Lucas v. Warden, Ga. Diagnostic & Classification Prison

• Citation: 771 F.3d 785
• Decision Date: 12 November 2014
• Docket Number: No. 13–11909.,13–11909.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Parties: Daniel Anthony LUCAS, Petitioner–Appellant, v. WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON, Respondent–Appellee.

771 F.3d 785

Daniel Anthony LUCAS, Petitioner–Appellant
v.
WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON, Respondent–Appellee.

No. 13–11909.

United States Court of Appeals, Eleventh Circuit.

Nov. 12, 2014.

771 F.3d 788

David C. Blickenstaff, Schiff Hardin, LLP, Chicago, IL, Elisabeth Carey–Davis, The Law Office of Lisa Carey–Davis, Bozeman, MT, for Petitioner–Appellant.

Dana Elizabeth Weinberger, Beth Attaway Burton, Sabrina Graham, Georgia Department of Law, Atlanta, GA, for Respondent–Appellee.

Appeal from the United States District Court for the Middle District of Georgia. D.C. Docket No. 5:09–cv–00289–CAR.

Before HULL, MARCUS, and WILLIAM PRYOR, Circuit Judges.

Opinion

MARCUS, Circuit Judge:

Daniel Anthony Lucas was sentenced to death for his role in the murders of three members of the Moss family during a botched burglary and robbery. He appeals the district court's denial of his federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Five claims are certified to us. On none is he entitled to relief.

First, Lucas argues that his counsel were ineffective for failing to investigate and present evidence about the effect of intoxication on his memory when Lucas sought to suppress his videotaped confession. Lucas has failed to establish prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because the state court reasonably concluded that the additional expert testimony would not likely have led to the suppression of his confession. Lucas also claims that counsel were ineffective for failing to present all of the available evidence concerning his social history as mitigation. A reasonable state court, however, could have rejected this argument on performance or prejudice grounds. In fact, trial counsel presented extensive evidence of the petitioner's troubled background as mitigation at the penalty phase and decided strategically to keep out certain evidence that would have also yielded aggravating facts.

Next, Lucas says that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose a report of an interview of an eyewitness who briefly saw an intoxicated Lucas immediately after the killings. The state court found the claim to be procedurally defaulted because the petitioner could not establish prejudice. Like the district court, we agree, particularly in light of the substantial body of evidence of intoxication actually presented to the jury. Lucas cannot show prejudice because there is no reasonable probability that the witness's testimony would have affected the outcome. Lucas also argues that he was deprived of a fair trial when a prosecutor said during cross-examination of a defense expert that prison escapes occurred “every day.” The Georgia Supreme Court's determination that the comments (improper though they may have been) were harmless in context was not contrary to or an unreasonable application of clearly established Supreme Court law.

771 F.3d 789

Finally, Lucas claims that the jury was improperly limited in its consideration of mitigating evidence because the trial court refused to instruct the jurors that each mitigating factor need not be found unanimously. Like the district court, we agree that the Georgia Supreme Court's decision was neither contrary to nor an unreasonable application of federal law clearly established by the Supreme Court when it determined that no such instruction was required because the jurors were expressly told they could impose life imprisonment “for any reason ... or without any reason.” Thus, we affirm.

I.

A.

The essential facts adduced at trial are these. See Lucas v. State, 274 Ga. 640, 555 S.E.2d 440, 443–44 (2001). On April 23, 1998, Lucas and Brandon Joseph Rhode twice burglarized the home of Steven and Gerri Ann Moss. During their second burglary, eleven-year-old Bryan Moss returned home from school. When Lucas and Rhode saw Bryan, they confronted him and forced him to sit in a chair. Without warning, Lucas shot Bryan with a .25 caliber handgun causing non-fatal injuries to his upper arm and shoulder. Lucas led the wounded boy to a bedroom, where he shot Bryan repeatedly with the .25 caliber handgun. Meanwhile, fifteen-year-old Kristin Moss (Bryan's sister) also arrived home from school. Rhode placed her in a chair and shot her twice with a .357 caliber handgun. When the children's father, Steven Moss, came home shortly after, Rhode shot him too, four times with the .357 caliber handgun. Upon discovering what Rhode had done, Lucas retrieved a .22 caliber handgun from Rhode's car and still again shot both children, Bryan and Kristin Moss. The three members of the Moss family died from the gunshot wounds.

