           Case: 15-11384   Date Filed: 06/23/2020   Page: 1 of 26



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11384
                       ________________________

                   D.C. Docket No. 5:12-cv-00163-CAR



JOHN ANTHONY ESPOSITO,

                                                          Petitioner-Appellant,


                                  versus


WARDEN,

                                                         Respondent-Appellee.

                       ________________________

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

                              (June 23, 2020)

Before JILL PRYOR, TJOFLAT and MARCUS, Circuit Judges.

PER CURIAM:
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      In this capital case, John Esposito appeals the district court’s denial of his

federal habeas petition. Esposito was sentenced to death in Georgia following his

conviction for the murder of Lola Davis. Following an unsuccessful direct appeal

and collateral proceedings in Georgia state courts, Esposito filed a federal habeas

petition in the United States District Court for the Middle District of Georgia,

which the district court denied. Esposito appeals the denial of his petition on three

claims of ineffective assistance of counsel. First, he contends that his trial counsel

were ineffective in failing to investigate and present evidence that he was less

culpable than his codefendant, Alicia Woodward. Second, he contends that his

trial counsel were ineffective in failing to investigate and present in the penalty

phase of his trial mitigation evidence about his childhood abuse and history of

mental illness. Third, he contends that his trial counsel were ineffective in making

their closing argument in the penalty phase.

      After a thorough review of the briefing and the record, and with the benefit

of oral argument, we affirm the denial of Esposito’s petition.

                               I.      BACKGROUND

      Esposito was convicted in Georgia of malice murder. A jury recommended

a death sentence, and the trial court accepted the recommendation. Below we

describe the events that led to Esposito’s conviction and sentence, as well as

evidence, as relevant here, presented at his state habeas proceedings.


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A. Factual Background

       Esposito and his girlfriend, Alicia Woodward, abducted Davis, an elderly

woman, from a grocery store parking lot in North Carolina.1 Woodward

approached Davis in the parking lot and convinced Davis to give her a ride.

Woodward directed Davis to drive to a nearby location, where Esposito was

waiting. Esposito entered Davis’s car and forced her to move to the passenger

seat. With Woodward driving, Esposito took $1,000 and a checkbook from

Davis’s purse. Esposito and Woodward drove her to a local bank, where they

forced her to cash a check for $300. They then drove her to a remote location,

where Esposito led her into a hayfield, forced her to kneel, and beat her to death

with a tree limb. After Davis’s murder, Esposito and Woodward drove to

Alabama, where they disposed of Davis’s car and purse. When they ran out of

money, they abducted an elderly couple in Oklahoma, robbed them, and

bludgeoned them to death with a tire iron. Esposito v. State, 538 S.E.2d 55, 57

(Ga. 2000).

       Esposito and Woodward were arrested in Colorado. Id. at 57–58. Esposito

gave two confessions to law enforcement. He made his first confession to FBI

agents on the day of his arrest. During the 45-minute interview, Esposito admitted


       1
         The facts come from the evidence adduced at trial, which was summarized by the
Georgia Supreme Court in Esposito v. State, 538 S.E.2d 55 (Ga. 2000) (affirming Esposito’s
conviction and death sentence on direct appeal).
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that he forced Davis to get out of the car and kneel on the ground. He confessed to

hitting her several times with a tree limb. He also admitted to murdering the

Oklahoma couple, recounting that the murder “wasn’t too bad” because he “didn’t

get any brains on [his] face or anything.” Doc. 13-13 at 58.2 He told FBI agents

that after he bludgeoned the wife, she had brain matter on her face and one of her

eyes was coming out of her head.

       A few days later, Esposito gave a more detailed confession in a videotaped

interview with a Georgia Bureau of Investigations agent. He again admitted to

murdering Davis. He confessed that he hit Davis with a tree limb and kicked her

with his shoe.

B. Motion to Suppress

       Esposito was indicted in Georgia for Davis’s murder. The trial court

appointed two criminal defense attorneys, Roy Robinson Kelly III and W. Dan

Roberts, to represent him.

       Before trial, Esposito’s counsel sought to suppress both of his confessions.

