Eddie Albert CRAWFORD, Petitioner-Appellant, v. Frederick HEAD, Warden, Georgia Diagnostic Prison, Respondent-Appellee, 311 F.3d 1288

ANDERSON, Circuit Judge: Petitioner Eddie Albert Crawford was convicted and sentenced to death for the murder of Leslie English by the Georgia state courts in 1987. After the completion of his direct appeal and state habeas court proceedings, Crawford filed a petition for habeas corpus in the district court, pursuant to 28 U.S.C. § 2254, challenging his conviction and death sentence on a number of grounds.

The district court denied the petition, but granted a certificate of ap-pealability as to Crawford’s claims that he received ineffective assistance of counsel both during the guilt-innocence phase of his trial and during the penalty phase. We granted Crawford a certificate of ap-pealability as to his claim that the prosecution failed to disclose to him exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and as to his claim of juror misconduct.

For the reasons discussed below, we conclude that Crawford is not entitled to relief from his conviction or sentence, and we affirm the district court’s denial of his habeas petition. I. BACKGROUND A. Facts Eddie Albert Crawford was convicted for the murder of his 29-month-old niece, Leslie English. The Georgia Supreme Court summarized the evidence related to this murder as follows: The evidence at trial showed that the victim and the victim’s mother, Wanda English, resided with Mrs. English’s parents. The defendant was married to, but estranged from, one of Mrs.

English’s sisters at the time of the victim’s death. At approximately 11:00 p.m. Saturday, September 24, 1983, Mrs. English readied the victim for bed. The defendant arrived at the victim’s residence and asked Mrs. English to accompany him to a liquor store. Mrs. English agreed. The defendant was intoxicated and, enroute from the liquor store, made an unsuccessful attempt to purchase marijuana. The two returned to Mrs. English’s residence where the defendant asked Mrs. English to spend the night with him. When she refused, the defendant left. Mrs.

English encountered the defendant later that same night at the house of another of her sisters. During this visit the defendant kicked an ashtray off a table which struck Mrs. English. As Mrs. English picked up the ashtray’s contents, the defendant “grabbed her and pushed her.” Mrs. English yelled-that she would not allow him to treat her like that, then threw the ashtray at him. As Mrs. English left her sister’s home, the defendant swore and called to her, “I’ll fix you.” During this time the victim was in the care of Mrs. English’s father, Raymond Fuller. Mr.

Fuller testified that before he went to bed at 3:00 a.m., he observed the victim sleeping and pulled the bedclothes about her. Mr. Fuller testified he returned to his own bed and fell asleep. He stated that “sometime later” he was awakened by the defendant walking through the house with a lighted cigarette lighter. Mr. Fuller saw the defendant walking through the victim’s bedroom in the direction of the bathroom. As the defendant was a family member and frequent guest in his home, Mr. Fuller did not consider this unusual. Mr.

Fuller testified he again fell asleep and did not wake up until 5:00 a.m. when Wanda English returned home and discovered the victim missing. Charles Durham, who lives in a house adjacent to the Fullers, testified that between 3:45 a.m. and 4:00 a.m., he observed the defendant drive up to the Fuller home and exit his car, leaving the car headlights on and the motor running. Mr. Durham testified that “about five minutes later” he noticed the defendant’s car drive away. When Wanda English could not locate the victim upon her return home at 5:00 a.m., she initiated a search throughout the neighborhood.

She observed the defendant in his car, parked with the motor running, in front of a neighboring house, and asked if he had seen the victim. The defendant replied that he had not. Later, when the victim’s grandfather asked the defendant if he knew where the victim could be found, the defendant replied “Randy [the victim’s father] done it.” In the following days the defendant gave three inconsistent stories concerning where he had been between the hours of 3:00 a.m. and 5:00 a.m. on September 25.

When interviewed by law enforcement officers on September 27, 1983, the defendant stated that he could remember speaking to the victim’s grandfather before the victim’s disappearance, but he remembered nothing more of what took place at the Fuller residence. The defendant told .police that he remembered driving his car, with the victim in his lap, and trying to wake up the victim, “but she would not talk to [him.]” The defendant stated he believed the victim was “mad” because she would not respond to him. The defendant stated he stopped his car and walked “on pavement” with, the victim in his arms.

The defendant stated he remembered getting back into his car without the victim, but did not remember anything that had occurred in the interim. The victim’s body, clothed only in a pajama top, was discovered in a wooded area on September 26, 1983. An autopsy revealed the victim died as a result of asphyxiation. The victim had sustained a number of bruises and cuts about the left side of her face. There was a tear in the victim’s vaginal opening.

Based on the size and shape, of the tear, the pathologist who performed the autopsy opined that it had been made by “an object more consistent with 'a penis than other objects.” The pathologist stated his opinion that death occurred at approximately 4:30 a.m. on September 25, 1983. Crawford v. State, 254 Ga. 435, 330 S.E.2d 567, 568-69 (1985) (footnote omitted). Considerable hair and fiber evidence was found on the victim, including three hairs on the victim’s pajama top that were consistent with Crawford’s head hair, and some fibers that were consistent with fibers from Crawford’s car.

Also, the police recovered the tee-shirt worn by Crawford on the night of the murder, which they found stuffed behind a dresser in the house in which Crawford slept on the night of the murder. The shirt had blood on it, although the blood could not be typed conclusively. In addition, a pillow case, mattress pad, and bed sheet were recovered on the edge of the road not far from the body of the' victim, and Crawford’s wife identified these items as coming from their trailer. This bedding also had hairs consistent with Crawford and the victim, as well as fibers consistent with the carpet in Crawford’s car.

Type 0 blood, the type shared by the victim and Crawford, was found on the bed sheet. B. Procedural History Crawford was originally tried and convicted of murder on March 7, 1984. At the sentencing phase of that trial, the jury found as a statutory aggravating circumstance that the murder was committed during the commission of the felony of child molestation. On direct appeal, the Georgia Supreme Court reversed the conviction because it found that the verdict was ambiguous, in light of the judge’s jury charge, concerning whether the jury convicted Crawford of malice murder or of felony murder. Id. at 570-71.

Because Crawford had not been indicted for felony murder, the court concluded that the conviction could not stand. Id. The court noted that there was sufficient evidence to support a guilty verdict either for malice murder or felony murder, so Crawford could be re-indicted and retried. Id. at 571. After the State re-indicted Crawford, he sought to prevent the State from seeking the death penalty, arguing double jeopardy grounds. On interlocutory appeal, the Georgia Supreme Court rejected this challenge, Crawford v. State, 256 Ga. 57, 344 S.E.2d 215 (1986), and the U.S.

Supreme Court denied Crawford’s cert. petition, Crawford v. Georgia, 479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 585 (1986). His case then proceeded to trial in January 1987, and he was convicted of felony murder. The jury found three aggravating circumstances and again recommended that Crawford be sentenced to death. On- direct appeal, the Georgia Supreme Court affirmed the conviction and sentence, Crawford v. State, 257 Ga. 681, 362 S.E.2d 201 (1987), and the United States Supreme Court denied Crawford’s petition for certiorari, Crawford v.

Georgia, 489 U.S. 1040, 109 S.Ct. 1098, 103 L.Ed.2d 239, reh’g denied, 490 U.S. 1042, 109 S.Ct. 1946, 104 L.Ed.2d 417 (1989). Next, Crawford sought state habeas relief from his conviction and sentence, filing a petition on August 20, 1990. Crawford amended this petition around July 31, 1992, and received an evidentiary hearing on the amended petition on July 31, 1992. On May 21, 1993, the state habeas court denied Crawford any relief.

