Robert Earl BUTTS, Petitioner-Appellant, v. GDCP WARDEN, Respondent-Appellee, 850 F.3d 1201

ED CARNES, Chief Judge: Robert Earl Butts, Jr., a Georgia prisoner, murdered Donovan Corey Parks. Butts was sentenced to death after a jury found him guilty of malice murder, armed robbery, hijacking a motor vehicle, possession of a firearm during the commission of a crime, and possession of a sawed-off shotgun. The district court denied his 28 U.S.C. § 2254 petition for a writ of habeas corpus, in which he raised a number of claims challenging his convictions and sentence.

The court granted him a certificate of appealability on the question whether “[tjrial and appellate counsel were ineffective for failing to investigate, develop, and present mitigating evidence during the sentencing phase of Butts’s trial.” A complicating factor in considering the issues certified for this appeal is the fact that in the state collateral proceeding the trial court ruled that Butts had procedurally defaulted a part of his claim that trial counsel was ineffective for failing to investigate, develop, and present mitigating evidence.

During the unified appeal, Butts’ new counsel had argued only that trial counsel was ineffective for failing to offer testimony by family members, who could have made a plea for mercy, at the sentencing phase of his trial.

In his later state habeas petition Butts, represented by yet another set of new counsel, reiterated his claim about trial counsel’s failure to call family members to plead for mercy, but he also attempted to expand his claim to allege that trial counsel had “failed to conduct an adequate pretrial investigation into [his] family life and background to uncover and present to the jury evidence in mitigation.” The state trial court found that Butts’ failure to preserve that expanded part of his claim during the unified appeal barred it from considering that part of the claim on the merits.

The court denied the claim based on that procedural bar. It also denied, on the merits, Butts’ related claim that appellate counsel had rendered ineffective assistance by failing to adequately raise and preserve during the unified appeal the trial counsel ineffectiveness claim. The Georgia Supreme Court denied Butts a certificate of probable cause to appeal the state trial court’s decision denying him habeas relief. Butts then filed in federal district court a petition for a writ of habeas corpus.

With limited exceptions, “[w]hen a state court denies a claim as defaulted based on an adequate and independent state procedural rule, a petitioner may not bring the claim in federal habeas.” Lucas v. Warden, Ga. Diagnostic & Classification Prison, 771 F.3d 785, 801 (11th Cir. 2014). One exception occurs when the habeas petitioner can show cause and prejudice. Id.; Jones v. Campbell, 436 F.3d 1285, 1304 (11th Cir. 2006).

In an attempt to lift the procedural bar and have the district court decide his expanded trial counsel ineffectiveness claim on the merits, Butts asserted as cause a claim that his appellate counsel was himself ineffective for not adequately investigating and presenting during the state unified appeal the claim that trial counsel was ineffective. The district court rejected that contention on the ground that the state trial court’s rejection of it was not unreasonable under 28 U.S.C. § 2254(d).

In making that decision, the district court considered looking to the Georgia Supreme Court’s unexplained denial of a certificate of probable cause to appeal, but it decided instead to look to the trial court’s explained rejection of the claim. App’x at 12 n.8. We have since held that the denial of a certificate of probable cause to appeal by the Georgia Supreme Court is a decision on the merits entitled to deference under § 2254(d), and it is to that decision instead of the typically more specific trial court decision that a federal habeas court should look. Wilson v. Warden, Ga.

Diagnostic Prison, 834 F.3d 1227, 1232-33 (11th Cir. 2016) (en banc), cert. granted, No. 16-6855, - U.S. -, 137 S.Ct. 1203, 197 L.Ed.2d 245, 2017 WL 737820 (Feb. 27, 2017). Because it does not matter to the result, and to avoid any further complications if the United States Supreme Court disagrees with our Wilson decision, we have decided this appeal on the same basis that the district court did: by using the more state-trial-court focused approach in applying § 2254(d).

The state trial court, the district court, and the parties themselves agree that appellate counsel’s performance in presenting the ineffective assistance of trial counsel claim was itself deficient. We accept that proposition for present purposes and turn to the prejudice requirement. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) (“Unless a defendant makes both showings [deficient performance and prejudice], it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”); Brooks v.

Comm’r, Ala. Dep’t of Corr., 719 F.3d 1292, 1300 (11th Cir. 2013) (“Claims of ineffective assistance of appellate counsel are governed by the same standards applied to trial counsel under Strickland.”) (quotation marks omitted). In the state habeas proceeding, the trial, court found that Butts had not established prejudice from his appellate counsel’s failures in investigating and presenting the trial counsel ineffectiveness claim during the unified appeal. We accord that decision the deference it is due under § 2254(d). See Harrington v.

Richter, 562 U.S. 86, 100, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (“Federal habeas relief may not be granted for claims subject to § 2254(

d) unless it is shown that the earlier state court’s decision ‘was contrary to’ federal law then clearly established in the holdings of [the United States Supreme] Court, § 2254(d)(1), or that it ‘involved an unreasonable application of such law, § 2254(d)(1), or that it ‘was based on an unreasonable determination of the facts’ in light of the record before the state court, § 2254(d)(2).”) (one citation omitted).

Determining whether appellate counsel’s failure to adequately investigate and present the claim of trial counsel’s ineffectiveness prejudiced Butts — whether there is a reasonable probability of a different result in the appeal had the claim been presented in an effective manner — requires determining whether trial counsel was ineffective in the first place. If trial counsel was not ineffective, then any of appellate counsel’s failures in attempting to build a case that he was ineffective could not have prejudiced Butts. See Hittson v.

GDCP Warden, 759 F.3d 1210, 1262 (11th Cir. 2014) (recognizing that a petitioner could not be prejudiced by his counsel’s failure to raise a meritless claim); Brown v. United States, 720 F.3d 1316, 1335 (11th Cir. 2013) (“It is also crystal clear that there can be no showing of actual prejudice from an appellate attorney’s failure to raise a meritless claim.”). So the question is whether the trial counsel ineffectiveness claim was meritorious.

The more specific question, because of the deference we owe state courts under the Antiterrorism and Effective Death Penalty Act, is whether any fairminded jurist could agree with the state trial court’s decision denying Butts habeas relief. See 28 U.S.C. § 2254(d); Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012). “[I]f some fair-minded jurists could agree with the state court’s decision, although others might disagree, federal habeas relief must be denied.” Holsey, 694 F.3d at 1257 (quotation marks omitted).

The district court issued an exceptionally thorough and persuasive order explaining why Butts did not meet that standard. We adopt and incorporate as our own the relevant part of that order, which is attached as an appendix to this opinion. We add, or emphasize, just a few points beyond what Judge Treadwell said in his order. First, Butts contends that his trial team, and particularly its lead counsel, Robert Westin, was inexperienced. To the contrary, we rarely see a trial attorney who is more experienced in capital defense, or has a better record in capital trials, than Wes-tin.

As the district court pointed out, Wes-tin had represented five capital defendants before Butts (and an additional three after him), and none of his other clients received a death sentence. Westin was assisted by a co-counsel who had handled at least 25 to 50 felony cases before the Butts case. And the paralegal who rounded out the defense team had worked on several death penalty cases before this one. It was an experienced capital defense team, and that matters. See Chandler v.

United States, 218 F.3d 1305, 1316 (11th Cir. 2000) (en banc) (“When courts are examining the performance of an experienced trial counsel, the presumption that his conduct was reasonable is even stronger.”); Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1244 (11th Cir. 2010) (same); Williams v. Head, 185 F.3d 1223, 1229 (11th Cir. 1999) (“It matters to our analysis that Richard Allen is an experienced criminal defense attorney.”); Provenzano v.

Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998) (“Our strong reluctance to second guess strategic decisions is even greater where those decisions were made by experienced criminal defense counsel.”). Second, Butts contends that his defense team did not investigate any potential mitigation evidence. Appellant’s Br. at 38 (“Neither counsel conducted any mitigation interviews or substantive investigation ... and counsel did nothing to investigate clear red flags in available records.”).

To the contrary, we do not often see cases in which a defense team investigated mitigating circumstance evidence more thoroughly than this team did. As the district court recounted: Trial counsel reviewed Butts’s school records, medical records, employment records, juvenile and adult criminal records, records from the Baldwin County Department of Family and Children Services (“DFACS”), records from the Georgia Department of Human Resources (“DHR”), records from the Oco-nee Psychoeducational Center, and jail records.

Trial counsel also reviewed records of [Butts’ fatherj’s mental illness and [Butts’ motherj’s alcoholism and cocaine addiction. (Footnote and citations omitted). In addition, Butts’ trial team interviewed three of his four siblings, an uncle, his maternal great-aunt and maternal grandmother, a Mend, other members of a gang Butts was associated with, and all of Butts’ previous employers, supervisors, and co-workers that they could find. They also attempted to interview Butts’ mother, who was uncooperative.