Several eyewitnesses saw Lucas and Rhode flee in Rhode's red car from the Mosses' home. One witness identified Lucas as the passenger. Rhode's car was linked to the scene by damage to the vehicle, a tire impression, and paint left at the scene. Lucas admitted his role in the killings in a videotaped confession.

B.

On September 16, 1999, a jury in Jones County, Georgia, convicted Lucas of three counts of malice murder, three counts of felony murder, two counts of burglary, and one count of kidnapping with bodily injury.¹ The next day, following the sentencing phase, the jury found beyond a reasonable doubt that the murder of Bryan was committed while Lucas was engaged in the murder of Kristin, a burglary, and a kidnapping with bodily injury, O.C.G.A. § 17–10–30(b)(2), and that it was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind, id. § 17–10–30(b)(7). The jury also found beyond a reasonable doubt that Kristin's murder was committed while Lucas was engaged in the murder of Steven and a burglary. Id. § 17–10–30(b)(2). Finally, the jury concluded beyond a reasonable doubt that the murder of Steven was committed while Lucas was engaged in the murder of Bryan and a burglary.Id. The jury unanimously concluded that the petitioner should be sentenced to die for each of the three murders. See id. § 17–10–

771 F.3d 790

31(a).²

Lucas appealed without success his conviction and sentence to the Georgia Supreme Court. Lucas, 555 S.E.2d at 443. The Supreme Court denied a writ of certiorari. Lucas v. Georgia, 537 U.S. 840, 123 S.Ct. 163, 154 L.Ed.2d 62 (2002). Lucas then filed a pro se petition for a writ of habeas corpus in a state trial court on August 13, 2003, followed by an amended petition on March 1, 2007. The state habeas court denied Lucas's petition. Thereafter, the Georgia Supreme Court denied Lucas's application for a certificate of probable cause to appeal. Again, the Supreme Court denied certiorari review. Lucas v. Upton, 559 U.S. 979, 130 S.Ct. 1703, 176 L.Ed.2d 193 (2010).

Lucas then filed his extensive habeas claims in the United States District Court for the Middle District of Georgia. The district court determined that three of the eleven claims, including his Brady claim that the prosecution withheld exculpatory evidence, were procedurally defaulted because he had not timely raised them in the state courts and he could not excuse the default. The court denied the remaining claims, including his arguments: that counsel had been ineffective in failing to adequately investigate and challenge the videotaped confession and in failing to present available mitigation evidence; that due process was violated by the prosecutor's cross-examination questions asserting that Georgia prison escapes happened “every day”; and that the penalty-phase jury charge and instructions unconstitutionally suggested that mitigation circumstances must be found unanimously. The district court granted Lucas a certificate of appealability on his two ineffectiveness of counsel claims and his Brady claim. On Lucas's motion, we expanded the COA to include the claims challenging the prosecutor's questions and the jury instructions.

II.

We review de novo a district court's denial of federal habeas relief. Peterka v. McNeil, 532 F.3d 1199, 1200 (11th Cir.2008). No one disputes that the Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies to Lucas's habeas petition. Under AEDPA, if a petitioner's habeas claim “was adjudicated on the merits in State court proceedings,” a federal court may not grant relief unless the state decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Under § 2254(d)(1)'s “contrary to” clause, we grant relief only “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under § 2254(d)(1)' s “unreasonable application” clause, we grant relief only “if the state court identifies the correct...