Pace v. Warden, Ga. Diagnostic & Classification Prison
| Decision Date | 11 May 2023 |
| Docket Number | 16-10868 |
| Parties | LYNDON FITZGERALD PACE, Petitioner-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:09-cv-00467-WBH Before WILSON, ROSENBAUM, and LUCK, Circuit Judges.
In seven months, Lyndon Pace raped and strangled to death four women, three of whom were more than seventy-eight years old. He was convicted and sentenced to death for the murders. He now appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. section 2254.
Pace makes five arguments on appeal. First, he contends that the Georgia Supreme Court unreasonably applied Strickland v Washington, 466 U.S. 668 (1984), in denying his claim that his trial counsel were ineffective because they failed to investigate and present available mitigation evidence. Second, he argues that the Georgia Supreme Court either failed to apply or unreasonably applied Darden v Wainwright, 477 U.S. 168 (1986), in denying his claim that the prosecutor's sentencing phase closing argument violated his right to a reliable sentencing under the Fifth Sixth, Eighth, and Fourteenth Amendments. Third, he asserts that the Georgia Supreme Court unreasonably applied Strickland in denying his claim that his trial counsel were ineffective for failing to object to parts of the prosecutor's sentencing phase closing argument. Fourth, he argues that the Georgia Supreme Court unreasonably applied clearly established federal law in concluding that the state trial court's admission of evidence that he burglarized Coretta Scott King, the widow of Dr. Martin Luther King, Jr., did not violate his right to a reliable sentencing. And fifth, he contends that the Georgia Supreme Court unreasonably applied Simmons v. South Carolina, 512 U.S. 154 (1994), in concluding that the state trial court's refusal to inform the jury about his eligibility for parole did not violate his right to a reliable sentencing. After careful review of the briefs and the record, and with the benefit of oral argument, we affirm.
On August 28, 1988, Lula Bell McAfee, age eighty-six, was found dead in her home in Atlanta. She was naked and lying face down on her bed, with a pillow underneath her stomach that pushed her pelvis up, exposing her vaginal and rectal areas. Blood was pouring out of her mouth and her bra and a strip of cloth were tangled around her neck. Her bathroom window was open and the window screen had been removed and left lying on the ground. Her bedroom was "completely ransacked" and a briefcase, car keys, and money were missing. Ms McAfee's autopsy established that she had been strangled to death. The presence of lubricant on her vaginal and rectal areas suggested that she had been sexually assaulted. Swabs from her breasts revealed the presence of saliva, and vaginal and rectal swabs revealed the presence of sperm. Ms. McAfee had known Pace "since he was a baby."
On September 10, 1988, Mattie Mae McClendon, age seventy-eight, was found dead in her home in the Vine City area of Atlanta. She was lying in her bed with bloodstained sheets pulled over her body. Her bathroom window was open, the window screen had been torn apart from the outside, and a tree limb just outside the window was broken. Ms. McClendon's autopsy showed that she had been strangled to death and suffered "a very large" vaginal laceration "with a large amount of hemorrhage coming from it." Rectal swabs taken from her body revealed the presence of sperm.
On February 4, 1989, Johnnie Mae Martin, age seventy-nine, was found dead in her home in the Vine City area of Atlanta. She was lying on her bed with a pillow over her head. Her bloodstained nightgown was pulled up around her breasts, a shoelace was wrapped around her neck, and the rest of her body was naked with her legs spread open. A side window was open, the window screen had been pushed back, and a ladder was just under the window on the outside of the house. The house was "ransacked." Ms. Martin's autopsy established that she had been strangled to death and suffered a vaginal laceration and other injuries in her vaginal area. Rectal swabs taken from her body revealed the presence of sperm.
On March 4, 1989, Annie Kate Britt, age forty-two, was found dead in her home in Atlanta. Ms. Britt was lying naked in her bed with a sock knotted tightly around her neck. Someone had pried open a back window, the window screen was lying on the ground, and a pipe underneath the outside of the window was loose and detached from the wall. The house was "ransacked." Ms. Britt's autopsy established that she had been strangled to death, and a broken fingernail, bruises, and scrapes on her body were "consistent with her fighting with her attacker at the time that she was strangled." Her autopsy revealed multiple tears in her anus that appeared as if they had occurred after she died, and rectal and vaginal swabs revealed the presence of sperm.