The Georgia Supreme Court subsequently denied Crawford’s application for a certificate of probable cause on November 24, 1993, and the United States Supreme Court again denied his petition for certiorari on April 24, 1995, Crawford v. Zant, 514 U.S. 1082, 115 S.Ct. 1792, 131 L.Ed.2d 721, reh’g denied, 515 U.S. 1137, 115 S.Ct. 2570, 132 L.Ed.2d 821 (1995). Crawford filed his § 2254 habeas petition in the district court on April 23, 1997.

The district court conducted an evidentiary hearing on March 31, 1999, and then dismissed several of Crawford’s claims based on exhaustion and procedural default grounds in orders issued on May 6, 1999 and May 19, 1999. After additional briefing on the remaining claims, the district court denied the petition for habeas relief on February 22, 2000, and amended its order on March 2, 2000. On December 7, 2000, the district court denied Crawford’s motion to alter and amend the judgment. On January 8, 2001, Crawford filed a timely notice of appeal and application for certificate of appealability (“COA”).

The district court granted a COA with respect to Crawford’s ineffective assistance of counsel claims, and we granted an order expanding the COA to include Crawford’s Brady claim and his juror misconduct claim. II. ISSUES 1. Whether Crawford is entitled to relief based on his claim that he received ineffective assistance of counsel during either the guilt-innocence phase or the penalty phase of his trial. 2. Whether Crawford is entitled to relief based on his claim that exculpatory Brady evidence was not provided to him by the prosecution. 3.

Whether Crawford is entitled to relief based on the alleged juror misconduct. III. STANDARD OF REVIEW When reviewing a district court’s judgment in a habeas case, “we traditionally review the district court’s findings of fact for clear error and its legal conclusions and mixed questions of law and fact de novo." Robinson v. Moore, 300 F.3d 1320, 1342 (11th Cir.2002) (quoting Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir.2001)).

In cases''such as this one that challenge, pursuant to 28 U.S.C. § 2254, a petitioner’s conviction or sentence in the state courts, and that are subject to the provisions of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, both the district court’s review and our review is greatly circumscribed and is highly deferential to the state courts. See Williams v. Taylor, 529 U.S. 362, 402-13, 120 S.Ct. 1495, 1518-23, 146 L.Ed.2d 389 (2000).

We recently explained the standards applicable to our review under these circumstances, stating: First, § 2254(e)(1) provides for a highly deferential standard of review for factual determinations made by 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). Second, § 2254(

d) allows federal habeas relief for a claim adjudicated on the merits in state court only where that adjudication in state court “(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).

Section 2254(d)(1) “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” by requiring satisfaction of one of two conditions for issuance of the writ. As the Supreme Court recently put it, AEDPA “modified a federal habeas court’s role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v.

Cone, 535 U.S. 685, 122 S.Ct. 1843, 1849, 152 L.Ed.2d 914 (2002) (citing Williams, 529 U.S. at 403-04, 120 S.Ct. 1495, 146 L.Ed.2d 389). Robinson, 300 F.3d at 1342-43 (citations and quotations omitted). IV. DISCUSSION A. Ineffective Assistance of Counsel Claims Crawford maintains that he is entitled to relief from his conviction and/or his death sentence because he received ineffective assistance of counsel during both the guilt-innocence phase and the penalty phase of his trial, contrary to the Sixth Amendment to the Constitution.

The state habeas court concluded that all of Crawford’s ineffective assistance claims were without merit, and now we must consider whether that decision was contrary to, or was an unreasonable application of, clearly established federal law as set out in Supreme Court precedent, or whether the state ha-beas court’s conclusions “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.” See 28 U.S.C. § 2254(d).

In performing this review, we must bear in mind that any “determination of a factual issue made by a State court shall be presumed to be correct,” and Crawford bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). For the reasons explained below, we conclude that the state court’s decision with respect to Crawford’s claim of ineffective assistance during the guilt-innocence phase of trial does not fall outside of the range of decisions to which we must defer under these standards, and Crawford consequently is not entitled to relief on that claim.

With respect to Crawford’s penalty phase claim, we conclude that Crawford has failed to establish prejudice in support of his claim. Therefore, Crawford is not entitled to relief with respect to either of his ineffective assistance of counsel claims. 1. The Strickland Standard In order to begin our review of Crawford’s ineffective assistance of counsel claims, we must determine what the clearly established federal law as set out in Supreme Court decisions was as of the time that the state courts reviewed Crawford’s claims. See Robinson, 300 F.3d at 1342-43.

The familiar legal standards applicable to such claims derive from the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Williams, 529 U.S. at 390-91, 120 S.Ct. at 1511-12 (concluding that Strickland provided standards that were clearly established federal law applicable to ineffective assistance of counsel claims).

In Fugate, we summarized these well-worn standards as follows: To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show (1) that “counsel’s performance was deficient” because it “fell below an objective standard of reasonableness,” Strickland, 466 U.S. at 687, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, and (2) that “the deficient performance prejudiced the defense,” id. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. In a capital case, the two-prong Strickland analysis is applied at both the guilt and penalty phases. Mincey v.

Head, 206 F.3d 1106, 1142 (11th Cir.2000) (quoting Strickland, 466 U.S. at 686-87, 104 S.Ct. 2052, 80 L.Ed.2d 674). Counsel’s performance is entitled to “highly deferential” judicial scrutiny, and “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (quoting Michel v.

Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). This presumption is even stronger when the reviewing court is examining the performance of an experienced trial counsel. See Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir.2000) (en banc), cert. denied, 531 U.S. 1204, 121 S.Ct. 1217, 149 L.Ed.2d 129 (2001). In this case, the state habeas court acknowledged that ineffective assistance of counsel claims are governed by Strickland and that the petitioner was required to show both ineffectiveness and prejudice.

To analyze the prejudice prong, a court must “evaluate the totality of the available mitigation evidence— both that adduced at trial, and the evidence adduced in the habeas proceeding — in reweighing it against the evidence in aggravation.” Williams, 529 U.S. at 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (citing Clemons v. Mississippi 494 U.S. 738, 751-52, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990)). “Given the strong presumption in favor of competence, the petitioner’s burden of persuasion — though the presumption is not insurmountable — is a heavy one.” Chandler, 218 F.3d at 1314 (footnote and citations omitted).

In order to show that counsel’s performance was unreasonable, the petitioner “must establish that no competent counsel would have taken the action • that his counsel did take.” Id. at 1315 (footnote and citation omitted). “No absolute rules dictate what is reasonable performance for lawyers.” Id. at 1317 (citing Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052, 80 L.Ed.2d 674). Thus, courts refrain from establishing rigid requirements for trial counsel’s performance.

For example, there is no absolute duty to investigate particular facts or a certain line of defense, although a complete failure to investigate may constitute deficient performance of counsel in certain circumstances. See id.; Housel v. Head, 238 F.3d 1289, 1294 (11th Cir.2001) (“A failure to investigate can be deficient performance in a capital case when counsel totally fails to inquire into the defendant’s past or present behavior or life history.”). Likewise, “[n]o absolute duty exists to introduce mitigating or character evidence.” Chandler, 218 F.3d at 1319.

This court and the Supreme Court have held repeatedly that the performance of counsel who fails to present any mitigating evidence' whatsoever — even when such evidence was available — may nonetheless pass constitutional muster. See id. (citing Burger v. Kemp, 483 U.S. 776, 794-96, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987); Darden v. Wainwright, 477 U.S. 168, 182-84, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir.1995) (en banc)). Fugate, 261 F.3d at 1216-17.

Strickland also spoke to the issue of how to review the adequacy of an attorney’s investigation of issues related to a case, as well as to an attorney’s strategic decisions not to pursue particular issues, stating: These standards require no special amplification in order to define counsel’s duty to investigate, the duty at issue in this case.

