                                                                         [PUBLISH]

                     IN THE UNITED STATES COURT OF APPEALS
                                                                         FILED
                            FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                             ________________________            ELEVENTH CIRCUIT
                                                                      July 7, 2011
                                    No. 10-10928                      JOHN LEY
                                                                        CLERK
                              ________________________

                          D.C. Docket No. 3:01-cv-00073-DHB

JOHN WAYNE CONNER,

 lllllllllllllllll                                          llPetitioner-Appellant,

                                         versus

HILTON HALL,
Warden, Georgia Diagnostic
and Classification Prison,

llllllllllllllllll                                          lllRespondent-Appellee.


                             ________________________

                       Appeal from the United States District Court
                          for the Southern District of Georgia
                             ________________________

                                     (July 7, 2011)

Before CARNES, MARCUS and MARTIN, Circuit Judges.

MARTIN, Circuit Judge:

         John Wayne Conner, a prisoner under sentence of death in the State of
Georgia, appeals the District Court’s denial of his petition for writ of habeas

corpus brought under 28 U.S.C. § 2254. Conner was granted a certificate of

appealability (“COA”) as to three claims denied by the District Court without an

evidentiary hearing: (1) whether he procedurally defaulted his mental retardation

claim; (2) whether he was denied effective assistance of counsel at the sentencing

phase of his trial; and (3) whether he was prejudiced by prosecutorial misconduct

during closing arguments. For all the reasons below, we VACATE the District

Court’s judgment denying Conner’s habeas petition and REMAND the entire case

to the District Court for further proceedings consistent with this opinion.

                    I. FACTS AND PROCEDURAL HISTORY

       Conner was convicted and sentenced to death for the January 9, 1982

beating death of J.T. White in Telfair County, Georgia.1 At the time of the murder,

Conner lived with his girlfriend, Beverly Bates, in Milan, Georgia. On the

evening of January 9, 1982, Conner, Bates, and White went with friends to a party

in Eastman, Georgia, where they spent the evening drinking and smoking

marijuana. They returned to Conner’s house in Milan around midnight. Soon

after, Conner and White left the house on foot, taking with them a nearly empty



       1
         A fuller discussion of the facts may be found in the opinion of the Georgia Supreme
Court written in Conner’s direct appeal. Conner v. State, 303 S.E.2d 266 (Ga. 1983).

                                               2
bottle of bourbon. They walked to a friend’s house and asked him to take them to

get more whiskey, but the friend refused.

      Then, according to Conner’s confession:

      [M]e and J.T. left and went down the road. J.T. made the statement
      about he would like to go to bed with my girlfriend and so I got mad
      and we got into a fight and fought all the way over to the oak tree and
      I hit him with a quart bottle. He run over there to the fence trying to
      get through or across, I reckon, so I run over there and grabbed him
      and pulled him back and hit him again and he fell in the water and he
      grabbed my leg. I was down there at him right there in the ditch
      where he was at and he was swinging trying to get up or swinging at
      me to try to hit me one, and there was a stick right there at me, and I
      grabbed it and went to beating him with it.

Conner, 303 S.E.2d at 270 (internal quotation makes omitted). The next day,

White’s body was found in a drainage ditch in Milan with severe injuries to his

head. Conner was indicted for murder, armed robbery and motor vehicle theft.

                            A. TRIAL PROCEEDINGS

      On January 26, 1982, while in the Telfair County Jail, Conner pounded a

bullet into his chest until it exploded. As a result, he was admitted to Central State

Hospital (“CSH”) in Milledgeville, Georgia. According to the records from that

visit, Conner was “mute, uncooperative and appeared to be semicatatonic” upon

admission. He showed “complete psychomotor retardation and [was] unable to

answer any questions.” Conner was medicated and placed on “suicide


                                            3
precautions.” He later became cooperative and responsive.

      By court order, Conner remained hospitalized at CSH until February 19,

1982, while the staff evaluated him for competency and insanity. During his stay,

the staff produced a “Psychiatric Examination,” a “Psychological Evaluation,” and

a “Final Summary.” Those documents revealed that Conner had a history of drug

and alcohol abuse and engaged in anti-social behaviors. They also showed that

Conner used the alcohol and drugs to alleviate his constant feelings of

nervousness and depression, but his substance abuse only exacerbated those

feelings. The documents further indicate that although the personality testing

suggested schizophrenia, the results were not inconsistent with a substance abuse

disorder. An IQ test administered while Conner was at CSH revealed a full-scale

Weschler Adult Intelligence Score IQ score of 87, which placed Conner within the

normal or average range of intelligence. On February 19, 1982, CSH issued a

letter to the trial judge stating that Conner was competent to stand trial and could

be held criminally responsible for his actions.

      Conner’s father initially retained David Morgan to represent Conner in the

underlying criminal case. About the same time, Dennis Mullis, a public defender,

was appointed to represent Conner in an unrelated case. When it became clear that

Conner’s father would not be able to pay Morgan’s fees through the pendency of

                                          4
the criminal case, Mullis was appointed to assist Morgan in representing Conner.

      On April 30, 1982, Morgan filed a motion for funds to hire a defense expert

to perform a mental examination because he was considering raising an insanity

defense. This motion was heard on May 11, 1982. At that time, the court had the

benefit of the February 19, 1982 CSH letter stating that Conner was competent to

stand trial. Mullis stated that he could not determine if CSH had done anything

wrong in its examination without an independent expert to assist him.

      Nevertheless, the state trial court deferred ruling on the motion because the

defense had not yet filed a motion to raise the insanity defense. At a later pre-trial

hearing on June 21, 1982, Morgan withdrew from the case and Mullis became

Conner’s sole counsel. At a hearing on June 30, 1982, Mullis announced that he

would not be seeking to assert the insanity defense based upon his review of

additional information private counsel had obtained from CSH. After that, Mullis

did not file any other motion pertaining to Conner’s mental health nor did he

request the appointment of an independent mental health examiner.

