Ledford v. Warden, Ga. Diagnostic Prison

• Decision Date: 15 September 2020
• Docket Number: No. 19-11090,19-11090
• Parties: Michael William LEDFORD, Petitioner - Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent - Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

975 F.3d 1145

Michael William LEDFORD, Petitioner - Appellant,

v.WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent - Appellee.

No. 19-11090

United States Court of Appeals, Eleventh Circuit.

September 15, 2020

Jeffrey Lyn Ertel, Gerald Wesley King, Jr., Federal Defender Program, Inc., William A. Morrison, The Morrison Firm LLC, Atlanta, GA, for Petitioner-Appellant.

Sabrina Graham, Clint Christopher Malcolm, Beth Attaway Burton, Christopher Michael Carr, Omotayo Popoola, Attorney General's Office, Atlanta, GA, for Respondent-Appellee.

Before WILLIAM PRYOR, Chief Judge, NEWSOM, and BRANCH, Circuit Judges.

NEWSOM, Circuit Judge:

Michael Ledford was convicted by a Georgia jury of malice murder, felony murder, aggravated battery, aggravated sodomy, kidnapping with bodily injury, and aggravated assault. Ledford v. State , 289 Ga. 70, 709 S.E. 2d 239, 245 n* (2011). On appeal from the district court's denial of federal habeas corpus relief, Ledford does not contest his conviction—only the sentence of death imposed by the same jury. In challenging his death sentence, Ledford argues (1) that prosecutors exercised their peremptory challenges in a way that discriminated against women, (2) that his trial counsel rendered constitutionally ineffective assistance during the penalty phase of his trial, and (3) that one of the jurors in his trial lied during voir dire and thus deprived him of an impartial jury.

Having carefully reviewed the parties’ briefs and heard oral argument, we hold that none of Ledford's arguments entitle him to relief.

I

A

The horrific facts of Ledford's crime are not presently disputed. The Georgia Supreme Court described them as follows:

The evidence presented at trial showed that, on July 25, 2006, Michael Ledford pretended to go to work but, instead, bought beer and drank it near the Silver Comet Trail, a recreational trail used for biking, running, and other activities. Ledford knocked Jennifer Ewing from her bicycle as she rode by his location. He dragged her a distance off the trail to a location shielded from view by vegetation. He stripped off all of her clothing from the waist down, and he pulled her shirt up part way, exposing her breasts. She suffered bruises throughout her body in the struggle. When Ledford forced his penis into her mouth, she bit his penis and severely wounded it. Enraged by her resistance, Ledford unleashed a shocking attack during which he stomped on her face and nose, her larynx, and her ribs. Ms. Ewing gradually succumbed to asphyxiation caused by her wounds and the resulting bleeding into her lungs.

Ledford , 709 S.E.2d 239 at 245.

B

The procedural history of Ledford's case is both exceedingly complicated and largely unnecessary to his appeal. We will focus on a few key points.

a

The first is jury selection. During voir dire, juror Harold Ridarick testified that, as a general matter, he was not conscientiously opposed to a sentence of life with the possibility of parole as a penalty for murder. When asked if he would automatically vote for any one of the three possible penalties—life, life without parole, and death—he said that he would "equally consider" them. When the prosecutor asked, however, whether Ridarick "fit[s] into the category" of people who would not "consider life with the possibility of parole for somebody that's committed a malice or felony murder," Ridarick answered: "I would probably fit into that category." After the prosecutor asked him to clarify whether he was saying that "once [he] made that decision that they committed that malice or felony murder that life with the possibility of parole is really not an option," Ridarick clarified: "I'd still have to weigh the mitigating circumstances, factors, and you know, depending on those I think I could go with either of the three."

"Out of an abundance of caution," Ledford's trial counsel moved, unsuccessfully, to have Ridarick removed for cause based on his apparent reticence to "consider life with the possibility of parole for one that he found guilty of malice or felony murder." As we will explain later, Ledford now argues that Ridarick lied during voir dire and that, in fact, he was really only ever willing to consider the death penalty. Ledford's new objection is based on several of Ridarick's online postings from May 22 and 23, 2009—the day and the day after the jury sentenced Ledford to death—which Ledford's lawyers apparently discovered sometime in late 2013 or early 2014.

