congressional intent,” and did not address when a case is pending for AEDPA purposes. Id. at 1162. 3. AEDPA Applies We conclude that the better reasoned approach is the one taken by the majority of the other circuits that have faced the issue before us, and we hold that the relevant date for purposes of judging AED-PA’s applicability to a habeas petition is the date on which the actual § 2254 petition was filed.

In reaching this conclusion, we acknowledge that some of the language used by the Supreme Court in McFarland and in Hohn supports Isaacs’ contention that his case began with the filing of a motion for appointment of counsel. However, we think that the best reading of McFarland is that it was concerned only with interpreting and giving effect to two, narrow statutory provisions. It would be a stretch to find that the decision indicates that for all purposes, a habeas case is pending from the time that a motion for appointment of counsel is filed. Nothing in McFarland precludes the result we reach today.

Likewise, Hohn was limited to the- relatively narrow issue of whether an application for a COA initiated a case or controversy over which appellate courts could exercise jurisdiction consistent with

Article III of the Constitution. We agree with the Seventh Circuit that “[t]he answer to that question does not bear on ... whether an application for counsel ... is a ‘case pending’ under

Chapter 153 of the Judicial Code — the critical question for application of the AEDPA.” Gosier, 175 F.3d at 506. We are persuaded that the Seventh Circuit’s approach in Gosier is the correct one. We agree that, in a sense, the filing of a motion for appointment of counsel or other threshold motions might initiate some form of “case,” at least in the constitutional sense. However, such a motion does not necessarily mark the genesis of the habeas case under § 2254.

A motion for appointment of counsel has no relation to the merits of a habeas petition and does not seek any form of merits relief from a district court. Such a motion does not even assure that a habeas case will ever materialize. For example, an appointed counsel could well conclude that the would-be petitioner has no colorable claims to present. Therefore, only when an actual habeas petition is filed seeking relief from a conviction or sentence does § 2254 come into play.

Furthermore, the Supreme Court’s opinion in Slack supports the idea that all proceedings that have any relation to a habeas petition do not have to be viewed as a unified whole for purposes of AEDPA. Instead, Slack expressly recognized that a court, in order to determine the applicable law, must determine what is “the relevant case.” Id. at 482, 120 S.Ct. at 1603.

We believe that it follows — from the Supreme Court’s recognition that an appellate case may be subject to AEDPA even though the underlying district court proceedings were not — that even though a motion for appointment of counsel was filed before AEDPA and was not subject to its provisions, a later-filed habeas petition may nonetheless be governed by the stricter AEDPA standards that took effect in the interim.

The simple fact is, at the time AEDPA became the law, Isaacs’ habeas case was not pending because it had not yet been filed and he had not asked the district court for any type of merits relief that could be characterized as habeas relief. We hold that the relevant case was not pending when AEDPA became effective, and the district court properly considered Isaacs’ petition under AEDPA’s standards. B.

Issues Related to the Prayer that Opened Isaacs’ Trial Next we turn to four different issues presented by Isaacs that all relate to the fact that the trial judge allowed his minister to offer an invocation before voir dire at the beginning of Isaacs’ trial. Isaacs has contended in his habeas petition that the prayer violated his constitutional rights under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments. In this appeal, however, his arguments are limited to the contention that the giving of the prayer violated his due process rights; therefore he abandoned any other arguments concerning the prayer.

Prior to addressing the legal issues, it is necessary for us to explain the facts and the state of the record with respect to the invocation. The court reporter failed to include the content of the prayer as part of the trial transcript. Therefore, all that the transcript reveals concerning the prayer is as follows: January 4, 1988 (A discussion was had in chambers between Court and Counsel, which was not made a part of the record.) (At 9:30 a.m., court was convened and the following proceedings were had:) (Invocation) MR. JACKSON [defense counsel]: We need to approach the bench, Your Hon- or.

THE COURT: Very good. (Discussion at the bench as follows:) MR. SCHIAVONE [defense counsel]: Your Honor, we’re going to move to dismiss the panel on the basis of the statements just made by this minister. We think that was highly prejudicial. MR. JACKSON: Your Honor, there’s separation of church and state— MR. SCHIAVONE: Absolutely, I think that’s— MR. JACKSON: — and for someone to pray in front of all these jurors that they all had their ideas of what should be done and that God’s will should be done, not their individual ideas should be done — which is the law of this state— prejudiced the panel.