As the Court of Appeals con-eluded, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. With these governing principles and our deferential review under AEDPA in mind, we now turn to Crawford’s claims that he received ineffective assistance of counsel, both during the guilt-innocence and penalty phases of his trial. 2.

The Facts Concerning Crawford’s Representation In order to address Crawford’s ineffective assistance of counsel claims, it is necessary that we first recount in some depth the facts concerning his representation. As a backdrop to considering the reasonableness of Crawford’s attorney’s approach to this case, we note that it is important to keep in mind that this was not the first time that Crawford was tried for the crime of which he was convicted.

Instead, as mentioned above, Crawford was convicted previously, only to have the Georgia Supreme Court reverse the conviction based on ambiguity concerning the jury charge and the form of the jury’s verdict. See Crawford v. State, 254 Ga. 435, 330 S.E.2d 567 (1985). Therefore, Crawford’s counsel had the benefit of the transcript from the first trial in preparing for the retrial. Prior to the retrial, Crawford chose to retain new counsel to represent him. In the summer of 1985, Crawford’s family retained August F.

Siemon, III, an attorney who had been actively practicing criminal law for over 10 years at the time of Crawford’s trial and who had substantial prior experience in death penalty cases, to represent Crawford in the retrial. The family agreed to pay Siemon $5,000 in order for him to handle the trial. According to Siemon’s testimony during the state habeas proceedings, discussed more below, he read the entire transcript from Crawford’s trial around the time that he began representing Crawford.

After Siemon filed his notice of appearance on July 31, 1985, Crawford’s two attorneys from his first trial filed motions to withdraw as counsel, and the court permitted them to do so. Next, Siemon filed a motion with the trial court to preclude the prosecution from seeking the death penalty against Crawford on double jeopardy grounds. During a hearing on November 15, 1985, the trial court denied the motion.

At that time, Siemon informed the court that Crawford intended to appeal the ruling concerning the double jeopardy motion, and that he would file a motion for appointment of counsel on appeal, as well as a motion to proceed in forma pauperis. At a hearing on December 6, 1985, the trial court took up the issue of whether Crawford was entitled to proceed in forma pauperis, as well as the motion for appointment of appellate counsel.

Siemon stated during that hearing that it was his hope that, despite the fact that he had been retained by Crawford, the court would appoint additional counsel to assist in the defense — preferably one of the attorneys from Crawford’s first trial who was already familiar with the case. The trial court ruled that Crawford was not entitled to have additional counsel appointed to assist in the interlocutory appeal concerning the double jeopardy issue because Siemon was capable of handling it on his own.

Siemon attempted to present additional evidence concerning his need for appointed co-counsel, but the trial court found that the proffer was irrelevant given that the only motion that it was considering was the motion for appointment of counsel to assist in the appeal. Nonetheless, following the hearing the trial court entered written orders denying both the motion for appointment of appellate counsel and the motion to proceed in forma pauperis. Following the December 1985 hearing, Crawford proceeded with his interlocutory appeal concerning the double jeopardy issue, to no avail.

That appeal worked its way through the appellate courts for most of 1986, returning to the trial court in July 1986. Then, on October 27, 1986, the trial court entered its second scheduling order in the case (the first having been filed before the interlocutory appeal), setting December 8, 1986, as the date for Crawford’s arraignment, and stating that pretrial motions would be handled during the week of December 8, 1986. The order also stated that the trial would commence on January 12,1987.

After being notified of a scheduling conflict, the trial court subsequently re-scheduled the arraignment and pre-trial motion deadline for January 12, 1987, and re-scheduled the beginning of trial for January 26,1987. On January 12, 1987, Siemon appeared before the trial court and filed two motions — one challenging the array of the grand and petit juries and one requesting funds to assist the defense and an ex parte hearing related to the funds request.

In the latter motion, Crawford requested funds to pay for an additional attorney, scientific experts to challenge the prosecution’s scientific evidence, an investigator, a challenge to the jury array, a community prejudice survey in support of a motion to change venue, a challenge to the prosecution’s history of using peremptory challenges in a discriminatory manner, a challenge to the prosecution’s exercise of its discretion to seek the death penalty in a discriminatory manner, and a medical doctor “to present critical evidence in mitigation of punishment.” During the hearing, Siemon made clear to the court that since the time of the hearing in December 1985,. the only actions he had taken with respect to Crawford’s case related to the interlocutory appeal and not to trial preparation.

Among other scheduling conflicts, Siemon indicated that oral arguments were scheduled for January 21, 1987, before the Georgia Supreme Court in another death penalty case, and that yet another death penalty case was scheduled to go to trial in February 1987. Therefore, Siemon requested that a hearing be set on the motion for funds, so that the defense could begin to prepare for a trial to commence at some time after the upcoming proceedings in his other cases.

The court rejected this suggestion, however, and indicated that it intended to proceed on both motions “within the hour,” although it relented somewhat and set the motion challenging the jury array for a hearing at 10 o’clock the following morning. In response, Siemon indicated to the trial court that if he were forced to go along with the court’s schedule, he would not be prepared, and would be unable to provide effective assistance to Crawford.

He requested at least 8-4 days to prepare for a hearing oir his motion for funds and for an ex parte hearing, with a hearing on the motion challenging the jury array to be held at some time after that. The court denied the request for an ex parte hearing, and stated that the hearing on the motion for funds would proceed after a 15 minute recess. At that time, Siemon refused to provide the court with specific arguments supporting the particular funds requests because he argued that doing so would reveal his trial strategies to the prosecution.

In response, the court granted Siem-on $1,000 “initially” to be used by “any of the experts enumerated in the motion.” At the conclusion of the January 12 hearing, the court arraigned Crawford. On the following day, the court took up the motion challenging the jury array. Siemon again notified the court he was unprepared and needed more time and resources. In response to a question from the court, Siemon confirmed that he had done no investigation or preparation prior to fifing the motion on the previous day.

Siemon also indicated that he would be meeting for the first time later that afternoon with an investigator who would assist in preparing for the trial. The court then proceeded with the hearing on the jury challenge, although the court agreed to continue the hearing until January 19 in order to give Siemon more time to prepare. At the January 19 hearing, Siemon presented evidence in support of Crawford’s challenge to the jury array, but he again indicated that he needed more time and money.

Siemon stated that the initial “$1,000 has essentially been used up in getting us as far as we’ve gone now,” and again requested additional funds. The court expressed frustration with Siemon’s lack of preparation, and declined to grant additional funds at that .time. The court indicated, however, that if Siemon used up the first $1,000 and presented evidence of a need for additional funds, it would consider granting more funds. The following Monday, January 26,1987, the case proceeded to trial. On that day, Crawford filed a motion for a continuance, and a motion for funds.

In support of the motions, Siemon filed an affidavit stating that a review of the record showed that “expert scientific assistance was critical to the defense,” in particular with respect to “critical serological evidence” that would be introduced.

Siemon also stated that “a medical doctor, expert in the field of the effects of long term alcohol abuse on short term memory is critically important to the defense to present exculpatory and mitigating evidence.” Finally, the affidavit stated: “Due to the impossibly short time between the initial unified appeal hearing and the trial, investigative assistance is required in order to talk to all possible defense and mitigating witnesses.” The trial court indicated that it would withhold a ruling on the motions for continuance and for funds at the time that they were filed.

The court then began the voir dire process, which lasted several days and only came to an end on Tuesday, February 3, 1987. After the jury was selected, the court returned to Crawford’s motions for a continuance and for funds. At that time, and just before the parties made their opening statements to the jury, the court agreed that Crawford was entitled to an ex parte hearing concerning his need for funds.