      At his jury trial on July 12–14, 1982, Conner neither testified nor presented

any evidence on his own behalf. During his guilt phase closing argument, the

prosecutor said the following:

      Ladies and gentleman, as prosecutor, as defense attorney, I have been

                                          5
      involved in criminal law for seven years. As District Attorney of this
      circuit, I have prosecuted nine murder cases. I have never before sought
      the death penalty. I have seen several killings. I have been responsible
      for prosecuting several terrible killings. I have never before sought the
      death penalty.

Conner’s counsel objected. The trial court sustained the objection and gave the

jury a curative instruction not to consider the penalty before deciding guilt or

innocence.

      After deliberating for fifty minutes, the jury found Conner guilty on all

counts. Before the sentencing phase, the trial court granted defense counsel a brief

recess for Mullis to confer with Conner. When the proceedings reconvened, the

court asked Mullis if he planned to present any evidence in mitigation. Mullis

responded:

      Your Honor, I had planned on calling four witnesses—of course, the
      defendant, and his brother, and father, and his mother. After the verdict
      came in I talked to Mr. Conner in a room adjacent to the courtroom and
      he has informed me that he does not desire me to enter any evidence in
      mitigation. He does not desire to do that himself, he has told me. I have
      counsel[ed] him that my advice would be to do otherwise. My advice
      would be to put in some evidence to mitigate this. He has told me he
      does not desire to do that.

The following colloquy then took place between the court and

Conner:

      THE COURT:          Mr. Conner, do you understand your rights to present
                          evidence?

                                          6
      MR. CONNER:        Yeah.

      THE COURT:         And you have instructed your counsel and you are telling
                         the Court now that you do not want to put anything in in
                         evidence of mitigation?

      MR. CONNER:        That’s right.

      THE COURT:         All right, sir. That’s your privilege.

      The prosecution and the defense then made their closing arguments without

presenting any additional evidence. During his sentencing phase closing, the

prosecutor once again expressed his personal belief, based upon his experience,

that the death penalty was appropriate in Conner’s case:

      As I told you, I have never previously sought the death penalty in any
      murder case, but I tell you, I am seeking it now, and I am asking this
      jury to go back to that jury room and return a verdict, or a decision to
      send John Wayne Conner to the electric chair.

Conner’s counsel did not object to the prosecutor’s sentencing phase closing

argument, and no curative instruction was given.

      The jury returned a death sentence upon a finding that the offense was

“outrageously and wantonly vile, horrible and inhuman in that it did involve

depravity of mind and aggravated battery to the victim.” See O.C.G.A. § 17-10-

30(b)(7).

                              B. DIRECT APPEAL


                                         7
        Conner appealed his conviction and sentence to the Georgia Supreme Court.

Conner, 303 S.E.2d 266. After reviewing the sufficiency of the evidence, the

court affirmed Conner’s convictions for motor vehicle theft and murder but

vacated his armed robbery conviction. Id. at 270–71. The court sua sponte

reviewed the prosecutor’s closing argument to ensure that Conner’s death sentence

was not imposed “under the influence of passion, prejudice, or any other arbitrary

factor.” Id. at 272–73 (quoting O.C.G.A. § 17-10-35(c) (1)). The court found the

argument to be improper because “[t]he portion of the prosecutor’s argument

referring to his prior criminal experience and the frequency with which he had

sought the death penalty was not supported by any evidence and, moreover, was

not relevant to any issue in the case.” Id. at 276. However, the court held that the

remarks were “not so prejudicial or offensive and do not involve such egregious

misconduct on the part of the prosecutor as to require reversal of [Conner’s] death

sentence on the basis that it was impermissibly influenced by passion, prejudice,

or any other arbitrary factor.” Id.

                    C. FIRST STATE HABEAS PROCEEDING

        Conner filed his first writ of habeas corpus in state trial court on March 23,

1984. Evidentiary hearings were held on September 24, 1984, and February 11,

1985.

                                           8
      In the first evidentiary hearing, Mullis testified about his representation of

Conner at trial. He explained that although raising an insanity defense crossed his

mind, he found nothing to substantiate such a claim. When asked about the CSH

records, Mullis admitted that he knew that Conner had some psychiatric problems

and suffered from drug and alcohol abuse. He further admitted that in seeking the

appointment of an independent mental health examiner, he did not reveal to the

trial judge any of the information contained in the CSH records.

      Mullis testified that while he was considering potential mitigation, he spoke

with Conner’s parents and brother. They discussed Conner’s “upbringing” and

“socioeconomic information.” Mullis stated that he learned that Conner had a

deprived economic background and had not been raised “in the best of

circumstances.” After Conner was convicted, Mullis spoke with Conner’s brother

about testifying in mitigation. Also during this time, Mullis approached Conner’s

girlfriend, Beverly Bates, who had testified against him at trial, about testifying in

mitigation, but she refused. Mullis described Conner’s parents and brother as

“waiting in the wings.”

      Mullis stated that his plan to present the testimony of Conner’s family

members changed when Conner informed him after the entry of the guilty verdict

that he did not want to present any mitigation evidence. Mullis explained that

                                           9
Conner said “something to the effect of letting [the jurors] do what they will.”

Mullis testified that he explained the purpose of the evidence to Conner but that

Conner did not seem to care about himself.

      Between the first and second evidentiary hearings, Conner filed several

affidavits in support of his habeas petition. At the second hearing, the state habeas

court admitted into evidence the affidavits of Conner’s mother and father; his

sister, Linda Jones, and her husband, Phillip Jones; and his sister-in-law, Sally

Conner.2

      According to the affidavit of Conner’s mother, Mullis asked her and her

husband if they would be willing to testify on Conner’s behalf during the

sentencing phase. Conner’s mother stated that, had she testified, she would have

informed the court that Conner was a good and loving son who worked hard and

supported his family. As for Conner’s relationship with his father, she explained

that they were close but that Conner’s father beat him as a child and into his teens.