And we move for mistrial and ask the jury panel to be excluded and excused. MR. SCHIAVONE: Well, we move for a continuance until we can impanel a new jury, because we can’t move for a mistrial at this stage— MR. JACKSON: That’s right. MR. SCHIAVONE: — because there’s no jury panel. So we do move for a continuance, that this panel of jurors has been prejudiced by that statement. MR. HILL [prosecutor]: I don’t agree, Your Honor. I think it’s premature anyway. They have an opportunity to voir dire and ascertain whether or not this panel has been prejudiced. THE COURT: Very good. The motion is overruled.

At the time of the prayer, a motion to record all proceedings previously had been granted, but Isaacs’ trial counsel was not advised that the court reporter failed to record the prayer. Isaacs asserts that his counsel only discovered months later that no record had been made (even though Isaacs presented an affidavit from the court reporter indicating that she stood during the prayer, and defense counsel was present at the time and presumably could have observed her doing so).

However, the trial transcript was certified on March 6, 1988, so counsel should have been aware of the omission by the time of the June 1988 proceedings on the motion for a new trial (the “new trial proceedings”). And we know that counsel was aware at least by the time of the direct appeal. Isaacs first challenged the propriety of the invocation during his direct appeal to the Georgia Supreme Court, but at that time he apparently made no effort to establish the contents of the prayer. Isaacs, 386 S.E.2d at 327.

The court held that beginning a trial with an invocation is not a per se violation of the constitution, and that, without more information concerning the content of the prayer, Isaacs was not entitled to relief. Id The first attempt to make a precise record of the contents of the prayer was apparently during the state habeas proceedings, almost six years after the invocation was given. On state habeas review, Isaacs claimed that his trial counsel had been ineffective by allowing the prayer to take place and by not ensuring that the prayer was recorded.

In those proceedings, both parties were allowed to put forth evidence concerning the contents of the prayer. Isaacs’ trial attorney testified that he recalled the minister saying: “Lord, we all know why we are gathered here. We know you know what you want done to this man. Let us do your bidding or your will.” He also testified that the prayer referenced “God’s will” and “man’s law.” The trial judge also testified concerning the contents of the prayer during the state habeas proceedings.

He stated that he invited his minister to give the invocation at the beginning of Isaacs’ trial, and that he had given the minister no “specific instructions” concerning the contents of the prayer. The judge testified that he did not recall exactly what the minister said in the prayer, but that it was “very innocuous” and had not, in his opinion, “prejudiced the defense” or “favored the state.” The prosecutors also testified that they had no specific recollection regarding the contents of the prayer, but stated that they recalled the prayer as being of a neutral nature.

One prosecutor testified: “I can tell you now that if I had sensed that something improper was said, given the nature of this case, that I would have immediately asked that new venire persons be brought in.” In its order denying habeas relief, the state habeas court “accept[ed] the recollection of the trial court as to the neutral nature of the prayer offered in this case, as confirmed by the testimony of [the prosecutor],” and held that Isaacs had failed to show that he was prejudiced by the invocation. State Habeas Order, p. 17.

After filing his federal habeas petition, Isaacs sought discovery and an evidentiary hearing concerning the prayer. Isaacs pointed to the allegedly new information provided by the court reporter concerning the trial judge’s early knowledge that the prayer had not been recorded. Also, in addition to challenging the prayer itself, Isaacs asserted claims based on the failure to record the prayer and on the ineffective assistance of his counsel in not ensuring that it was recorded or promptly reconstructed.

The district court denied Isaacs’ request for discovery or an evidentiary hearing on this issue, pursuant to § 2254(e)(2), and denied on the merits Isaacs’ claim that the mere giving of the prayer itself 'violated the constitution. The court found the “failure to record” claim and the ineffective assistance claim to be procedurally barred. 1.

The Permissibility of Discovery or an Evidentiary Hearing Regarding the Contents of the Prayer We will first address the issue of whether the district court erred by denying Isaacs’ request for discovery and/or an evidentiary hearing concerning the contents of the invocation. In particular, Isaacs sought permission to take discovery from the media sources who were present at his trial to determine whether they had any records of the contents of the prayer. We conclude that the district court properly denied Isaacs’ requests for discovery or a hearing under the standards imposed by 28 U.S.C. § 2254(e)(2).

The Supreme Court has recognized that “[a] habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of course.” Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 1796-97, 138 L.Ed.2d 97 (1997). Rule 6(

a) of the Rules Governing § 2254 Cases states: A party shall be entitled to invoke processes of discovery available under Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.

In interpreting the “good cause” portions of this rule, the Supreme Court noted that “where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.” Id. at 908-09, 117 S.Ct. at 1799 (citation and quotation omitted).