Third, Butts contends that trial counsel’s performance was automatically deficient because they did not follow in lock step the recommendations of the American Bar Association and the Southern Center for Human Rights. At the time of the trial, the ABA recommended conducting “a thorough investigation of the defendant’s life history and background” with “the assistance of investigators and other assistants.” ABA Guideline 8.1, cmt. (1989).

And the Southern Center for Human Rights recommended considering “[t]he use of social workers and other experts to present the case in mitigation.” Southern Center for Human Rights Manual, ch. 1, p. 20. Counsel must perform reasonably under “prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. Those norms, Butts insists, are established by the recommendations of the ABA and the Southern Center for Human Rights. They aren’t. Butts argues that the Supreme Court’s decision in Wiggins v.

Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), establishes that trial counsel performed deficiently by failing to follow those recommendations. It doesn’t. In Wiggins, trial counsel’s investigation into Wiggins’ life history consisted of reading a one-page description of his personal history from a presentence- investigation report and gathering records about his placements in foster care. Id. at 523, 123 S.Ct. at 2536. Although those scant records referred to Wiggins’ self-described “disgusting” history, trial counsel did no further investigation. Id. at 523-26, 123 S.Ct. at 2536-38.

If counsel had investigated, they would have discovered that Wiggins had suffered “severe physical and sexual abuse ... at the hands of his mother and while in the care of a series of foster parents.” Id. at 516-17, 123 S.Ct. at 2533. And despite asserting up until the day before Wiggins’ sentencing phase began that they intended to introduce mitigation evidence, trial counsel did not end up presenting any of the probative evidence that they did have. Id. at 526, 123 S.Ct. at 2537-38.

Instead, they put on a “halfhearted mitigation case” about the general effect of life sentences on prisoners and challenged Wiggins’ direct responsibility for the murder. Id. at 526, 123 S.Ct. at 2538. Faced with those facts the Supreme Court held that “[cjounsel’s decision not to expand their investigation ... fell short of the professional standards that prevailed in Maryland” at the time of Wiggins’ trial. Id. at 524, 123 S.Ct. at 2536.

The Court reached that conclusion in part because trial counsel chose not to obtain a social history report, even though “standard practice in Maryland in capital cases at the time of Wiggins’ trial included the preparation of a social history report.” Id. at 524, 123 S.Ct. at 2536-37. It also noted that “[cjounsel’s conduct similarly fell short of the standards for capital defense work articulated by the [ABA] — standards to which we long have referred as ‘guides to determining what is reasonable.’ ” Id. (citations omitted).

The specific standard to which the Court referred was a guideline providing that “investigations into mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence.” Id. at 524, 123 S.Ct. at 2537 (quotation marks omitted). As a result of all the circumstances, the Supreme Court concluded that counsel’s failure to conduct an adequate investigation constituted deficient performance. Id. at 534, 123 S.Ct. at 2541-42.

The Wiggins decision did not hold that the guidelines and recommendations of the ABA or other organizations about how counsel should represent capital defendants establish prevailing professional norms. The Supreme Court in Wiggins did not purport to overrule what it had said in Strickland: Prevailing norms of practice as reflected in American Bar Association standards and the like ... are guides to determining what is reasonable, but they are only guides.

No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant’s cause.

Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065 (citation omitted); see also Buck v. Davis, 580 U.S. -, 137 S.Ct. 759, -, 197 L.Ed.2d 1 (2017) (“Strickland’s first prong.sets a high bar. A defense lawyer navigating a criminal proceeding faces any number of choices about how best to make a client’s case.

The lawyer has discharged his constitutional responsibility so long as his decisions fall within the “wide range of professionally competent assistance.’ It is only when the lawyer’s errors were ‘so serious that counsel was not functioning as the counsel guaranteed ... by the Sixth Amendment’ that Strickland’s first prong is satisfied.”) (citations and some quotation marks omitted) (alteration in original).

The Supreme Court has explained that “[r]e-statements of professional standards ... can be useful as ‘guides’ to what reasonableness entails, but only to the extent they describe the professional norms prevailing when' the . representation took place.” Bobby v. Van Hook, 558 U.S. 4, 7, 130 S.Ct. 13, 16, 175 L.Ed.2d 255 (2009). The Wiggins case is different from this one. In that case counsel conducted almost no personal history investigation even though there was a local professional norm of commissioning a social history report and clear signs pointing to the need for a social history report.

Wiggins, 539 U.S. at 524-25, 123 S.Ct. at 2536-37. In this case, by contrast, instead of ignoring signs indicating that Butts’ personal history might be useful in mitigation, the defense team undertook an exhaustive investigation into his childhood and upbringing. They personally conducted that investigation and they did so, the record shows, at a time when mitigation experts were not routinely used in capital cases in the judicial circuit where this ease was tried. Counsel for Butts performed reasonably under the prevailing professional norms of the time and place where the trial took place.

See Bobby, 558 U.S. at 7, 130 S.Ct. at 16. Fourth, Butts faults trial counsel for their decision to pursue a residual doubt strategy at the sentencing stage. But we have held a number of times that residual doubt can be an effective strategy at the sentencing stage of a capital case. See Chandler, 218 F.3d at 1319-20; Terrell v. GDCP Warden, 744 F.3d 1255, 1269 (11th Cir. 2014); Johnson v. Upton, 615 F.3d 1318, 1338 (11th Cir. 2010); Ward v. Hall, 592 F.3d 1144, 1170 (11th Cir. 2010); Hammond v. Hall, 586 F.3d 1289, 1333-34 & n.18 (11th Cir. 2009); Hannon v.

Sec’y, Dep’t of Corr., 562 F.3d 1146, 1154-55 (11th Cir. 2009); Parker v. Sec’y for the Dep’t of Corr., 331 F.3d 764, 787-88 (11th Cir. 2003). We cannot and will not second guess trial counsel’s strategic decision to focus on residual doubt instead of mitigation evidence, especially where that decision was made after a thorough investigation into mitigating circumstances. As the Supreme Court stated in Strickland, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” 466 U.S. at 690, 104 S.Ct. at 2066.

Finally, Butts contends that trial counsel left unrebutted evidence that the State presented at sentencing about Butts’ membership in a gang, and that the failure to rebut that evidence was due to counsel’s failure to investigate and present mitigating evidence about his upbringing. The factual premise of that contention is false; as we have already explained, counsel did investigate Butts’ life story, including his upbringing. In addition, Butts did not preserve this particular claim by properly presenting it in the district court.

He made only a passing reference to it (in his memorandum in support of his habeas petition), which is why it escaped the district court’s attention. Passing references are not enough to present and preserve an issue. See Landers v. Warden, 776 F.3d 1288, 1296 (11th Cir. 2015) (“[T]he petitioner has waived this claim.... he failed to present this claim before the district court.”); Gennusa v. Canova, 748 F.3d 1103, 1116 (11th Cir. 2014) (holding that a “single, passing reference” to an argument “unaccompanied by any discussion or elaboration” is insufficient to preserve an issue); Dupree v.

Warden, 715 F.3d 1295, 1299 (11th Cir. 2013) (“A habeas petitioner must present a claim in clear and simple language such that the district court may not misunderstand it.”). But even if Butts had presented and preserved this part of his claim in the district court, we would hold that it lacks merit.

We agree with the district court that Butts has not established that the Georgia trial court unreasonably rejected his claim that trial counsel failed to investigate, develop, and present mitigating evidence at sentencing, or that Butts was prejudiced by appellate counsel’s failure to investigate and adequately present that claim during the unified appeal procedure. AFFIRMED. APPENDIX IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION ROBERT EARL BUTTS, JR., Petitioner, vs. WARDEN, Georgia Diagnostic and Classification Prison, Respondent.

CIVIL ACTION NO. 5:13-CV-194 (MTT) ORDER ROBERT EARL BUTTS, JR. was sentenced to death for the murder of Donovan Corey Parks. He petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Although he alleges numerous errors on the part of the state courts that considered his claims, he raises four principal contentions: (1) trial counsel were ineffective for failing to investigate and present mitigating evidence during the penalty phase of his trial, and appellate counsel handled this issue ineffectively on appeal; (2) trial counsel were ineffective when they failed to rebut or object to evidence of gang activity; (3) the trial court failed to give a “mere presence” instruction to the jury; and (4) the prosecutor’s argument that Butts was the triggerman was inconsistent with his argument in Butts’s co-defendant’s trial, who was also sentenced to death.