Conner’s mother admitted that he had problems, describing him as a “very

troubled young man” who drank alcohol and used drugs. She explained that

Conner was always depressed and that he felt unloved. She also stated that

Conner tried to commit suicide in 1981.

      2
          None of these affidavits included the address or telephone number of the affiant.

                                                10
      According to the affidavit of Conner’s father, Mullis never asked if there

were other family members and friends who would be willing to testify on

Conner’s behalf. Mullis never asked about Conner’s school or work background

or his relationship with other family members and friends. Conner’s father

explained that Conner suffered from constant depression as a teenager and started

drinking heavily, which only deepened his depression. Conner’s father also stated

that he felt that Conner needed psychiatric help but the family could not afford it.

      Conner’s father also described a second suicide attempt, in which Conner

tried to kill himself by cutting ropes holding him in a tree while he was working

with his father in a tree surgery business. Conner told his father that he was trying

to have an accident so that he would fall and kill himself. Conner’s father stated

that if he had the chance, he would have told the jury that Conner always tried to

be a decent, honest person and that he wished he had the money to get Conner

help for his depression when he was younger.

      The other family affidavits attested to the same facts about Conner, and each

family member stated that Mullis never asked them to testify on Conner’s behalf

in mitigation.

      The state trial court entered a final order denying relief on January 6, 1997.

In that order, the court identified and addressed twenty-six specific allegations of

                                         11
ineffective assistance of trial and appellate counsel. In particular, the court

considered Conner’s claims that his trial counsel, Mullis, was ineffective for

“‘intolerably acquiescing’ in [Conner’s] decision not to present mitigating

evidence” and for “failing to prepare evidence in mitigation.” The court found

that Mullis unsuccessfully tried to convince Conner to present mitigating

evidence, and that Conner knowingly and intelligently waived his right to do so.

The court also found that Mullis prepared to present evidence in mitigation, but

that Conner’s “own actions prevented [Mullis] from presenting evidence.” As for

the affidavits of Conner’s family members, the court concluded that they did not

overcome Conner’s waiver of his right to present mitigation evidence or otherwise

establish ineffectiveness of counsel. Finding Mullis’s performance to be

objectively reasonable, the court concluded that Conner could not prevail on his

ineffective assistance of counsel claim. See Strickland v. Washington, 466 U.S.

668, 687–88, 104 S. Ct. 2052, 2064 (1984).

                  D. SECOND STATE HABEAS PROCEEDING

      On October 3, 2001, Conner filed his second state habeas petition, asserting

only one claim: that he is mentally retarded and therefore ineligible for the death

penalty. To develop his claim, Conner requested access to an independent mental

health examination. Conner supported his habeas petition with copies of his

                                          12
school records and affidavits from three of his elementary school teachers.

       Without an evidentiary hearing, the state habeas court denied Conner’s

request for a mental evaluation on October 26, 2001, concluding that the evidence

was insufficient to support his claim of mental retardation. The court found that

Conner’s school records were inadmissible hearsay and his elementary school

teachers’ affidavits did not comport with O.C.G.A. § 9-14-48(c) because they did

not include the affiants’ phone numbers and addresses.3 In the same order, the

court dismissed the second petition as successive under O.C.G.A. § 9-14-51,4

finding the claim could have been raised in an amendment to his original habeas

petition because Fleming v. Zant5 was decided while Conner’s first state habeas


       3
         As noted above, in Conner’s first state habeas proceeding, the state habeas court
admitted and considered Conner’s family affidavits which did not contain addresses and
telephone numbers.
       4
           O.C.G.A . § 9-14-51 provides as follows:

       All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be
       raised by a petitioner in his original or amended petition. Any grounds not so raised
       are waived unless the Constitution of the United States or of this state otherwise
       requires or unless any judge to whom the petition is assigned, on considering a
       subsequent petition, finds grounds for relief asserted therein which could not
       reasonably have been raised in the original or amended petition.
       5
          In Fleming v. Zant, 386 S.E.2d 339 (Ga. 1989), the Georgia Supreme Court held that
Georgia’s 1988 statutory ban on executing mentally retarded persons applied retroactively, as a
matter of Georgia constitutional law, to all capital cases in Georgia. Further, Fleming established
a procedure for habeas courts to follow in evaluating mental retardation claims for defendants,
like Conner, who were tried and sentenced before Georgia law prohibited the execution of
mentally retarded persons. Id. at 342–43.

                                                13
petition was pending in state court.

       On January 25, 2002, Conner filed an application for a certificate of

probable cause (“CPC”) to the Supreme Court of Georgia to appeal the dismissal

of his second state habeas corpus petition. His CPC application was denied on

March 25, 2002. On April 4, 2002, Conner filed a motion for reconsideration,

specifically noting that the United States Supreme Court had granted certiorari in

Atkins v. Virginia, 534 U.S. 809, 122 S. Ct. 29 (2001). Conner argued in his

motion for reconsideration that if the Supreme Court ruled in Atkins that the

execution of mentally retarded persons violates the Eighth Amendment, then there

could be no “default” of such a claim. The Georgia Supreme Court denied

Conner’s motion for reconsideration on April 12, 2002.