The Court has noted that the rules “afford the district court substantial discretion in the conduct of a case,” including “a degree of discretion in determining whether to hold an evidentiary hearing.” Lonchar v. Thomas, 517 U.S. 314, 326, 116 S.Ct. 1293, 1300, 134 L.Ed.2d 440 (1996). In passing AEDPA, however, Congress modified the discretion afforded to the district court and erected additional barriers limiting a habeas petitioner’s right to discovery or an evidentiary hearing.

Section 2254(e)(2) states: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (

A) the claim relies on— (

i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (

B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). The Supreme Court interpreted § 2254(e)(2) in its opinion in Michael Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).

The Court considered whether the “failed to develop” language in the opening clause of the provision indicates that the § 2254(e)(2) bar is only applicable when a habeas petitioner has not been sufficiently diligent in his efforts to develop a record in state courts. The Court concluded that this language imported a “threshold standard of diligence,” such that the discovery provisions of § 2254(e)(2) only apply if the petitioner was not reasonably diligent in trying to develop the factual record while in state court. Id. at 433-34, 120 S.Ct. at 1489.

The Court held that “[djiligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of information available at the time, to investigate and pursue claims in state court.” Id. at 435, 120 S.Ct. at 1490. The applicability of the provision is not dependent on “whether those efforts could have been successful.” Id. See also Breedlove v. Moore, 279 F.3d 952, 959-60 (11th Cir.2002) (discussing Michael Williams and the application of § 2254(e)(2)).

After discussing the meaning of § 2254(e)(2), the Supreme Court went on to find that an evidentiary hearing was not required with respect to the claims of which Williams was on notice while in state court, but that discovery was required as to a claim of juror and prosecutorial misconduct of which the petitioner had no reason to know while in state courts. Michael Williams, 529 U.S. at 438-445, 120 S.Ct. at 1491-94. Isaacs argues that his request for discovery is similar to the ones which the Supreme Court found should have been permitted in Michael Williams.

He contends that, as with the petitioner in Michael Williams, he had no reason to know the extent of his claim while in state court because he only found out during federal habeas that the trial judge had been aware from the first day of trial that the prayer had not been recorded. We conclude that the district court did not err under either Rule 6(

a) or § 2254(e)(2) by finding that Isaacs was not entitled to discovery or an evidentiary hearing on his prayer-related claims. As the district court pointed out, Isaacs was aware of the failure to record the prayer at least by the time of his direct appeal. He had opportunities to reconstruct the contents of the prayer both during the new trial proceedings, which were conducted more than five months after his conviction and sentence, and again when the Georgia Supreme Court remanded the case to the trial court to permit the reconstruction of another portion of the record. On both occasions he failed to do so.

Isaacs was also allowed to present evidence concern-' ing the contents of the invocation during state habeas proceedings, at which time he was able to question several of the relevant participants from his trial. Therefore, we believe that any failure to reconstruct the contents of the prayer at this stage, over 10 years after he became aware of the omission from the trial transcript, must be attributed to Isaacs’ lack of diligence during the state court proceedings.

We also find of no consequence Isaacs’ allegation that he only learned after his federal habeas petition was filed that the trial court had become aware of the failure to record the prayer on the same day that it happened. We do not see the relevance of that discovery given that Isaacs asserts no separate claim based on any improper action by the trial court in this regard. Instead he simply asserts the same claims that he had previously asserted.

Moreover, even if that issue were relevant, it could have been discovered and explored during the new trial proceedings, or on the initial remand from the Georgia Supreme Court at which time other portions of the record were reconstructed, or at the evi-dentiary hearing held by the state habeas court. The trial judge actually testified during the latter proceeding, and Isaacs had the opportunity to cross-examine him. We also do not agree that the Supreme Court’s decision in Dobbs v.

Zant, 506 U.S. 357, 113 S.Ct. 835, 122 L.Ed.2d 103 (1993) shows that Isaacs is entitled to the discovery or evidentiary hearing that he seeks. In that case, the Supreme Court found that this Court had erred by failing to allow the petitioner to supplement the record to include the transcript of closing arguments that the parties thought had been lost, but was subsequently found. Id.

The Court stated that it had “emphasized the importance of reviewing capital sentences on a complete record,” and noted that the supplement to the record should have been permitted because “[tjhere can be no doubt as to the transcript’s relevance” to the decisions of the lower courts. Id. at 358-59, 113 S.Ct. at 836. In contrast to Dobbs, Isaacs is not in possession of, nor is he likely to gain possession of, a transcript of the prayer given at trial. He does not explain why the discovery that he seeks now is any different from the discovery that was available to him in state courts.

Under these circumstances, we conclude that the district court properly denied Isaacs’ request to conduct additional discovery concerning the prayer because he neither exercised sufficient diligence to satisfy the requirements of § 2254(e)(2) nor showed “good cause” as required by Rule 6(a). 2. The Constitutional Permissibility of the Invocation Next, we consider Isaacs’ contention that the invocation given prior to voir dire violated his due process rights.

