                                                       [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                           ___________________              ELEVENTH CIRCUIT
                                                                May 25, 2012
                                                                 JOHN LEY
                                No. 09-11935                      CLERK
                            ___________________

                     D.C. Docket No. 06-00517-CV-BBM


RAYMOND BURGESS,

                                                       Petitioner-Appellant,

                                        versus

WARDEN WILLIAM TERRY,
Georgia Diagnostic and Classification
Prison,
                                                       Respondent-Appellee,

                             __________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                            __________________

                                (May 25, 2012)


Before CARNES, BARKETT, and HULL, Circuit Judges.

PER CURIAM:

      Georgia death row inmate Raymond Burgess was convicted in the Superior
Court of Douglas County, Georgia in 1992 for one count of malice murder, three

counts of armed robbery, and five counts of kidnapping. The sentences he

received for those crimes included a death sentence for the malice murder

conviction. This is his appeal from the district court’s judgment denying his 28

U.S.C. § 2254 petition for a writ of habeas corpus involving those convictions and

his sentences for them.

      A summary of the facts of the case and a recitation of some of the evidence

against Burgess can be found in the Georgia Supreme Court’s opinion affirming

his convictions and sentences. See Burgess v. State, 450 S.E.2d 680, 686–87 (Ga.

1994). A state trial court issued a sixty-five page final order denying Burgess’

petition for a state writ of habeas corpus. Burgess v. Turpin, No. 95-V-656 (Ga.

Butts Cnty. Super. Ct. Sept. 12, 2003). In the course of denying Burgess’ federal

habeas petition the district court issued three orders, totaling more than 250 pages,

that thoroughly discuss the issues and explain in detail the reasons the court

denied the writ. See Burgess v. Terry, No. 1:06-CV-517 (N.D. Ga. Mar. 16,

2009); Burgess v. Terry, No. 1:06-CV-517 (N.D. Ga. July 22, 2008); Burgess v.

Terry, No. 1:06-CV-517 (N.D. Ga. Mar. 19, 2007).

      We have studied those orders of the district court, the state collateral court

order, and the Georgia Supreme Court’s opinion. We have also read and

                                          2
considered the lengthy briefs that were filed in this Court and the relevant parts of

the record, and we have had the benefit of oral argument.

      The issues in this appeal involve the application of well-established law to

the facts of this particular case. We will not repeat here what has been said

elsewhere but instead will simply state our decision of the issues on which a

certificate of appealability was granted.

      The issue involving the constitutionality of Georgia’s requirement that a

capital defendant prove mental retardation beyond a reasonable doubt was decided

in Hill v. Humphrey, 662 F.3d 1335 (11th Cir. 2011) (en banc), petition for cert.

filed (U.S. Apr. 20, 2012) (No. 11-10109). The Hill decision forecloses Burgess’

claim that Georgia’s burden of proof standard is unconstitutional. To the extent

that Burgess also claims that even if that standard is not unconstitutional he is

entitled to have it re-applied and the question of whether he is mentally retarded

determined again in federal court, that claim has no merit. There is nothing in

Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002), or any other decision we

are aware of, that requires a state court jury’s pre-Atkins determination of mental

retardation to be re-done simply because the Atkins decision was issued after that

determination was made in state court.

      Burgess’ Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), claim

                                            3
involves ten items (or eleven, depending on how two typed copies of one

statement are counted) of evidence in existence before the trial that he contends

were exculpatory and were suppressed. It also involves one item of evidence, the

Williams statement, that did not exist until weeks after the trial but which Burgess

nonetheless contends was suppressed. See Burgess, slip op. at 21–27 (N.D. Ga.

Mar. 16, 2009); Burgess, slip op. at 14–15 (N.D. Ga. July 22, 2008); Burgess, slip

op. at 41–45 (N.D. Ga. Mar. 19, 2007); Burgess, slip op. at 6–8 (Ga. Butts Cnty.

Super. Ct. Sept. 12, 2003).

       As to the items that existed at the time of trial, we need not decide if they

were exculpatory or if they were suppressed, because even assuming that they

were we are convinced that Burgess has failed to establish the materiality prong of

a Brady claim.1 The evidence of Burgess’ guilt was overwhelming and five

different statutory aggravating circumstances supported the death sentence.

Those five aggravating circumstances are: “the murder was committed by a

person with a prior record of conviction of murder; the murder was committed by

a person with a prior record of conviction for armed robbery; the murder was



       1
          At least one of the items of evidence that is involved in the Brady claim did come out at
trial and was used by Burgess’ counsel in cross-examination, but Burgess claims that he could
have used it more effectively if it had been disclosed before trial. We have factored into our
materiality decision an estimate of the effect of the delay in counsel learning about that evidence.

