694 F.3d 1230 (11th Cir. 2012), 09-14257, Holsey v. Warden, Georgia Diagnostic Prison

Docket Nº:09-14257.
Citation:694 F.3d 1230
Opinion Judge:CARNES, Circuit Judge:
Party Name:Robert Wayne HOLSEY, Petitioner-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee.
Attorney:Thomas H. Dunn (Court-Appointed), Brian S. Kammer (Court-Appointed), Georgia Resource Center, Atlanta, GA, for Appellant. Patricia Beth Attaway Burton, State of Georgia Law Dept., Atlanta, GA, for Appellee.
Judge Panel:Before CARNES, BARKETT and EDMONDSON, Circuit Judges. EDMONDSON, Circuit Judge, concurring in the judgment: BARKETT, Circuit Judge, dissenting:
Case Date:September 13, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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694 F.3d 1230 (11th Cir. 2012)

Robert Wayne HOLSEY, Petitioner-Appellant,



No. 09-14257.

United States Court of Appeals, Eleventh Circuit.

September 13, 2012

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Thomas H. Dunn (Court-Appointed), Brian S. Kammer (Court-Appointed), Georgia Resource Center, Atlanta, GA, for Appellant.

Patricia Beth Attaway Burton, State of Georgia Law Dept., Atlanta, GA, for Appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before CARNES, BARKETT and EDMONDSON, Circuit Judges.

CARNES, Circuit Judge:

In the early morning hours of December 17, 1995, Robert Wayne Holsey robbed a convenience store in Milledgeville, Georgia, and fled. Minutes later his car was stopped by Baldwin County Deputy Sheriff Will Robinson. The deputy, who was twenty-six years old, approached the vehicle. Holsey shot him dead. Fourteen months later, in February of 1997, a jury convicted Holsey of malice murder and armed robbery. The jury fixed his sentence at death on the malice murder conviction, and the court imposed that sentence. He has been on Georgia's death row for the past fifteen years.

During those fifteen years, Holsey has exhausted his state court direct appeal and state postconviction challenges. See Holsey v. State, 271 Ga. 856, 524 S.E.2d 473 (1999) (direct appeal) [ Holsey I ]; Holsey v. Schofield, No.2000-V-604, Sup.Ct. of Butts Cnty. (May 9, 2006) (Final Order on Amended Petition for Writ of Habeas Corpus) [ Holsey II ]; Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007) (collateral appeal) [ Holsey III ]. Holsey's convictions and death sentence were affirmed on direct appeal. Holsey I, 524 S.E.2d at 480. In the state postconviction proceedings, the trial court vacated Holsey's death sentence, concluding that his trial lawyers had rendered ineffective assistance at the sentencing phase of Holsey's trial in regard to presentation of mitigating circumstances evidence about his limited intelligence and his troubled, abusive childhood. Holsey II, No.2000-V-604, at 82-84. The Supreme Court of Georgia reversed, however, holding that Holsey had not shown that he was prejudiced by his trial lawyers' alleged failures. Holsey III, 642 S.E.2d at 60-62.

In November 2007, Holsey filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus. The district court denied that petition on July 2, 2009. Holsey v. Hall, No. 3:07-cv-129(CDL) (M.D.Ga. July 2, 2009) [hereinafter Holsey IV ]. Holsey moved for a certificate of appealability, which the district court granted on two issues:

(1) Whether reasonable jurists could disagree that the Georgia Supreme Court's decision, which reversed the grant of sentencing relief as to [Holsey's] ineffective assistance of counsel claim, was based on unreasonable determinations of fact, and/or on an unreasonable application of clearly established federal law, and/or was in contravention of clearly established federal law; [and]

(2) [Whether] the Georgia Supreme Court's affirmance of Georgia's unique reasonable doubt standard for mental retardation claims contravenes and/or unreasonably applies established U.S. Supreme Court precedent prohibiting the execution of mentally retarded offenders and mandating federal Due Process constraints on state burdens of proof meant to protect fundamental federal constitutional rights. (Quotation marks omitted.)

After the district court granted the COA on those issues, we resolved the second issue in another case. In Hill v. Humphrey, 662 F.3d 1335, 1360-61 (11th Cir.2011) (en banc), we held that the Georgia

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Supreme Court's decision affirming the state's reasonable doubt standard for mental retardation claims did not contravene clearly established Supreme Court precedent. Our Hill decision disposes of the second COA question. This opinion addresses the first one.


On January 8, 1996, a Georgia grand jury indicted Holsey for malice murder, felony murder, and armed robbery. Four days later the State filed a notice of its intent to seek the death penalty. The trial court appointed Andrew Prince as lead counsel to represent Holsey at trial, and Brenda Trammel served as Prince's co-counsel.