When this issue was presented to the Georgia Supreme Court on direct appeal, the court noted that it lacked a record of the contents of the prayer, and held that the giving of a prayer at the beginning of a criminal trial was not a per se violation of the constitution. Isaacs, 386 S.E.2d at 327.

Then during the state habeas proceedings, after Isaacs put forth evidence concerning the contents of the prayer, the state court accepted the testimony of the trial judge to the effect that the invocation was “neutral” and had not “prejudiced the defense” or “favored the state.” Therefore, the state habeas court held that the actual prayer given at Isaacs’ trial had not violated his constitutional rights. As we will explain below, we must accept these rulings and findings by the state courts, and, consequently, Isaacs is not entitled to relief on this claim.

As we explained above, the strict standards adopted by Congress in AEDPA apply to Isaacs’ habeas petition. Therefore, we look to §§ 2254(

d) and 2254(e)(1) to determine the permissible scope of our review.

Section 2254(d), which addresses our treatment of state court adjudications of federal constitutional claims, states: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).

In addition,

Section 2254(e)(1) addresses the deference that federal courts must give to fact-finding by the state courts, stating: In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The Supreme Court addressed the meaning of § 2254(d)(1) in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

The Court recognized that the provision “places a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court.” Id. at 412, 120 S.Ct. at 1495. We recently summarized the Williams holding and other standards applicable to § 2254(d), stating: The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) are separate bases for reviewing a state court’s decisions.

A state court decision is “contrary to” clearly established federal law if either (1) the state court applied a rule that contradicts the governing law set forth by Supreme Court case law, or (2) when faced with materially indistinguishable facts, the state court arrived at a result different from that reached in a Supreme Court case. A state court conducts an “unreasonable application” of clearly established federal law if it identifies the correct legal rule from Supreme Court case law but unreasonably applies that rule to the facts of the petitioner’s case.

An unreasonable application may also occur if a state court unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context. Notably, an “unreasonable application” is an “objectively unreasonable” application. Lastly, § 2254(d)(1) provides a measuring stick for federal habeas courts reviewing state court decisions. That measuring stick is “clearly established Federal law.” 28 U.S.C. § 2254(d). Clearly established federal law is not the case law of the lower federal courts, including this Court.

Instead, in the habeas context, clearly established federal law “refers to the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant state court decision.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.2001) (citations and quotations omitted). In applying the “contrary to” prong of § 2254(d), we have recognized that where no Supreme Court precedent is on point, “we cannot say that the state court’s conclusion ... is contrary to clearly established Federal law as determined by the U.S. Supreme Court.” McIntyre v. Williams, 216 F.3d 1254, 1258 (11th Cir.2000).

We first address whether the Georgia Supreme Court’s holding that the invocation was not a per se violation of the constitution constituted a “decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Isaacs has pointed to no Supreme Court precedent which has held that the giving of a prayer at trial is a per se violation of the constitution, and we have found none.

Thus, we hold that the Georgia Supreme Court’s decision was not contrary to clearly established federal law as determined by the Supreme Court. We next consider whether the Georgia Supreme Court’s decision involved an unreasonable application of such federal law. In support of his position, Isaacs cites Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (finding an Eighth Amendment violation when the sentencer in a capital case is led to believe that the ultimate responsibility for determination of the sentence rests elsewhere).

The Georgia Supreme Court noted that the record did not disclose the content of the prayer, even though the case had been remanded on motion by the defendant for purposes of completion of the record. With no indication of the content of the prayer before the Georgia Supreme Court, and thus with no indication that the jury’s sense of responsibility was undermined, we cannot conclude that the decision of the Georgia Supreme Court involved an unreasonable application of Caldwell. •Isaacs also cites Lemon v.

Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and a Fourth Circuit case, North Carolina Civil Liberties Union Legal Foundation v. Constangy, 947 F.2d 1145 (4th Cir.1991) (applying Lemon’s test for determining whether there has been an establishment of religion). We readily conclude that the Georgia Supreme Court’s decision—that beginning a criminal trial with a prayer does not warrant a per se reversal of a criminal conviction— does not involve an unreasonable application of Lemon.

With no record of the content of the prayer, the Georgia Supreme Court was addressing a claim with respect to which Isaacs had proven no prejudice. The Fourth Circuit’s decision in Constangy involved an attempt to enjoin a trial judge’s practice of opening trials with a prayer delivered by the judge himself. The challenge was pursuant to the Establishment Clause with respect to which the court noted that it was not necessary to prove actual prejudice. See Constangy, 947 F.2d at 1152 (distinguishing United States v.