The trial court concluded that the first confession would be admissible in evidence

at trial. The court suppressed the second, videotaped confession, however, after




       2
         Citations in the form “Doc. #” refer to entries on the district court’s docket. Documents
from the state habeas proceedings have been electronically filed; this opinion cites to the
electronically-generated page numbers located on the top margin of each page.
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determining that it violated Esposito’s Miranda 3 rights. In response, the state

argued that the videotaped confession nevertheless could be used for impeachment

or rebuttal purposes. After ruling that the illegally obtained confession could be

introduced only if Esposito testified, the court clarified that the state could use it

for impeachment or rebuttal purposes.

C. Trial

      1. Guilt/innocence phase

      At the guilt/innocence phase of Esposito’s trial, the state presented evidence

that Esposito and Woodward abducted Davis, stole from her, and drove her to a

remote area, where Esposito brutally murdered her. FBI Agent Ron Knight

testified that when he interviewed Esposito after the arrest, Esposito told him that

the murders were “all [him]. [Woodward] didn’t do anything.” Doc. 14-15 at 49.

Esposito admitted to kidnapping Davis from a grocery store parking lot, and when

Knight asked what happened next, Esposito responded “I killed her.” Id. at 53.

Esposito confessed to hitting Davis with a tree limb. During the interview,

Esposito told Knight, “I don’t have any remorse [about the murder]. I don’t have a

conscience.” Id. at 56. The state did not introduce into evidence the videotaped

confession.




      3
          Miranda v. Arizona, 384 U.S. 436 (1966).
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      A crime scene specialist testified that Davis’s car contained fingerprints,

palm prints, and footprints matching those belonging to Esposito and Woodward.

Also, a cigarette butt found in the car contained DNA that was consistent with

Esposito’s DNA. The state submitted photographs showing that a tree limb was

found at the murder site, and hair was found on the limb. A forensic analyst

testified that one branch contained 63 hairs that matched Davis’s hair. The tree

limb was never tested for DNA evidence.

      The jury also heard testimony from the doctor who performed Davis’s

autopsy. The doctor testified that Davis died of blunt force trauma. He testified

that he could not be sure what type of object caused the trauma, but Davis’s

injuries were consistent with being hit by an item with bark on it, so it was possible

that a tree limb was the murder weapon.

      The jury heard that Woodward was larger physically than Esposito:

Esposito weighed about 160 pounds and Woodward weighed about 180 pounds.

The jury learned, too, that Woodward: (1) booked and paid for their hotel rooms

during their crime spree, (2) drove Davis’s car, and (3) was the first to approach

Davis in the grocery store parking lot.

      The state rested. The defense rested without calling any witnesses. In

closing argument, Esposito’s counsel emphasized that the tree limb had never been

tested for the presence of DNA.


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          The jury found Esposito guilty of murdering Davis.

          2. Penalty phase

          At the penalty phase, the state introduced evidence about the murder of the

Oklahoma couple. The jury heard that Esposito had confessed to murdering the

couple and beating the wife until her brain matter appeared on the side of her face

and her eye popped out of her head.

          Esposito called seven witnesses in mitigation. These witnesses testified

about Esposito’s disposition, background, and mental capacity. Specifically, the

jury heard from: the chief jailer for the Jasper County jail, who testified that

Esposito was a “model inmate” who “never caused any problems” while he was in

jail pending trial; Esposito’s high school teacher, who testified that Esposito was a

“follower” who had a “totally dysfunctional” and “aggressive” mother; Esposito’s

aunt, who recounted that Esposito was physically, verbally, and sexually abused as

a child; and Esposito’s General Education Development (GED) instructor, who

testified that Esposito was “very intelligent,” “high functioning” in academics, and

a “follower” who did not “initiate things by himself.” Docs. 14-20 at 72; 14-21 at

80–81; 14-23 at 46, 48. Two witnesses—a psychiatric nurse and therapist at a state

psychiatric hospital—testified that they were not convinced that Esposito was the

killer.




