Jeffery LEE, Petitioner-Appellant, v. COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Respondent-Appellee, 726 F.3d 1172

HULL, Circuit Judge: Alabama death row inmate Jeffery Lee appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. As to his death sentence, the Alabama appellate court held that:

(1) Lee’s trial counsel was not ineffective in the investigation and presentation of mitigation evidence under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); (2) the trial judge’s override of the jury’s life-sentence recommendation did not violate Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and (3) the State’s peremptory challenges did not violate Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

After review and oral argument, we affirm because the state courts’ denial of Lee’s claims was not contrary to or an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d). Our opinion is organized as follows: I. GUILT PHASE A. State’s Evidence B. Pretrial Mental Evaluations C. Defense’s Mental Health Evidence D. State’s Rebuttal Evidence II.PENALTY PHASE AND DIRECT APPEAL A Sentencing Hearing before Jury B. Sentencing Hearings before Trial Judge C. Lee’s Direct Appeal and First Remand D. Trial Judge’s Amended Sentencing Order E.

State Appellate Court’s Decision on Direct Appeal (Lee

I) III. COLLATERAL REVIEW A. Lee’s Amended Rule 32 Petition and Supplement B. State Trial Court’s Rule 32 Decision C. State Appellate Court’s Rule 32 Decision (Lee II) D. Lee’s Federal § 2254 Petition IV. STANDARD OF REVIEW V. INEFFECTIVE-ASSISTANCE CLAIM A. Strickland v. Washington Test B. Prejudice Prong VI.JURY-OVERRIDE CLAIM A. Lee’s Ring Claim B. Direct Appeal Decision C. Jury’s Guilty Verdict Included Armed Robbery VII.LEE’S BATSON CLAIM A. Batson and Its Progeny B. Jury Selection in Lee’s Trial C. Direct Appeal Decision VIII.AEDPA DEFERENCE TO PLAIN-ERROR REVIEW IX. AEDPA DEFERENCE TO

SUMMARY OPINIONS A. Supreme Court Precedent B. Our Circuit Precedent C. Atwater v. Crosby

(2006) D. Hightower v. Terry

(2006) E. Blankenship v. Hall

(2008) F. McGahee v. Alabama Department of Corrections

(2009) G. Greene v. Upton

(2011) H. Adkins v. Warden, Holman CF

(2013) X. BATSON ANALYSIS IN LEE’S CASE A. Striking Pattern B. Aleged Racial Discrimination History C. Venire Member David Gutridge D. Venire Member Demond Martin E. Totality of the Evidence XI.CONCLUSION I.GUILT PHASE On December 12, 1998, Petitioner Jeffery Lee shot and killed Jimmy Ellis and Elaine Thompson and attempted to kill Helen King during an attempted armed robbery of a pawn shop.

The murder charges against Lee were capital in nature because Lee: (1) committed the murders during a robbery or an attempted robbery, see Ala.Code § 13A-5-40(a)(2); and (2) murdered two or more persons by one act or pursuant to a single scheme or course of conduct, see id. § 13A-5-40(a)(10). Two capital murder counts charged the murders of Ellis and Thompson during a robbery, see id. § 13A-5-40(a)(2); a third capital murder count charged those two murders pursuant to a single course of conduct, see id. § 13A-5-40(a)(10); and a fourth count charged the attempted murder of King, see id. §§ 13A-6-2, 13A-4-2.

As recounted below, the trial evidence of Lee’s guilt was overwhelming. A. State’s Evidence Critically, the State’s evidence included: (1) the eyewitness testimony of the surviving victim King; (2) surveillance camera footage from the pawn shop which depicted the murders of Ellis and Thompson and the attempted murder of King; and

(3) Lee’s signed statement confessing to shooting the three victims and attempting to rob the pawn shop. On the day of the murders, Lee went into Jimmy’s Pawn Shop in Orville, Alabama, under the guise of purchasing a wedding ring. Lee spoke with King, an employee of the pawn shop. Lee told King that he had no money with him and would return to the shop later with money to purchase a ring; Lee provided King with a fake name, Chris Williams. Lee left. The pawn shop’s owner, Ellis, and another shop employee, Thompson, were also in the pawn shop at that time.

Not long thereafter, Lee reentered the pawn shop, this time armed with a sawed-off 12-gauge shotgun and said, “What’s up, mother[ ]fuekers?” Without another word, Lee began firing. Lee shot Ellis in the left arm and then shot Thompson pointblank in the face. Next Lee turned the shotgun to King and shot her, hitting King’s hand. King fell to the floor and pretended to be dead. Lee then shot Ellis again in the chest. After shooting the pawn shop’s three occupants, Lee attempted to open the cash register but could not wrench it open. Lee left the pawn shop.

After Lee left, King got up, grabbed the telephone, and dialed emergency 911. While on the telephone, King locked the shop’s doors. Lee had left his sawed-off shotgun, used in the murders, on the shop’s counter. Lee attempted to reenter the shop but could not. Lee fled the scene, leaving a bloody trail in his wake: Ellis lay dead of multiple shotgun blasts, including a fatal shot to the chest; Thompson lay dead of a close-range shotgun blast to the face; and King was wounded but still alive. Lee had two associates who were waiting outside the pawn shop during the killings.

Lee and his two associates fled the scene, visited briefly with family members, and then went to Newnan, Georgia, where they rented a motel room. While Lee’s associates returned to Alabama later that day, Lee remained in the motel in Georgia. Law enforcement officers apprehended Lee in the early morning hours of the next day, December 13,1998. Shortly thereafter, Lee signed a written confession admitting that he shot the pawn shop occupants in an attempted robbery.

In his written statement, Lee admitted that he and his two accomplices decided to rob the pawn shop; after looking at rings, Lee left but later returned with the sawed-off shotgun; and Lee entered the shop with the sawed-off shotgun and told the occupants it was a robbery. Lee said his first shot at Ellis was “fired accidentally,” but otherwise Lee conceded that the rest were intentional. After shooting the victims, Lee attempted to open the shop’s cash register but was unable to do so. Lee left.

After realizing he had left the shotgun in the shop, Lee attempted to return to the shop to retrieve his weapon but the front door was closed. At trial surviving victim King described the crimes and positively identified Lee as the perpetrator. King verified the pawn shop’s surveillance footage corresponded to her recollection of events. The State introduced into evidence several photographs of the victims. Objecting, Lee’s counsel argued that the photographs were highly inflammatory and prejudicial.

Also, well before trial, Lee’s counsel filed a motion in limine to preclude the State from introducing “several gruesome and highly prejudicial photographs of the victims,” photographs which depicted “[fjull-body and close-up head shots of the victims.” The state trial court overruled the objection, and the photographs were admitted and exhibited to the jury. The State also called the medical examiner who performed the autopsies on victims Ellis and Thompson.

The medical examiner testified that Ellis: (1) sustained shotgun wounds in his chest and left arm; and (2) died due to a large amount of abdominal bleeding and heart damage caused by the shotgun blasts. As to Thompson, the medical examiner testified that Thompson died from a close-range shotgun blast to the face.

The jury heard the medical examiner describe Thompson’s wound as follows: the shotgun pellets “shattered [her] facial bones creating a large fracture across the floor of the inside of the skull where her brain resides and also tore greatly the frontal lobes of this lady, areas of the brain in front.” On cross-examination, Lee’s counsel questioned the medical examiner as to whether he could determine if the shooting was accidental or intentional.

The medical examiner responded that he could not make that determination; he could state only that the shotgun wounds were not self-inflicted injuries and the shots were fired from a “sufficient range that [he] classified it as homicide.” The State also called Maurice Cunningham, Lee’s sister’s boyfriend. Cunningham was with Lee the night before the murders along with a larger group, first at Cunningham’s house and later at a club.

Cunningham testified that a gun was present at some point during his evening with Lee, and that Cunningham tested the gun “to see how it shot.” Cunningham did not know who brought the gun or who left with the gun. Cunningham identified the sawed-off shotgun recovered from the pawn shop as the one he test-shot the night before the murders. Lieutenant Roy Freine of the Dallas County Sheriffs Department testified that he was one of the officers to pick up Lee in Newnan, Georgia, the day after the murders. After obtaining a waiver of Lee’s Miranda rights, Lt. Freine interviewed Lee and took a written statement.