Bakker, 925 F.2d 728 (4th Cir.1991), which had vacated a sentence because a judge’s personal religious views entered into the sentencing process). We note, of course, that the Fourth Circuit cases are not determinations by the Supreme Court, and thus cannot guide our analysis. Moreover, nothing in the Fourth Circuit cases indicates that a conviction violates the constitution and must be set aside merely because the trial was begun with a prayer with respect to which no prejudice has been proven. See also the case cited by the Georgia Supreme Court, United States v.

Walker, 696 F.2d 277 (4th Cir.1982) (holding that even if beginning a criminal trial with a prayer violated the First Amendment, reversal was not warranted unless the prayer substantially impaired the fairness of the trial). We note that in his opening brief on appeal, Isaacs’ challenge to the state courts’ decisions with respect to the prayer focuses on the decision of the Supreme Court of Georgia, and not the decision of the state habeas court. However, his argument assumes his own version of the content of the prayer, and ignores the findings of fact in this regard by the state habeas court.

For the first time in his reply brief, Isaacs acknowledges the finding of the state habeas court; he argues that it was a legal conclusion and not a factual determination. Despite Isaacs’ urging that we accept the testimony of his trial counsel concerning the words used by the minister, we find that we are constrained by § 2254(e)(1) to credit the state habeas court’s findings of fact in this regard. As mentioned above, this provision requires that we presume a state court’s findings of fact to be correct unless a petitioner shows otherwise by clear and convincing evidence.

In this case, Isaacs has not carried that burden, and therefore we accept as true the state habeas court’s finding that the prayer was neutral in nature. We also take into account the uncontested facts that the prayer was given prior to voir dire, that the defense was permitted to and did question jurors about the prayer or other religious issues during voir dire, and that the invocation occurred 26 days before the jury sentenced Isaacs to death.

In light of these facts concerning the content and context of the invocation, we cannot conclude that the state habeas court acted contrary to, or unreasonably applied, existing Supreme Court precedent in holding that the prayer did not violate Isaacs’ due process rights. See 28 U.S.C. § 2254(d)(1). 3. Procedural Default of Claim Regarding Failure to Record Prayer Next, we turn to Isaacs’ claim that the failure to record the invocation violated his constitutional rights.

Both the state habeas court and the district court found this claim to have been procedurally barred by Isaacs’ failure to raise the claim on direct appeal. Isaacs maintains that the failure to record issue was not proeedurally defaulted because his 764-page direct appeal brief, enumerating 153 separate errors (not including this one), contained a footnote which stated: Appellant had filed and had granted (mot. 9/28/87, p. 90) a motion to record all proceedings (R-202.638). Nevertheless the “invocation” was not recorded.

It is believed however that uncontradict-ed objections set out the objectional [sic] statements, preserve this issue, and idea of an invocation is a death penalty trial, [sic] Error is, of course, hereby claimed in the failure to record and transcribe same. See Wilson v. State, 246 Ga. 672, 273 S.E.2d 9 (1980); Parrott v. State, 134 Ga.App. 160, 214 S.E.2d 3 (1975), State v. Graham, 246 Ga. 341, 271 S.E.2d 627 (1980). Isaacs’ Opening Brief on Direct Appeal, p. 306 n. 28. The Georgia Supreme Court did not address this issue in its decision. We agree that Isaacs’ failure to record claim is proeedurally defaulted.

On facts more favorable to a federal habeas petitioner than the facts of this case, the Supreme Court held that the petitioner had failed to fairly present a federal claim to the state courts. See Duncan v. Henry, 513 U.S. 364, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995). The Court stated: In Picard v.

Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), we said that exhaustion of state remedies requires that petitioners “fairly pre-sen[t]” federal claims to the state courts in order to give the State the “ ‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights” (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.

If a habeas petitioner wishes to claim that an evi-dentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. Id. at 365-66, 115 S.Ct. at 888. In light of Duncan, we agree with the district court that Isaacs did not “fairly present” to the state court a failure to record claim cognizable in federal habeas corpus proceedings.

The footnote from Isaacs’ direct appeal brief, quoted above, seems to be intended as an indication that Isaacs’ prayer claim had been preserved for appeal, and does not seem to have been intended as the statement of a separate and independent failure to record claim. Such a claim is contained, if at all, in a single sentence: “Error is, of course, hereby claimed in the failure to record and transcribe same.” This purported one-sentence claim is supported only by citations to state cases.

No federal cases were cited, and no language was used by Isaacs which would have alerted the Georgia Supreme Court to the fact that Isaacs was asserting a federal constitutional claim, separate and independent from his prayer claim. Under these circumstances, we readily conclude that Isaacs failed to “fairly present” to the Georgia Supreme Court a federal constitutional claim of failure to record, and thus that the claim is proeedurally defaulted.