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      Esposito’s final mitigation witness was Dr. Daniel Grant, a psychologist

who had examined Esposito, interviewed him, administered tests to him, and

reviewed his medical records. In contrast to the GED instructor’s testimony that

Esposito was “very intelligent,” Grant opined that Esposito had average to slightly

below average intelligence and a simplistic, naïve view of the world. Esposito

lacked confidence and was not good at making decisions. According to Grant,

Esposito was “passive, submissive, dependent[,] and self-conscious.” Doc. 14-24

at 24. Grant explained that Esposito had a history of five or six prior suicide

attempts and had engaged in self-mutilation. He also testified that Esposito had

“extreme reactivity and sensitivity.” Id. at 25. He noted that Esposito had reported

that he was sexually abused as a child and had, at one point, been forced to

perform oral sex on his stepfather.

      The state successfully used cross-examination to bring out unfavorable

evidence about Esposito. The jury heard that: Esposito’s mother obtained a

restraining order against him, he had been involved in devil worship, he was placed

in a psychiatric facility after he assaulted and threatened to kill his family, he was

kicked out of a GED program after he threated to “kill . . . everybody,” and he

tortured animals and wrote letters about killing and raping. Doc. 14-23 at 50.




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         In closing argument, the state emphasized the aggravating circumstances

that warranted the death penalty.4 Esposito’s counsel gave a brief closing

argument—filling just over four pages of transcript—in which he stated that “there

is no question that [Esposito] has . . . lots of problems,” complimented the

prosecutor, and noted that the “most popular thing” for the jury to do would be to

sentence Esposito to death. Doc. 14-25 at 2–3.

         The jury unanimously recommended a sentence of death. The judge adopted

the jury’s recommendation and imposed a death sentence.

D. Direct Appeal and State Habeas Proceedings

         The Georgia Supreme Court affirmed Esposito’s conviction and death

sentence on direct appeal. See Esposito, 538 S.E.2d at 60. Esposito then initiated

state habeas proceedings. In his counseled state habeas petition, he argued that his

trial counsel were constitutionally ineffective in failing to: (1) develop and present

evidence suggesting that Woodward, not Esposito, was the killer; (2) develop and

present in the penalty phase evidence about Esposito’s abuse as a child and his

mental illness; and (3) make an adequate closing argument during the penalty

phase.




         4
          The aggravating circumstances were that: (1) the murder was committed in the course
of an armed robbery, (2) the murder was committed in the course of a kidnapping with bodily
injury, and (3) the offense was outrageously or wantonly vile because Davis was disfigured by
the beating.
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      The state habeas court conducted an evidentiary hearing on Esposito’s

ineffective assistance of counsel claims. At the hearing, Esposito’s habeas counsel

presented testimony from several witnesses, including Kelly and Roberts, the

investigator who worked on Esposito’s trial, and Esposito’s ex-girlfriend.

      Kelly and Roberts testified about their legal experience and detailed their

investigation and preparation for Esposito’s capital trial. They both had worked on

multiple capital cases before Esposito’s trial, and they previously had worked

together on a death penalty case. In preparing for Esposito’s trial, they realized it

was likely that he would be found guilty; thus, their goal was to help him avoid the

death penalty.

      Kelly testified that he and Roberts hired an investigator, Hector Guevara, to

do the investigation into possible mitigating evidence for the penalty phase.

During his investigation, Guevara regularly met with Kelly and Roberts. All three

visited Esposito, whom Guevara questioned about his background, on multiple

occasions. Guevara provided Kelly and Roberts with a list of more than 80 people

he had interviewed. Among those interviewed were Esposito’s family members,

friends, teachers, coaches, counselors, psychiatrists, social workers, and army

recruiters. Guevara also interviewed people who knew about Woodward’s past,

including her former employers, friends, and family members. Guevara provided

Kelly and Roberts with written reports summarizing his findings.


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       Trial counsel testified that they were aware that Esposito had mental health

issues and obtained his mental health records as part of their trial preparation.

They also consulted a DNA expert to assist them in cross-examining the state’s

forensic expert. Kelly explained that part of their trial strategy was to show that no

evidence—other than the confession—connected Esposito to the murder weapon

because the state failed to gather DNA evidence from the tree limb.