Lee’s signed written statement, confessing to the crimes, was admitted into evidence. Lt. Freine read the statement aloud, in which Lee admitted to attempting to rob the pawn shop and shooting the victims, although Lee claimed in the statement that the first shot fired at Ellis was accidental. Through Lt. Freine’s testimony, the State also introduced into evidence and played for the jury the surveillance footage from the pawn shop which recorded the murders on December 12,1998. On cross-examination of Lt.

Freine, Lee’s counsel elicited testimony implying that despite the many objects of value in the pawn shop, including $900 in victim Ellis’s pocket, none of these items were taken by Lee. B. Pretrial Mental Evaluations Prior to trial, Lee’s trial counsel had the benefit of three mental health evaluations:

(1) Dr. Winston Pineda at the jail; (2) the court-appointed expert Dr. Kathy Ronan; and (3) the defense’s retained expert Dr. Donald Blanton. Lee called Dr. Blanton as a witness in the guilt phase and the State called Dr. Ronan in rebuttal. We review their evaluations of Lee. Although neither party called Dr. Pineda, we also review the evidence concerning his evaluation of Lee. 1. Dr. Kathy Ronan At the State’s request, the state trial court ordered a mental evaluation of Lee. On July 20, 1999, clinical psychologist Dr. Kathy Ronan evaluated:

(1) Lee’s present mental condition and competency to stand trial; and

(2) Lee’s mental condition at the time of the murders. In her August 11, 1999 report, filed in the state trial court in September 1999, Dr. Ronan recounted Lee’s family background. Prior to his incarceration, Lee lived with his family, and had two sisters, three half-brothers, and one half-sister. Lee told Dr.

Ronan that he was “mentally abused” by his mother, and that he was cursed and all his life told he “ain’t gonna amount to nothing.” But Lee “denied any physical or sexual abuse, or any significant difficulties while growing up.” As for physical or mental health problems, Lee reported that he once suffered a head injury that knocked him unconscious and necessitated a hospital visit, although he was not sure if he had sustained a concussion. Lee denied any other medical problems. Lee said that he had never received psychiatric services until after his incarceration for these murders. As to mental capacity, Dr.

Ronan observed that Lee exhibited “a few areas of below normal functioning ... but no significant deficits.” Lee’s test results “suggested that his overall intellect is probably within the low average to perhaps borderline range,” but Dr. Ronan found “no indication of retardation.” Dr. Ronan also recounted how Lee had a “fairly significant history of substance abuse, including Marijuana Dependence; Alcohol Dependence; and Cocaine Dependence.” Ultimately, Dr.

Ronan concluded that Lee was competent to stand trial, as Lee did not “have any type of major psychiatric illness,” “[tjhere is no indication of retardation,” and Lee “demonstrated adequate knowledge in all areas assessed related to legal proceedings.” Dr. Ronan also evaluated Lee’s mental state at the time of the murders. Lee told Dr. Ronan that immediately prior to the murders, he smoked “a blunt” of marijuana laced with cocaine and consumed a half pint of whiskey.

Lee said that earlier that same day: (1) his head was burning and when he awoke that morning, he saw what he believed was a dead woman dressed in white who attempted to wake hi m; and (2) he smoked a joint of marijuana. Other than those reported facts, Dr. Ronan found “no indication that [Lee] had any type of command hallucinations or delusions directing him to be engaged in the behaviors related to the alleged offense.” Accordingly, Dr.

Ronan’s opinion was that “there were no significant mental illness symptoms which interfered with [Lee’s] ability to appreciate the consequences of his actions during the time of the alleged offense” and any “substance induced perceptual anomalies ... did not interfere with his ability to understand right from wrong during the time of the alleged crime.” 2. Dr. Donald Blanton On September 20, 1999, after receiving Dr.

Ronan’s report and certain school records, Lee’s counsel moved for the appointment of and $5,000 in funds to hire a clinical neuropsychologist who would interview, test, evaluate, and present trial testimony regarding Lee.

Defense counsel asserted that an expert was necessary to assist counsel in determining and presenting mitigation evidence, including but not limited to “the fact that this Defendant has, through his life, functioned with very limited intellectual ability.... [and] other factors relating to his traumatic upbringing and mental impairments ... which constitute mitigating circumstances.” Lee’s counsel specifically recognized that “[m]ental impairment is the most compelling mitigating factor[ ].” After the state trial court granted this motion, Lee’s counsel hired Dr. Donald Blanton to evaluate Lee. Dr.

Donald Blanton has a Ph.D. in counseling and educational psychology and is an experienced psyehometrist with expertise in administering psychological and educational tests. Dr. Blanton consulted with Lee on October 29,1999, and conducted his evaluation of Lee on March 31, 2000. Dr. Blanton performed a number of psychological tests on Lee. Dr. Blanton first gave Lee the full Wechsler Adult Intelligence Scale, Revised (“WAIS-R”). Lee scored an IQ of 67, which indicated to Dr. Blanton that Lee was “in the middle range of mental retardation.” Dr.

Blanton administered the Bender Visual-Motor Gestalt Test, on which Lee did “fine.” Dr. Blanton also administered the Wide Range Achievement Test-Rephrased III, a reading, spelling, and arithmetic test, on which Lee scored at the sixth grade level in reading, the second grade level in spelling, and the second grade level in arithmetic. Dr. Blanton concluded that Lee “was not psychotic and that he was having some depression secondary to his situation.” In his report, Dr.

Blanton stated that “[t]hroughout testing [Lee] appeared to put good effort into his work and anxiety did not appear to be a significant factor.” As for Lee’s substance abuse history, Dr. Blanton said that Lee admitted to him that he used marijuana on a daily basis and cocaine on a weekly basis. Dr. Blanton’s report noted that Lee’s mother and father both allegedly suffered from “nervous trouble” and had been treated for “nerves.” Additionally, Lee’s “[fjamily history ... reveal[ed] a drug addicted uncle and another alcoholic uncle.” 3. Dr.

Winston Pineda Although not called at trial, we review what the record states about Dr. Pineda’s evaluation of Lee. Following his arrest, Lee was evaluated by Dr. Pineda, a psychiatrist working for the State, on January 7, 1999. Dr. Pineda’s evaluation and treatment are referenced in Dr. Ronan’s report, which both the state trial court and Lee’s counsel had. Dr. Pineda reported that, during his consultation, Lee complained of “persecutory auditory hallucinations” starting immediately before the murders and that Lee was “quite distraught and remorseful.” Dr.

Pineda stated that Lee had an unspecified psychiatric disorder, as well as a dependence on marijuana. Dr. Pineda prescribed for Lee in jail certain anti-psychotic medications, including Zyprexa, Navane, and Cogentin. C. Defense’s Mental Health Evidence After the State rested its case in the guilt phase, the defense called Dr. Donald Blanton as its sole witness in the guilt phase. The defense offered Dr. Blanton as a “certified psychometrist.” Dr. Blanton recounted his findings from his March 31, 2000 evaluation of Lee and battery of tests. Dr.

Blanton testified that Lee scored an IQ of 67 on the WAIS-R, a score “in the middle range of mental retardation which is slightly below the second percentile nationally.” Dr. Blanton stated that meant “out of 100 people, 98 would have a higher I.Q. score than Mr. Lee on average nation[ ]wide.” Dr. Blanton also administered the Bender Visual-Motor Gestalt Test, a test performed to determine any “organic disturbances” between Lee’s “eyeballs and brain hookup.” On that test Lee did “fine.” Dr.

Blanton also testified to Lee’s results on the Wide Range Achievement Test-Rephrased III, on which Lee scored at the sixth grade level in reading, the second grade level in arithmetic, and the second grade level in spelling. Dr. Blanton explained that Lee’s reading score indicated that “92 percent of people score better than what [Lee] had [scored] on his test.” As for Lee’s arithmetic score, Dr. Blanton stated it was “very low. That would mean that 99.7 percent of the people would score higher” than Lee on the same test. As for Lee’s significant substance abuse history, Dr.

Blanton testified that Lee admitted to him that he had used marijuana on a daily basis for years, cocaine on a weekly basis, and drank alcohol “quite often too.” Dr. Blanton also testified that he performed “a number of other tests that [Lee] was unable to handle.” Dr. Blanton gave Lee the Beck Depression Inventory and Mental Status Examination “which is a psychological test that’s administered orally.” From that test Dr. Blanton concluded that Lee “was not psychotic and that he was having some depression secondary to his situation.” Dr.