More than three years later, on September 24, 1992, Sarah Grogan, age sixty-nine, woke up to find that someone had broken into her home in the Vine City area of Atlanta. Ms. Grogan left her bedroom and found a man in her kitchen. As the man chased her back to her bedroom, Ms. Grogan slammed the bedroom door in the man's face. Ms. Grogan got her gun and shot through the door, but the man wasn't there when she opened it to see if her shot had hit him. As she left the bedroom, the man "took a shot at [her]," but she "r[a]n to the front door and got out." Police discovered that the burglar had broken into Ms. Grogan's house through a rear kitchen window where the screen had been ripped from its frame. Investigators took fingerprints from the rear window and from other items that the man touched.
Less than a week later, on September 30, 1992, Susie Sublett, an elderly woman living in the Vine City area of Atlanta, woke up to find a man in her bedroom searching through her purse. The man had broken into her home through a side window. Ms. Sublett confronted the man, and he threatened to "blow [her] brains out." Ms. Sublett fought the man and chased him out of the window he had broken in through. Ms. Sublett's phone lines had been cut and so had her neighbors', so she called the police from another neighbor's house. When the police arrived, they found that the side window's screen had been removed and that there was a milk crate on the ground below the window. Police took fingerprints from the window screen and from other items that the man touched.
The fingerprints taken from Ms. Grogan's and Ms. Sublett's homes matched Pace's, which were on file from an earlier conviction. Police obtained a warrant and arrested Pace. Pace agreed to give the police samples of his hair and blood. Pace's pubic hair matched hair samples taken from Ms. Martin's and Ms. Britt's murders. And the sperm found in each of the murder victims matched Pace's DNA.
A grand jury in Fulton County, Georgia, charged Pace with four counts of malice murder, four counts of felony murder, four counts of rape, and two counts of aggravated sodomy. The state sought a death sentence for each of the four malice murders. Under Georgia's death-sentencing statute, the case was set for a bifurcated jury trial with a guilt phase and a sentencing phase. See O.C.G.A. § 17-10-2(c). The jury had to find at least one statutory aggravating circumstance at the sentencing phase to recommend a death sentence. See id. § 17-10-30(c). At the sentencing phase, Pace had the right to present any mitigation evidence weighing against the imposition of the death penalty. See, e.g., Crowder v. State, 491 S.E.2d 323, 325 (Ga. 1997) ().
Three attorneys were appointed to represent Pace. Two of the attorneys, Michael Mears and Nancy Mau, were from the Office of the Multi-County Public Defender, a law office dedicated to handling death penalty trials statewide. The third, Bruce Harvey, was a criminal defense attorney in private practice. Mr. Mears served as lead counsel. Ms. Mau "assumed responsibility for the majority of the actual workup of the case" and Mr. Harvey's role "was solely to handle scientific evidence in the guilt [and] innocence phase, namely the DNA evidence."
Trial counsel's "focus . . . all along was reasonable doubt of . . . Pace's guilt." They sought to establish reasonable doubt at the guilt phase by highlighting an "overzealous prosecution" and showing that the procedures used to match Pace's DNA to the DNA collected from the murder victims were unreliable. If Pace was convicted, trial counsel's strategy for the sentencing phase was to establish "residual doubt"[1] and to show that Pace's family was "pleading for mercy." In preparation for their mitigation defense, Pace's trial counsel interviewed Pace, his family, a former girlfriend, friends, and teachers, gathered Pace's background records, hired a "mitigation specialist and investigator" to assist with their investigation, and retained a mental health expert to examine Pace.
Trial counsel interviewed witnesses and gathered Pace's records
Ms. Mau was assigned responsibility for the sentencing phase of Pace's trial. To prepare a mitigation strategy, Ms. Mau first spoke with Pace's mother and several of his siblings. Pace's mother mentioned that Pace had a "particularly bad" head injury as a child...
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