      Dr. Jonathan Arden, a forensic pathologist, testified that he reviewed Davis’s

autopsy report, photographs of the autopsy, and crime scene photographs. Arden

opined that the shape of her injuries indicated that she had been struck with a man-

made object, not a tree limb. When asked if it were possible that Davis was

murdered with a tree limb, Arden responded that he did not know because “almost

anything in the world is possible.” Doc. 17-9 at 42.

      Courtney Veach, Esposito’s ex-girlfriend, testified that she witnessed

firsthand the abuse inflicted on Esposito by his mother. She testified that he had

bruises on his body from his mother’s beatings. She further testified that his

mother engaged in inappropriate sexual behavior. For instance, she would have

loud sex when Veach and Esposito were in her home, and she tried to get them to

have sex there. Veach testified that Esposito told her that when he was younger his

mother made him watch her have sex with different men. Veach recounted that

she was supposed to testify at Esposito’s trial. Guevara was supposed to meet her


                                          11
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at the airport; however, they could not find each other there. When she finally

arrived at the courthouse, defense counsel told her that they would not call her as a

witness because they did not have time to prepare her to testify.

      Besides the testimony described above, Esposito presented the habeas court

with affidavits from other potential fact witnesses. Esposito’s kindergarten and

fourth grade teachers swore that they would have testified at trial about the abuse

inflicted on him by his mother and stepfather. Both teachers would have testified

that, when Esposito was in the fourth grade, he reported to school employees that

he was molested by a man while walking to school. Esposito’s stepfather, Wayne

Deese, swore by affidavit that Esposito would occasionally “shake uncontrollably

and beat his head on the floor,” and to make him stop his mother would stick his

head under the faucet. Doc. 17-21 at 77. Deese’s sister, Cynthia Massari,

submitted an affidavit attesting that when Esposito was three years old, his mother

threw him against the wall and threatened to punch him after he spilled his milk.

      Lastly, Esposito submitted affidavits from witnesses who would have

testified about Woodward’s violent tendencies and her negative influence on him.

Those witnesses included Heather Bryan, Woodward’s ex-girlfriend, who

described Woodward as possessive and violent and recounted a time when

Woodward threatened her with a butcher knife; Robert Noble III, Woodward’s ex-

boyfriend, who said Woodward stalked him and tried to run him over with a car;


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and Patricia Holliman, Esposito’s former landlord, who swore that before he met

Woodward, Esposito was quiet, responsible, and attended church regularly, but

after he met Woodward, “[e]verything changed,” and he stopped going to church

and would disappear for days at a time. Doc. 17-22 at 29.

      The state habeas court denied Esposito’s petition. The Georgia Supreme

Court denied Esposito’s application for a certificate of probable cause to appeal the

state habeas court’s order.

E. Federal Habeas Proceedings

      After he had exhausted his state appeals, Esposito filed a petition for a writ

of habeas corpus in federal district court, raising the same ineffective assistance of

counsel claims he raised in state court. The district court denied Esposito’s

petition but granted him a certificate of appealability (“COA”) on two issues: first,

whether trial counsel were ineffective in failing to investigate and present evidence

to support the defense theory that Esposito was less culpable than Woodward; and

second, whether trial counsel were ineffective in failing to investigate and present

in the penalty phase mitigating evidence of his childhood abuse and mental illness.

We expanded Esposito’s COA to include his claim that his trial counsel were

ineffective in presenting penalty phase closing argument.




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                         II.     STANDARDS OF REVIEW

      “When reviewing a district court’s grant or denial of habeas relief, we

review questions of law and mixed questions of law and fact de novo, and findings

of fact for clear error.” Reaves v. Sec’y, Fla. Dep’t of Corr., 717 F.3d 886, 899

(11th Cir. 2013) (internal quotation marks omitted). When we review state habeas

court decisions in federal habeas, we “look through” unreasoned decisions of state

appellate courts and presume that they adopted the reasoning of the last related

state court decision, unless the state shows that the appellate court relied, or most

likely relied, on different grounds. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

Here, because the Georgia Supreme Court’s denial was a summary one, we review

the state habeas court’s decision.