Blanton testified, though, that he did not believe Lee was malingering: “In this case, I didn’t feel [Lee] understood whether it would hurt him or not hurt him [to be deceptive in answering the questions].” On cross-examination, the State elicited testimony from Dr. Blanton that individuals in the “mild range of mental retardation” can function in society, and Dr. Blanton agreed to the prosecutor’s statement that these individuals can “[h]ave families, jobs, go to work, drive trucks, and that sort of thing.” But Dr.

Blanton stated that “[l]ess than four percent” of the general population would fit into the mildly retarded category. The State also asked whether Lee would be able to perform well in school, to which Dr. Blanton replied that it “[d]epend[ed] on the school.” D. State’s Rebuttal Evidence In its rebuttal presentation, the State called Lee’s work supervisor, Howard Mitchell, at Taylor Lumber Company. Mitchell testified that Lee had worked for him for “a period of time,” and Mitchell found Lee a capable and responsible employee with no problems following any instructions.

The State next called Van Smith, the principal of Lee’s high school, Billingsley High School.

Principal Smith described Lee as “a good student.” Principal Smith said that the high school had three levels of classes: special education, basic level, and advanced track; Lee was “in the advanced track preparing for college.” Lee was not in special education and “was never tested for special education.” During his time at Billingsley, Lee maintained “average grades, Bs and Cs.... [j]ust an average student in that particular level.” Lee began encountering problems around the eleventh grade, when “[h]is grades turned down,” and Lee’s twelfth grade year was “pretty much the worst year.” Lee did not complete high school, although he did take and pass the high school graduation exam in his eleventh grade year.

On cross-examination, defense counsel showed Lee’s SAT test and Smith agreed that Lee’s scores were “somewhat low.” On redirect examination, the State showed Principal Smith a number of Lee’s school records. These school records indicated Lee had grades of 90, 60, 90, 85, and 87 in ninth grade, and grades of 90, 68, 81, 69, 68, and 86 in eleventh grade.

In recross-examination, Lee’s counsel confirmed with Principal Smith that Lee had been a high school senior in 1995, and that Smith had had no contact with Lee since then and no knowledge of Lee’s substance abuse or whether something else may have impacted Lee’s mental abilities. The State then called Dr. Kathy Ronan, the clinical psychologist who had evaluated Lee. Dr. Ronan testified to her conclusion that Lee suffered from “no mental illness or mental retardation that would have impaired his understanding of right or wrong during the time of questioning.” Prior to her trial testimony, Dr. Ronan reviewed Dr.

Blanton’s report. Dr. Ronan agreed with some aspects of Dr. Blanton’s report but disagreed with others. Dr. Ronan stated that Dr. Blanton’s test results — which measured Lee’s intelligence and achievement ability — “were quite low, and they were inconsistent with my original findings. They were also inconsistent with the history of Mr. Lee’s academic performance.” Dr. Ronan stated that the inconsistencies could be attributed to two possibilities:

(1) Lee was depressed when Dr. Blanton saw him — suffering from what she termed “an adjustment reaction” to incarceration — and that depression may have impacted Lee’s testing ability; or (2) malingering. Dr.

Ronan also testified that even a mildly mentally retarded person’s condition is “[njot so great as to interfere with [his] decision making process or ability to understand right from wrong.” She explained that “when you’re talking about [a] mental retardation level that interferes with some people to distinguish between right and wrong, you’re really talking about an I.Q. level of in the forties, we call that moderate to se[vere] ... retardation.” And here, it was Dr. Ronan’s opinion that Lee did not suffer from retardation of any kind. On cross-examination, Dr.

Ronan admitted that her examination of Lee lasted for an hour and a half to two hours and that she did not give Lee the entire WAIS-R test that Dr. Blanton gave Lee. Dr. Ronan also confirmed that Lee had told her that on the day of the crimes, his head was burning and he saw “a dead woman dressed in white” who was trying to wake him up. Dr. Ronan agreed that drugs might • affect a person’s decision-making ability. Ultimately, the jury returned a unanimous verdict of guilty against Lee on all counts. II. PENALTY PHASE AND DIRECT APPEAL A.

Sentencing Hearing before Jury In his opening statement in the penalty phase, Lee’s counsel said that counsel would “put on evidence to give you a better picture of Jeff[er]y Lee” and “why he shouldn’t die.” Counsel said this “better picture” would include Lee’s young age (23), his status as a father of two children, and things the jury had “already heard” including Lee’s good work record and good school record. Counsel also said the defense would talk about Lee’s mental retardation, although the defense would not recall Dr. Blanton. The State put forth no evidence, resting upon the guilt-phase evidence.

In Lee’s mitigation presentation, Lee’s counsel first invoked Dr. Blanton’s guilt-phase testimony concerning Lee’s mental capabilities and Howard Mitchell’s guilt-phase testimony concerning Lee’s status as a good worker. The defense then called Lee’s father, uncle, aunt, and mother. Lee’s father, Jessie James Lee, testified that his son was 23 years old and the third of six children. Jessie testified that “all [his] other children except [Lee] and one of [his] other boys have had seizures,” and that often Jessie had to take them to “Birmingham at Saint Vincent,” a hospital.

Jessie said that he was a mechanic and also worked for the State of Alabama. Jessie testified that Lee was “good help” until he entered ninth or tenth grade and began experimenting with drugs. Specifically, Jessie “would tell [Lee] to get [him] such and such a wrench and when [Lee] would come back, [Lee] would have the wrong wrench.” After Lee began using drugs, Jessie said that Lee “just wasn’t the same,” and that Lee “would get in his bed and go to sleep and just sleep, sleep, sleep or either go out there where I worked on cars and just sit out there.

Just sit.” Jessie said Lee would “just sit” outside until “[t]en or eleven o’clock at night.” Jessie testified that Lee exhibited other strange behavior, and as an example stated that once Lee painted a dog. Jessie also said that “you could tell [Lee] not to do something and sometimes he would do it.” Other times, “[Jessie] would tell him to do something and [Lee] wouldn’t do it.” Lee’s counsel asked Jessie if his son should receive the death penalty. Jessie expressed sympathy for the victims’ families, but stated, “I don’t want my son to go to no death penalty.

I’m the one, I’m the one that carried my son to jail.” Jessie testified that Lee wanted to turn himself in for the murders. He asked that his son’s life be spared, and stated that his son “really need[s] help.” On cross-examination, the State confirmed with Jessie that Lee’s problems began in ninth or tenth grade and that by Lee’s senior year of high school, Lee had stopped attending. Jessie also testified that Lee “probably used to get in fights with children ..., but that’s normal for children, I guess.” Jessie said that Lee stayed with Jessie and his wife (Lee’s mother) during the week.

The State asked Jessie whether he thought Lee had used drugs on the day of the crimes. Jessie responded: “It had to be something the matter with him because my children would come home every night. The night this happened, they didn’t come home. My other son, Andre ... who was in the car with hi m, he had called my daughter that morning about eight o’clock to come pick him up.” When pressed as to whether Lee was on drugs at the time, Jessie responded, “When I s[aw] [Lee] that evening, he didn’t look nothing like right.” Lee’s uncle, Walter Jackson Lee, testified that he had been around Lee throughout Lee’s life.

Walter described Lee as “kind of a smart child” growing up and an “average child” who did not always “do everything he was supposed to do.” Walter stated Lee should not receive the death penalty: “To me and especially to the family, ... I wouldn’t like to see him getting the death row. To the family, I’m sorry what he done. But I wouldn’t like to see him get death row.” Lee’s aunt, Emmajean Thomas, testified that she had known Lee “ever since he was a baby.” Thomas said that growing up, Lee “was a good child.

Not saying it because he’s my nephew, but I’m saying it because it’s true.” When asked if she ever noticed anything unusual about Lee, Thomas responded, “No more than they used to like, like my brother said, like to play with dogs. [Lee] went and painted a dog.” She confirmed that Lee painted the dog “brown” and “[p]ainted the whole dog.” Thomas testified that she knew of Lee’s drug problems, and recalled that one time the sheriff was called and apparently found marijuana on Lee.

Similarly to the other witnesses, Thomas testified that she sympathized with the victims’ families but that Lee should not receive the death penalty. Finally, Lee’s mother, Betty Jean Lee, testified that while she had sympathy for the victims and their families, “I don’t want to lose my child. I love him.... [H]e’s my third son ... and I don’t want to lose him.” Betty also noted that Lee had two children of his own, aged eight months and one year, respectively, and apparently with different mothers. After closing arguments, the state trial court instructed the jury.