After considering these claims, and other alleged constitutional errors, the Court determines that it must deny habeas relief. I. BACKGROUND AND PROCEDURAL HISTORY A. Facts The Georgia Supreme Court summarized the facts of this case in Butts’s direct appeal: [O]n the night of March 28, 1996, Butts and Marion Wilson, Jr., drove in Butts’s automobile to a local Wal-Mart store and began searching for a victim. Butts entered the store wearing a coat, under which he likely concealed the murder weapon. A witness observed Butts and Wilson standing behind Donovan Corey Parks in a checkout line.

The cashier for that checkout line also remembered Butts being in her line. The store’s receipts showed that Butts purchased a pack of chewing gum immediately after Parks made his purchase of pet supplies. A witness overheard Butts asking Parks for a ride. After Parks moved items in his automobile to make room for Butts and Wilson, Butts sat in the front passenger seat and Wilson sat in the back seat behind Parks. According to a witness to whom Butts confessed, Butts revealed the shotgun a short distance away, and Parks was ordered to stop the automobile.

Wilson dragged Parks out of the automobile by his tie and ordered him to lie facedown on the pavement. Butts then fired one fatal shot to the back of Parks’s head with the shotgun. Witnesses nearby heard the shot, believing it to be a backfiring vehicle. After murdering Parks, Butts and Wilson drove to a service station in Gray, Georgia, where they refueled Parks’s automobile and where Wilson was filmed by the service station’s security camera.

Butts and Wilson then drove to Atlanta in an unsuccessful attempt to exchange Parks’s automobile for money at a “chop shop.” The pair purchased two cans of gasoline, drove to a remote location in Macon, Georgia, and set fire to Parks’s automobile. They then walked to a nearby public phone, where Butts called his uncle and arranged a ride for himself and Wilson back to the Wal-Mart to retrieve Butts’s automobile. Investigators had recorded the license plate numbers of the vehicles parked in the Wal-Mart parking lot on the night of the murder, and Butts’s automobile was among them.

A shotgun loaded with an uncommon type of ammunition was found under Wilson’s bed during a search, and a witness testified that Butts had given the weapon to Wilson to hold temporarily. Two of Butts’s former jail mates testified that he had admitted to being the triggerman in the murder. Butts v. State, 273 Ga. 760, 761-62, 546 S.E.2d 472, 477-78 (2001). B. Procedural history On November 20, 1998, a jury found Butts guilty of malice murder, armed robbery, hijacking a motor vehicle, possession of a firearm during the commission of a crime, and possession of a sawed-off shotgun.

Id. at 761 n.1, 546 S.E.2d at 477 n.1. On November 21, 1998, the jury found beyond a reasonable doubt that the murder was committed during the commission of the capital felony of armed robbery and he was sentenced to death. Id. Butts filed a motion for new trial, and a hearing was held on August 13,1999. (Doc. 10-11). On August 18, 1999, the Court denied the motion. (Doc. 8-5 at 81). Butts filed a notice of appeal on August 20, 1999. (Doc. 8-1 at 6).

Also on August 20, 1999, the Court relieved trial counsel, Robert Westin and Cassandra Montford-Ford, of their representation and appointed Guy Notte and Christopher Huskins to represent Butts ón direct appeal. (Doc. 8-5 at 83). Because Butts raised claims of ineffective assistance of trial counsel, the Georgia Supreme Court, on February 25, 2000, remanded the case to the trial court for an evidentiary hearing on these claims. (Docs. 10-13 at 37-49; 10-15). The trial court held that hearing on August 22, 2000 and on October 4, 2000 denied Butts’s motion for new trial. (Docs. 10-16; 10-17 at 14).

Butts filed a notice of appeal, and on April 30, 2001, the Georgia Supreme Court affirmed his conviction and sentence. (Doc. 10-17 at 2); Butts, 273 Ga. at 761, 546 S.E.2d at 477. The United States Supreme Court denied his petition for certiorari on January 7, 2002 and denied his motion for rehearing on March 4, 2002. Butts v. Georgia, 534 U.S. 1086, 122 S.Ct. 824, 151 L.Ed.2d 705 (2002); Butts v. Georgia, 535 U.S. 922, 122 S.Ct. 1219, 152 L.Ed.2d 165 (2002). Butts filed a Petition for Writ of Habeas Corpus in the Superior Court of Butts County, Georgia on August 30, 2002. (Doc. 11-4).

After conducting an evidentiary hearing, the state habeas court denied' relief in an order filed April 11, 2011. (Docs. 13-1 to 16-5; 16-23). Butts filed a notice of appeal and an application for certificate of probable cause to appeal (“CPC application”) with the Georgia Supreme Court. (Docs. 16-24; 16-25). In an order dated January 22, 2013, the court summarily denied his CPC application. (Doc. 16-28). On May 31, 2013, Butts filed a Petition for Writ of Habeas Corpus by a Person in State Custody in this Court. (Doc. 1).

The Respondent filed his answer, and the Court denied Butts’s motion for discovery and an evidentiary hearing. (Docs. 6, 22). Both parties have now briefed exhaustion, procedural default, and the merits of Butts’s various claims. (Docs. 24, 27, 29, 32, 33). II. STANDARD OF REVIEW A. Exhaustion and procedural default Procedural default bars federal habeas review when a habeas petitioner has failed to exhaust state remedies that are no longer available or when the state court rejects the habeas petitioner’s claim on independent state procedural grounds. Michigan v.

Long, 463 U.S. 1032, 1040-42, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (explaining that an adequate and independent finding of procedural default will generally bar review of the federal claim); Frazier v. Bouchard, 661 F.3d 519, 524 n.7 (11th Cir. 2011); Ward v. Hall, 592 F.3d 1144, 1156-57 (11th Cir. 2010). There are two exceptions to procedural default.

If the habeas respondent establishes that a default has occurred, the petitioner bears the burden of establishing “cause for the failure to properly present the claim and actual prejudice, or that the failure to consider the claim would result in a fundamental miscarriage of justice.” Conner v. Hall, 645 F.3d 1277, 1287 (11th Cir. 2011) (citing Wainwright v. Sykes, 433 U.S. 72, 81-88, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Marek v. Singletary, 62 F.3d 1295, 1301-02 (11th Cir. 1995)).

A petitioner establishes cause by demonstrating that some objective factor external to the defense impeded his efforts to raise the claim properly in the state courts. Spencer v. Sec’y, Dep't of Corr., 609 F.3d 1170, 1180 (11th Cir. 2010) (quoting Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003)). A petitioner establishes prejudice by showing that there is a reasonable probability that the result of the proceeding would have been different. Id. Regarding what is necessary to establish the narrowly-drawn fundamental miscarriage of justice exception, the Eleventh Circuit has stated:.

To excuse a default of a guilt-phase claim under [the fundamental miscarriage of justice] standard, a petitioner must prove “a constitutional violation [that] has probably resulted in the conviction of one who is actually innocent.” To gain review of a sentencing-phase claim based on [a fundamental miscarriage of justice], a petitioner must show that “but for constitutional error at his sentencing hearing, no reasonable juror could have found him eligible for the death penalty under [state] law.” Hill v. Jones, 81 F.3d 1015, 1023 (11th Cir. 1996) (citations omitted). B.

Claims that were adjudicated on the merits in the state courts The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides the standard of review.

This Court may not grant habeas relief with respect to any claim that has been adjudicated on the merits in state court unless the state court’s decision was (1) contrary to clearly established Federal law; (2) involved an unreasonable application of clearly established Federal law; or (3) 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)(1)-(2); see also Harrington v. Richter, 562 U.S. 86, 100, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

The phrase “clearly established Federal law” refers to the holdings of the United States Supreme Court that were in existence at the time of the relevant state court decision. Thaler v. Haynes, 559 U.S. 43, 47, 130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “The ‘contrary to’ and ‘unreasonable application’ clauses of § 2254(d)(1) are separate bases for reviewing a state court’s decisions.” Putman v.

Head, 268 F.3d 1223, 1241 (11th Cir. 2001) (citing Williams, 529 U.S. at 404-05, 120 S.Ct. 1495): Under § 2254(d)(1), “[a] state court’s decision is 'contrary to’ ... clearly established law if it ‘applies a rule that contradicts the governing law set forth in [the United States Supreme Court’s] cases’ or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the United States Supreme] Court and nevertheless arrives at a [different] result....’” Michael v. Crosby, 430 F.3d 1310, 1319 (11th Cir. 2005) (quoting Mitchell v.

Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003)). A state court’s decision involves an “unreasonable application” of federal law when “ ‘the state court identifies the correct governing legal rule but unreasonably applies it to the facts of the particular state prisoner’s case, or when it unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context.’ ” Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1286 (11th Cir. 2012) (quoting Greene v. Upton, 644 F.3d 1145, 1154 (11th Cir. 2011)).