      When a state court denies habeas relief on the merits, we review that

decision under the standards set by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). Williams v. Taylor, 529 U.S. 362, 402–03 (2000).

Generally, AEDPA bars federal courts from granting habeas relief to a petitioner

on a claim that was adjudicated on the merits in state court unless the state court’s

adjudication:

      (1)   resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or




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      (2)    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). “‘[C]learly established Federal law’ under § 2254(d)(1) is

the governing legal principle or principles set forth by the Supreme Court at the

time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72

(2003). With respect to § 2254(d)(2), “[s]tate court fact-findings are entitled to a

presumption of correctness unless the petitioner rebuts that presumption by clear

and convincing evidence.” Conner v. GDCP Warden, 784 F.3d 752, 761 (11th Cir.

2015).

      “Where we have determined that a state court decision is an unreasonable

application of federal law under [] § 2254(d), we are unconstrained by § 2254’s

deference and must undertake a de novo review of the record.” McGahee v. Ala.

Dep’t of Corr., 560 F.3d 1252, 1266 (11th Cir. 2009).

                                III.   DISCUSSION

      Under Strickland v. Washington, a defendant has a Sixth Amendment right

to effective assistance of trial counsel in his criminal proceedings. 466 U.S. 668,

686 (1984). Counsel renders ineffective assistance, warranting vacatur of a

conviction or sentence, when his performance falls “below an objective standard of

reasonableness,” taking into account prevailing professional norms, and when the

deficient performance prejudiced the defense, meaning that “there is a reasonable


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probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 688, 694. A “reasonable

probability” of a different outcome is “a probability sufficient to undermine

confidence in the outcome.” Id. at 694. The petitioner bears the burden of proving

his ineffective assistance claim, and he must meet his burden on both Strickland

prongs—performance and prejudice—to succeed. Williams v. Allen, 598 F.3d 778,

789 (11th Cir. 2010). We “need not address the performance prong if the

defendant cannot meet the prejudice prong, or vice versa.” Holladay v. Haley,

209 F.3d 1243, 1248 (11th Cir. 2000) (internal citation omitted). When analyzing

a claim of ineffective assistance under § 2254(d), this Court’s review is “doubly”

deferential on counsel’s performance. Harrington v. Richter, 562 U.S. 86, 105

(2011) (internal quotation marks omitted). Thus, under § 2254(d), “the question is

not whether counsel’s actions were reasonable. The question is whether there is

any reasonable argument that counsel satisfied Strickland’s deferential standard.”

Id.

       We now turn to Esposito’s individual ineffective assistance claims. 5


       5
         We note at the outset that Esposito contends that the state habeas court applied the
wrong prejudice standard in rejecting his ineffective assistance claims. He argues that the court
required him not only to meet the Strickland prejudice standard but also to show that the “result
of the proceeding was fundamentally unfair or unreliable.” Supp. Appellant’s Br. at 14 (quoting
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)); see Williams, 529 U.S. at 391 (holding in Part
IV that Lockhart did not modify or supplant the Strickland standard). We disagree. Despite
arguably having suggested initially that Esposito had to clear an additional hurdle to show


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A. Failure to Investigate and Present Evidence of Relative Culpability

       Esposito first contends that his trial counsel were ineffective in failing to

investigate and present evidence about his culpability in the murder relative to

Woodward’s. He explains that counsel’s defense strategy was to cast doubt on his

culpability by highlighting Woodward’s potential culpability. Namely, counsel

intended to show that Woodward was “the driving force behind the crimes and

may well have committed the murders,” while Esposito was a follower who was

coerced into committing the crimes. Appellant’s Br. at 13. He argues that counsel

were deficient in pursuing this strategy at trial because they failed to:

(1) investigate and present forensic evidence suggesting that the tree limb was not

the murder weapon, which would have cast doubt on his confession that he, not

Woodward, killed Davis, and (2) properly investigate and present evidence of

Woodward’s background and character.