The state trial court instructed on one aggravating circumstance: that the capital offense at issue was committed while Lee “was engaged in the commission of an attempt to commit flight after committing or attempting to commit robbery.” The state trial court also instructed that “[t]he fact that Jeff[er]y Lee has been convicted in this case in and of itself is not an aggravating circumstance.” The jury returned a recommendation, by a vote of seven to five, that Lee be sentenced to a term of life imprisonment without parole. B.

Sentencing Hearings before Trial Judge The same state trial judge commenced the first sentencing hearing on September 22, 2000. The state trial court took additional testimony from the victims’ family members and friends, from the surviving victim King, and from Lee’s family members. The victims’ children testified. Jimmy Ellis, Jr., victim Jimmy Ellis’s son, testified that his father’s death “tore [his] world apart,” and the community remained outraged by the crimes.

Similarly, Telena Thompson, victim Elaine Thompson’s daughter, testified that her mother’s death “pretty much turned [her] personal life upside down,” her mother had been her “very best friend,” and that she suffered nightmares as a consequence of her mother’s murder. Surviving victim Helen King testified that: “I still can’t sleep at night. I slap at my kids for no reason. I blame my husband for everything because he’s the same color [as Lee]. I’m not trying to be prejudiced because I’m not. But it turned my life upside down.” King moved away from that community because she felt unsafe.

Larry Nichols, a manager of a service station across the street from victim Ellis’s pawn shop, testified that he was a lifelong friend of Ellis and that Ellis was well-liked in that community. Nichols said the community remained frightened and angry in the wake of the crimes. The State played a small portion of the pawn shop surveillance tape showing Lee entering the pawn shop and shooting Ellis, Thompson, and King. After the State’s presentation, the defense presented additional testimony from Lee’s family members.

Lee’s father, Jessie James Lee, testified that Lee was one of six children and a young father to two children of his own. Jessie stated that Lee was a good worker. He also stated that: “[W]hen [Lee] was small, when he got to be 12 or 18 or 14 years old, he was one of the smartest and best children I had. Some[ ]times I thought he was too smart. But after he got up to around the eighth or ninth or tenth grade, [Lee] started failing, acting funny.” Lee’s counsel confirmed with Jessie that he meant Lee began acting funny “mentally.” Jessie said that his son was on medication.

On cross-examination, Jessie stated that: What I mean about acting funny, [Lee] would stay in the house watching television. I’m a pretty good mechanic and I worked on automobiles and he would sit over there by himself while I worked until about eleven or twelve o’clock out by himself. I would ask him what was wrong. He never would say anything, but he would sit out there where I have worked on cars by himself.

Jessie said he did not know if Lee began running with a bad crowd but that he knew Lee had “started messing with some dope.” However, Jessie said Lee did not get in trouble with the law, and the only problem Jessie could recall was “a little argument or fight at a club one night.” Jessie also testified about how his son’s troubles had impacted him: Since my boy got in trouble, see, I had to take an early retirement on account of stress and worry. I had a heart attack and I liked to passed myself. I had a good job, I worked for the State of Alabama a long time.

I had to take an early retirement because I had a heart attack. Lee’s mother, Betty Jean Lee, testified that she was the grandmother of Lee’s children, she loved her son Lee very much, and if Lee were given the death penalty, “[i]t would be hard.” Lee’s mother acknowledged that what Lee had done was wrong.

Another of Lee’s uncles, Henry Lanier, Sr., testified that: he was around Lee his entire life; Lee was a good worker when he worked; and Lee started having problems when he got older: “[h]e just wasn’t the same kid he was.” Lanier stated he loved Lee and that if Lee received the death penalty, “[i]t would hurt a lot.” After some arguments by the attorneys, the state trial court stated it would consider the presentence investigation report and the evidence from the hearing and render a decision on October 11, 2000.

The Alabama Board of Pardons and Paroles prepared a presentence investigation report, which recounted Lee’s background as the third child of seven born to Jessie James Lee and Betty J. Lee, and Lee was raised in a home with both biological parents. The report stated that “Lee denied childhood history of physical, emotional [or] sexual abuse” and “denied any specific family history of psychological treatment.” Lee admitted that he started using marijuana at age 16 and regularly drank alcohol.

The presentence report also reflected that Lee’s parents provided a number of character references for Lee, including two pastors who indicated Lee attended church services and had been a respectable child. On October 11, 2000, the state trial court conducted its second sentencing hearing. At that hearing, Lee’s counsel objected that the presentence report did not reflect:

(1) Lee’s current medications, including Zyprexa, Navane, Cogentin, and Remeron; and (2) that Lee was “presently under Doctor Pineda’s care who diagnosed the Defendant as Borderline Mentally Retarded.” The state trial court indicated it would consider the things counsel listed. After allowing the State and defense to make further arguments, the state trial court asked Lee if he would like to say anything “as to why the sentence of this court should not be pronounced against you.” Lee stated: “I would like to say I truly am sorry for what happened. I would like to say to the victims of the family, Pm really sorry.

I didn’t mean to do all that. I know it’s bad. I truly am sorry. That’s all I can say.” The state trial court announced on the record its judgment that Lee be sentenced to death for his crimes. The trial court carefully reasoned as follows: I have considered this case and this is the hardest one I’ve ever had to do. I’ve had many. I think it has been foremost in my mind since we were here two weeks ago. With that, I will read my conclusions.

With cold precision and premeditation using a weapon designed for the sole purpose of extinguishing human life [Lee] mercilessly gun[ned] down three people who were doing nothing more than trying to earn a living. As shown individually by surveillance video he opened fire upon entering the door. He emptied his weapon firing as quickly as he could, shot after shot. Miraculously Helen King was spared and he only snuffed out the lives of two[, and] yet, in those few seconds of mayhem, he destroyed the lives of many.

The Court has giv[en] full measure and weight to the aggravating circumstance and the statutory and non-statutory mitigating circumstances. The Court has further given due consideration to the jury’s recommendation and the fact that life without parole is recommended by the minimum margin for a verdict. Based on all that, I find that the aggravating circumstance outweighs the mitigating circumstances. Therefore, it is the judg[ jment of the Court that the defendant be punished by death for the capital offenses for which he was convicted.

He is further sentenced to life in prison for the attempted murder of Helen King. In an accompanying written order, the trial court explained that the only statutory aggravating factor proven beyond a reasonable doubt was that set forth in Alabama Code § 13A-5-49(4), inasmuch as Lee had committed the capital offenses while engaged in an attempt to commit robbery. The trial court also considered each of seven statutory mitigating factors, finding only two existed in Lee’s case, the defendant’s: (1) lack of criminal history; and (2) young age (21) at the time of the crimes.

In its order, the state trial court also considered Lee’s evidence of non-statutory mitigating circumstances, including Lee’s: (1) limited mental capacity; (2) status as a father of two small children; (3) cooperation with law enforcement; (4) post-capture remorse for the crimes; (5) status as a good employee; and (6) family’s love and support.

After consideration of the aggravating circumstance and the statutory and non-statutory mitigating circumstances, and after due consideration of the jury’s recommendation of life without parole by a seven to five vote, the trial court concluded “that the aggravating circumstance out-weighted] the mitigating circumstances” and sentenced Lee to death for the three capital murder convictions. The trial court sentenced Lee to life in prison for the attempted murder of King. C.

Lee’s Direct Appeal and First Remand Bryan Stevenson, an experienced capital defense attorney with the Equal Justice Initiative of Alabama, handled Lee’s direct appeal of his convictions and sentences to the Alabama Court of Criminal Appeals (the “state appellate court”). Stevenson, with the help of another Equal Justice Initiative attorney, Angie Setzer, filed a 161-page appellate brief raising more than 30 grounds for relief. One ground asserted that the state trial court’s sentencing order failed to comply with Ex parte Taylor, 808 So.2d 1215 (Ala.2001).

Before addressing other issues, the state appellate court agreed and remanded the case so the state trial court could amend its sentencing order and delineate the specific reasons it gave the jury’s recommendation the consideration it did as required by Taylor. Lee v. State, 898 So.2d 790, 808 (Ala.Crim.App.2003) (“Lee I ”) (opinion on return to remand). D. Trial Judge’s Amended Sentencing Order On remand, the state trial court entered an amended sentencing order on October 31, 2001.

In that order, the trial court stated that its “sentencing order entered October 11, 2000, shall remain in full force and effect as if set out fully herein.” The state trial court amended that order to “provide the specific reasons for giving the jury’s recommendation the consideration it did,” including: (1) “The Court is and was extremely mindful of the jury’s recommendation in this case.