During the ex parte hearing, Siemon argued to the court, based primarily on the evidence introduced at Crawford’s first trial, that he needed funds to obtain pathology and serological experts to challenge the prosecution’s witnesses and evidence, and that he needed a doctor to testify concerning the effects of Crawford’s long-term abuse of alcohol. In particular, Siemon stated: There was a great deal of testimony in the last trial as to the fact that Mr. Crawford was drinking and drinking fairly heavily on the day that this occurred.

It has been, and it’s a product of my investigation in this case, I believe it’s established facts, that if a medical doctor, a doctor who had some expertise on the subject of alcoholism and the treatment of alcoholics and the symptoms of alcoholism were to talk to Mr. Crawford, and Mr. Crawford were to reveal to him what he’s revealed to me, which basically is that since he got back from his service in Vietnam that he has been a regular, daily, heavy drinker; that a doctor that was presented with this history on Mr.

Crawford’s part would testify that his version of what happened that night, basically, that he woke up and that there are gaps in what he can remember and what he can’t remember, that he found a little girl in the back of the car and panicked, that his account of what happened had some basis — has some basis in the symptomol-ogy of alcoholics; - that they drink, that when they drink too much, they tend to have blackouts, that sometimes they do things or they take actions that they don’t recall; and just generally give testimony that would support his version of what occurred that night.

As far as that goes — you know, that goes — that testimony would go to the guilt or innocence. It would also go to ... mitigating type of testimony that would got to the issue of punishment. Siemon stated on a couple of occasions that he felt that he was adequately prepared to handle the guilt-innocence phase of the case (except for his need to obtain the experts he was seeking), but that he was unprepared to handle any penalty phase. He stated: I feel fairly comfortable at this point with what we might introduce- — or being able to cross-examine the State’s witnesses.

I also feel fairly comfortable at this point, considering that I don’t have any — I don’t have any scientific witnesses, but I feel fairly comfortable with being able to put up a case in the guilt or innocence phase of the trial, depending on what — depending on whether or not something unexpected comes up. If the trial goes essentially the way it did last time, we shouldn’t have much of a problem — many problems there. The problem is the penalty phase.

It would be my intention, and this clearly is one of the reasons why we’ve got to have an ex parte hearing on this type of thing— but it would be my intention to — if this case goes as far as penalty, to put up people from Mr. Crawford’s family, to talk about his personality and how his personality may have changed since he returned from Vietnam, also, expert testimony on the effects of alcoholism and how that might mitigate — or what his state of mind might have been, if in fact — if we assume that he’s committed the crime, which for the purpose of the sentencing hearing I would do, if he had been convicted.

And additionally, there is at least one witness who I have not been able to locate who served with Mr. Crawford in Vietnam.... We were finally able to locate where he was, and he served in the Marines with Mr. Crawford in Vietnam; and he is a potential witness .... But the long and short of it is, is that I feel like that, at this point, that the investigation is fairly complete .... But this is — the investigation is ongoing, and I feel comfortable with it, except as it applies to the penalty phase. And basically what I’ve got in the penalty phase is — at this point, is just his- family....

I would expect them to testify.... that there was a change in his personality when he got back from Vietnam and he started drinking heavily, and it was at that point that he began — that he had the other run-ins with the law that he’s had .... And we would want to attribute or make an attempt to attribute ... those instances when he’s committed an illegal act to his alcoholism, and we would need some supporting testimony from an expert.

Following this statement, the court modified its previous order concerning the motion for funds and agreed to pay for the witness to travel from Virginia to testify concerning Crawford’s military experience and to provide Crawford with “another $1,000 right now.” After the ex parte hearing, but before opening statements, the record reflects that Siemon moved the trial court to either grant a continuance or to proceed “in half day rather than full day increments,” but the court denied that request. The parties then proceeded to deliver their opening statements. a.

Facts: Representation During the Guilt-Innocence Phase of Trial In his opening statement, Siemon suggested to the jury that many of the witnesses that the prosecution would rely on would not be reliable, in part because many of them were drinking heavily on the day of the murder. He also stated that the State’s case was really based on statements made to the police by Crawford, rather than on any substantial scientific evidence, as the prosecutor’s opening statement had suggested.

Siemon stated that he expected to show that the police investigation was inadequate and focused too quickly on Crawford, to the exclusion of other suspects. Finally, he stated that Crawford was an alcoholic who was prone to blackouts and who had been drinking heavily on the day of the crime, and that Crawford’s statements then resulted from police pressure on his “unstable personality.” Next, the prosecution proceeded to present its case, starting with the testimony of Wanda English, the mother of the victim, Leslie English. English provided her account of the events of the evening on which the crime occurred.

She testified that Crawford asked her to spend the night with him in his trailer, and that he became angry after she refused. She also described discovering that Leslie English was missing, and her attempts to search for her. Siemon asked no questions of this witness. The next important witness for the prosecution was Raymond Fuller, the grandfather of the victim, who was present at the house on the night that Leslie English was killed and who testified that he saw Crawford walking though the house with a lighter in the middle of the night before the victim was found to be missing.

On cross-examination, Siemon attempted to show that Fuller had more to drink on the night of the murder than he was willing to admit (he also attempted to show this by cross-examining other witnesses about how much Fuller had to drink that night). Siemon also brought out inconsistencies between Fuller’s testimony on direct examination and his testimony during the preliminary hearing and first trial. During direct examination, Fuller testified that he got up at 3:00 a.m. to turn out the lights, and saw that the victim was still safe and in bed.

He further testified that it was after that time that Crawford walked through the house flicking a lighter. However, as Siemon brought out, Fuller had testified during the first trial that he could not identify as Leslie English the person he saw in the bed when he turned off the light. He also had testified that he saw Crawford walking through the house with the lighter prior to getting up to turn off the light, rather than after that time.

A subsequent witness, Charles Durham, who lived across the street from the house from which the victim was taken, testified that when Durham got up to use the restroom sometime after 3:25 a.m., he saw Crawford’s car pull up into the yard of that house. He testified that he saw Crawford get out of the car and go in the house, and then, while Durham was returning from the restroom, he saw Crawford’s car pull out of the yard and leave.

On cross-examination, Siemon impeached Durham with previous testimony during which he had said that he could not positively identify as Crawford the person he saw in the neighboring yard, and that he could not be sure that the car he saw belonged to Crawford. When cross-examining Danny Turner, a twelve-year-old who was present at the house on the night of the murder and who interacted with Crawford that night, Siem-on again pointed out changes in the witness’s testimony which changes made the testimony more incriminating to Crawford.

Siemon also got the witness to admit that the family talked about the events of that evening a lot, thereby suggesting that the family had tailored their testimony to help convict Crawford. The next important witness was Gordon Brown, Sr., who testified that he heard Crawford threaten the victim’s mother on the night of the murder, and found Crawford sleeping on his couch the following morning. He stated that Crawford originally said he slept on Brown’s couch all night, but changed his story after Brown told him that he had been up several times during the night and knew that Crawford was not there.

On cross-examination, Crawford’s counsel established that Crawford was drunk on the evening of the crime, and also that Brown had himself been accused of child molestation. After Brown’s daughter testified that she found Crawford’s shirt, with a blood stain on it, hidden in her house a couple of days after the crime, Siemon established through cross-examination that she had lied to the police about her whereabouts on the night of the crime.

Crawford’s wife, Jackie Crawford, testified concerning the evening of the crime, and also identified a sheet, pillowcase and mattress cover that were found near the victim’s body as coming from the trailer she lived in with Crawford. The witness also testified that she saw Crawford take a pair of socks out of his car in the' days following the crime and throw them away across the street from their trailer. On cross-examination, Siemon established that she was with another 'man on the night of the crime, and that she too had lied to the police about where she had been.