An “unreasonable application” and an “incorrect application” are not the same: We have explained that an unreasonable application of federal law is different from an incorrect application of federal law. Indeed, a federal habeas court may hot issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable. This distinction creates a substantially higher threshold for obtaining relief than de novo review.

AED-PA thus imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt. Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (citations and quotation marks omitted). Pursuant to 28 U.S.C. § 2254(d)(2), district courts can “grant habeas relief to a petitioner challenging a state court’s factual findings only in those cases where the state court’s decision ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ” Price v.

Allen, 679 F.3d 1315, 1320 (11th Cir. 2012) (quoting 28 U.S.C. § 2254(d)(2)). A state court’s factual finding is not unreasonable simply because the federal habeas court might have made a different finding had it been the first court to interpret the record. Burt v. Titlow, — U.S. -, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013) (citing Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010)). Also, a state court’s factual determination is “presumed to be correct,” and this presumption can only be rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). III. PETITIONER’S CLAIMS A.

Claim One: Butts was deprived of his right to the effective assistance of counsel at all stages of his pretrial, trial, motion for new trial, and direct appeal proceedings. Butts makes several ineffective assistance claims: (1) trial and appellate counsel failed to investigate, develop, and present mitigating evidence; (2) trial and appellate counsel were ineffective in their handling of evidence of gang activity; and (3) trial counsel failed to argue in the sentencing phase that a sentence of death was disproportionate and, therefore, precluded by Enmund v.

Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). 1. The clearly established federal law Strickland is “the touchstone for all ineffective assistance of counsel claims.” Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008). “A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Wong v.

Belmontes, 558 U.S. 15, 16, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009). To establish deficient performance, Butts must show that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

The Court must apply a “ ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of reasonable professional assistance.” Richter, 562 U.S. at 104, 131 S.Ct. 770 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). “To overcome that presumption, [Butts] must show that counsel failed to act ‘reasonably] considering all the circumstances.’ ” Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052).

To establish prejudice, Butts must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

When determining if prejudice exists, “it is necessary to consider all the relevant evidence that the jury would have had before it if [Butts’s counsel] had pursued the different path — not just the mitigation evidence [Butts’s counsel] could have presented, but also the [aggravating evidence] that almost certainly would have come in with it.” Wong, 558 U.S. at 20, 130 S.Ct. 383 (citing Strickland, 466 U.S. at 695-96, 700, 104 S.Ct. 2052); see also Porter v. McCollum, 558 U.S. 30, 40-41, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009).

Federal courts must “take a ‘highly deferential’ look at counsel’s performance through the ‘deferential lens of § 2254(d).’ ” Pinholster, 131 S.Ct. at 1403 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Knowles v. Mirzayance, 556 U.S. 111, 121 n.2, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009)). Butts must do more than satisfy the Strickland standard. “He must also show that in rejecting his ineffective assistance of counsel claim the state court ‘applied Strickland to the facts of his case in an objectively unreasonable manner.’ ” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004) (quoting Bell v.

Cone, 535 U.S. 685, 699, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)). That is, “[t]he question is not whether counsel’s actions were reasonable” but “whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105, 131 S.Ct. 770. 2. Claims that trial and appellate counsel failed to investigate, develop, and present mitigating evidence Butts argues that trial counsel’s most glaring deficiency was their failure to investigate his family life and background so they could develop and present mitigating evidence during the sentencing phase of his trial. (Doc.

No. 24 at 47). He also alleges that appellate counsel’s failure to raise adequately trial counsel’s defective performance and resulting prejudice constituted ineffective assistance during his motion for new trial and direct appeal. Multiple state courts have addressed these ineffective assistance claims. Thus, “it is useful at the outset to explain which state-court decisions we look to for purposes of AEDPA review.” Hittson v. GDCP Warden, 759 F.3d 1210, 1231 (11th Cir. 2014).

Looking first at trial counsel, Butts argued on direct appeal that trial counsel were ineffective for not presenting mitigating testimony and pleas for mercy from family members. (Docs. 10-22 at 9-10, 41; 24 at 47). The Georgia Supreme Court rejected this claim on the merits and the state habeas court found the claim was res judicata. Butts, 273 Ga. at 769-70, 546 S.E.2d at 483; (Doc. 16-23 at 5). The state habeas court’s conclusion that this claim was res judicata does not bar federal ha-beas review. Cone v. Bell, 556 U.S. 449, 465-67, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009); Owen v.

Sec’y for Dep’t of Corr., 568 F.3d 894, 915 n.23 (11th Cir. 2009).

The state habeas court found the following trial counsel ineffective assistance claims were procedurally defaulted because they were not raised on direct appeal, and Butts failed to establish cause and prejudice or a miscarriage of justice to excuse the default: trial counsel’s failure to secure a neuropsychologist and have neu-ropsychological and neurological testing performed; trial counsel’s failure “to conduct an adequate pretrial investigation into [Butts’s] family life and background to uncover and present to the jury evidence in mitigation of punishment”; and trial counsel’s failure “to present a picture of [Butts’s] background and fail[ure] to call any witness who could present the jury with testimony of [Butts] as a unique human being.” (Doc. 16-23 at 8, 14).

This Court cannot review claims the state habeas court found to be procedurally defaulted unless Butts establishes cause for, and actual prejudice from, the default or establishes that failure to review the claim would result in a fundamental miscarriage of justice. Lucas v. Warden, 771 F.3d 785, 801 (11th Cir. 2014). Butts argues that inadequate assistance of counsel on direct appeal establishes cause to overcome the default. (Doc. 24 at 49). An ineffective assistance of appellate counsel claim may, “if both exhausted and not procedurally defaulted, ... constitute cause” to excuse procedural default. Ward v.

Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (citing Hill v. Jones, 81 F.3d 1015, 1031 (11th Cir. 1996)). Butts’s ineffective assistance of appellate counsel claims meet this criteria. The state habeas court addressed these claims on the merits and, thereafter, Butts raised his ineffective assistance of appellate counsel claims in his CPC application, which the Georgia Supreme Court summarily denied. (Docs. 16-23 at 17; 16-25 at 2, 30-43; 16-28).

This denial is the final state court determination of Butts’s ineffective assistance of appellate counsel claims and, under recent Eleventh Circuit precedent, the only question for this Court is whether there was any reasonable basis for the Georgia Supreme Court to deny relief. Hittson, 759 F.3d at 1232-33 (explaining that post-Richter, Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991), no longer applies and federal courts reviewing under § 2254(

d) are not required to “look through” the Georgia Supreme Court’s

summary denials of CPC applications to the reasons given in the “ ‘last reasoned decision’ by the state court.”) (quoting Ylst, 501 U.S. at 804, 111 S.Ct. 2590); Lucas, 771 F.3d at 792 (reasoning of the state habeas court is irrelevant and petitioner must show there was no reasonable basis for the Georgia Supreme Court to deny relief).

The state habeas court found that appellate counsel performed deficiently: The Court finds that appellate counsel’s failure to conduct an independent mitigation investigation constitutes deficient performance especially in light of the fact that appellate counsel alleged that trial counsel was ineffective in failing to present mitigating evidence. In raising such a claim, a reasonably competent attorney would have looked beyond trial counsel’s investigation to determine whether trial counsel’s performance was reasonable. (Doc. 16-23 at 17).

Respondent does not contest this finding, and this Court agrees that appellate counsel’s complete failure to conduct any mitigation investigation amounted to deficient performance. However, the state habeas court concluded no prejudice resulted from appellate counsel’s deficient performance. (Doc. 16-23 at 17-18). The court found “that the best evidence of what appellate counsel would have discovered in an independent mitigation investigation [was] the evidence presented in the instant proceeding by present counsel.” (Doc. 16-23 at 17-18).

The court determined that, had that evidence been presented, there was “no rea-' sonable probability that the result of the Motion for New Trial or the direct appeal would have been different.” (Doc. 16-23 at 18). The question is whether this ruling is contrary to Strickland, or unreasonable either legally or factually. To answer this question, this Court, like the state courts, must analyze trial counsel’s actions. This effectively means that the procedural default of most of Butts’s ineffective assistance of trial counsel claims has little practical effect on this Court’s analysis.

It is necessary to review these ineffective assistance of trial counsel claims because they are central to

(1) Butts’s claim that appellate counsel were ineffective when they failed to raise .trial counsel’s ineffectiveness and (2) his argument that he has established cause and prejudice necessary to entitle him to judicial review of these procedurally defaulted claims.