The Court considered the fact that the vote was seven for life without parole and five for the death penalty, the minimum vote for a life without parole recommendation.” (2) “It appeared clearly to the Court that the aggravating circumstance outweighed the mitigating circumstances beyond a reasonable doubt. It is the Court’s opinion that the advisory verdict of the jury should not be followed.”

(8) Lee, “with cold precision and premeditation, using a weapon designed for the sole purpose of extinguishing human life, mercilessly gunned down 3 people who were doing nothing more than trying to earn a living.” (4) “As vividly shown by the surveillance video, [Lee] opened fire upon entering the door. He emptied his weapon, firing as quickly as he could, shot after shot. Miraculously Helen King was spared and he only snuffed out the lives of two yet, in those few seconds of mayhem, he destroyed the lives of many.”

(5) Lee “planned his crime. He went to the store earlier in the day and pretended to shop for a ring. Instead, he was looking it over with an eye to return to commit his crime.”

(6) When Lee returned, “he fired immediately upon entering, with no warning and no questions asked. His intent was obvious; to take out the victims and steal what he could.” The state trial court concluded that Lee’s “case deserves the death penalty,” and noted that it had compared Lee’s actions and the surrounding facts to similar cases, and that the sentence was proportionate to sentences in other capital convictions in Alabama for commission of murder during a robbery. E. State Appellate Court’s Decision on Direct Appeal {Lee

I) In his direct appeal, Lee challenged the state trial court’s override of the jury’s life recommendation as violating Ring v. Arizona. After jury selection, Lee had made a motion under Batson v. Kentucky challenging the prosecutor’s strikes of black venire members during jury selection. The state trial court denied Lee’s Batson motion, and Lee also raised Batson issues in his direct appeal. In an 84-page published opinion, the state appellate court affirmed Lee’s convictions and sentences, expressly rejecting Lee’s Ring and Batson claims. See Lee I, 898 So.2d at 874. Later on, when we discuss these issues, we review the state appellate court’s decision in depth. In a

summary, two-sentence order, the Alabama Supreme Court denied Lee’s petition for a writ of certiorari, which raised Ring and Batson claims too. Ex parte Lee, 898 So.2d 874 (Ala.2004). The United States Supreme Court denied Lee’s certiorari petition. Lee v. Alabama, 543 U.S. 924, 125 S.Ct. 309, 160 L.Ed.2d 222 (2004). III. COLLATERAL REVIEW A. Lee’s Amended Rule 32 Petition and Supplement After Lee’s direct appeal, his appellate counsel Stevenson withdrew, and attorneys from the law firm Perkins Coie represented Lee in the state collateral proceedings.

Lee’s new counsel filed a petition for relief from judgment and sentence pursuant to Rule 32 of the Alabama Rules of Criminal Procedure.

Lee’s amended Rule 32 petition claimed, inter alia, that his trial counsel provided ineffective assistance by failing to investigate and present mitigation in the penalty phase regarding: (1) his heavy use of drugs and alcohol on the night and day before the crime; (2) his lack of sleep on that day; (3) his being upset on the day of the crime upon learning his girlfriend (pregnant by Lee) had spent the night with another man; (4) his fathering a child at a young age with a second child on the way; (5) his extreme poverty and the emotional abuse that shaped Lee’s life; (6) his mental health issues; (7) his long history of alcohol and drug abuse; (8) his “attemptfs] to lead a positive life,” by being a hard worker, providing some financial support to his son and other family, and the fact that he “prioritized his son’s needs, delaying going out with friends on the night before the crime in order to buy diapers for his son as he had promised”; and

(9) Dr. Pineda’s diagnosis of Lee in jail as having some type of psychosis and his prescribing Lee anti-psychotic medications in the jail. Lee also faulted his attorneys for not hiring a neuropsychiatric expert or an investigator. Subsequently, Lee’s counsel submitted an unverified supplement to that amended Rule 32 petition that focused more on three “new” mitigating factors:

(1) Lee came from a poor, broken home in which his parents fought constantly; (2) he was addicted to sniffing gasoline starting at a young age; and (3) he may have suffered a head injury caused by a collision with an 18-wheeler. According to the supplement, Lee was knocked unconscious, had broken teeth, was transported to the hospital, had his head injury stitched, and was released four or five hours later.

After the accident, Lee slept a great deal, lost interest in activities he once enjoyed, became easily angered and irritable, and began failing school. “Despite his serious drug habit,” the supplement alleged, Lee “made an effort to maintain employment to support his child and the one on the way [by his girlfriend].” Lee also said, though, that the pressure of being a father drove Lee to drink and use drugs more often. B. State Trial Court’s Rule 32 Decision The state circuit court (the “Rule 32 court”) denied Lee’s amended Rule 32 petition.

Having presided at Lee’s trial, the Rule 32 court found “the evidence of Lee’s guilt was overwhelming.” The Rule 32 court denied Lee’s petition, first stating:

(1) Lee’s claims failed to meet the specificity and factual pleading requirements of Rule 32.6(

b) of the Alabama Rules of Criminal Procedure; and

(2) Lee’s amended Rule 32 petition failed to state specifically what beneficial information a neuropsychiatric expert or investigator would have provided or found. The Rule 32 court further found that Lee’s allegations of ineffective assistance of counsel failed to show prejudice.

The Rule 32 court stated that “[a]fter carefully considering the supplement to Lee’s amended petition, the Court is convinced that there is no reasonable probability that had the proffered information been presented during Lee’s trial it might have caused more jurors to recommend that Lee be sentenced to life imprisonment without parole.” Additionally, the Rule 32 court (which had sentenced Lee) stated that had this evidence been presented, “it would not have persuaded this Court that the aggravating circumstance did not outweigh the mitigating circumstances.” C.

State Appellate Court’s Rule 32 Decision (.Lee II) The state appellate court affirmed the denial of Lee’s amended Rule 32 petition. Lee v. State, 44 So.3d 1145 (Ala.Crim.App.2009) (“Lee II”). As to Lee’s ineffective-assistance claim, the state appellate court agreed with the Rule 32 court that “Lee pleaded mere conclusions without any factual basis” and thus his amended Rule 32 petition generally failed to satisfy the specificity and factual pleading requirements of the Alabama Rules of Criminal Procedure.

Id. at 1153. “For instance, Lee asserted that counsel failed to present evidence of his background, but he did not specifically identify what that evidence consisted of or what witness or witnesses could have substantiated that evidence.” Id. Thus, the Rule 32 court was entitled to dismiss Lee’s amended Rule 32 petition and decline to grant an evidentiary hearing, because even if all Lee’s factual assertions were assumed to be true, he was not entitled to relief. See id. at 1156.

Moreover, the Rule 32-state appellate court affirmed because Lee’s allegations did not demonstrate the requisite prejudice, citing Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). The state appellate court observed that evidence of Lee’s mental health and substance abuse was actually presented to the jury. Lee II, 44 So.3d at 1160 & n. 3. For example, during the guilt phase, the jury heard from Dr. Ronan concerning Lee’s mental health, Principal Smith concerning Lee’s academic history, and Dr.

Blanton concerning Lee’s purported mild mental retardation, and this testimony was invoked again in the penalty phase. Id. at 1160-61. Further, in the penalty phase, Lee’s trial counsel presented the testimony of four of Lee’s family members, including Lee’s father and mother, with the former testifying that:

(1) Lee was helpful until he got involved with drugs in the ninth or tenth grade;

(2) Lee had a drug problem and needed help; and

(3) Lee voluntarily turned himself in for the crimes. Id. at 1161. All Lee’s family members asked that Lee’s life be spared. Id. The state appellate court pointed out that the mitigation presentation Lee’s trial counsel did make was “so persuasive that the jury recommended by a vote of 7 to 5 that Lee be sentenced to life imprisonment without the possibility of parole.” Id. The state appellate court concluded that even if all of Lee’s alleged new mitigation evidence had been presented, that new mitigation evidence “was neither strong nor compelling.” Id.

The state appellate court was “confident that it would have had no impact on the penalty phase proceedings.” Id. D. Lee’s Federal § 2254 Petition In 2010, Lee filed a 28 U.S.C. § 2254 federal habeas petition, which the district court denied. The district court granted a certificate of appealability on Lee’s penalty phase ineffective-assistance, Ring, and Batson claims. Lee timely appealed. IV. STANDARD OF REVIEW We review de novo the denial of a petition for a writ of habeas corpus. See Johnson v. Upton, 615 F.3d 1318, 1330 (11th Cir.2010).

Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L.

No. 104-132, 110 Stat. 1214, provides that federal courts may not grant a writ of habeas corpus to a state court prisoner on any claim adjudicated on the merits in state court unless the state court’s deeision: (1) “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) “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) (emphasis added); see Trepal v. Sec’y, Fla. Dep’t of Com, 684 F.Sd 1088, 1107 (11th Cir.2012).

A state court decision is “contrary to” clearly established federal law if it applies a rale that contradicts the governing law set forth by the United States Supreme Court, or arrives at a result that differs from Supreme Court precedent when faced with materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002).

A state court decision involves an “unreasonable application” of clearly established federal law “if the state court correctly identifies the governing legal principle” from the relevant Supreme Court decisions “but unreasonably applies it to the facts of the particular case.” Id.; Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Williams, 529 U.S. at 410, 120 S.Ct. at 1522.

Further, the phrase “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.” Id. at 412, 120 S.Ct. at 1523; see Burns v. Sec’y, Fla. Dep’t of Corr., 720 F.3d 1296, 1301-02, No. 11-14148, 2013 WL 3369145, at *4 (11th Cir. July 8, 2013). Circuit precedent may not be used “to refíne or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme] Court has not announced.” Marshall v. Rodgers, 569 U.S.-,-, 133 S.Ct. 1446, 1450, 185 L.Ed.2d 540 (2013).

In short, AEDPA “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Trepal, 684 F.3d at 1107 (quoting Hardy v. Cross, 565 U.S. -, -, 132 S.Ct. 490, 491, 181 L.Ed.2d 468 (2011)). To be entitled to federal habeas relief under § 2254, a petitioner must show that the state court’s ruling was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” Harrington v.

Richter, 562 U.S.-,-, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). “A state court’s application of clearly established federal law or its determination of the facts is unreasonable only if no ‘fairminded jurist’ could agree with the state court’s determination or conclusion.” Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir.2012) (quoting Harrington, 562 U.S. at -, 131 S.Ct. at 780). V. INEFFECTIVE-ASSISTANCE CLAIM A. Strickland v. Washington Test Lee’s ineffective assistance of counsel claim is governed by the Supreme Court’s two-pronged test announced in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Johnson, 615 F.3d at 1330. Under the Strickland test, Lee must show both that: (1) his attorney’s performance was deficient; and (2) the deficient performance prejudiced the defense. 466 U.S. at 687, 104 S.Ct. at 2064. Because we must view Lee’s ineffective-assistance claim — which is already governed by the deferential Strickland test — through the lens of AEDPA deference, the resulting standard of review is “doubly deferential.” Digsby v.

McNeil, 627 F.3d 823, 831 (11th Cir.2010), cert. denied, — U.S.-, 131 S.Ct. 2936, 180 L.Ed.2d 230 (2011); see also Harrington, 562 U.S. at-, 131 S.Ct. at 788 (“The standards created by Strickland and § 2254(

d) are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” (citations omitted)). In this case, we need not reach the performance prong because we are so readily convinced Lee has not shown the requisite prejudice. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 (“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”); Frazier v.

Bouchard, 661 F.3d 519, 531-32 (11th Cir.2011) (stating we “may decline to reach the performance prong of the ineffective assistance test if convinced that the prejudice prong cannot be satisfied” (internal quotation marks omitted)); Window, v. Sec’y, Dep’t of Corr., 578 F.3d 1227, 1248 (11th Cir.2009) (per curiam); Hall v. Head, 310 F.3d 683, 699 (11th Cir.2002).

Indeed, the Supreme Court has said that “[t]he object of an ineffectiveness claim is not to grade counsel’s performance” and consequently, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. We find that is the ease here. B. Prejudice Prong To establish prejudice under Strickland, Lee “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S.Ct. at 2068. In assessing prejudice, “we consider the totality of the available mitigation evidence— both that adduced at trial, and the evidence adduced in the habeas proceeding— and reweigh it against the evidence in aggravation.” Porter v. McCollum,, 558 U.S. 30, 41, 130 S.Ct. 447, 453-54, 175 L.Ed.2d 398 (2009) (per curiam) (internal quotation marks and brackets omitted); Wiggins v.

Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 2542, 156 L.Ed.2d 471 (2003) (in determining prejudice from failure to present mitigating evidence, “we reweigh the evidence in aggravation against the totality of available mitigating evidence”). To satisfy the prejudice prong, the “likelihood of a different result must be substantial, not just conceivable.” Harrington, 562 U.S. at-, 131 S.Ct. at 792. As to prejudice, the state appellate court concluded that “the evidence that Lee states should have been presented in mitigation was neither strong nor compelling.

We are confident that it would have had no impact on the penalty phase proceedings.” Lee II, 44 So.3d at 1161. Lee has not carried his burden of showing the state appellate court’s determination was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). At the outset, much of the alleged “new” mitigation evidence in Lee’s amended Rule 32 petition and supplement is simply too general and eonclusory to say there is a reasonable probability that had this alleged evidence been presented, it would have changed the outcome of Lee’s proceeding. See Price v.

Allen, 679 F.3d 1315, 1325-26 (11th Cir.2012) (per curiam). Although Lee alleges, for example, that his family members “reported that [Lee’s] drug and alcohol use got increasingly worse over time,” and that Lee’s trial counsel “failed to fully interview [Lee’s] family members” and “failed to interview [Lee’s] friends” who had knowledge of his alcoholism and his family history of alcoholism, Lee provides no factual allegations or specifics as to what family members or friends would have testified to or what more they would have said in addition to the substance abuse evidence that was presented at trial.

Even assuming all the allegations of new mitigation evidence in Lee’s supplement are true, including the allegations of childhood poverty, gasoline sniffing, and his head injury, Lee still has not shown these facts would have altered the outcome of Lee’s penalty-phase proceedings.

As the Rule 32 court pointedly stated, “[m]any people have grown up in socio-economic conditions far worse than those described by Lee and have not committed a double homicide and an attempted murder during an attempted robbery.” A comparison of Lee’s allegations of childhood poverty and his parents’ fights to the types of “powerful” mitigating evidence that the Supreme Court has found sufficient to establish prejudice under Strickland is instructive as Lee’s evidence pales in comparison. For example, in Rompilla v.

Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), defense counsel failed to present evidence that: (1) “Rompilla’s parents were both severe alcoholics who drank constantly”; (2) “[h]is mother drank during her pregnancy with Rompilla”; (3) “[h]is father, who had a vicious temper, frequently beat Rompilla’s mother, leaving her bruised and black-eyed, and bragged about his cheating on her”; (4) “[h]is parents fought violently, and on at least one occasion his mother stabbed his father”;

(5) Rompilla “was abused by his father who beat him when he was young with his hands, fists, leather straps, belts and sticks”; (6) “[a]ll of the children lived in terror”; (7) “[h]is father locked Rompilla ... in a small wire mesh dog pen that was filthy and excrement filled”;

(8) Rompilla “had an isolated background, and was not allowed to visit other children or to speak to anyone on the phone”; and (9) “[t]hey had no indoor plumbing ..., [Rompilla] slept in the attic with no heat, and [was] not given clothes and attended school in rags.” Id. at 391-92, 125 S.Ct. at 2468-69; see also Wiggins, 539 U.S. at 516-17, 123 S.Ct. at 2532-33 (Wiggins’s mother left the children home alone for days, forcing them to beg for food and to eat paint chips and garbage; she beat the children and had sex with men while the children slept in the same bed; in one incident, she forced Wiggins to touch a hot stove burner, resulting in hospitalization; and Wiggins’s foster father and siblings molested and raped him).

In stark contrast to Rompilla and Wiggins, Lee alleged childhood poverty but admitted that his “parents did the best they could” and his father had a steady job until he was no longer able to work due to a heart attack. At most Lee claimed he was disciplined by both his parents with a switch or a belt, and that once, Lee’s father spanked him with a belt at school to show the school principal he was “keeping after the boys.” Lee generally alleged that his mother endured abuse from his father but provided no specific examples of incidents.

And yet, in his § 2254 petition, Lee alleged that he “was living with a family that in many respects was a loving one.” Taking all of Lee’s allegations as true, we cannot say that the state appellate court’s determination — that Lee’s allegations of childhood poverty and domestic violence were insufficient to change the outcome of Lee’s case — was “contrary to” or “involved an unreasonable application of’ Strickland. Furthermore, the additional mitigation evidence of Lee’s substance abuse was largely cumulative of the substance abuse evidence that the jury did hear at trial. Dr.