                                                 4
committed while [Burgess] was engaged in the commission of armed robberies

against three separate victims; the murder was committed while [he] was in the

commission of a burglary; and, the murder was committed by [him] for the

purpose of receiving money or other things of monetary value.” Burgess, 450

S.E.2d at 695–96 (statutory citations omitted). Not only were there five different

statutory aggravating circumstances, but the murder was committed less than a

year after Burgess was released from prison on parole from a previous murder

conviction. See id. at 687; Burgess, slip op. at 76 (N.D. Ga. July 22, 2008).

Assuming that all ten or eleven items of evidence were favorable to Burgess and

were suppressed, there is no reasonable probability of a different result if they all

had been produced well in advance of trial; our confidence in the outcome is not

undermined by the failure to disclose those items of evidence at all (or to disclose

earlier any of them that were disclosed during trial). See Kyles v. Whitley, 514

U.S. 419, 434–35, 115 S.Ct. 1555, 1565–66 (1995); United States v. Bagley, 473

U.S. 667, 678, 105 S.Ct. 3375, 3381 (1985). In making this decision, we have

considered the effect of the suppression of all ten or eleven of the items of

evidence cumulatively. See Kyles, 514 U.S. at 434, 436–37 & n.10, 115 S.Ct. at

1566–67 & n.10; Allen v. Sec’y, Fla. Dept. of Corr., 611 F.3d 740, 746 (11th Cir.

2010).

                                           5
      As to the Williams statement, however, we do not assume suppression

because it is clear that there can be no suppression of evidence that does not exist

at the time of trial or sentencing. See Halliwell v. Strickland, 747 F.2d 607,

609–10 (11th Cir. 1984) (holding that there can be no Brady violation where the

evidence is unknown to the prosecution or anyone connected with it). In addition,

the statement in question would have been of little use to Burgess even if it had

existed at the time of trial or sentencing. Considering it cumulatively with all of

the other allegedly suppressed items of evidence, there is no reasonable

probability of a different result; our confidence in the outcome is not undermined.

      Turning to the claims of ineffective assistance of counsel at the guilt and

sentence stages, it is not at all clear that all of the alleged instances of ineffective

assistance of counsel that Burgess claims involved deficient performance, but we

need not sort out the ones that did. Even assuming that every instance he

complains about satisfies the performance deficiency requirement of Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), his claims still fail to satisfy

the prejudice requirement. If Burgess’ experienced trial counsel had done

everything exactly as Burgess now contends he should have, there is no reasonable

probability of a different result in either the guilt or sentence stage; our confidence

in the outcome of the guilt stage and the sentence stage is not undermined by the

                                            6
alleged deficiencies in counsel’s performance, considered cumulatively. See

Strickland, 466 U.S. at 694–97, 104 S.Ct. at 2068–69. The same is true of

Burgess’ claim of ineffective assistance of counsel on direct appeal. Even if his

counsel had argued the appeal exactly as Burgess contends he should have, there

is no reasonable probability of a different result; our confidence in the outcome of

the appeal is not undermined.

       AFFIRMED.2




       2
          Burgess raises in his reply brief another issue, involving a different claim—that the trial
court violated a number of his constitutional rights by refusing to order the production of the
entire file from the Department of Family and Children Services. Appellant’s Reply Br. at
47–48. We do not consider that issue for two independently adequate reasons. First, the
certificate of appealability, even as expanded by this Court, does not cover the issue, and we limit
our review to issues that are covered in the certificate of appealability. See 28 U.S.C. § 2253(c);
Hodges v. Att’y Gen., Fla., 506 F.3d 1337, 1340–42 (11th Cir. 2007); Tompkins v. Moore, 193
F.3d 1327, 1332 (11th Cir. 1999); Murray v. United States, 145 F.3d 1249, 1250 (11th Cir.
1998). Second, we do not consider issues raised for the first time in a reply brief. See Mamone
v. United States, 559 F.3d 1209, 1210 n.1 (11th Cir. 2009); Timson v. Sampson, 518 F.3d 870,
874 (11th Cir. 2008); United States v. Whitesell, 314 F.3d 1251, 1256 (11th Cir. 2002).

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BARKETT, Circuit Judge, specially concurring:

      I concur in the majority’s opinion, but for the reasons stated in my dissent in

Hill v. Humphrey, 662 F.3d 1335, 1365-78 (11th Cir. 2011) (en banc), I continue

to believe that Georgia’s requirement that defendants prove mental retardation

beyond a reasonable doubt is unconstitutional under Atkins v. Virginia, 536 U.S.

304 (2002).




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