       The state habeas court rejected these arguments, concluding that Esposito’s

counsel’s performance was not unconstitutionally deficient because they

adequately investigated Woodward’s role and elicited testimony about her relative

culpability at trial. The court further concluded that even if counsel’s performance



prejudice, a review of the court’s order shows that it never actually applied the heightened
prejudice standard. Throughout its order, the court explained that Esposito was required to show
a “reasonable probability” that, absent his counsel’s deficiencies, the “outcome of [his] trial”
would have been different. Doc. 27-39 at 29, 35, 42. Thus, the court applied the correct
prejudice standard from Strickland.
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were deficient, there was no reasonable probability that additional evidence

regarding Woodward’s culpability would have affected the outcome of the trial.

      We consider these arguments in turn.

      1. Failure to investigate or present forensic evidence to undermine
         Esposito’s confession

      Esposito argues that his counsel were ineffective for failing to investigate

and present forensic evidence casting doubt on whether the tree limb was the

murder weapon. First, we must review counsel’s performance under AEDPA

deference. See 28 U.S.C. § 2254(d)(1). Under § 2254(d)(1), the state habeas

court’s rejection of Esposito’s deficient performance contention was neither

contrary to, nor involved an unreasonable application of, Strickland. Id. Defense

counsel retained a DNA expert in preparation for trial, cross-examined the state’s

forensic expert about the state’s failure to test the tree limb for DNA evidence, and

emphasized the lack of DNA evidence in closing argument. Esposito argues that

they should have hired an expert to opine that Davis’s injuries were caused not by

a tree limb, but by a man-made object—as Arden did at the evidentiary hearing on

Esposito’s state habeas petition. But the mere fact that counsel called no such

expert does not mean their performance had to have been deficient. Counsel

instead focused on attacking the state’s forensic evidence or lack of it by retaining

an expert to prepare them to challenge the state’s evidence, including through

cross-examination of its witnesses. They then reinforced their points in closing
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argument. Counsel were permitted to make the strategic decision not to call an

expert and instead challenge the state’s forensic evidence through other means, and

we cannot now second guess that strategy. See Strickland, 466 U.S. at 690

(“[S]trategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable . . . .”); Conklin v. Schofield,

366 F.3d 1191, 1204 (11th Cir. 2004) (“Which witnesses, if any, to call, and when

to call them, is the epitome of a strategic decision, and it is one that [this Court]

will seldom, if ever, second guess.” (internal quotation marks omitted)). In any

event, counsel were not required to pursue every forensic theory “until it [bore]

fruit.” Solomon v. Kemp, 735 F.2d 395, 402 (11th Cir. 1984) (internal quotation

marks omitted)).

      But even if counsel’s performance was deficient, Esposito’s argument still

fails because he cannot show he was prejudiced by that deficiency. See Strickland,

466 U.S. at 694. We see no reasonable probability that additional forensic

evidence about the murder weapon would have led to a different result. Even if the

jury had heard expert testimony that a man-made object could have caused Davis’s

injuries, it would be obliged to weigh that evidence against contradictory evidence

suggesting that Davis was murdered with the tree limb. See Johnson v. Alabama,

256 F.3d 1156, 1172 (11th Cir. 2001) (explaining that “federal courts must defer to

the judgment of the jury in assigning credibility to the witnesses and in weighing


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the evidence”). This evidence included Knight’s testimony that Esposito confessed

during a post-arrest interview to having murdered Davis with a tree limb, the

state’s forensic analyst’s testimony that Davis’s hairs were found on the tree limb,

and the autopsy doctor’s testimony that her injuries were consistent with being hit

by an item with bark on it. Indeed, Arden could not rule out the possibility that a

tree limb caused Davis’s injuries. And uncontradicted evidence—including

footprints, palm prints, fingerprints, and a cigarette butt—placed Esposito at the

murder scene. Given this strong evidence of guilt, there is no reasonable

probability that additional forensic evidence would have made a difference in the

outcome of Esposito’s trial. See Fortenberry v. Haley, 297 F.3d 1213, 1228 (11th

Cir. 2002) (the failure to present exculpatory evidence is more likely to be

prejudicial when the conviction is based on little evidence of guilt). Accordingly,

Esposito cannot establish prejudice from counsel’s failure to present the testimony

of a forensic expert.