A. The Guilt Phase

The guilt phase of Holsey's trial began on February 1, 1997. As the Supreme Court of Georgia has recounted, the State at the guilt phase proved the following:

Robert Wayne Holsey robbed a Jet Food Store in Milledgeville with a handgun shortly before 1:30 a.m. on December 17, 1995. Holsey received money from both the cash register and the lottery machine after telling the store clerk, " Bitch, I want you to give me all your money." Holsey's voice was recorded on the store's surveillance videotape and was identified at trial by Holsey's girlfriend. Holsey fled the convenience store in a red Ford Probe automobile he had borrowed from his sister's girlfriend earlier that night. The red Probe was stopped at the Royal Inn Motel approximately four minutes later by Deputy William Edward Robinson, IV. Deputy Robinson made a radio call identifying the red Probe's license plate number and then approached the automobile holding a flashlight. Deputy Robinson received two bullet wounds, one to his right arm and one to the back of the right side of his head. Deputy Robinson managed to fire several shots before sustaining the fatal head wound.

After the shooting, another deputy spotted the Probe and turned his patrol vehicle around to give chase, but the Probe sped away and escaped. Witnesses observed the Probe traveling at a high rate of speed through a red light and into lanes of oncoming traffic. One witness who knew Holsey testified that she saw him alone in the Probe as it passed by at the red light.

Having thus far evaded capture, Holsey called his girlfriend, Mary Jackson, and asked her to pick him up at his sister's house. He specifically directed Jackson to come in her blue Jeep Cherokee vehicle rather than in her burgundy-colored automobile. When Jackson arrived at Holsey's sister's house, Holsey called to Jackson from behind a fence on a hill. Holsey had changed clothes since he left Jackson's house several hours earlier. Jackson refused Holsey's request to take him to his mother's house so he could monitor a police scanner, but Jackson did agree to his request to drive him past the motel where the murder had occurred and then back to his sister's house by way of back roads. When back at his sister's house, Holsey directed Jackson to park her Jeep Cherokee behind the Probe to conceal its license plate. As Holsey and Jackson sat in the parked Jeep Cherokee, a police officer spotted the Probe and verified that its license plate number matched the license plate number in the victim's radio call. Holsey exited the Jeep Cherokee, refused the officer's command to put his hands up, looked around as though searching for an escape route, and then ultimately surrendered.

Law enforcement officers discovered, hidden near Holsey's sister's house, clothing that matched the clothing worn

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by the armed robbery perpetrator and a hat belonging to Jackson's son. The murder weapon was concealed nearby and was later found by a civilian. Holsey's tennis shoes were taken from him after his arrest, and expert testimony showed that one of the shoes had blood on it with DNA consistent with the victim's blood. Holsey gave strong physical resistance and screamed loudly when officers initially attempted to conduct a gunshot residue test on his hand. A trace metal detection test of Holsey's hand was administered later and rendered a result consistent with Holsey's having held the murder weapon, which was metal with wooden grips. A bullet recovered from the Probe was matched with Deputy Robinson's service weapon. The bullet retrieved from Deputy Robinson's head during his autopsy was matched with a handgun belonging to Holsey's girlfriend, Mary Jackson. Jackson testified that Holsey admitted to her after the murder that he had taken the handgun.

Holsey III, 642 S.E.2d at 59.

On February 11, 1997, the jury returned a verdict finding Holsey guilty of malice murder, felony murder, and armed robbery, although " [t]he felony murder conviction was vacated by operation of law." Id. at 475 n. 1. The sentencing phase of Holsey's trial began the next day.

B. The Sentencing Phase

At the start of the sentencing phase, the jury learned about Holsey's criminal record for the first time. The State introduced his 1983 guilty plea conviction for armed robbery with serious bodily injury. For that crime, the state trial court had sentenced Holsey to be " confined at labor for twenty years," with fifteen years to be served in prison. The State called Scott Maher to testify about facts underlying the conviction. Maher testified that he was working as a night clerk at a Milledgeville convenience store on July 8, 1983. Holsey, who was eighteen years old at the time, entered the store, hit Maher in the face with a brick, and emptied the store's cash register. 1 After Maher's testimony, the State introduced evidence that Holsey was paroled in July 1990 after serving seven years of that sentence and placed on probation for the remainder of his sentence.

The State next introduced Holsey's 1992 guilty plea convictions for two counts of aggravated assault and one count of possession of a firearm by a convicted felon. Based on those convictions, the state trial court had revoked his probation for the 1983 armed robbery conviction and ordered him to serve the remaining term of that sentence in prison. The court had also sentenced Holsey to five years probation for the three 1992 convictions, to run consecutively with the remainder of the sentence for the 1983 conviction. The jury heard all about that at the sentencing phase of Holsey's capital murder trial.

The jury also heard more details concerning the crime leading to...

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