We also conclude that Isaacs cannot demonstrate “cause” and “prejudice” or “a fundamental miscarriage of justice” in order to excuse the default. “A habeas petitioner can escape the procedural default doctrine either through showing cause for the default and prejudice, or establishing a fundamental miscarriage of justice.” Bailey v. Nagle, 172 F.3d 1299, 1306 (11th Cir.1999) (citations and quotations omitted). In order to show the type of “miscarriage of justice” that will excuse a procedural bar, a petitioner must make “a colorable showing of actual innocence.” Id. (citations and quotations omitted).

Isaacs argues that “cause” exists to excuse the procedural default of the failure to record claim because of the information which he allegedly received after the completion of the state court proceedings concerning the timing of when the trial judge learned that the prayer had not been recorded. We can assume arguendo that the trial judge noticed that the court reporter stood up during the prayer, and therefore did not record the prayer, or that the judge otherwise promptly became aware thereof.

And we can assume ar-guendo that that trial defense counsel did not observe that fact and did not become aware thereof during the trial itself. Nevertheless, we do not find those facts significant in light of the fact that counsel was, or should have been, aware that the prayer had not been recorded at least as of the time of the new trial proceedings, but failed to reconstruct the record, and in light of the fact that counsel clearly had such knowledge as of the time of the initial remand from the Supreme Court of Georgia and again failed to reconstruct the record.

Nor can Isaacs demonstrate “prejudice” to excuse his procedural default. As noted above, the state habeas court considered the evidence adduced by Isaacs with respect to the content of the prayer, and found that the content of the prayer was neutral. Thus, we conclude that Isaacs cannot demonstrate “prejudice” with respect to the procedural default in failing to preserve the failure to record claim. Isaacs also argues that there was no procedural bar because the state habeas court ruled on the merits of this claim.

The basis for his argument is that, after explaining why the issue was procedurally defaulted, the state habeas court finished with a condusory statement to the effect that the ground was without merit. Given the context in which the statement appears (i.e. at the end of a discussion of procedural default), and in light of the fact that there is absolutely no discussion of the underlying merits of the claim, we conclude that the statement does not indicate a ruling on the merits.

Instead, the state court was merely indicating that Isaacs was not entitled to relief with respect to the claim in light of the procedural bar. Therefore, the claim is procedurally defaulted. 4. Procedural Default of Ineffective Assistance Claim Regarding Failure to Recreate Record of Prayer In his final claim related to the prayer, Isaacs contends that the district court erred in finding procedurally defaulted his claim that he received ineffective assistance of counsel during his new trial proceedings and on appeal in that his counsel failed to recreate the record of the prayer while memories were fresh.

The district court found that this claim was not raised in state court, and therefore was procedurally defaulted. We agree. The claim in state court challenged counsel’s performance for “failing to assure that such prayer was recorded by the court reporter.” This claim in the state habe-as petition refers to counsel during the trial itself, and his failure to assure that the prayer was recorded.

The claim as presented to the state habeas court makes no reference to the subsequent performance of counsel during the new trial proceedings or on remand from direct appeal, and does not challenge counsel’s performance for failure to recreate the record.

By contrast, the claim raised for the first time in federal court challenges the performance of counsel for failing “to create an accurate record of this invocation on a timely basis when memories were fresh, when it became clear that the invocation apparently was not recorded by the court reporter.” Thus for the first time in federal court, Isaacs challenges the performance of counsel during the new trial proceedings and on direct appeal, and for the first time challenges the performance for failure to recreate the record.

Having found a procedural default, we address whether or not Isaacs can demonstrate “cause” and “prejudice,” or alternatively whether the “miscarriage of justice” exception applies. See Bailey v. Nagle, 172 F.3d 1299, 1306 (11th Cir.1999). We readily conclude that Isaacs cannot demonstrate “cause”; the failure of his state habeas counsel to present this claim cannot constitute “cause.” See Gonzalez v. Abbott, 967 F.2d 1499 (11th Cir.1992); Toles v.

Jones, 888 F.2d 95, 99-100 (11th Cir.1989), vacated and reh’g en banc granted, 905 F.2d 346 (11th Cir.1990), reinstated, 951 F.2d 1200, 1201 (11th Cir.1992) (en banc) (per curiam). Also, we conclude that Isaacs cannot demonstrate “prejudice.” As noted above, Isaacs had a full opportunity to prove the contents of the prayer during the state habeas corpus proceedings, but those proceedings resulted in a finding of fact that the content of the prayer was neutral. Therefore, we conclude that Isaacs could not in any event have demonstrated that the failure to record a neutral prayer prejudiced him.