When a petitioner alleges that appellate counsel were ineffective for failing to raise ineffectiveness of trial counsel claims, the Eleventh Circuit has recognized that, “the state court could not effectively review appellate counsel’s performance in challenging trial counsel’s effectiveness in mitigation without re-examining trial counsel’s performance as well.” Ferrell v. Hall, 640 F.3d 1199, 1224-25 (11th Cir. 2011); DeYoung v.

Schofield, 609 F.3d 1260, 1283 n.22 (11th Cir. 2010) (reasoning that “[rjather than wade through [the] complexities” of whether ineffective assistance of appellate counsel excused procedural default of trial counsel ineffectiveness claims, the court would “discuss the merits of [petitioner’s] trial counsel claims, as that alone resolves the case”).

In other words, whether appellate counsel failed to properly challenge trial counsel’s mitigation inquiry focuses on essentially the same corpus of evidence and the same legal questions underlying trial counsel’s effectiveness — which strategies did trial counsel pursue, were those strategies reasonable under the circumstances, and what kinds of penalty phase evidence was developed, or could reasonably have been developed. Ferrell, 640 F.3d at 1225.

The state habeas court recognized this and explained that, although Butts’s “ineffective assistance of trial counsel claims ' are procedurally barred or procedurally defaulted, the [c]ourt considers the conduct of trial counsel as part of its analysis of [Butts’s] ineffective assistance of appellate counsel.” (Doc. 16-23 at 5 n.2, 14). Thus, in the context of considering whether the state habeas court reasonably concluded no prejudice resulted from appellate counsel’s deficient performance when litigating the ineffectiveness of trial counsel, this Court must review trial counsel’s performance.

The record reveals the following: a. Trial counsel’s experience Cassandra Montford-Ford was the first attorney appointed to represent Butts. (Doc. 13-15 at 41). She had been practicing law since 1991 and had been a sole practitioner in the Ocmulgee Judicial Circuit since 1993, handling family law matters and bankruptcies, as well as appointed misdemeanor and felony criminal cases. (Doc. 13-15 at 30-34). Between 1993 and the time of Butts’s trial, she was appointed to handle one to two criminal cases per week and no more than two of the criminal cases went to trial each year. (Doc. 13-15 at 35, 38).

While she had handled numerous felony cases, she had never handled a murder case. (Doc. 13-15 at 123-24). Montford-Ford met with Butts approximately three times and attended his commitment hearing prior to the trial court’s July 25, 1996 appointment of Robert Wes-tin as lead counsel. (Docs. 8-1 at 24; 13-15 at 41-42). Westin graduated law school in 1979 and had been practicing criminal law in the Ocmulgee Judicial Circuit for approximately 17 years at the time of Butts’s trial. (Doc. 10-16 at 29).

He was known as the “rife facto public defender” in Wilkinson County, handling more than 90 percent of the criminal cases in that county. (Doc. 10-16 at 30, 32). Westin was lead or co-counsel in approximately 15 to 20 jury trials per year and, over his legal career, had been involved in approximately 350 to 400 jury trials total, 175 to 200 of which were criminal jury trials. (Doc. 10-16 at 32). Prior to his appointment to represent Butts, Wes-tin had handled 16 to 18 murder cases. (Doc. 10-16 at 31).

He had been second-chair in five capital cases, and none of those five defendants were sentenced to death. (Docs. 10-16 at 35-39; 13-1 at 102). Butts alleges that the state habeas court’s determination that Butts “was represented by a death-qualified, experienced death penalty litigator” was unreasonable because Westin and Montford-Ford had never been lead counsel in a death penalty case. (Doc. 16-23 at 19). As noted, Westin had substantial experience trying criminal cases. (Doc. 10-16 at 29-33). He “literally tried at least half and probably more of’ his third capital case. (Doc. 10-16 at 42).

Westin was assisted by Montford-Ford, who had been handling criminal cases since 1993, and a paralegal, Cindy Crawford, who had helped prepare several death penalty cases in the past. (Docs. 10-16 at 41-42; 13-15 at 33-34). There is no clearly established Supreme Court precedent holding that if trial counsel in a death penalty case does not have a certain amount of experience he is per se ineffective. Strickland, 466 U.S. at 681, 104 S.Ct. 2052 (explaining that experience is just one factor to consider when determining whether counsel’s strategic choices were reasonable).

The Court knows of no requirement that counsel have previous experience as lead counsel in a capital case. Clearly, the state habeas court’s deterrhi-nation that Butts was represented by experienced trial counsel was reasonable. b. Trial counsel’s mitigation investigation In Westin’s previous death penalty cases, he “was always the mitigation man” and “was involved in mostly the sentencing phase of the case.” (Doc. 13-1 at 102-03).

His role shifted in Butts’s case, and he did not focus solely on mitigation but took “overall control of the case,” making “organizational decisions, how to approach the case, [and deciding] ... the trial strategy.” (Doc. 13-1 at 103-04). Trial counsel hired Crawford to assist in preparation for trial. (Doc. 13-26 at 22-23). Crawford had assisted Westin on at least three of his previous death penalty eases. (Does. 10-16 at 42; 13-27 at 18). Prior to Butts’s trial, Crawford had worked on approximately 600 criminal cases, including at least four capital cases. (Doc. 13-27 at 17-19).

Westin testified that although he hoped Butts would not be convicted of murder, they still focused “[a] great deal of’ effort on the sentencing phase. (Doc. 13-1 at 55). Westin, Montford-Ford, and Crawford met every weekend to work on Butts’s case. (Docs. 13-2 at 3). Westin testified that he reviewed the American Bar Association handbook on death penalty cases and the Southern Center for Human Rights Manual. (Doc. 13-1 at 53-54).

He also contacted Michael Mears and Palmer Singleton, who were with the Southern Center for Human Rights, to discuss the case and to get assistance preparing for trial. (Docs. 13-1 at 128; 13-22 at 67). Westin reviewed the district attorney’s file and interviewed witnesses listed in the file. (Doc. 13-1 at 105-06). Westin, Montford-Ford, and Crawford met with Butts on numerous occasions. (Docs. 10-16 at 39-41; 13-15 at 49). Crawford had Butts complete a form regarding his personal history and background. (Docs. 13-1 at 68; 15-19 at 2-16).

Westin explained that he never suspected Butts suffered from any mental illness or any mental deficiency. (Doc. 13-1 at 111). Thus, he thought using the form was appropriate, and he believed Butts could provide correct information in response to the questions. (Doc. 13-1 at 110). On the questionnaire, Butts reported he received normal medical attention while growing up; the family always had food; he spent a lot of time at his grandmother’s house; his “real father [was] never around”; and he had never been physically or sexually abused. (Docs. 13-1 at 111; 15-19 at 2-16).

Crawford spoke with Butts’s family members, including his half-brothers and his younger half-sister, Tameica Butts. (Doc. 13-26 at 122-23). Crawford spoke with Butts’s uncle, Earnest Waller, briefly on one occasion. However, Waller was intoxicated at the time, and when she returned to ask additional questions, she was told that he did not wish to speak with her. (Doc. 13-26 at 133-34).

Montford-Ford testified that she stayed in touch with family members but, by the time of her February 12, 2007 deposition, she could not recall anything specific about his family or the conversations she had with them. (Doc. 13-15 at 57). Westin spoke with Butts’s younger half-brother, Dominique Hurt, and Butts’s uncle, Ernest Waller. (Doc. 13-1 at 121-22). According to Westin, Butts’s mother, Laura Butts, refused to participate in the case. (Doc. 10-16 at 46).

He called her a “nonplayer,” explaining she would not visit his office, refused to talk to members of the defense team, would not attend hearings, and did not attend Butts’s trial. (Doc. 13-1 at 63). Laura’s testimony at the state habeas eviden-tiary hearing supported Westin’s recollection. Following Butts’s arrest, she met with Montford-Ford once after a pretrial hearing and met with Westin once or twice for five or ten minutes. (Doc. 13-6 at 123, 132). Laura testified she managed to “sober[ ] up” in time to attend only one day of her son’s trial — the day he was sentenced. (Doc. 13-6 at 124, 133-34).

Trial counsel was unable to locate Butts’s father, Robert Butts, Sr. (Doc. 10-16 at 45-46). Westin testified that Butts’s maternal great-aunt, Doris Cooper, and maternal grandmother, Mary Frances Waller, stayed in constant contact with trial counsel, provided background information, and attended every day of Butts’s trial. (Docs. 10-16 at 46; 13-15 at 58-59). On the questionnaire that Butts completed, he listed his former girlfriend, Angela Simmons, and Westin spoke with her. (Docs. 13-1 at 115; 15-19 at 6).