Blanton testified to Lee’s significant drug abuse problems. In the penalty phase, Lee’s family members testified that Lee abused drugs. Lee does not explain how new and additional facts of substance abuse, such as the fact that he sniffed gasoline at a young age, would have changed the outcome, considering the jury had already heard that he abused alcohol and marijuana from a relatively young age and began performing poorly in school and acting strangely possibly as a result. See, e.g., Rhode v.

Hall, 582 F.3d 1273, 1287 (11th Cir.2009) (per curiam) (“At best, the evidence would have been cumulative, providing more information about [the petitioner’s] ... early exposure to drugs and alcohol.”); Robinson v. Moore, 300 F.3d 1320, 1347 (11th Cir.2002) (“While the additional mitigation witnesses procured by Robinson’s [state postconviction] counsel could have presented the resentencing jury and trial judge with more details, or different examples, of these aspects of Robinson’s life, these aspects of his life were nonetheless known to the resentencing jury and trial judge.”); see also, e.g., Wong v.

Belmontes, 558 U.S. 15, 22, 130 S.Ct. 383, 387-88, 175 L.Ed.2d 328 (2009). Lee also does not allege, much less explain, how his claimed head injury reportedly resulting from a collision in 1995 caused any actual mental impairment or how this evidence would have changed the balance of mitigating and aggravating factors. See Powell v.

Allen, 602 F.3d 1263, 1274 (11th Cir.2010) (per curiam) (rejecting claim counsel was ineffective for failing to investigate and present evidence of Powell’s numerous head traumas because Powell failed to present information pertaining to the significance of these injuries, any medical evidence to substantiate the injuries, and failed to explain how this would have changed the outcome of his penalty phase). Lee does not allege the existence of any testimony from a medical professional or the existence of any medical records addressing his alleged head injury or mental impairments.

In fact, in the Rule 32 case or even here, Lee has never proffered any information that would lead to any evidence that Lee suffers from mental illness or a diminished mental capacity beyond what was brought out in Dr. Blanton’s testimony concerning possible mild mental retardation.

Without any allegations explaining how his so-called “new” mitigating evidence affected his actions at the time he committed the crimes, and given the horrific and heinous facts of his two premeditated and cold-blooded murders, we cannot say that it was unreasonable for the state appellate court to conclude that Lee had not shown the requisite prejudice. We wholly reject Lee’s attempts to analogize his case to Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009).

The factual differences between the two cases on the prejudice prong are so significant that, if anything, Porter demonstrates how Lee’s alleged “new” evidence does not establish prejudice. In Porter, unlike this case, there was evidence of extensive childhood physical abuse and brain damage. See id. at 33-34, 36, 130 S.Ct. at 449, 451 (noting that Porter’s father routinely beat Porter’s mother in Porter’s presence, Porter himself was a “favorite target” of his father’s abuse, once Porter’s father shot at him with a gun, and expert testimony indicated Porter had brain damage).

In contrast, Lee’s factual allegations in his amended Rule 32 petition and supplement, if true, pale in comparison. As shown above, Lee does not identify any significant history of domestic violence involving him, but instead states only in generalities that his parents would frequently verbally abuse and berate him and sometimes whip him.

Further, despite his factual allegations that he may have suffered head trauma in a car accident, Lee has never alleged that a physician, mental health professional, or other expert has concluded that Lee actually sustained a head injury or is otherwise mentally impaired or impacted from the accident. Lee also does not have any significant positive new mitigating evidence like that of the petitioner’s military service in Porter. See Pooler v. Sec’y, Fla.

Dep’t of Corr., 702 F.3d 1252, 1276-79 (11th Cir.2012) (contrasting Pooler’s military record with Porter’s exemplary military record and concluding that “Porter presented a far more mitigating evidentiary profile than this case does”). Moreover, in Porter, defense counsel only presented one witness and the “sum total” of mitigating evidence amounted to “inconsistent testimony about Porter’s behavior when intoxicated and testimony that Porter had a good relationship with his son.” Porter, 558 U.S. at 32, 130 S.Ct. at 449. Here, Lee’s trial counsel invoked the guilt-phase testimony of Dr.

Blanton concerning Lee’s diminished mental capacity as well as the guilt-phase testimony of Lee’s supervisor, who testified that Lee was a competent employee. Lee’s trial counsel also presented the testimony of four of Lee’s family members, who testified about Lee’s substance abuse, his problems in school, his strange behavior, and that Lee was loved and his life should be spared. Lee fails to credit that his trial counsel’s mitigation efforts resulted in a jury recommendation of life imprisonment.

Indeed, the fact that the jury recommended life imprisonment counsels against a determination that Lee was prejudiced under Strickland. See Parker v. Allen, 565 F.3d 1258, 1275 (11th Cir.2009) (“A petitioner cannot show sentencing phase prejudice when the jury recommends a sentence of life instead of death.” (citing Routly v. Singletary, 33 F.3d 1279, 1297 (11th Cir.1994) (per curiam))).

And the Rule 32 court, the same state court that tried and sentenced Lee, explicitly stated that had Lee’s additional mitigation evidence been presented, the court would not have imposed a sentence of life imprisonment instead of death. Thus, Lee cannot show that “there is a reasonable probability that the sentencing judge would have arrived at a different conclusion after being presented with the additional evidence and reweighing the aggravating and mitigating circumstances.” Id. at 1285; see also Ferguson v.

Sec’y for Dep’t of Corr., 580 F.3d 1183, 1198-99 (11th Cir.2009) (noting that Strickland asks if a different result is “reasonably probable,” not if it is “possible” (emphasis omitted)); see also Brown v. United States, 720 F.3d 1316, 1326, No. 09-10142, 2013 WL 3455676, at *6 (11th Cir. July 10, 2013) (quoting same from Ferguson).

In sum, even taking all the alleged new mitigating evidence as true, and considering it with the mitigating and aggravating evidence at trial, we conclude that Lee has not shown prejudice and the state appellate court’s rejection of Lee’s ineffective-assistance claim was not contrary to or an unreasonable application of Strickland. VI. JURY-OVERRIDE CLAIM A. Lee’s Ring Claim Lee’s next argument is that the state trial court’s death sentence, overriding the jury’s recommendation of life without parole, violated Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

The Supreme Court in Ring concluded that under the Sixth Amendment “[cjapital defendants, no less than noncapital defendants, ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” Id. at 589, 122 S.Ct. at 2432. Lee contends that his death sentence is unconstitutional under Ring because the state trial judge in his case, not the jury: (1) found the specific aggravating fact that authorized the death penalty; and (2) concluded that the aggravating fact outweighed the mitigating circumstances. B.

Direct Appeal Decision The state appellate court rejected Lee’s claim that the trial judge improperly overrode the jury’s sentencing recommendation. Lee I, 898 So.2d at 858. First, the state appellate court noted that “[tjhese arguments have previously been decided adversely to” Lee in Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995), which upheld as constitutional Alabama’s sentencing regime permitting the trial judge alone to impose a capital sentence. Lee I, 898 So.2d at 857.

Second, the state appellate eourt observed that both it and the Alabama Supreme Court had already held in other cases that the Supreme Court’s later decision in Ring did not invalidate Alabama’s sentencing law.

The state appellate court further observed the Alabama courts had recognized “the narrowness” of the Ring holding, stating: “[t]he Ring Court held that any aggravating circumstance that increased a sentence to death must be proved to a jury beyond a reasonable doubt; however, we noted that the Ring Court did not reach the question whether judicial sentencing or judicial override was constitutional.” Id. (internal quotation marks omitted).

Third, the state appellate court pointed out that the state trial judge had found that one aggravating circumstance existed — Lee committed the capital offenses while he was engaged in the commission of an attempted robbery. The state appellate court reasoned that “[bjecause the jury convicted [Lee] of the capital offense of robbery-murder, that statutory aggravating circumstance was proven beyond a reasonable doubt.” Id. at 858.

Therefore, the state appellate court found that in Lee’s case “the jury, and not the judge, determined the existence of the ‘aggravating circumstance necessary for imposition of the death penalty.’ ” Id. Thus, the state appellate court concluded that the judge’s death sentence did not violate Ring v. Arizona. Id. C.Jury’s Guilty Verdict Included Armed Robbery We can easily dispose of Lee’s claim in light of the narrowness of the Supreme Court’s holding in Ring.