Isaacs has not attempted to show “actual innocence,” supporting the “miscarriage of justice” exception to procedural default. Therefore, this claim is barred. C. The Admission of Statements Regarding Escape Attempts Taken From Isaacs While in Custody We now turn to Isaacs’ claim that his constitutional rights under the 5th and 14th Amendments were violated by the admission into evidence of statements, given while in custody, concerning two escape attempts. The statements came years after he asserted his right to speak with the police only through counsel at and before the time of his trial.

Isaacs maintains that the admission of these statements during the sentencing phase of his trial, and arguments by the State related to them, violated the Supreme Court’s decisions in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). The Georgia Supreme Court rejected this claim on direct appeal, and we conclude for the reasons that follow that its adjudication of the claim was neither contrary to, nor an unreasonable application of, established Supreme Court precedent.

The custodial statements that are the basis for Isaacs’ claim concern two prison escape attempts in which Isaacs was involved. The first occurred in July 1980 when four death row inmates, but not Isaacs, escaped from Reidsville State Prison. Isaacs was involved in the planning of that escape attempt, but did not escape with the other inmates because he was transferred earlier in the day of the escape. The second escape attempt happened in November 1985, but no inmates were successful.

Therefore, the two escape attempts, and the statements made by Isaacs, occurred years after Isaacs’ original conviction in 1974 or his initial invocation, in 1973, of his right to speak with police only through counsel. The facts related to the custodial statements made by Isaacs are as follows. Following each of the 1980 and 1985 escape attempts, Isaacs was required by prison authorities to meet with Agent Robert Ingram of the Georgia Bureau of Investigations. According to Agent Ingram, prior to interrogating Isaacs, he read Isaacs his Miranda rights, and Isaacs agreed to waive his rights and talk.

According to Isaacs, at the time that he was interrogated, he was represented by counsel with regard to the charges for which he was in custody, and the prison had the names and contact information for his attorneys, but his attorneys were not contacted before the interrogations. At his retrial in 1988, Isaacs moved to suppress the statements concerning the escape attempt, arguing that the statements were taken in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). After conducting a Jackson-Denno hearing, the trial court overruled Isaacs’ motion.

Afterwards, during the sentencing phase of the trial, the prosecution introduced six statements from Isaacs in order to show both his future dangerousness and his lack of remorse. One of the statements was a 48-page, handwritten statement by Isaacs concerning his involvement in the 1980 escape. Another was an hour-long recorded statement concerning the 1985 escape attempt.

The prosecution also put on evidence of a statement to the effect that Isaacs said “that he would continue his efforts to escape from confinement.” The State focused on this statement in its arguments to the jury in support of the death penalty. On direct appeal, the Georgia Supreme Court considered Isaacs’ challenge to the admissibility of the custodial statements and found that they had been admitted properly because Isaacs had voluntarily waived his Miranda rights with respect to the investigations of the escape attempts. Isaacs, 386 S.E.2d at 326-27.

In reaching this conclusion, the court did not discuss the applicability of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), or of Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). In his brief on direct appeal, however, Isaacs had made an extensive Edwards argument to the Georgia Supreme Court, but did not cite Roberson, which had been decided only recently. On federal habeas review, the district court found that the Georgia Supreme Court’s findings concerning the voluntariness of Isaacs’ waiver of his Miranda rights were supported by the evidence.

The court also rejected Isaacs’ reading of Roberson, concluding that it did not prohibit police from initiating interrogations of prisoners after they have been convicted of the original crime with respect to which they asserted a right to counsel. Therefore, the court rejected Isaacs’ contention. On appeal, Isaacs does not challenge the district court’s findings regarding the vol-untariness of his consent to interrogation or the facts supporting the Georgia Supreme Court’s decision.

Instead, he limits his argument to the issue of whether his statements were inadmissible in light of the Supreme Court’s decisions in Edwards and Roberson. 1. AEDPA’s Limitations on Our Review Before reaching the merits of Isaacs’ claim, we must again consider the extent to which AEDPA circumscribes our review. As discussed above, § 2254(d)(1) prevents us from upsetting a state court adjudication of federal claims unless that adjudication is contrary to, or amounts to an unreasonable application of, established Supreme Court precedent.

With respect to Isaacs’ Edwards claim, however, we are confronted with the situation in which Isaacs’ brief to the state court argued the Edwards decision, but the state court’s opinion did not mention it. Therefore, the question becomes whether we should defer to such an adjudication, as long as it is not contrary to, or an unreasonable application of, the relevant Supreme Court decisions. We have previously brushed up against this issue in two recent cases. First, in Romine v.