       On June 20, 2002, the United States Supreme Court held the Eighth

Amendment categorically prohibits the execution of a mentally retarded

defendant.6 Atkins, 536 U.S. at 321, 122 S. Ct. at 2254. Twenty-one days later,


       6
          Atkins abrogated the Court’s 1989 ruling in Penry v. Lynaugh, 492 U.S. 302, 340, 109
S. Ct. 2934, 2958 (1989), which had held that the Eighth Amendment did not preclude the
execution of mentally retarded persons. Although recognizing that mentally retarded persons
who meet the law’s requirements for criminal responsibility should be tried and punished when
they commit crimes, the Supreme Court reasoned that mentally retarded persons cannot be
constitutionally executed for two reasons. First, “[b]ecause of their disabilities in areas of
reasoning, judgment, and control of their impulses,” mentally retarded defendants “do not act
with the level of moral culpability that characterizes the most serious adult criminal conduct.”
Atkins, 536 U.S. at 306, 122 S. Ct. at 2244; see also id. at 318–20, 122 S. Ct. at 2251. Second,
“their impairments can jeopardize the reliability and fairness of capital proceedings against

                                               14
on July 11, 2002, Conner filed a timely petition for certiorari in the United States

Supreme Court in which he relied on Atkins.7 The Supreme Court denied

Conner’s certiorari petition on October 7, 2002. Conner v. Head, 537 U.S. 908,

123 S. Ct. 249 (2002), reh’g denied, 537 U.S. 1069, 123 S. Ct. 657 (2002).

                        E. FEDERAL HABEAS PROCEEDINGS

       Conner filed his § 2254 petition in the District Court on November 13,

2001. The federal petition contained thirty-three separate claims for relief,

including an Eighth Amendment challenge to the death penalty based on mental

retardation under Atkins, 536 U.S. at 321, 122 S. Ct. at 2252.

       On March 31, 2004, Conner filed a motion for leave to conduct limited

discovery on his Atkins mental retardation claim. In his memorandum in support

of that motion, Conner alleged that he was mentally retarded; that his elementary

school records attested to his retardation; that his elementary school teachers who

were still living were willing to attest to his retardation; that the state expert who

examined him in 1982 found he suffered from “complete psychomotor

retardation”; and that he had never been granted access to an independent defense

mentally retarded defendants.” Id. at 306–07, 122 S. Ct. at 2244.
       7
          As noted above, Conner’s state postconviction proceedings were concluded at the time
Atkins was decided. By promptly raising Atkins in a petition for certiorari, he raised it at his first
available opportunity. Although Conner was not required to file a certiorari petition, we
recognize that his efforts show he was diligent in pursuing his Atkins claim.

                                                 15
evaluation of his mental retardation claim. In support, Conner attached his school

records and the affidavits of three of his elementary school teachers. Conner also

argued that no court had ever heard the merits of his mental retardation claim.

       Despite the state court’s ruling that he procedurally defaulted his mental

retardation claim, Conner argued, as he does now, that he followed Georgia’s

procedures as provided in Fleming, 386 S.E.2d 339, and Turpin v. Hill, 498 S.E.2d

52, 53–54 (Ga. 1998).8 Conner also argued that the state’s procedural bar was not

adequate to bar federal review because it was not consistently applied.

       On September 8, 2004, the District Court denied Conner’s discovery

request, determining that he had defaulted his mental retardation claim in state

court. The District Court acknowledged that its “review of the case law lends

credibility to Conner’s position that [the state procedural bar] is inconsistently

applied to claims of mental retardation.” Nevertheless, the District Court held that

the Georgia Supreme Court’s denial of a CPC application in Conner’s case, as

well as a CPC denial by the Georgia Supreme Court in Hicks v. Schofield, 599

S.E.2d 156 (Ga. 2004), “could signal a reversal of the Turpin v. Hill rule” that

state habeas petitions by capital petitioners asserting mental retardation would not


       8
          In Turpin, the Georgia Supreme Court held that state habeas relief was available to
capital petitioners asserting mental retardation claims in state habeas petitions, regardless of
whether the claim had been procedurally defaulted. 498 S.E.2d at 53.

                                                 16
be barred by procedural default rules.9

      After briefing by the parties, the District Court denied Conner’s habeas

petition in its entirety on November 6, 2009. The District Court granted Conner’s

request for a COA on two claims: (a) whether it erred in finding that Conner’s

claim of mental retardation was procedurally defaulted; and (b) whether it erred in

concluding that Conner’s trial counsel had not rendered ineffective assistance

during the mitigation phase of his trial.

      We expanded the COA to include a third claim: “Whether the district court

erred in determining that the state court’s decision—that the prosecutor’s closing

arguments were not so egregious as to require reversal—was not contrary to, or an

unreasonable application of, Supreme Court precedent.”

                              II. STANDARDS OF REVIEW

      We review de novo the district court’s denial of a 28 U.S.C. § 2254 petition,

but we are “highly deferential” to the state court’s decision on the merits of a


      9
          Specifically, the District Court stated:

      In my view, the Georgia Supreme Court has implicitly, if not expressly, spoken to
      this issue with regard to this very petitioner by allowing the second state habeas
      court’s ruling of procedural default to stand and rejecting Chief Justice Fletcher’s
      position in dissent to grant the CPC application. Given this recent expression, I
      cannot conclude that the second state habeas court’s application of the state
      procedural bar is an inadequate state ground to default the claim.



                                                     17
claim. Cullen v. Pinholster, --- U.S. ---, ---, 131 S. Ct. 1388, 1398 (2011) (the

AEDPA deference “is a difficult to meet and highly deferential standard for

evaluating state-court rulings, which demands that state-court decisions be given

the benefit of the doubt”) (quotation marks and citations omitted); Harrington v.

Richter, --- U.S. ---, ---, 131 S. Ct. 770, 786 (2011) (“A state court’s determination

that a claim lacks merit precludes federal habeas relief so long as fairminded

jurists could disagree on the correctness of the state court’s decision.”) (quotation

marks omitted); id. (“It bears repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was unreasonable. . . . If this standard

is difficult to meet, that is because it was meant to be.”). If a state court has

adjudicated the merits of a claim, we may not grant habeas relief unless the state

court’s decision “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States,” or “resulted in a decision that 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); Davis v. Jones, 506 F.3d 1325, 1331 (11th Cir. 2007).