The prosecution next moved to its witnesses who conducted the investigation into the murder of Leslie English. The chief investigator, Daniel Green, testified concerning the crime scene, the hair and fiber evidence found on the victim, the autopsy, and the first interview of Crawford. It was during that interview that Crawford claimed to have spent the night of the murder at Brown’s house — a story he changed during subsequent interviews.

Green also testified concerning the sheet, mattress pad, and pillowcase, previously identified as coming from "Crawford’s trailer, that were found on the side of the road between Crawford’s trailer and the house from which Leslie English was taken. During the cross-examination, Siemon pointed out that Crawford’s statement to Green was consistent with his having blacked out, but that the police did not pursue that issue.

Siemon also attacked the adequacy of the investigation, in light of the fact that several individuals in close proximity to the house from which the victim was taken and who had access to that house had previously been accused of child molestation, but the police chose to focus on Crawford rather than investigating those individuals further. Next, Officer Paul Muscik testified primarily about his interviews of Crawford during which Crawford provided very incriminating statements.

Muscik testified that Crawford said he had a recollection of driving with Leslie English in his lap and of shaking her but being unable to wake her. Muscik also described several other statements by Crawford which implicated him in the crime, such as Crawford’s request to use Muscik’s service revolver to kill himself after being informed that Leslie English had been raped. Siemon’s cross-examination of Muscik focused on the fact that Crawford consistently denied having molested or killed Leslie English, as well as the fact that Crawford’s statements' reflected that he had periods of blackouts.

The prosecution next put up witnesses from the Georgia Bureau of Investigation Crime Lab to testify concerning the evidence in the case. Larry Peterson testified concerning the types of analysis performed on hair and fiber evidence that was recovered. He stated that he tested known head, pubic and arm hair samples taken from Crawford, as well as hair samples from Leslie English. He also stated that he tested fiber samples taken from Crawford’s car.

Given these samples, Peterson testified that he was able to determine that several hairs taken from the victim’s body and pajama top were consistent with the head and pubic hair of Crawford, and that fiber samples taken from the same sources were consistent with Crawford’s car. Peterson further testified that the bedding which was recovered from beside the road contained hairs that were consistent with the victim’s hair as well as Crawford’s head and pubic hair. The mattress cover additionally had a fiber consistent with Crawford’s car.

He also stated that the socks that Crawford’s wife saw him take out of his car and dispose of had hairs consistent with Crawford’s head and pubic hair and with fibers from his car. Finally, Peterson testified that a hair consistent with Crawford’s arm hair was found inside the victim’s vaginal cavity, although this particular evidence was later excluded after Siemon established a chain-of-custody problem.

Siemon’s cross-examination of Peterson largely focused on the limitations on hair and fiber testing, and on the fact that this testing only permitted conclusions that certain hairs or fibers were consistent, but not whether they actually came from the same source. Peterson also testified that hairs and fibers could be transferred from one place to another, and that it was not possible to determine when various hairs or fibers were picked.

Therefore, Siemon got Peterson to admit that the hair and fiber evidence could only establish that the victim had some contact with “the car or person of Eddie Crawford.” Next, Linda Tilman, a serologist employed at the Crime Lab, testified that both Leslie English and Crawford had type 0 blood, and that type 0 blood was found on both the sheet and pillowcase found beside the road. Tilman also testified that blood was found on Crawford’s shirt, although she did not testify as to the blood type of that blood.

She further testified that although the shirt, sheet, and pajama tops were packaged separately, they all shared the same distinctive odor. Siemon asked no questions of Tilman. The State’s final witness was Dr. James Dawson, who performed the autopsy on Leslie English. Dawson testified that the victim had injuries to her head that were consistent with being struck by a human hand. Dawson also testified that the victim’s vaginal canal was torn, an injury consistent with an attempt to insert an adult penis. Dawson testified that the victim died as a result of asphyxiation.

On cross-examination, Siemon’s only question concerned the fact that just because the victim’s injuries to her head were consistent with being hit by an adult hand, the doctor had no knowledge of what actually happened. After the State rested its case, Siemon indicated that Crawford would also rest his case without calling any witnesses. Siem-on indicated that before doing so, however, he would like to make a motion for a continuance, again based on the lack of funds and his inability to obtain the service of experts. The court denied the motion for a continuance.

The prosecution’s closing argument recounted all of the incriminating evidence against Crawford. Siemon raised no objections to the argument, even though the prosecutor argued that Crawford’s pubic ham was found in the victim’s vaginal canal. The evidence related to this point was that an arm hair was found in the vaginal canal, and that evidence was subsequently excluded because the State failed to establish the proper chain of custody.

Siemon also did not object to the prosecutor’s argument that Type 0 blood, consistent with the victim, was found on Crawford’s shirt, even though the evidence at trial was only that blood was found on the shirt. Siemon’s closing argument largely focused on the credibility issues concerning the prosecution’s witnesses, and Siemon’s impeachment of the witnesses during cross-examination. In particular, Siemon focused on how the witnesses’ testimony had changed since the preliminary hearing and first trial.

Siemon also pointed to the testimony of Danny Turner to the effect that the family talked about the case a lot, and argued that the family had tailored their testimony to make it more incriminating to Crawford. Siemon also argued to the jury that the police investigation was inadequate and that they failed to investigate other individuals with access to the house who had previously had child molestation allegations leveled against them.

He also argued that the state’s hair and fiber evidence did not prove anything, and that they only corroborated Crawford’s statements to the police, but did not show who' killed the victim or how or when she died. Siemon argued that Crawford was an alcoholic who had blackouts on the night of the crime, and that he was mentally unstable at the time of the crime. He argued that these facts undermine the significance of the statements that Crawford gave to the police, and made him more amenable to suggestion. Finally, Siemon argued that the State had provided no evidence of motive on Crawford’s part.

After the jury was charged and while it was deliberating, Siemon again raised his objection related to the lack of funds and time to prepare the witnesses that he said he needed for Crawford’s defense. He also indicated that if there was a penalty phase, he would need at least a few days to prepare witnesses and obtain necessary experts. The court denied the request, and noted Siemon’s continuing objection. Shortly thereafter, the jury returned with a guilty verdict on the charge of felony murder, but not malice murder. . b..

Facts: Representation During the Penalty Phase of Trial The penalty phase of Crawford’s trial commenced the -following morning. At this phase, the only additional evidence presented by the State was proof of two felonies of which Crawford had previously been convicted. In support of Crawford, Siemon called several of Crawford’s family members to the stand. First, he called Crawford’s brother, Allen Crawford, who testified about his relation to Crawford and his own family and employment, and then he asked the jury to consider the effect on his parents of a death sentence.

Siemon then called Crawford’s brother-in-law, Fred Clark, who basically only testified concerning his relation to Crawford and his own background, and, when asked if he had anything to tell the jury, responded: “Just that we love him, and we’d like to continue to see him.” Crawford’s sister, Linda Varnum, testified next, and the totality of her testimony was that she was Crawford’s sister, that she grew up in the area, and that she was a school teacher. Gleaton Love, Crawford’s stepfather, testified that he and Crawford’s mother regularly visited Crawford in prison.

Crawford’s son, Eddie Crawford, Jr., testified that he hoped that his father would “come out of this ... [a]live.” Finally, Crawford’s mother, Margie Love, testified. Her testimony was limited to stating that she was Crawford’s mother and that she had visited him on all but three weekends during the four years he had been incarcerated. With that, Siemon rested Crawford’s case in mitigation. The entirety of the case in mitigation consisted of 15 pages of transcript.