Head, 253 F.3d 1349, 1365 (11th Cir.2001), we discussed the effect of § 2254(d)(1) where it was unclear whether a state court had adjudicated a federal claim. In the earlier state supreme court opinion, “[the] entire three-sentence discussion of the issue simply [found] 'no reversible error’ based upon the bare conclusion that ‘nowhere did the prosecutor seriously overstep his bounds,’ ” and this conclusion was supported only by a string citation to five state court decisions. Id. at 1365 (citation omitted).

Therefore, we noted that: “To begin with, it is far from clear what, if any, rule of federal law the Georgia Supreme Court applied.” Id. Moreover, the State conceded to this Court that the state supreme court had not applied federal law to Romine’s claim. Id. Therefore, we concluded: Given all these factors, especially the State’s concession, we have grave doubt that the Georgia Supreme Court applied federal law at all, let alone the governing law set down in Supreme Court decisions.

Failure to apply that governing law (or the same rule in state law) is tantamount to applying a rule that contradicts governing law, for these purposes. And under Williams that means the federal habeas court will be unconstrained by § 2254(d)(1) because the state-court decision falls within that provision’s “contrary to” clause. In other words, when there is grave doubt about whether the state court applied the correct rule of governing federal law, § 2254(d)(1) does not apply. That is what we have here, so we proceed to decide the issue de novo, as the district court did.

Romine, 253 F.3d at 1365 (citations, quotations and footnote omitted). After Romine, we more recently addressed the issue of the application of § 2254(d)(1) in the much more common context of a state court’s rejection without discussion of a federal claim presented to it by a defendant. See Wright v. Secretary for Dept. of Corrections, 278 F.3d 1245 (11th Cir.2002).

In Wright, we acknowledged that Romine had “brushed up against” the same issue, but recognized that Romine was a narrow decision, characterizing it as follows: In that case, it was unclear whether the federal constitutional issue had been raised and decided in state court — we expressed “grave doubt” that it had been — and the attorneys representing the State insisted that the state court had not addressed the federal issue.

In those circumstances, we held that no deference was due the state court’s decision of the federal constitutional issue for the simple reason that the state court probably had not decided it. We would not defer to that which did not exist. Id. at 1254 (citation omitted). In contrast, we stated in Wright that it was not disputed that the issue before us had been presented to and decided by the state court, though without discussion, and we did not “gravely doubt that it was.” Id. Finding Romine distinguishable, we continued in Wright by stating that the issue was “whether the state court’s

summary, which is to say unexplicated, rejection of the federal constitutional issue qualifies as an adjudication under § 2254(

d) so that it is entitled to deference.” Id. Siding with six other circuits that had “squarely addressed that question,” we concluded that “the

summary nature of a state court’s decision does not lessen the deference that it is due.” Id. In reaching this conclusion, we first focused on the fact that “[t]he plain language of § 2254(d)(1) requires only that the federal claim have been ‘adjudicated on the merits in State court proceedings’ and have ‘resulted in a decision’ that is neither contrary to nor involves an unreasonable application of Supreme Court precedent.” Id.

In light of these requirements, and noting that “[a] judicial decision and a judicial opinion are not the same thing,” we concluded that “[t]he statutory language focuses on the result, not on the reasoning that led to the result, and nothing in that language requires the state court adjudication that has resulted in a decision to be accompanied by an opinion that explains the state court’s rationale.” Id. at 1255. Therefore, we held that in order for the § 2254(d)(1) bar to apply, “all that is required is a rejection of the claim on the merits, not an explanation.” Id.

We also noted that, “[t]o conclude otherwise on this issue would be writing into § 2254(d)(1) an additional requirement that Congress did not put there — a requirement that the state courts explain the rationale of their decisions,” and stated that Congress, and not federal courts, would have to impose such a requirement. Id. The Court observed that telling state courts how they must handle cases would run contrary to notions of federalism and comity. Id. Therefore, we concluded: “In § 2254(

d) Congress meant to, and did, mandate deference to state court adjudications on the merits of federal constitutional issues, and a decision that does not rest on procedural grounds alone is an adjudication on the merits regardless of the form in which it is expressed.” Id. at 1255-56. The instant case is analogous to Wright, and not to Romine.

Here, it is apparent to us that the Georgia Supreme Court considered Edwards inapplicable in the context of an interrogation of an inmate in the penitentiary, conducted after a waiver of his Miranda rights, and conducted six to eleven years after his conviction and sentence (and even longer after his pretrial invocation of the right to counsel during interrogation). As did the panel in Wright, we believe Romine is inapposite. Here, there was no concession by

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