      “A state court decision is contrary to clearly established federal law if it

applies a rule that contradicts the governing law set forth in [Supreme Court] cases

or confronts facts that are materially indistinguishable from a relevant Supreme

                                           18
Court precedent and arrives at a result opposite to [the Court’s].” Windom v.

Sec’y, Dep’t of Corr., 578 F.3d 1227, 1247 (11th Cir. 2009) (internal quotation

marks omitted) (alterations in original). A state court unreasonably applies federal

law when it “identifies the correct legal rule from Supreme Court case law but

unreasonably applies that rule to the facts of the petitioner’s case,” or when it

“unreasonably extends, or unreasonably declines to extend, a legal principle from

Supreme Court case law to a new context.” Suggs v. McNeil, 609 F.3d 1218,

1227 (11th Cir. 2010) (quotation marks omitted). In determining

unreasonableness, we do not ask whether the state court decided an issue

correctly, but only whether the court’s decision was objectively unreasonable.

Renico v. Lett, --- U.S. ---, 130 S. Ct. 1855, 1862 (2010).

                                 III. DISCUSSION

    A. PROCEDURAL DEFAULT OF MENTAL RETARDATION CLAIM

      Under the doctrine of procedural default, a federal habeas court will not

review a claim rejected by a state court “if the decision of [the state] court rests on

a state law ground that is independent of the federal question and adequate to

support the judgment,” Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct.

2546, 2253 (1991), unless a petitioner can show cause for the failure to properly

present the claim and actual prejudice, or that the failure to consider the claim

                                          19
would result in a fundamental miscarriage of justice. Wainwright v. Sykes, 433

U.S. 72, 81–88, 97 S. Ct. 2497, 2503–07 (1977); Marek v. Singletary, 62 F.3d

1295, 1301–02 (11th Cir. 1995). The adequacy of a state procedural bar to the

assertion of a federal question is itself a federal question. Lee v. Kemna, 534 U.S.

362, 375, 122 S. Ct. 877, 885 (2002).

       “To qualify as an ‘adequate’ procedural ground, a state rule must be ‘firmly

established and regularly followed.’” Walker v. Martin, --- U.S. ---, 131 S. Ct.

1120, 1127–28 (2011) (citation omitted). Conner argues that Georgia’s rules are

inadequate because Georgia has inconsistently applied its procedural default rule

to mental retardation claims brought by capital defendants similarly situated to

him. We agree. Under the unique facts of Conner’s case, we hold that the

Georgia’s procedural default rule, O.C.G.A. § 9-14-51, is inadequate to bar federal

review of Conner’s mental retardation claim because it has not been consistently

and regularly followed.10

       Under Georgia law, as we have previously recognized, “a prisoner seeking a


       10
           When applied to ordinary habeas petitioners who simply failed to include available
claims in their initial petitions, the Georgia successor statute, O.C.G.A. § 9-14-51, is a valid
procedural bar. See Chambers v. Thompson, 150 F.3d 1324, 1325–26 (11th Cir. 1998). Unlike
Chambers, which turned on the general nature of procedural bar at issue without regard to the
claims held to be procedurally barred, this case involves only the adequacy of Georgia’s
successor statute as applied to a mental retardation claim raised in a second or successive state
habeas petition.

                                                20
writ of habeas corpus vacating his conviction must present all of his grounds for

relief in his original petition.” Mincey v. Head, 206 F.3d 1106, 1136 (11th Cir.

2000). Georgia’s procedural default statute provides that:

       [a]ll grounds for relief claimed by a petitioner for a writ of habeas
       corpus shall be raised by a petitioner in his original or amended petition.
       Any grounds not so raised are waived unless the Constitution of the
       United States or of this state otherwise requires or unless any judge to
       whom the petition is assigned, on considering a subsequent petition,
       finds grounds for relief asserted therein which could not reasonably have
       been raised in the original or amended petition.

O.C.G.A. § 9-14-51. Ordinarily, failure to comply with this rule precludes federal

habeas review. Mincey, 206 F.3d at 1136. But the State of Georgia has special

rules of practice and procedure to handle mental retardation claims for capital

defendants like Conner, whose trials occurred prior to Georgia’s 1988 ban on

executing mentally retarded persons. Our review in this case is limited, therefore,

to the adequacy of Georgia’s procedural default rules to bar federal review of

mental retardation claims of defendants, like Conner, whose trials commenced

before July 1, 1988.

       By statute, Georgia law has prohibited execution of the mentally retarded

since 1988.11 See O.C.G.A. § 17-7-131(j). On its face, Georgia’s statutory ban


       11
         In 1988 the Georgia legislature passed an amendment to O.C.G.A. § 17-7-131. Under
the amended statute, the jury in a capital trial must decide at the time of trial on guilt or
innocence of the defendant whether the defendant is “guilty but mentally retarded.” Id. § 17-7-

                                              21
against executing mentally retarded defendants does not apply to defendants who

were tried before July 1, 1988. Id. But in Fleming v. Zant, 386 S.E.2d 339, the

Georgia Supreme Court held that the Georgia Constitution’s cruel and unusual

punishment clause precluded the execution of mentally retarded persons,

regardless of when a trial occurred. Id. at 342–43. Thus, Fleming applied the ban

on executing mentally retarded persons retroactively and established procedures to

be followed to examine mental retardation claims in state habeas proceedings.12


131(c)(3). If the defendant is found to be guilty but mentally retarded, the death penalty shall not
be imposed. O.C.G.A. § 17-7-131(j) provides:

       In the trial of any case in which the death penalty is sought which commences on or
       after July 1, 1988, should the judge find in accepting a plea of guilty but mentally
       retarded or the jury or court find in its verdict that the defendant is guilty of the crime
       charged but mentally retarded, the death penalty shall not be imposed and the court
       shall sentence the defendant to imprisonment for life.
       12
          In doing so, Fleming established a two-step process for Georgia courts to follow in
resolving mental retardation claims raised by petitioners in Fleming’s position:

       When a defendant who was tried before the effective date of the OCGA § 17-7-131(j)
       alleges in a petition for habeas corpus that he or she is mentally retarded, the habeas
       corpus court must first determine whether the petitioner has presented sufficient
       credible evidence, which must include at least one expert diagnosis of mental
       retardation, to create a genuine issue regarding petitioner’s retardation. The court, in
       its discretion, may hold a hearing on the issue, or may make the determination based
       on affidavits, depositions, documents, etc. If, after examining the evidence, the
       habeas corpus court finds that there is a genuine issue, a writ shall be granted for the
       limited purpose of conducting a trial on the issue of retardation only. This trial shall
       be held in the court in which the original trial was conducted. Petitioner shall be
       entitled to a full evidentiary hearing on the issue of retardation. The determination
       shall be made by a jury using the definition of retardation enunciated in the statute.
       See O.C.G.A. § 17-7-131(a)(3). The petitioner will bear the burden of proving
       retardation by a preponderance of the evidence.


                                                   22
Id.

       Nine years after Fleming, the Georgia Supreme Court held in Turpin v. Hill,

498 S.E.2d 52, that a mental retardation claim raised by a capital habeas petitioner

in a state habeas petition cannot be procedurally defaulted as a matter of state law.

Id. at 53. Although Hill was convicted and sentenced to death in 1991, three years

after the effective date of O.C.G.A. § 17-7-131(j)’s ban on executing mentally

retarded defendants, he did not raise a mental retardation issue at trial or on direct

appeal. Id. at 52. Hill then filed a state habeas corpus petition raising a mental

retardation claim.13 The state raised the defense of procedural default. The state

habeas trial court ruled that the mental retardation claim was not subject to

procedural default, and upon finding that Hill had presented sufficient credible

evidence of mental retardation, granted a limited writ for jury trial on the issue of

mental retardation based upon Fleming. Id. at 52–53. On appeal, the Georgia

Supreme Court agreed with the state trial court, stating:

       In light of this Court’s holding that the execution of the mentally
       retarded constitutes cruel and unusual punishment under the Georgia


Fleming, 386 S.E.2d at 342–43 (footnote omitted) (emphasis added).
       13
          Hill supported his petition with an affidavit from a psychologist who testified at the
penalty phase of his capital trial who averred that his penalty phase testimony was based on
inadequate information and his prior IQ test results were inaccurate and misleading. Turpin, 498
S.E.2d at 52 n.1.

                                               23
       Constitution [in Fleming], we find no error in the habeas court’s
       consideration of appellee’s claim of mental retardation. “In all cases
       habeas corpus relief shall be granted to avoid a miscarriage of justice.”

Turpin, 498 S.E.2d at 53 (quoting O.C.G.A. § 9-14-48(d)) (citation and footnote

omitted).

       In this case, the District Court held that Conner’s mental retardation claim

was procedurally barred because the Georgia habeas court dismissed Conner’s

second habeas petition as successive under O.C.G.A. § 9-14-51, finding the claim

could have been raised in an amendment to his original habeas petition because

Fleming was decided while Conner’s first state habeas petition was pending in

state court. After careful review of Georgia’s actual practice and procedure for

addressing mental retardation claims for state habeas petitioners similarly situated

to Conner,14 we are compelled to conclude that the procedural bar is inadequate to

bar federal review because it has not been consistently and regularly applied.

       The inadequacy of Georgia’s procedural default rule, O.C.G.A. § 9-14-51,

as a bar to federal review of Conner’s mental retardation claim is illustrated by the

numerous Georgia habeas petitioners, similarly situated to Conner, who have



       14
           Conner has cited a plethora of judicial orders, opinions, and written dispositions from
the state courts of Georgia which are not available in a publicly accessible database. He has filed
and served copies of these materials with his briefs in this Court, a copy of which will be
maintained by the Clerk of this Court and made available for public inspection.

                                                24
been granted access to independent mental health evaluations and Fleming

remands since Fleming and Turpin, regardless of whether they brought their

mental retardation claims in a second or third state habeas petition. Indeed, since

Fleming issued, numerous Georgia death-sentenced prisoners whose trials, like

Conner’s, commenced before July 1, 1988, the effective date of O.C.G.A. § 17-7-

131(j), have obtained independent expert access and remands for mental

retardation trials from claims filed in second or successive state habeas petitions.

See Fleming v. Zant, 89-V-2252 (Super. Ct. Butts Cty., Ga. Mar. 18, 1991)

(remanding case in 1991 for jury trial on issue of mental retardation following

petitioner’s raising mental retardation claim for the first time in a third (second

successive) state habeas corpus petition filed in 1989); Allen v. Zant, No. 90-V-

3326 (Super. Ct. Butts Cty., Ga. Sept. 20, 1991) (granting in 1991, after Allen

filed successive state habeas petition in 1991 that alleged mental retardation and

attached school records and affidavits from family members and school principal,

access for two mental health evaluations and subsequently remanding case for a

trial on mental retardation); Collins v. Zant, No. 90-V-3211 (Sup. Ct. Butts Cty.,

Ga. Mar. 18, 1991) (granting in 1991, after Collins alleged mental retardation for

the first time in a second successive state habeas petition filed in 1990,

independent expert access and testing and remanding case to the trial court under

                                          25
Fleming for a jury trial on mental retardation); Gates v. Zant, No. 89-V-2468

(Super. Ct. Butts Cty., Ga. Apr. 13, 1992) (granting independent expert access in

1990 and then remanding claim for jury trial in 1991 to petitioner who alleged

mental retardation in a successor state habeas petition filed in 1989); Mathis v.

Thomas, No. 95-V-658 (Super. Ct. Butts Cty., Ga. Sept. 13, 2001) (granting

independent expert access in 1995 to petitioner who raised mental retardation

claim in his third (second successive) state habeas petition in 1995, then

remanding case in 2001 for jury trial to determine mental retardation); Peek v.