In his closing argument, the prosecutor reviewed the evidence from the guilt-innocence phase of the trial and urged the jury to find three aggravating factors: 1) that the murder occurred during a kidnapping with bodily injury, 2) that the murder occurred in the course of a rape, and/or 3) that the murder was wantonly vile, horrible or inhumane, in that it involved torture, depravity of mind or an aggravated battery to the victim. The prosecutor also characterized Crawford as a “three-time loser” in light of his previous two felony convictions.

Siemon’s closing argument focused largely of the effect on Crawford’s family if he were to be executed. Siemon began: Ladies and gentleman, [the prosecutor] was half right. He told you that I was going to come up here and ask you to have mercy on Eddie Crawford. He told you that I was going to ask you to give him a life sentence, not give him the death penalty in this case. Well, he’s half right. I’m going to ask you not to give him the death penalty in this case, to have some mercy on him, but not so much to have mercy on him but to have mercy on his family.

I didn’t bring these people in here to say nice things about Eddie Crawford. I wanted y’all to meet the people who are going to be impacted the most by the decision y’all are about to make. Eddie Crawford’s really not in a position to ask anybody to have mercy on him except in a religious sense, in a moral sense. After asking for mercy on Crawford’s family, Siemon also pointed again to some of the inconsistencies in the witnesses’ testimony and to the alleged lack of diligence by the police in investigating other suspects, and asked the jury to consider any residual doubts they might have.

Siemon concluded by again asking the jury to show mercy for Crawford’s family.

After the jury began its deliberations, it came back to the court with the following question: “The jury would like to know, could we fix a sentence of life imprisonment without parole.” After discussing the issue with the attorneys, the court charged the jury that “you are to presume that if you sentence the Defendant to life imprisonment, that the Defendant will spend the rest of his life in prison, and you are to presume that if you sentence the Defendant to death, that he will be electrocuted until dead.” After further deliberations, the jury sentenced Crawford to death.

The jury found that all three aggravating factors were present. 3. The State Habeas Proceedings In September 1990 and after Crawford’s direct appeal was completed, Crawford filed a state habeas petition. In his petition, Crawford claimed, among other things, that he received ineffective assistance of counsel both during the guilt-innocence and penalty phases of the trial. The next activity reflected in the habeas record was a motion, filed on July 13, 1992, to allow a psychologist to have access to Crawford in order to perform testing. The state habeas court granted that order on July 16, 1992.

On July 22, 1992, nine days before the habeas court evidentiary hearing scheduled for July 31, Crawford filed a motion for continuance in order to allow for additional psychological testing and additional investigation. Included as an exhibit to this motion was an initial evaluation of Crawford by David R. Price, Ph.D., the psychologist used by Crawford’s habeas counsel. This evaluation indicated that Price had examined Crawford on July 20,1992, but that additional evaluation and information was necessary, including a review of records to be obtained from the Veterans Administration (“VA”).

On the day before the evidentiary hearing, Crawford filed an amended habeas petition raising additional claims and providing additional detail in support of the previously asserted claims. On that day Crawford also filed a motion to discover test results and to perform independent testing of certain evidence that had not been disclosed to the defense prior to trial, but that Crawford argued could be exculpatory. Crawford also filed an additional motion for a continuance on July 30, 1992, accompanied by an affidavit from Price concerning his evaluation of Crawford.

At the hearing on July 31, 1992, the state habeas court denied Crawford’s motion for a continuance to allow further testing, stating: I’ll deny the motion for a continuance. This case has been pending for two years. You’ve had plenty of opportunity to have your evaluations done. So.I will deny the motion for a continuance .... Afterward, Crawford put forth evidence in support of his ineffective assistance of counsel claim. Crawford submitted 13 affidavits concerning information that he alleges Siemon should have investigated and presented, both during the guilt-innocence and penalty phases of the trial.

He also submitted certain military, school, and mental health treatment records on which Dr. Price relied, as well as a GBI report that Crawford argued was Brady material which had not been produced. One of Crawford’s attorneys from his first trial, Tamara Jacobs, submitted an affidavit stating that she had offered to turn over her file or to otherwise assist in any way with the retrial, but that Siemon never came to her office or reviewed the file.

She stated that the only time that she was ever asked for any information was on the morning of the trial when Siemon’s investigator asked her some “brief questions” about the case. Crawford also filed a more extensive affidavit submitted by Dr. Price containing his opinion based on his personal evaluation of Crawford as well as information made available to him from family members and other sources. Dr. Price’s affidavit began by noting relevant aspects of Crawford’s background. He stated that Crawford’s father was an alcoholic and was abusive, and that his parents ultimately divorced. Dr.

Price noted that Crawford quit school in the ninth grade, and then joined the Marines. While in the Marines, Crawford served in Vietnam, but his performance was erratic. Dr. Price said that after Crawford returned to the United States, he went AWOL for a period of time. Dr. Price noted that: Following his return from combat, Mr. Crawford appeared different to family members and close associates. He, himself describes how he felt ever since Viet Nam his life had deteriorated.

His history post Viet Nam is remarkable for intrusive thoughts over death scenes he witnessed, feelings of guilt, dreams, anger, depression, increased alcohol and cannabis abuse, self destructive behaviors, inability to sustain employment, three marriages, suicidal ideation, and emotional liability. Dr. Price noted that Crawford had significant financial problems, including unpaid child support, resulting from his alcohol abuse and failure to maintain employment, and that these problems exacerbated his mental problems. Dr.

Price also noted that Crawford previously had sought mental health treatment from the Spalding County Mental Health Center and the VA, and that his family had attempted to have him committed to the VA. Price stated that Crawford had a history of substance abuse and a “history of DUIs and black outs.” According to Price, at the time that he examined Crawford, Crawford suffered from mild depression, periodic panic attacks, and intrusive thoughts of Vietnam.

Price noted that various tests that he performed revealed the possibility that the difference between Crawford’s verbal and non-verbal memory may be the result of the “residual effects of chronic alcohol abuse or organic functioning differences between his cerebral hemispheres,” or may only be the result of experience (i.e., non-familiarity with verbal versus non-verbal tasks).

A personality test revealed that Crawford was “one of the most disturbed inmate types” and was within the group of individuals that would “tend to have a broad range of psychological disturbances” and that would be “more likely to be psychotic than other types.” Price also concluded that Crawford had “borderline personality disorder” and that he displayed all of the symptoms of post-traumatic stress disorder (“PTSD”).

He noted that among the features associated with this condition are: “symptoms of depression and anxiety ... [increased irritability may be associated with sporadic and unpredictable explosions of aggressive behavior, upon minimal or even no provocation.” Price also noted that emotional liability, depression, guilt, self-defeating behavior, suicidal actions, and substance abuse are associated with PTSD. Price concluded that the disorders he detected in Crawford were present in 1983. Crawford’s mother, Margie Love, testified, by affidavit, concerning Crawford’s background.

She stated that Crawford’s father was an alcoholic and a Demerol addict, and that he routinely abused both her and the children. As a result, she left her husband at least 16 times before finally divorcing him and moved around with the children on several occasions. She also stated that the family was very poor, but the father would often spend their money on alcohol and gambling. Love testified that Crawford’s personality changed dramatically as a result of serving in Vietnam. Afterwards, Crawford was nervous and jumpy all the time, could not sleep, and began to abuse alcohol.

Crawford’s mother also provided some insight into Crawford’s experiences in Vietnam. She stated: Over the years Eddie has mentioned his time in Vietnam very few times; it always seemed a very difficult thing for him to talk about. I asked him one time about a small scar he had on his little finger, and he told me that he got it when the ammunition dump he was working at was bombed. He and his friend hit the ground when they heard the siren, but his friend looked up instead of putting his face in the dirt like he was supposed to.

