Nance v. Warden, Georgia Diagnostic Prison

• Decision Date: 30 April 2019
• Docket Number: No. 17-15361,17-15361
• Citation: 922 F.3d 1298
• Parties: Michael Wade NANCE, Petitioner-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

922 F.3d 1298

Michael Wade NANCE, Petitioner-Appellant,
v.
WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee.

No. 17-15361

United States Court of Appeals, Eleventh Circuit.

April 30, 2019

922 F.3d 1299

Vanessa Judith Carroll, Marcia A. Widder, Georgia Resource Center, ATLANTA, GA, for Petitioner-Appellant.

Clint Christopher Malcolm, Christopher Michael Carr, Sabrina Graham, Attorney General's Office, ATLANTA, GA, for Respondent-Appellee.

Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit Judges.

ED CARNES, Chief Judge:

922 F.3d 1300

Michael Wade Nance, a convicted murderer under sentence of death in Georgia, appeals the district court's denial of his 28 U.S.C. § 2254 petition. There are two claims before us. One involves the use of a stun belt security device at his resentencing trial. The other is a sentence stage ineffective assistance claim involving mitigating circumstances, which is a type of claim common in federal habeas challenges to death sentences. What is uncommon about this claim is that the petitioner does not contend that his trial counsel were deficient in any way in uncovering mitigating circumstances. Nor could petitioner credibly do so, given the effort that went into that part of the defense by the time of the resentencing trial. Instead, the claim is one of those rare ones that concedes enough was done to discover mitigating circumstances and questions only the strategic decisions trial counsel made about which circumstances to present and how.

I. FACTS AND PROCEDURAL HISTORY

The facts of this case have already been thoroughly set out by the Georgia Supreme Court in Nance v. State, 272 Ga. 217, 526 S.E.2d 560 (2000), Nance v. State, 280 Ga. 125, 623 S.E.2d 470 (2005), and Humphrey v. Nance, 293 Ga. 189, 744 S.E.2d 706 (2013). There is no point in our repeating all, or even most, of those facts. It is enough to note here that Nance robbed a bank, and in the process threatened to kill some of the tellers. Nance, 526 S.E.2d at 563. They were not killed, but Gabor Balogh, an innocent driver who was backing his car out of a parking spot at a nearby store, was not as fortunate. Id. at 563–64. In order to steal Balogh's car Nance shot him to death as he was pleading "No, no." Id. at 564.

After a three-week trial in 1997, the jury returned a verdict finding Nance guilty of malice murder and five other crimes and sentenced him to death for the murder. Id. at 562 n.1. The trial court entered a judgment pronouncing him guilty of the crimes and imposing a death sentence. Id. On direct appeal, the Georgia Supreme Court affirmed Nance's convictions but reversed his death sentence "due to a prospective juror being improperly qualified to serve on the jury." Nance, 623 S.E.2d at 472. A new sentencing trial in 2002 resulted in a new death sentence, which the Georgia Supreme Court affirmed on direct appeal. Id.

Nance then filed a petition for collateral relief in the state trial court. That court granted him relief from the death sentence after concluding that Nance had received ineffective assistance of counsel at the resentencing trial. The State appealed, and in 2013 the Georgia Supreme Court reversed. Nance, 744 S.E.2d at 709. At the end of 2013, Nance filed a 28 U.S.C. § 2254 petition in federal district court. In 2017 the district court denied relief but granted a certificate of appealability on two of Nance's claims: "(1) his claim that his trial counsel [were] ineffective in presenting his case in mitigation and (2) his claim that the trial court erred in requiring [him] to wear a stun belt during the [resentencing] trial."

II. DISCUSSION

The Georgia Supreme Court rejected Nance's ineffective assistance claim when it reversed the state trial court's grant of collateral relief, and it rejected his stun belt claim when it affirmed the sentence on direct appeal from the resentencing trial. Nance, 744 S.E.2d at 720–31 ; Nance, 623 S.E.2d at 473. Because both rejections were on the merits, federal habeas relief is barred unless the rejection of one or both claims (1) "was contrary to, or involved an unreasonable application of, clearly established

922 F.3d 1301

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).