Zant, No. 86-V-830 (Super. Ct. Butts Cty., G. June 11, 1990) (remanding in 1990

for jury trial on mental retardation claim filed in successor state habeas corpus

petition); Rogers v. Thomas, No. 94-V-661 (Super. Ct. Butts Cty., Ga. 1995 May

22, 1995) (granting independent expert access in 1994 to petitioner who raised

mental retardation claim in successor state habeas petition filed in 1994 and

remanding for jury trial on mental retardation in 1995), aff’d, Rogers v. State, 575

S.E.2d 879 (Ga. 2003); Walker v. Zant, No. 90-V-2984 (Super. Ct. Butts Cty., Ga.

May 17, 1991) (granting independent expert access in 1991 to petitioner who filed

successive habeas petition in 1990, remanding for Fleming jury trial on mental

retardation in 1991), denial of first state petition aff’d without opinion, Kemp v.

Walker, 389 S.E.2d 761 (Ga. 1990) (table); Waters v. Thomas, No. 95-V-441

                                          26
(Super. Ct. Butts Cty. Ga. Dec. 6, 1995) (same); Wilson v. Zant, No. 90-V-2935

(Super. Ct. Butts Cty., Ga. Mar. 15, 1991) (same).15

       Considering the fact that in the vast majority of cases where it has come up

the Georgia courts have not applied that state’s second and successive petition

procedural bar rule to other petitioners’ mental retardation claims, we disagree

with the District Court’s conclusion that the Georgia Supreme Court’s denial of a

certificate of probable cause (CPC) to appeal Conner’s second habeas corpus

petition signaled a “reversal” of the Georgia Supreme Court’s Turpin rule that

state habeas relief was available to capital petitioners asserting mental retardation

claims in state habeas petitions to avoid a miscarriage of justice, regardless of

whether the claim had been procedurally defaulted. See Turpin, 498 S.E.2d at 53.

Georgia’s miscarriage of justice exception was applied to allow consideration of

otherwise procedurally defaulted mental retardation claims before and after

Conner’s second State Petition for Writ of Habeas Corpus was denied in late 2001

and his application for CPC was denied in early 2002.16 Considering Georgia’s

       15
          Under O.C.G.A. § 9-14-43, a Georgia prisoner must file his habeas petition in the
superior court of the county in which the petitioner is detained. Since Georgia prisoners under a
death sentence are housed at the Georgia Diagnostic and Classification Prison in Jackson,
Georgia, their state habeas petitions are filed in Butts County.
       16
            See Turpin, 498 S.E.2d 52; Head v. Ferrell, 554 S.E.2d 155, 166–67 (Ga. 2001)
(finding no error in state habeas court’s consideration of mental retardation claim under
miscarriage of justice exception to procedural default under Turpin); Schofield v. Holsey, 642

                                               27
application of its procedural bar rules to other mental retardation claims, “one

cannot seriously contend that the [Georgia] Court has applied its procedural bar

rules evenhandedly to all similar claims.” Dugger v. Adams, 489 U.S. 401, 420,

109 S. Ct. 1211, 1222 (1989) (quotation marks omitted). We therefore conclude

that Georgia’s inconsistent application of the miscarriage of justice exception to

procedural default in cases of mental retardation renders the procedural bar in

Conner’s case inadequate to preclude federal review. See Spencer v. Kemp, 781

F.2d 1458, 1470 (11th Cir. 1986) (“It is a dominant theme of the Supreme Court

case law . . . that a federal habeas petitioner shall not be denied federal review of a

federal constitutional claim on the basis of an asserted state procedural ground that

is manifestly unfair in its treatment of that claim.”).

       Since there is no adequate procedural bar precluding federal review, we now

turn to the District Court’s treatment of Conner’s mental retardation claim.


S.E.2d 56, 63 (Ga. 2007) (finding that petitioner had not established mental retardation, but
noting that “the habeas court was correct in considering this new claim, because this Court, under
the ‘miscarriage of justice’ exception to the rule of procedural default, has authorized habeas
courts to consider alleged mental retardation when the issue was not raised at trial”); Hall v.
Lewis, 692 S.E.2d 580, 593 (Ga. 2010) (holding unappealed finding by habeas court that
petitioner was mentally retarded under “miscarriage of justice” exception to procedural default
rendered moot new sentencing trial based upon ineffective assistance of counsel); see also
Rogers v. State, 575 S.E.2d 879, 881 (Ga. 2003) (“A defendant tried prior to July 1, 1988, for
whom no judicial determination on mental retardation will have been made, may choose to raise
the issue of his or her mental retardation by filing a petition for habeas corpus and presenting
sufficient credible evidence, including at least one expert diagnosis of mental retardation, to
create a genuine issue regarding retardation.”).

                                               28
Conner requested discovery and an evidentiary hearing in the District Court on his

mental retardation claim, as he had done in his second state habeas petition.

Indeed, Conner had requested access to an independent mental health examination

in both state and federal court, but his requests were denied. The District Court

denied Conner’s request for discovery and an evidentiary hearing because it

determined Conner had procedurally defaulted his mental retardation claim.

Since we hold Conner did not procedurally default his claim, the District Court’s

order denying discovery and an evidentiary hearing on this basis was error.

      Although we could determine whether Conner is entitled to discovery and

an evidentiary hearing, we decline to do so. Ordinarily, the district court should

have the first opportunity to decide whether discovery and an evidentiary hearing

are appropriate under the relevant rules governing these procedural issues. We

recognize that habeas law vests district courts with some discretion in such

matters. See, e.g., Rule 6(a) of the Rules Governing § 2254 Cases (“A party shall

be entitled to invoke processes of discovery available under Federal Rules of Civil

Procedure if, and to the extent that, the judge in the exercise of his discretion and

for good cause shown grants leave to do so, but not otherwise.”); Bracy v.