Butts listed Antonio Redding as a friend, and Crawford spoke with him, as well as other members of the FOLKS gang, on several occasions. (Docs. 13-26 at 52-55, 61; 15-19 at 5). Westin testified he spoke with all of Butts’s previous employers and co-workers. (Docs. 10-16 at 57; 13-22 at 3-4). He explained that Butts had six or seven jobs in the past, all of which he had lost due to his inability to get along with people. (Doc. 10-16 at 56-58). For example, Butts lost one job because he got into a fight with a customer. (Doc. 10-16 at 57).

Trial counsel reviewed Butts’s school records, medical records, employment records, juvenile and adult criminal records, records from the Baldwin County Department of Family and Children Services (“DFACS”), records from the Georgia Department of Human Resources (“DHR”), records from the Oconee Psy-choeducational Center, and jail records. (Docs. 13-1 at 70; 13-2 at 8-12; 13-15 at 129-30; 13-16 at 3; 14-15 at 38 to 14-23 at 90). Trial counsel also reviewed records of Butts, Sr.’s mental illness and Laura’s alcoholism and cocaine addiction. (Docs. 13-2 at 12-13, 27; 14-24 at 1-30).

On September 4, 1998, the State moved for Butts to undergo a mental evaluation and he was examined by Dr. Jerold Lower on September 22, 1998. (Docs. 8-3 at 115-17; 10-9 at 66). On November 10, 1998, Lower reported to trial counsel, the district attorney, and the trial court that [fjormal intellectual testing yielded a score which falls at the bottom of the mild range of mental retardation, in the lowest one thousandth of the general population.

The psychomotor testing also yielded one score at the bottom of the borderline range and one score at the bottom of the critical range, indicating possible organic impairment of the central nervous system. However, in my opinion this testing is invalid. School records revealed that Mr. Butts, in his first year of high school, earned passing grades in all except one of his courses (which appeared to constitute a standard high school curriculum). This is markedly inconsistent with the test results or with a diagnosis of retardation.... My strong impression is that Mr.

Butts was definitely not attempting to give his best performance on the intellectual test and that his score in no way reflects his true ability. Moreover, on the psychomotor tests I had the distinct impression that his errors were primarily the result of carelessness and lack of involvement in the task. (Doc. 10-9 at 68-69).

Lower opined that Butts “suffers from a long-standing personality disorder characterized by ... poor judgment and impulse control, disregard for social mores, [and an] inability to form close relationships or become involved in others ... complicated by a great deal of substance abuse.” (Doc. 10-9 at 69). According to Lower, this personality disorder would be “quite resistant to modification.” (Doc. 10-9 at 70).

Lower found Butts was competent to stand trial, was not suffering from any mental disorder that would have prevented him from knowing right from wrong at the time of the crime, had no major disorder of mood or thought, and was not mentally ill or mentally retarded. (Doc. 10-9 at 69-70). Trial counsel had Butts examined by psychologist James E. Stark. (Doc. 15-12 at 8-4).

Stark reported to trial counsel that: Butts had low-average intelligence; was antisocial and impulsive; was frequently in trouble with society or the law; lacked self-control; was hostile toward, and very suspicious of, others; did not have “any organic brain dysfunction”; might occasionally have had psychotic episodes; and was “quite impulsive.” (Doc. 15-12 at 3-4). Stark’s diagnosis was “mood disorder with occasional psychotic episodes” with “Underlying ... antisocial and possibly schizo-typal personality disorder.” (Doc. 15-12 at 4). Butts contends this pre-trial investigation was inadequate. (Doc. 24 at 51).

When preparing a capital case, trial counsel “ ‘has a duty to conduct a reasonable investigation, including an investigation of the defendant’s background, for possible mitigating evidence.’ ” Grayson v. Thompson, 257 F.3d 1194, 1225 (11th Cir. 2001) (quoting Porter v. Singletary, 14 F.3d 554, 557 (11th Cir. 1994)). “Counsel has ‘no absolute duty to investigate particular facts or a certain line of defense,’ although in some circumstances, ‘a complete failure to investigate may constitute deficient performance of counsel.’” DeYoung, 609 F.3d at 1283 (quoting Parker v.

Sec’y for the Dep’t of Corr., 331 F.3d 764, 787 (11th Cir. 2003)). Nor is counsel “required to pursue every path until it bears fruit or until all hope withers.” Chandler v. U.S., 218 F.3d 1305, 1318 (11th Cir. 2000) (citation and quotation marks omitted). In this case, the state habeas court found “that trial counsel’s investigation into [Butts’s] background was reasonable and thorough.” (Doc. 16-23 at 32). Butts argues this finding is unreasonable for several reasons.

He alleges that the state habeas court ignored the fact that trial counsel’s sole focus was the guilt phase of the trial and they, therefore, conducted only a cursory mitigation investigation. (Doc. 24 at 53). According to Butts, had the state habeas court “scrutinize[d]” Westin’s testimony, along with that of Montford-Ford and Crawford, it would have realized that trial counsel interviewed only Butts’s mother, grandmother, and aunt. (Doc. 24 at 64). The record verifies that trial counsel did consider guilt or innocence to be the “heart” of Butts’s case. (Doc. 10-16 at 45).

Additionally, as the state habeas court acknowledged, it was “unclear ... which member of the defense team was primarily responsible for the pretrial mitigation investigation.” (Doc. 16-23 at 23). However, the record shows trial counsel and Crawford spoke with various persons in addition to Butts’s mother, grandmother, and aunt, including Butts’s half-brothers, half-sister Tameica, uncle, former co-workers and employers, ex-girlfriend, Redding, and other FOLKS gang members. (Docs. 10-16 at 57-58; 13-1 at 115-16, 122; 13-2 at 17-18; 13-22 at 2-4; 13-26 at 121-23, 133-34; 13-27 at 1, 27).

Butts argues that trial counsel should have interviewed more family members, his former school teachers, or Laura’s various boyfriends. But “there comes a point at which evidence from more distant relatives can reasonably be expected to be only cumulative, and the search for it dis-tractive from more important duties.” Bobby v. Van Hook, 558 U.S. 4, 11, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009).

Given what trial counsel learned from Butts, family members, co-workers, employers, ex-girlfriend, Redding, two psychologists, and various records, their “‘decision not to seek more’ mitigating evidence from [Butts’s] background ‘than was already in hand’ fell ‘within the range of professionally reasonable judgments.’ ” Id. at 11-12, 130 S.Ct. 13, 16 (quoting Strickland, 466 U.S. at 699, 104 S.Ct. 2052).

Butts argues the state habeas court unreasonably ignored the unrebutted testimony from numerous family members and acquaintances who stated that they were never contacted by trial counsel, but had they been, they would have been willing to testify for Butts. (Doc. 24 at 54). This Court cannot assume the state habeas court ignored testimony from Butts’s family members simply because it did not discuss or cite such testimony in its order. A state court is not required to “accompany its decision with any explanation, let alone an adequate one.” Gissendaner v.

Seaboldt, 735 F.3d 1311, 1329 (11th Cir. 2013) (citations omitted). Fully explained or not, this Court must give the state court’s opinion the “benefit of the doubt.” Lee v. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172, 1212 (11th Cir. 2013) (quoting Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002)). The state habeas court obviously believed Westin,- Montford-Ford, and Crawford’s testimony that they contacted several family members, but they were unable to find any of them willing to testify for Butts. (Docs. 10-16 at 46-47; 13-1 at 120-21; 13-15 at 106-07; 13-27 at 32-33).

According to Westin: [Tjhere’s nothing you would like better in a case like this to have a mom or grandmom or an aunt or somebody get up here and cry and say, he’s a good boy. Made the wrong decision.... And, you know, they wouldn’t do it. I mean they would not do it. I begged them to do it and they would not. (Doc. 10-16 at 46-47); Moreover, Westin worried that family members’ testimony might not be helpful: [T]heir opinion of him, even these two, the aunt and the grandmother said he was a cold-blooded killer.

His brother looked up to him because he was in a gang, and his mother wouldn’t even come to the hearing, she didn’t care. She never came to the pretrial hearing. She didn’t come to the trial. I mean, I was told by the people who probably knew him better than anybody, probably his real people who raised him, he was going down the wrong road early on and they weren’t surprised at all that he was involved in this. (Docs. 13-22 at 3).

Westin stated that Butts’s aunt and grandmother, “who were probably the closest people to [Butts]” told him “they couldn’t get up and say a good thing about [Butts], they’d have to tell the truth.” (Doc. 13-1 at 120). Butts acknowledges that trial counsel “collect[ed] a number of records ... prior to trial.” (Doc. 24 at 69). He claims, however, that they failed to “identify red-flags, gather additional investigative leads, and .:. assess the value of the records as evidentiary exhibits during the penalty phase.” (Doc. 24 at 69).