Eddie put his hand on his Mend’s helmet to get his head down, and at that moment a piece of shrapnel ripped through his Mend’s face, just nicking Eddie’s finger. Affidavit of Margie Love, at ¶ 17. She also said that he mentioned that someone who took his place on a particular mission was killed, and that if he had not been busy that day, it would have been him. Crawford’s two sisters and brother Submitted similar affidavits concerning Crawford’s unfortunate and abusive childhood, and the effect of Vietnam on his personality.

Each of them said that they would have been willing to testify at Crawford’s trial concerning these facts if they had been asked to do so. Crawford’s father, Ira Willard Crawford, also submitted an affidavit noting that the family was very poor when Crawford was a child, and stating that Vietnam changed Crawford’s personality and made him start abusing alcohol. Likewise, Crawford’s aunt stated that Crawford was a “nice, jolly teenager” before serving in Vietnam, but was a “very different person” afterwards. She stated that she was never contacted by Siemon, but would have been willing to testify.

Crawford’s son, Eddie Crawford, Jr., submitted an affidavit that stated that Crawford would often disappear and would drink heavily. Crawford’s ex-wife, Barbara Dinkins, submitted an affidavit that stated that Crawford was a good person before serving in Vietnam, but was a “completely different person” when he returned. He was “outspoken and loud,” “irresponsible and thoughtless,” and “nervous.” He would disappear for periods of time, and spend all their money on “booze and gambling.” Crawford also presented an affidavit from • Stanley Nymeyer, who served in Crawford’s unit in Vietnam.

Nymeyer described his own horrific experiences in Vietnam, but his only statement concerning Crawford is that they were in the same unit. Finally, two of the jurors from Crawford’s trial submitted affidavits, one of which indicated that initially “[t]he jury agreed unanimously to vote for life, but wanted assurances the defendant would not be released on parole.” . The juror stated that the jury decided to vote in favor of the death penalty “[w]hen the judge could not provide that assurance.” In addition to these affidavits, Crawford called Siemon as a witness during the evi-dentiary hearing.

Siemon testified he had been preoccupied with an unrelated murder case for a considerable amount of time prior to the trial in Crawford’s case, and that he was only notified of the scheduling of Crawford’s arraignment and trial approximately a week ahead of time — although the record shows that the court’s original post-appeal scheduling order was issued in late October 1986 and the amended order was issued in mid-December 1986.

Siemon testified that he had read the transcript of the first trial around the time that he was retained in 1985, and that his pretrial motion for funds was based on his understanding of the case from that trial. Based on. the first trial, Siemon testified that he thought the issue of Crawford’s alcoholism was a “very critical issue” that had not been sufficiently developed during the- first trial.

Siemon thought that this issue, along with the related issue of Crawford’s blackouts, would help to explain the inconsistencies in Crawford’s statements to the police, as well as explain the holes in his memory from the night of the crime. However, Siemon testified that after the trial court granted Crawford the initial $1,000 two weeks before trial, he decided to spend the money on an investigator to look into issues related to the jury challenge and to investigate the other people who were potential suspects in the case.

Siemon repeatedly testified during the state habeas hearing that he had insufficient time and money to adequately prepare for Crawford’s trial. Specifically, Siemon testified that he had wanted to “get expert medical testimony to go into his alcoholism” and also wanted to “go into his Viet Nam background,” but had been unable to do so given the time and monetary constraints. Siemon testified that he had the opportunity to have “superficial” conversations with Crawford’s family before trial, but stated that he was unaware of any history of alcoholism in the family.

Siemon also stated that he did not have sufficient time to investigate Crawford’s military records or records from previous mental health treatments, and that he “certainly” would have pursued those lines of investigation if he had more time. He testified that he was not aware that Crawford had received mental health treatment from the VA. Siemon characterized his investigation into mitigating evidence as superficial.

On cross-examination, Siemon admitted that he had read the transcript from Crawford’s first trial at least twice in preparation for the retrial — once when he was retained and again in the days before trial. He testified that the transcript gave him a good idea of what the State’s case would be against Crawford. He also testified that he spoke with Crawford “[njumerous times” before the trial — maybe more than twenty — and with several members of Crawford’s family. 4.

Ineffective Assistance During the Guilt-Innocence Phase It is in light of this record that we must consider Crawford’s claim that he was denied effective assistance of counsel during each of the phases of his trial. As explained above, however, given that this ease is subject to the standards imposed by AEDPA, our review must begin by looking to the decisions of the state court on these issues, and then we must decide whether those decisions are entitled to deference. See 28 U.S.C. § 2254(d).

We will first consider Crawford’s ineffective assistance of counsel claim as it relates to the guilt-innocence phase of his trial. In its order, the state habeas court rejected Crawford’s argument that he received ineffective assistance of counsel during the guilt-innocence phase of his trial. In reaching this conclusion, the state court began by setting out the Strickland standard for reviewing claims of ineffectiveness. Therefore, the standard used by the court was not “contrary to” clearly established federal law as set out in Supreme Court precedent. See Williams, 529 U.S. at 405, 120 S.Ct. at 1519.

Next, however, we must consider whether the state court’s decision nonetheless was an “unreasonable application” of clearly established federal law. As to the claim that Siemon failed to adequately prepare for and present Crawford’s ease during the guilt-innocence phase of the trial, the ha-beas court stated: Trial counsel thoroughly read the transcript from petitioner’s first trial and knew what evidence the state would be presenting at the retrial.

As detailed in respondent’s brief, trial counsel consulted with the attorneys in the original trial; he interviewed family members and became familiar with petitioner’s background; he interviewed petitioner numerous times; he filed a challenge to the array of the grand and petit juries; he filed pre-trial motions for funds to investigate; and he prepared for trial. Trial counsel was assisted by an investigator.

Trial counsel’s theory of defense was that the state’s evidence failed to exclude every other reasonable theory except for the petitioner’s guilt and that petitioner’s pre-trial statements were consistent with the state’s evidence. This court concludes that trial counsel’s performance during preparation and investigation and at trial was adequate. State Habeas Order at 9-10.

The court also found that Siemon was not ineffective by failing to make a better showing in support of his request for funds because Crawford “failed to persuade this court that exculpatory evidence would have been developed by the grant of additional funds.” We conclude that the state habeas court’s decision in this regard was not an unreasonable application of Strickland and its progeny. As we explained above, the Sixth Amendment only entitles a criminal defendant to “reasonably effective assistance,” judged against “an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064.

Also, “[t]he purpose is simply to ensure that criminal defendants receive a fair trial,” rather than to determine through hindsight that a defense attorney could have done a better job. Id. at 689, 104 S.Ct. at 2065. In this case, it certainly would have been preferable for Siemon to have begun his trial preparations earlier than he did, and it is also possible that he could have been more effective in developing certain lines of defense if he had done so. Whether he could have done more, however, is not the question we must answer.

Instead, we must look at the representation that he provided and determine whether it was objectively reasonable, and sufficed to make Crawford’s trial fair. Or more accurately, in light of AEDPA, we must determine whether the state court acted unreasonably in determining that Siemon was not ineffective. As the state habeas court mentioned, Siemon met with Crawford on numerous occasions in preparation for the trial, and he also met with members of Crawford’s family to discuss tíre case.

Siemon read the transcript of Crawford’s first trial at least two times, and was consequently well aware of what the prosecution’s case would entail and of the issues that were important to the defense. The record reveals that Siemon effectively cross-examined many of the witnesses, including pointing out numerous inconsistencies in the testimony of some of the witnesses, thereby undermining the weight of the testimony from some of the prosecution’s most important witnesses.