Gramley, 520 U.S. 899, 909, 117 S. Ct. 1793, 1799 (1997) (“Rule 6(a) makes it

clear that the scope and extent of such discovery is a matter confided to the

                                          29
discretion of the District Court.”); Williams v. Allen, 542 F.3d 1326, 1346–48

(11th Cir. 2008) (stating “district court’s decision to grant or deny an evidentiary

hearing [is reviewed] for abuse of discretion” and discussing considerations

applicable to deciding whether evidentiary hearing is precluded, mandatory, or

discretionary). Accordingly, we remand Conner’s case to the District Court for it

to determine whether discovery and an evidentiary hearing are appropriate.

      To guide the District Court in the exercise of its discretion, we add the

following general observations, without expressing an opinion as to the merits of

Conner’s mental retardation claim. First, with respect to whether Conner is

entitled to an evidentiary hearing, “a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474, 127 S. Ct. 1933, 1940 (2007). Ordinarily, federal

courts must take into account the deferential standards prescribed by 28 U.S.C. §

2254(d) in deciding whether an evidentiary hearing is appropriate. Id. But in this

case, we find that Conner’s mental retardation claim was never adjudicated on the

merits in state court because of the state court’s determination that Conner’s claim

was procedurally barred. Thus, the District Court is not bound by AEDPA’s

deferential standards in 28 U.S.C. § 2254(d) and federal court review is de novo.

                                          30
See Porter v. McCollum, --- U.S. ---, 130 S. Ct. 447, 452 (2009) (“Because the

state court did not decide whether Porter’s counsel was deficient, we review this

element of Porter’s Strickland claim de novo.”).

      Second, in considering whether Conner’s factual allegations regarding his

mental retardation, if true, would entitle him to habeas relief, we are guided by the

Supreme Court’s decision in Atkins. In Atkins, the Supreme Court recognized

“that a national consensus has developed against” executing the mentally retarded.

Atkins, 536 U.S. at 316, 122 S. Ct. at 2249. But to the extent there is

disagreement about executing mentally retarded offenders, Atkins recognized “it is

in determining which offenders are in fact retarded.” Id. at 317, 122 S. Ct. at

2250. The Court left “to the State[s] the task of developing appropriate ways to

enforce the constitutional restriction upon [their] execution of sentences.” Id.

(quoting Ford v. Wainwright, 477 U.S. 399, 405, 416–17, 106 S. Ct. 2595, 2605

(1986)); see also Bobby v. Bies, --- U.S. ---, 129 S. Ct. 2145, 2150 (2009)

(reaffirming that Atkins had “left to the States the task of developing appropriate

ways to enforce the constitutional restriction” on executing the mentally retarded);

Thomas v. Allen, 607 F.3d 749, 752 (11th Cir. 2010). Thus, when considering

Conner’s mental retardation claim, the District Court must apply Georgia’s



                                         31
substantive mental retardation criteria.17 See, e.g., Thomas, 607 F.3d at 752.

       Finally, we observe that § 2254(e)(2)’s prohibition against evidentiary

hearings does not apply in this case because Conner has not “failed to develop the

factual basis of” his mental retardation claim within the meaning of 28 U.S.C.

§ 2254(e)(2). See Williams v. Taylor, 529 U.S. 420, 437, 120 S. Ct. 1479, 1491

(2000) (“If there has been no lack of diligence at the relevant stages in the state

proceedings, the prisoner has not ‘failed to develop’ the facts under § 2254(e)(2)’s

opening clause, and he will be excused from showing compliance with the balance

of the subsection’s requirements.”). “[A] failure to develop the factual basis of a

claim is not established unless there is lack of diligence, or some greater fault,

attributable to the prisoner or the prisoner’s counsel.” Id. at 432, 120 S. Ct. 1488.

As noted above, Conner filed a second state habeas petition, which was supported

by school records and teacher affidavits, shortly after his first state habeas corpus

was denied CPC by the Georgia Supreme Court. At that time, he requested and

was denied independent access for a mental health evaluation and an evidentiary


       17
           By statute, Georgia defines “[m]entally retarded” as “significantly subaverage general
intellectual functioning resulting in or associated with impairments in adaptive behavior which
manifested during the developmental period.” O.C.G.A. § 17-7-131(a)(3). In Georgia,
significantly subaverage intellectual functioning generally requires an IQ score of 70 or below.
Stripling v. State, 401 S.E.2d 500, 504 (Ga. 1991). Because Conner was tried before July 1,
1988, Georgia law requires that he prove his mental retardation by a preponderance of the
evidence. Fleming, 386 S.E.2d at 342–43.

                                                32
hearing to support his mental retardation claim. Further, at the time Fleming was

announced in 1989, Conner was several years post-hearing and had no viable

avenue for getting a mental health evaluation given Georgia’s long-standing

policy not to permit mental health experts into the prison without a court order.

Under the unique facts of Conner’s case, we conclude that Conner was diligent in

his efforts to develop the factual record in support of his claim. Thus, § 2254(e)

does not preclude a federal evidentiary hearing.

      For all of these reasons, we vacate the District Court’s order finding

procedural default and its judgment denying Conner discovery and an evidentiary

hearing. We remand this claim to the District Court to determine whether Conner

is entitled to discovery and an evidentiary hearing on his mental retardation claim

consistent with this opinion and with Georgia’s substantive mental retardation

standards.

                            B. REMAINING CLAIMS

      Having determined that we must vacate the District Court’s judgment

denying Conner’s petition and remand for further proceedings on the mental

retardation claim, it is unnecessary for us to decide anything regarding the other

two claims—the ineffective assistance of counsel at sentencing claim and the



                                         33
prosecutorial misconduct claim. Our remand is not limited but is, instead, a

remand of the entire case.

      Accordingly, we VACATE the District Court’s judgment denying Conner’s

habeas petition and REMAND the entire case to the District Court for further

proceedings consistent with this opinion.

VACATED and REMANDED.




                                        34