Trial counsel obtained most, if not all, of the records that were submitted by state habeas counsel. (Docs. 13-1 at 70; 13-2 at 5, 8-14; 13-15 at 129-30; 13-16 at 3; 14-15 at 38 to 14-23 at 90). From these records, trial counsel learned of Laura’s drug and alcohol abuse, Butts, Sr.’s mental health issues and his absence from the home, and Dominique’s behavioral problems. (Docs. 10-16 at 45-46; 13-2 at 8-13; 14-23 at 36-90).

They knew the records suggested that Butts had been neglected, but there was nothing in the records about physical or sexual abuse, and Butts denied any such abuse. (Docs. 13-1 at 111-13; 13-2 at 14-15). School records verified that Butts was an average student until around age 15 or 16 when he had to be placed in an alternative school for behavioral problems. (Docs. 13-1 at 112; 14-15 at 47, 49, 77, 87; 14-16 at 6, 28, 32-33; 14-17 at 3, 5, 35-37).

Butts argues that if trial counsel had carefully reviewed the records, they would have learned that Laura left 13 to 15 year old Butts and his siblings alone for days at a time while she abused crack cocaine and alcohol. (Doc. 24 at 71). The record shows trial counsel were aware that Butts’s mother “wasn’t around very much” and Butts, Sr. was not involved in Butts’s life. (Doc. 13-1 at 113, 122-23). Westin testified that he knew Laura was a neglectful mother, who “didn’t care much about what was going on with her son.” (Doc. 13-1 at 64).

He explained, the two that I spent the most time with was his grandmother and his aunt and you’ve got to remember, I think this is his mother’s mother, okay? ... I’m almost certain. And so she didn’t want to say an awful lot of bad stuff about his mother, but it was pretty clear that he didn’t have a lot of guidance when he was growing up. It was pretty clear. Men in and out, didn’t know his father, mother apparently had some problems, criminal, drug, alcohol. I know she was just nonexistent during the trial.... (Doc. 13-1 at 122-23).

However, Westin testified that his “impression” and what he was actually told by Butts and his family members is that Butts’s grandmother and aunt, who “were just wonderful people,” “essentially raised ... Butts.” (Doc. 13-2 at 14-15). Butts reported that he “spent a lot of time at [his grandmother’s] house [and] she helped raise him.” (Doc. 15-19 at 5). The records they obtained verified this. Butts’s school records and probation file showed his grandmother as the contact person. (Doc. 13-7 at 24-25).

Additionally, records obtained from DHR and DFACS showed his grandmother, uncle, and Harold Burton, one of Laura’s long-term live-in boyfriends, took care of the Butts children. (Doc. 13-7 at 17-18). In its conclusion regarding trial counsel’s sentencing phase investigation, the state habeas court found: The record is clear that trial counsel obtained [Butts’s] background records and information regarding [Butts’s] family members.

Trial counsel were aware of the substance abuse problems of [Butts’s] mother, the mental health problems of [Butts’s] father, the behavioral problems of [Butts’s] brother Dominique, and [Butts’s] dysfunctional family life, which trial counsel described as neglectful. [Butts] has failed to establish that trial counsel were deficient in their investigation prior to trial. (Doc. 16-23 at 32-33). This Court is unable to say that “no ‘fairminded jurist’ could agree with” this determination. Holsey v. Warden, 694 F.3d 1230, 1257 (11th Cir. 2012) (quoting Richter, 562 U.S. at 101, 131 S.Ct. 770).

Therefore, the state habeas court’s finding that trial counsel’s pretrial mitigation investigation was sufficient was reasonable and cannot be upset by this Court. c.

Trial counsel’s failure to hire a mitigation expert According to Butts, the 1989 American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (“Guidelines”) and the capital case training manual (“Manual”) published by the Southern Center for Human Rights both stress the need to employ a “mental health clinician or forensic social worker, who could explain the significance of [a defendant’s] social and family history.” (Doc. 24 at 95).

Trial counsel did not hire such an expert, and the state habeas court found their failure tó do so did not amount to deficient performance. (Doc. 16-23 at 35 n.9). Butts argues this ruling constituted an unreasonable application of Strickland because the Guidelines and Manual show trial counsel’s conduct “ ‘fell below prevailing professional norms.’ ” (Doc. 24 at 98) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052).

Also, he claims the state habeas court’s decision was based on the unreasonable factual determination that Westin could develop mitigating evidence without the assistance of a mitigation expert. (Doc. 24 at 98). The Guidelines and Manual are “are ‘only guides’ to what reasonableness means, not its definition.” Van Hook, 558 U.S. at 8, 130 S.Ct. 13 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Butts cites no Supreme Court precedent holding that trial counsel must retain a mitigation expert, and his reliance on Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), is misplaced.

In Wiggins, testimony revealed that it was “standard practice in Maryland in capital cases at the time of Wiggins’s trial” to have a social history report prepared. Id. at 524, 123 S.Ct. 2527. “Despite the fact that the Public Defender’s office made funds available for the retention of a forensic social worker, counsel chose not to commission such a report.'' Id. Thus, trial counsel’s actions fell below “the professional standard that prevailed in Maryland” at the time of Wiggins’s trial. Id.

The Court “did not find counsel’s failure to utilize a social worker per se ineffective; rather, it was that such failure rendered counsel’s performance deficient under the relevant professional standards.” Newland v. Hall, 527 F.3d 1162, 1206 (11th Cir. 2008) (citing Wiggins, 539 U.S. at 524-25, 123 S.Ct. 2527). Butts proffered no evidence that professional standards in the Ocmulgee Judicial Circuit or Georgia in 1998 required using a mitigation expert. To the contrary, testimony revealed that mitigation experts were not routinely used in death penalty cases.

Westin stated that he employed mitigation experts in two previous cases in which mental health issues warranted it. (Doc. 13-1 at 61-62, 67). However, he had “never been a big ... fan of them unless [he] had a specific issue.” (Doc. 13-1 at 68). He opined that “if you were to talk to a lot of people that have been death penalty qualified, have tried a lot of cases like I have, they would probably agree that they’re not all they’re cut out to be.” (Doc. 13-1 at 68).

District Attorney Fred Bright, who had been a prosecutor in the Ocmul-gee Judicial Circuit for 13 years at the time of Butts’s trial, testified that he did not believe it was “effective to have both witnesses and an expert who can explain what all those witnesses’ testimony means.” (Doc. 13-6 at 35). He explained that he rarely sees mitigation experts testify in death penalty cases. (Doc. 13-6 at 33). In fact, he had been involved in approximately 25 death penalty cases and he could recall only one mitigation expert testifying during sentencing. (Doc. 13-6 at 33-34).

Of course, the Court is not suggesting that prosecutors can set performance standards for defense counsel. The point is that neither legal authority nor actual experience supports Butts’s argument that a defense lawyer must hire a mitigation expert. Therefore, the state habeas court’s finding that trial counsel did not perform defi-ciently when they failed to hire a mitigation expert was not factually or legally unreasonable. d. Trial counsel’s trial strategy and presentation Westin testified that trial counsel’s mitigation investigation yielded little helpful information. (Doc. 10-16 at 56-57).

The investigation revealed Butts had a “tough upbringing” as “do a lot of kids,” but Wes-tin did not think Butts’s “upbringing was extremely different from anybody else’s, many other young men.” (Doc. 13-1 at 123). Westin felt that jurors in the Oemul-gee Judicial Circuit were not as sympathetic to the fact that someone had a bad childhood as they may have been at one time. (Doc. 13-2 at 12-13). He explained, “there’s just been too many high publicity cases where people claim that they were victims and so now somehow that mitigates what they may or may not have done.” (Doc. 13-2 at 13).

Specifically, Westin testified that no former employer would speak favorably about Butts. (Doc. 13-1 at 119). Also, no family member was willing to testify for Butts. (Doc. 10-16 at 47). Westin stated he “[ejouldn’t have drug them up there with wild horses.” (Doc. 13-1 at 123). Westin could not call jailers to speak favorably about Butts because he had been in a fight with another inmate, threatened to hit a guard, and started a fire in his cell. (Docs. 10-6 at 33-35; 10-7 at 1-13).

Westin explained that “[o]utside of his aunt and grandma, there was nobody that could say a kind word about him,” and even they refused to testify on his behalf. (Docs. 10-16 at 58; 13-1 at 120). Instead of using mitigation witnesses, trial counsel opted to use a residual doubt or lingering doubt theory at sentencing.

Their theory of the case was that Wilson, who was the leader of the FOLKS gang and already serving a death sentence, led Butts down the wrong path, and it was Wilson who actually killed Parks. (Docs. 13-1 at 57; 13-2 at 16). “Our strategy from the very beginning in this case was to shift all of ... the blame ... to Mr. Wilson.... Our ... trial strategy from early on was that Mr. Butts was an unknowing and unwilling participant in this really unfortunate event.” (Doc. 10-16 at 8).