As the state appellate court in Lee I concluded, the jury’s guilty verdict on the capital offense of robbery-murder established the existence of an aggravating circumstance sufficient to support a death sentence. In Alabama, a statutory aggravating circumstance is that “[t]he capital offense was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit ... robbery.” Aa.Code § 13A-5-49(4).

In the guilt phase, the jury convicted Lee of the capital offense of “[m]urder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant” Ala.Code § 13A-5-40(a)(2). A jury’s guilt-phase finding of conviction under § 13A-5-40(a)(2) necessarily includes a finding that the aggravating circumstance in § 13A-5-49(4) is present. Alabama statute requires interpreting the jury verdict in this manner.

See Ala.Code § 13A-5-45(e) (“[A] ny aggravating circumstance which the verdict convicting the defendant establishes was proven beyond a reasonable doubt at trial shall be considered as proven beyond a reasonable doubt for purposes of the sentencing hearing.”). Nothing in Ring — or any other Supreme Court decision — forbids the use of an aggravating circumstance implicit in a jury’s verdict. Indeed, Ring itself specifically left open and did not decide the question of whether the aggravator used to impose a death sentence could be implicit in the jury’s verdict.

See Ring, 536 U.S. at 609 n. 7, 122 S.Ct. at 2443 n. 7 (“We do not reach the State’s assertion that any error was harmless because a pecuniary gain finding was implicit in the jury’s guilty verdict.”). Furthermore, Ring does not foreclose the ability of the trial judge to find the aggravating circumstances outweigh the mitigating circumstances.

As the Ring Court also made clear, it was not deciding whether the Sixth Amendment: (1) required the jury to make findings as to mitigating circumstances; (2) required the jury to make the ultimate determination as to whether to impose the death penalty; or (3) forbade the state court from reweighing aggravating and mitigating circumstances. Id. at 597 n. 4, 122 S.Ct. at 2437 n. 4. The holding of Ring is narrow: the Sixth Amendment’s guarantee of jury trials requires that the finding of an aggravating circumstance that is necessary to imposition of the death penalty must be found by a jury.

That occurred in Lee’s case by virtue of the jury’s capital robbery-murder verdict. Ring goes no further, and Lee points to no Supreme Court precedent that has extended Ring’s holding to forbid the aggravating circumstance being implicit in the jury’s verdict or to require that the jury weigh the aggravating and mitigating circumstances. Accordingly, we must conclude that the state appellate court’s decision is not contrary to or an unreasonable application of Ring, and Lee is not entitled to habeas relief on this claim. VII.

LEE’S BATSON CLAIM We left Lee’s Batson claim for last because it requires so much more record review and legal analysis. Specifically, we: (1) must examine Batson and its progeny; (2) review the state trial court record of voir dire, peremptory challenges, and state trial court rulings; (3) outline the state appellate court’s decision on Lee’s Batson claim; (4) discuss whether AEDPA’s deference applies to plain-error decisions by state courts; (5) review Supreme Court and Circuit precedent holding that AED-PA applies to state court opinions that are

summary adjudications or that contain less than complete discussion of all claims, facts, or arguments; and (6) then analyze whether under AEDPA, 28 U.S.C. § 2254(d)(1), the state court’s Batson decision in Lee’s case is an unreasonable application of clearly established federal law. A. Batson and Its Progeny It is clearly established federal law that, under the Equal Protection Clause, a criminal defendant has a constitutional “right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria.” Batson v. Kentucky, 476 U.S. 79, 85-86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986).

In Batson, the Supreme Court established a three-step test for evaluating racial discrimination claims in jury selection. In the first step, the defendant must establish a prima facie case by producing evidence sufficient to support the inference that the prosecutor exercised peremptory challenges on the basis of race. Johnson v. California, 545 U.S. 162, 169-70, 125 S.Ct. 2410, 2416-17, 162 L.Ed.2d 129 (2005); Batson, 476 U.S. at 96, 106 S.Ct. at 1723.

In determining whether the defendant has made a prima facie case, the court must consider, inter alia: (1) any pattern of strikes against jurors of one race; and (2) “the prosecutor’s questions and statements during voir dire examination” and in exercising peremptory challenges. See Batson, 476 U.S. at 97, 106 S.Ct. at 1723; see also United States v.

Walker, 490 F.3d 1282, 1291 (11th Cir.2007) (“[A] pattern of strikes against all venire members of one race or gender is considered significant” in establishing a prima facie case.). “Once the defendant makes a prima facie showing,” in the second step “the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.” Batson, 476 U.S. at 97, 106 S.Ct. at 1723.

The State may not rebut the defendant’s prima facie case by simply denying a discriminatory motive or “affirming] [his] good faith in making individual selections.” Id. at 98, 106 S.Ct. at 1723-24 (alterations in original) (internal quotation marks omitted). The State’s proffered explanation need not be “persuasive, or even plausible.... the issue is the facial validity of the prosecutor’s explanation.” Purkett v. Elem, 514 U.S. 765, 767-78, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (internal quotation marks omitted).

The Supreme Court has rejected the contention “that the justification tendered at the second step be not just neutral but also at least minimally persuasive.” Id. at 768, 115 S.Ct. at 1771. “It is not until the third step that the persuasiveness of the justification becomes relevant....” Id. In the third and final step, “[t]he trial court ... will have the duty to determine if the defendant has established purposeful discrimination.” Batson, 476 U.S. at 98, 106 S.Ct. at 1724.

This is “a pure issue of fact, subject to review under a deferential standard .... [and] ‘peculiarly within a trial judge’s province.’ ” Hernandez v. New York, 500 U.S. 352, 364, 365, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395 (1991) (plurality opinion).

Further, “[i]n deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances.” Batson, 476 U.S. at 96, 106 S.Ct. at 1723; see also id. at 93, 106 S.Ct. at 1721 (“In deciding if the defendant has carried his burden of persuasion, a court must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” (internal quotation marks omitted)). Those relevant circumstances may include the strength of the defendant’s prima facie case at step one.

See id. at 97, 106 S.Ct. at 1723 (observing that “a ‘pattern’ of strikes against black jurors ... might give rise to an inference of discrimination”); see also Hernandez, 500 U.S. at 375, 111 S.Ct. at 1875 (O’Connor, J., concurring in the judgment) (“Disproportionate effect may, of course, constitute evidence of intentional discrimination.

The trial court may, because of such effect, disbelieve the prosecutor and find that the asserted justification is merely a pretext for intentional race-based discrimination.”). “In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed.” Hernandez, 500 U.S. at 365, 111 S.Ct. at 1869 (plurality opinion). “[E]valuation of the prosecutor’s state of mind based on demeanor and credibility-lies peculiarly within a trial judge’s province.” Id. (internal quotation marks omitted).

An appellate court may not “overturn the state trial court’s finding on the issue of discriminatory intent unless convinced that [the trial court’s] determination was clearly erroneous.” Id. at 369, 111 S.Ct. at 1871; see also Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”).

The determination “on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal.” Hernandez, 500 U.S. at 364, 111 S.Ct. at 1868; see also Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008). Ultimately, the burden of persuasion to show purposeful discrimination “rests with, and never shifts from, the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S.Ct. at 1771. “[A] defendant may rely on ‘all relevant circumstances’ to raise an inference of purposeful discrimination” in the third step. Miller-El v.

Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005). As to “side-by-side comparisons,” the Supreme Court has said that “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar non-black who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” Id. at 241, 125 S.Ct. at 2325.

Importantly too, “under Batson, the striking of one black juror for a racial reason violates the Equal Protection Clause, even where other black jurors are seated, and even when valid reasons for the striking of some black jurors are shown.” United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986); see also Snyder, 552 U.S. at 478, 128 S.Ct. at 1208 (“Because we find that the trial court committed clear error in overruling petitioner’s Batson objection with respect to [one venire member], we have no need to consider petitioner’s claim regarding [a second venire member].”).

With this Supreme Court background, we turn to the jury-selection record. B. Jury Selection in Lee’s Trial Initially, the state trial court granted deferrals for hardship and inconvenience. Then outside the venire’s presence, Lee’s trial counsel moved to require the prosecutor to turn over the criminal histories of all venire members. The prosecutor replied that he would provide the criminal history of anyone he struck on that basis. The trial court had each potential juror give his or her name, occupation, marital status, and if married, his or her spouse’s name and occupation.

The court asked the venire a series of general questions, after which the attorneys questioned the venire. Given the capital murder charges against Lee, the primary focus of voir dire was the venire members’ views on the death penalty. That afternoon, the state trial court broke the venire into smaller

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