b

Also during voir dire, the state used nine of its twelve peremptory strikes to remove females, who made up 15 of the 36 (or 42% of) venire members. Ledford challenged these strikes as discriminatory, but the trial court determined that he had not made a prima facie showing of discrimination, and so denied the challenge without requiring the state to proffer non-discriminatory reasons for the strikes.

c

After jury selection came the trial, which was bifurcated into guilt and penalty phases. At the close of the guilt phase, the jury convicted Ledford of malice murder for killing Ewing and of all other related charges. A few days later at the close of the penalty phase, the same jury imposed a death sentence. Ledford challenges his defense team's penalty-phase strategy, which he says amounted to constitutionally ineffective assistance of counsel. In particular, Ledford asserts that his lawyers erred in putting on evidence concerning antisocial personality disorder (ASPD) and psychopathy, which, he says, permitted prosecutors to argue those issues against him. With respect to Ledford's ineffective-assistance claim, some background is in order.

Defense counsel decided that the "primary sentencing phase strategy [would be] to show the jury that [Ledford] had voluntary and involuntary brain damage, which diminished his frontal lobe capacity and prevented him from controlling his impulses." To that end, they wanted to use experts to establish that Ledford had "psychiatric issues, based a lot on his upbringing and also his drug use and alcohol abuse," as well as eyewitness testimony to establish brain injury. Counsel planned to augment their brain-damage strategy with testimony from Ledford's family members designed to humanize him.

During opening statements at the penalty phase, defense counsel laid out their main theory to the jury. They described Ledford's upbringing as abusive and dysfunctional and said that he suffered brain damage when he was a child. Counsel emphasized that Ledford didn't choose to be brain-damaged; that he didn't choose to have an abusive upbringing; and that he didn't necessarily even choose to be an alcoholic—a condition that allegedly exacerbated the brain damage. Counsel didn't mention anything about Ledford having ASPD or psychopathy during opening arguments.

Defense counsel put on copious evidence in aid of their brain-damage theory. Especially important was the testimony of Ledford's brother Donald. He testified that when Ledford was about eight or nine he fell out of a tree, landed on a garage, rolled off, and hit the ground. Donald had initially thought the fall had killed Ledford, who wasn't moving. Ledford remained hospitalized for a month and had to wear an upper-body cast for another month. Donald explained that Ledford's behavior changed after this injury and that he began experiencing severe migraines.

Defense counsel also put on abundant expert testimony: from a mitigation investigator, a forensic psychiatrist, a psychopharmocologist, a clinical social worker, a neuropsychiatrist, an internist, and two more psychologists—all in aid of their overarching theory that childhood injury and substance abuse had damaged Ledford's brain and rendered him mentally unwell and that this confluence of events was not his fault. It was during expert testimony—especially on cross-examination—that ASPD and psychopathy first came up. To provide some salient examples, defense expert Dr. Thomas Sachy testified that people with brain scans that show a pattern of damage like Ledford's have impaired moral judgment. He explained that "if you put these people in a high dilemma situation with this brain damage, they were more likely to do things that they would later think were amoral." On cross, Dr. Sachy allowed that the damage to Ledford's brain would leave him "prone to rage."

Defense expert Dr. Robert Shaffer similarly testified that someone with Ledford's pattern of brain damage "would not really have feelings about the consequences of what they were doing, the impact that it would have on someone else, the ability to empathize with another person and feel a concern about what would happen to that other person." He also likened Ledford to "sexual sadists." Defense counsel asked Dr. Shaffer background questions about psychopathy generally, and specifically elicited testimony that psychopathy is not a choice. On cross, Dr. Shaffer observed that a rape of which Ledford had previously been convicted was consistent with "sexual sadism." He further testified that a previous breaking-and-entering conviction was "consistent with what we're seeing, which is an individual who has no sense of emotion regarding the impact of his actions on someone else." He also noted that Ledford's pattern of lying to cover his crimes was "very characteristic of what we call psychopathic behavior."

On rebuttal, the state called its own experts, who supported the conclusion that Ledford was either antisocial, a psychopath, or both, but who disputed the notion that his disorder was caused by brain damage.

Defense counsel's strategy failed; at the conclusion of the penalty phase, the jury sentenced Ledford to death.

Ledford moved unsuccessfully for a new trial and then appealed his conviction to the Georgia Supreme Court, which affirmed both his conviction and the death sentence. In so doing, that court considered and affirmed the trial judge's determination that Ledford failed to make a prima facie case that the prosecution discriminated on the basis of gender in...