The “thrust” was that Butts should be acquitted but, if not, residual doubt should prevent the imposition of the death penalty. (Doc. 10-16 at 18-19). Westin explained: We had a real shot at — if not an outright acquittal — a verdict of something less' than first degree murder.... [W]e felt like even ... if we lost in the guilt and innocence phase ... and he gets convicted of murder.... residual doubt ... was going to flow right through to the sentencing phase and ... coupled with Mr.

Wilson’s prior record, and the fact that he was already on death row, that ... was an effective argument to make to this jury that there was just one gunshot and there’s already a man on death row for that killing. (Doc. 10-16 at 18-19). Westin summed up his strategy for sentencing: “I was just trying to keep it as simple as I could.... [T]he lowest common denominator, basically, in this case ... was who done it ... and if he didn’t do the shooting, then he shouldn’t get the death penalty.” (Doe. 13-2 at 36).

In his opening statement and closing argument during the guilt phase, Westin argued that Butts was guilty of only stealing Parks’s car. (Docs. 9-7 at 61; 10-4 at 21). He was not guilty of murder because Butts did not know, or have reason to know, that Wilson would murder Parks. (Doc. 9-7 at 52-57, 61). He claimed Butts never saw Wilson with a gun on the night of the murder, and, other than asking Parks for a ride, there was nothing linking Butts to Parks’s murder. (Docs. 9-7 at 58-60; 10-4 at 34).

Westin claimed that Butts did not exit the car while Wilson and an unidentified third person in a truck murdered Parks. (Doc. 9-7 at 51-53). The jury was told that Wilson had been found guilty of murdering Parks and sentenced to death. (Doc. 9-7 at 51, 64). Through witnesses called during the guilt phase, Westin tried to establish that Wilson owned the murder weapon, but he did not have it in the car on the night of the murder.

Instead, a third person, with whom Wilson had contact that night, had the gun and brought it to Felton Drive, where this other person and Wilson used it to murder Parks while Butts waited in the car. (Docs. 9-7 at 122, 129-30, 133; 9-8 at 69, 72-73, 82; 10-1 at 127, 130, 10-2 at 14-16, 91). During the guilt phase, Butts testified that on the night of the murder, he and Wilson were driving around looking for a car to steal because Wilson needed money. (Doc. 10-2 at 116-17). He explained that Wilson lost all of his money gambling and had no way of making more because his drugs had been stolen. (Doc. 10-2 at 116).

Wilson hoped to steal a car to sell to a chop-shop in Atlanta. (Doc. 10-2 at 116— 17). When they were unable to locate a car to steal, Wilson instructed Butts that he should ask someone for a ride so they could steal the person’s car. (Doc. 10-2 at 120). Butts agreed and they drove to the Wal-Mart where Wilson talked to “some guy” in the parking lot. (Doc. 10-2 at 121). Butts entered the Wal-Mart to purchase gum and when he returned, Wilson instructed him to ask Parks for a ride. (Doc. 10-2 at 123).

Butts did so and when Parks agreed, Butts got in the front passenger seat, Wilson got into the back seat behind Parks, and the other man, to whom Wilson had been speaking, got into the backseat beside Wilson. This other person exited the car before Parks, Wilson, and Butts left the parking lot in Parks’s car. (Doc. 10-2 at 124). As Wilson directed Parks to turn onto Felton Drive, a truck drove up behind Parks’s vehicle and flashed its lights. (Doc. 10-2 at 125). Wilson told Parks to stop the car because he thought he knew the driver of the truck. (Doc. 10-2 at 125).

When Parks stopped, Wilson exited the car, opened the driver’s "side door, “snatched [Parks] out [of] the car by his tie,” and drug him to the back of the car. (Doc. 10-2 at 125-26). While Butts remained in Parks’s car, he overheard someone say “give us all your money,” and then heard a gunshot. (Doc. 10-2 at 126). Butts testified that he never got out of the car, and he never saw Wilson with a gun the night of the murder. (Doc. 10-2 at 117, 127). After hearing the gunshot, Butts claimed that he was “scared,” “upset,” “sick at the stomach,” and afraid of Wilson. (Doc. 10-2 at 128-29).

During the sentencing phase, the State presented evidence of Butts’s criminal history. In March and April 1994, when he was 16, Butts committed three burglaries and one attempted burglary. (Doc. 10-5 at 36^4, 59-65, 108-10). Although Butts agreed to return the items he had stolen, he never did. (Doc. 10-5 at 65). He failed to report to his probation officer on a regular basis, showing up only two or three times between August 1994 and May 1996. (Doc. 10-5 at 123).

In March 1996, his probation officer filed a petition to revoke Butts’s probation because of his failure to report and pay restitution. (Doc. 10-5 at 126-28). His probation was not revoked because Butts was employed at the time and the court wanted to give him an opportunity to pay restitution to the burglary victims. (Doc. 10-5 at 127-28). He never did. He paid only $50.00 of the $1,223.23 restitution he owed. (Doc. 10-5 at 121). In January 1995, 17 year old Butts pumped gas into his ear and drove off without paying. (Doc. 10-5 at 132).

In October 1995, Milledgeville police officers responded to a call that shots were being fired in the vicinity of the Milledge-ville Manor Apartments (“the Manor”). (Doc. 10-6 at 13). When an officer stopped Butts and several other, men in the area, Butts threw down a matchbox and started to walk away. (Doc. 10-6 at 13-14). At gunpoint, the officer ordered him to stop and retrieved the matchbox, which contained crack cocaine. (Doc. 10-6 at 14). Officers frisked Butts and found a loaded .380 caliber semi-automatic handgun. (Doe. 10-6 at 16).

Butts was charged with violation of the Georgia Controlled Substances Act, possession of cocaine, and carrying a concealed weapon. (Doc. 10-6 at 17). In November 1995, Butts was fined $500.00 and placed on 12 months probation for shoplifting. (Docs. 10-5 at 151-52; 10-6 at 7-9). In January 1996, Butts pled nolo conten-dré to driving under the influence. (Doc. 10-5 at 140-42). Also at sentencing, the State presented evidence that police found cocaine and a holster in Butts’s car when it was searched following his arrest for Parks’s murder. (Doc. 10-7 at 17-19, 38).

They .also found FOLKS gang paraphernalia in Butts’s home, room, and car. (Docs. 10-5 at 67, 69, 73-74, 86; 10-7 at 29 32, 34-37). The State also presented evidence that after Butts was jailed for Parks’s murder, he had been in a fight with another inmate, threatened a guard, started a fire in his cell, and wrote OG on his tennis shoes. (Docs. 10-6 at 33-35; 10-7 at 1-13).

Through cross-examination of the State’s sentencing phase witnesses, trial counsel established that none of the gang paraphernalia found in Butts’s home had his name on it, and that it may have belonged to one of his siblings; Butts’s name was not on the list of known gang members, and, until Park’s murder, the authorities had no information that Butts was involved in gang activity; Wilson was the leader of the local FOLKS gang; and, while Butts was not a model inmate, he was not the worst prisoner jailers had encountered. (Docs. 10-5 at 103-04; 10-6 at 1, 40; 10-7 at 42-43).

Trial counsel presented the testimony of an expert polygraphist, Georgia Bureau of Investigation (“GBI”) special agent David Rush. (Doc. 10-7 at 54). Rush testified that he performed a voluntary polygraph examination of Wilson. (Doc. 10-7 at 61-62). Rush testified that “[i]t was [his] opinion, based on the polygraph exam that Mr. Wilson was the shooter.” (Doc. 10-7 at 67). Trial counsel had Sheriff Howard Sills read a portion of his testimony from Wilson’s trial. (Doc. 10-7 at 78). In this testimony, Sills stated that Butts had committed no violent felonies in the past. (Doc. 10-7 at 80, 84).

His criminal records consisted mainly of misdemeanor convictions, and his only prior felonies were violation of the Georgia Controlled Substances Act, possession of a firearm during commission of a crime, and concealing a weapon; all of which stemmed from his October 1995 arrest. (Doc. 10-7 at 80-81). In his closing argument, Westin told the jury that they did not have to sentence Butts to death just because the State proved Parks was robbed and murdered. Instead, they should consider the “principle ... called residual doubt.” (Doc. 10-7 at 109).

He argued Butts was young and mistakenly let Wilson lead him into this situation. While Butts was culpable, “his culpability may not rise to the level of execution.” (Doc. 10-7 at 112). Westin told the jury that the following facts made it more likel

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