Furthermore, without presenting witnesses of his own, Siemon was able to bring out the issues which he identified as being important to the case— the lack of diligence on the part of the police coupled with the proximity of other potential suspects — through cross-examination. Likewise, Siemon was also able to suggest that Crawford had blacked out much of the evening of the crime. The record further reveals that Siemon was well aware of the limitations of the scientific evidence on which the prosecution relied, and that he was able to point out those limitations to the jury.

As he testified during the state habeas proceedings, Siemon was very familiar with such evidence as a result of a previous case that he had handled. Moreover, through a chain-of-evidence argument, Siemon was able to get one of the most damning pieces of hair and fiber evidence excluded from the trial. In addition to the issue of Siemon’s performance at trial, in order to be entitled to relief Crawford would have to show that any deficient performance resulted in prejudice to him.

In considering this aspect of his claim, we note that the vast majority of the evidence submitted in the state habeas corpus proceeding that Crawford argues should have been discovered and presented really relates only to issues of mitigation. Evidence related to his disadvantaged childhood,-his experiences in Vietnam, and his alcoholism and related mental problems are all aimed at showing that he should not have been sentenced to death, and not at showing that he did not in fact commit the crime of which he was convicted.

Therefore, under the circumstances of this case and after a thorough review of the record, we conclude that the state ha-beas court did not unreasonably apply Strickland in determining that Crawford did not receive ineffective assistance of counsel during the guilt-innocence phase of his trial. Thus, we defer to the state court’s decision in that regard, and Crawford is not entitled to relief from his conviction on this basis. 5.

Ineffective Assistance During the Penalty Phase Next we turn to the much more difficult question of whether Crawford received ineffective assistance of counsel during the penalty phase of his trial. As noted above, the state habeas court recognized that Strickland provided the controlling rule of law.

The state habeas court then concluded that Siemon’s investigation and presentation of Crawford’s case during the penalty phase was adequate, and that Siemon’s failure to obtain the services of a mental health expert did not prejudice Crawford, stating: Petitioner’s first claim of ineffective assistance of counsel at the sentencing phase alleges that trial counsel should have presented mitigation evidence based on petitioner’s traumatic experience in Vietnam, his abusive father, his alcoholism and drug use.

At the sentencing phase trial counsel presented testimony from petitioner’s family and urged the jury to consider the impact that a death penalty would have on petitioner’s family. In pursuing this line of defense, this court finds that trial counsel performed effectively. “Deliberate choices of trial strategy and tactics are within the province of trial counsel after consultation with his client [cit]. In this regard this court will not substitute its judgment for that of trial counsel.” Hudson v. State, 250 Ga. 479, 486(8), 299 S.E.2d 531 (1983).

The applicable standard is “ ‘not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ [Cit.]” Hawes v. State, 240 Ga. 327, 329(1), 240 S.E.2d 833 (1977). Accordingly, this court concludes that trial counsel did not perform deficiently in his presentation of mitigation evidence. Petitioner next contends that trial counsel was ineffective for failing to procure funds for an independent mental health expert.

This court agrees that testimony from a mental health expert concerning petitioner’s mental condition (post traumatic stress disorder, alcoholism and drug addiction) would have been admissible and might be considered to be mitigating. However, trial counsel chose to pursue a strategy of focusing the jury’s attention on the impact of a death sentence on petitioner’s family. This court will not second guess trial counsel’s deliberate choice. Moreover, considering the facts of this case, it is doubtful that such evidence would cause the jury to sentence petitioner to life rather than to death.

State Habeas Order at 11-12. Therefore, based on its finding that Siemon deliberately chose to focus on the impact of a death sentence on Crawford’s family, the court concluded that Crawford’s ineffective assistance of counsel claim was without merit. Here again, the habeas court identified the correct legal standard under the Supreme Court’s precedent, so our review is limited to whether the state court unreasonably applied controlling Supreme Court precedent to the facts of this case. See 28 U.S.C. § 2254(d)(1).

As we shall explain, we believe that it is a close question whether Crawford’s counsel’s performance was deficient during the penalty phase of the trial, but we need not decide that issue because we conclude that Crawford has not established prejudice as a result of any deficiencies. a. The Deficient Performance Prong of the Strickland Analysis On many occasions, this Court and the Supreme Court have been called on to assess the adequacy of a defense attorney’s efforts in preparing for and presenting a defendant’s penalty phase case in capital cases.

As Strickland itself recognized, “a capital sentencing proceeding ... is sufficiently like a trial ... that counsel’s role in that proceeding is comparable to counsel’s role at trial ... [and] therefore, [a] capital sentencing proceeding need not to be distinguished from an ordinary trial,” for purposes of assessing a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 686-87, 104 S.Ct. at 2064 (citations omitted).

Of particular importance in many cases concerning counsel’s preparation for and performance at capital sentencing proceedings is whether or not an attorney performed an adequate investigation. The Strickland Court noted: These standards require no special amplification in order to define counsel’s duty to investigate, the duty at issue in this case.

As the Court of Appeals concluded, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Id. at 690, 104 S.Ct. at 2066. On several occasions, this Court and the Supreme Court have recognized that “[n]o absolute rules dictate what is reasonable performance for lawyers,” and, accordingly, “no absolute duty exists to investigate particular facts or a certain line of defense.” Chandler v. United States, 218 F.3d 1305, 1317 (11th Cir.2000) {en banc).

Moreover, “[c]ounsel is not required to present every nonfrivolous defense; nor is counsel required to present all mitigation evidence, even if the additional mitigation evidence would not have been incompatible with counsel’s strategy.” Id. at 1319 (citing Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir.1995) {en banc)). In fact, “[n]o absolute duty exists to introduce mitigating or character evidence.” Id.

As we noted in Waters: To the contrary, the Supreme Court and this Court in a number of cases have held counsel’s performance to be constitutionally sufficient when no mitigating circumstance evidence at all was introduced, even though such evidence, including some relating to the defendant’s mental illness or impairment, was available. Waters, 46 F.3d at 1511 (citing Darden v. Wainwright, 477 U.S. 168, 184-87, 106 S.Ct. 2464, 2473-74, 91 L.Ed.2d 144 (1986)). See also Putman v.

Head, 268 F.3d 1223, 1243-44 (11th Cir.2001) (discussing standards for judging deficient performance by counsel during penalty phase of death penalty case). Rather than laying down absolute rules that defense counsel must investigate certain things or must present certain types of evidence, “our decisions teach that whether counsel’s performance is constitutionally deficient depends upon the totality of the circumstances viewed through a lens shaped by the rules and presumptions set down in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny.” Waters, 46 F.3d at 1511.

In applying those rules and presumptions, we must bear in mind that the “touchstone of a lawyer’s performance under the Constitution” is “reasonableness.” Chandler, 218 F.3d at 1319. As we have explained: The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.... We are not interested in grading lawyers’ performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

Waters, 46 F.3d at 1512 (quoting White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir.1992)). Accordingly, “[t]he relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.” Putman, 268 F.3d at 1244 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct. 1029, 1037, 145 L.Ed.2d 985 (2000)). This recognizes that “[t]o uphold a lawyer’s strategy, a court ‘need not attempt to divine the lawyer’s mental processes underlying the strategy,’ ” but instead must simply determine whether the course actually taken by counsel might have been reasonable.

Id. (quoting Chandler, 218 F.3d at 1315 n. 16). Despite our reluctance to adopt absolute rules concerning what an attorney must do during the penalty phase of a trial in order to be effective, both the Supreme Court and this Court have recognized that the circumstances of a particular case may require counsel to investigate and present certain mitigating evidence.

This is because “[t]he purpose of a sentencing hearing is to provide the jury with the information necessary for it to render an ‘individualized sentencing determination ... [based upon] the character and record of the individualized offender and the circumstances of the particular offense.’ ” Dobbs v. Turpin

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