It was meant to be, and is, difficult for a petitioner to prevail under that stringent standard. Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) ; see also Burt v. Titlow, 571 U.S. 12, 19, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013) ("AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court."). Section 2254(d) reflects Congress' decision to restrict federal courts' authority to grant habeas relief to cases in which the state court's decision unquestionably conflicts with Supreme Court precedent. Harrington, 562 U.S. at 102, 131 S.Ct. at 786. To justify federal habeas relief, the state court's decision must be "so lacking in justification that there was an error ... beyond any possibility for fairminded disagreement." Burt, 571 U.S. at 19–20, 134 S.Ct. at 16 (quotation marks omitted). "[I]f some fairminded jurists could agree with the state court's decision, although others might disagree, federal habeas relief must be denied." Meders v. Warden, 911 F.3d 1335, 1349 (11th Cir. 2019) (quoting Holsey v. Warden, 694 F.3d 1230, 1257 (11th Cir. 2012) ) (quotation marks omitted).

A. The Ineffective Assistance of Counsel Claim

As we have mentioned, Nance does not contend that his trial counsel should have, or profitably could have, done more to investigate and discover mitigating circumstances evidence for use at his resentencing trial. And it is no wonder that he doesn't.

For the first trial, in addition to consulting with the attorneys who had represented Nance on the related federal bank robbery charges, and reviewing all of their files, Nance's two counsel hired multiple investigators and mitigation specialists to help them conduct their investigation. As part of their investigation, counsel traveled to Nance's hometown in Kansas to interview witnesses about his childhood, mental development, history of drug and alcohol abuse, and the abuse that he suffered at the hands of his adoptive father. They also consulted with two mental health professionals who evaluated Nance before his federal bank robbery trial, retained a toxicologist to calculate the concentration of tear gas in Nance's car after dye packs that had been hidden in the stolen currency exploded, interviewed at least four individuals with expertise in dye packs, subpoenaed information from the dye pack manufacturer, interviewed the state microanalyst who tested Nance's clothing, inspected the physical evidence in the case, visited the crime scene, examined the material the State provided during discovery, and interviewed the State's experts. Not only that, but Nance's counsel also obtained the state's forensic report, emergency medical technician records, the murder victim's autopsy report, police records, records from federal agencies, prison records, marriage and divorce records, birth and death certificates, medical records, school records, and probation records, among other documents that might be relevant to Nance's case. It is as thorough an investigation into mitigating circumstances as we have ever seen.¹

922 F.3d 1302

Then, in preparing for the resentencing trial, Nance's counsel reviewed their performance in the original trial. Once again, they hired multiple investigators and a mitigation specialist to help them conduct their investigation. One of them traveled to Nance's hometown in Kansas and spent several days interviewing mitigation witnesses. They met with the psychologist who had testified in mitigation at Nance's original trial and, after reviewing his testimony, they concluded that his testimony had not been helpful. Instead of using that psychologist again, with the help of the mitigation specialist, they retained an expert on prison adaptability who conducted neuropsychological and intellectual testing on Nance, interviewed his mother and siblings, and reviewed his records. They believed that this expert's testimony about Nance's prison adaptability would be especially important to the jury because, in their experience, jurors deliberating between a life sentence or death "look into whether or not they think this person is going to be a danger to other prisoners and prison guards." In that vein, they also located several deputies to testify about Nance's good behavior in prison. Over several nights just before the resentencing trial, they met individually with all of the mitigation witnesses to prepare their testimony.

Faced with the impossibility of finding fault with the investigation trial counsel conducted, Nance's present attorneys have claimed that trial counsel were ineffective in how they used or failed to use all that they learned in their extensive investigation. More specifically, his present attorneys fault counsel for deciding not to present more of the mitigating circumstance...