      2. Deficient investigation and presentation of evidence related to
         Woodward’s background and character

      Next, Esposito asserts that his counsel were deficient for failing to discover

and present evidence showing that Woodward had a dominating and aggressive

personality and was physically larger than Esposito—all of which would have

supported their theory that she coerced Esposito to commit the murders. He points



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to the affidavits he presented in his habeas proceedings indicating that while he

was a follower, Woodward was domineering, possessive, and violent.

      The state habeas court reasonably applied Strickland in concluding that

Esposito failed to show that trial counsel conducted a deficient investigation into

Woodward’s background. See 28 U.S.C. § 2254(d)(1); Strickland, 466 U.S. at

688. The record shows that Kelly and Roberts hired Guevara, who investigated

Woodward’s past by speaking with her friends, family, and employers. He also

interviewed Esposito’s friends and family about her. The fact that Guevara could

have discovered other witnesses who knew Woodward is not enough to establish

that counsel’s investigation was deficient. See Solomon, 735 F.2d at 402.

      Esposito also contends that his counsel’s presentation of evidence related to

Woodward’s culpability was deficient. He argues that they made only minimal

efforts to present evidence that Woodward was more culpable due to their concern

about opening the door for the state to use his videotaped confession as rebuttal

evidence. He argues that counsel’s efforts to avoid admission of the videotaped

confession in rebuttal were unreasonable because the confession was inadmissible

for that purpose.

      Esposito is correct that the videotaped confession would have been

inadmissible for rebuttal purposes because the confession was obtained in violation

of his Miranda rights. See James v. Illinois, 493 U.S 307 (1990) (recognizing that


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an illegally obtained confession may be introduced only for purposes of

impeaching the defendant and not for rebutting defense witness testimony). But

even assuming that counsel’s mistaken belief about the admissibility of the

confession rendered their representation deficient, Esposito has failed to show that

he was prejudiced by that deficiency. See Strickland, 466 U.S. at 694. He cannot

show prejudice because the jury did, in fact, hear evidence that highlighted

Woodward’s relative culpability in the crime. For instance, the jury heard that

Woodward was larger physically than Esposito, approached Davis initially, drove

Davis to the murder site, and booked and paid for their hotel rooms during the

crime spree. And for what it’s worth, the jury heard from witnesses (Esposito’s

psychiatric nurse and therapist) who were unconvinced that Esposito—and not

Woodward—murdered Davis. In short, because the jury heard testimony about

Woodward’s physical dominance and leadership role in the crime, we cannot say it

was reasonably probable that any additional evidence of that nature would have

made a difference in the outcome of the trial. See id. This is particularly so given

the overwhelming evidence of his guilt, including his confession to Knight. See

United States v. Andrews, 953 F.2d 1312, 1327 (11th Cir. 1992) (holding, in a

direct appeal, that the defendant was not prejudiced by his trial counsel’s failure to

call additional witnesses because the evidence of his guilt was overwhelming).




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Esposito therefore failed to show that he was prejudiced by counsel’s presentation

of evidence related to Woodward’s culpability.

B. Failure to Investigate and Present Mitigating Evidence

      Esposito next argues that his counsel were ineffective for failing to properly

investigate and present in the penalty phase of his trial mitigation evidence that

may have convinced the jury not to recommend a death sentence. He explains that

counsel should have discovered and presented testimony from additional witnesses

who could have corroborated his claims of physical, verbal, and sexual abuse while

he was a child, as well as the psychological damage inflicted by that abuse. He

contends that had the jury received an accurate picture of his abuse and mental

illness, there was a reasonable probability that at least one juror would have voted

to impose a sentence less than death, resulting in a recommended sentence of life

imprisonment. See O.C.G.A. § 17-10-31(c). In rejecting this claim, the state

habeas court concluded that Esposito’s trial counsel’s investigation and

presentation of the evidence were adequate, and their failure to uncover every

potential witness did not render their representation deficient.

      Esposito has failed to show that the state habeas court’s denial of this claim

was an unreasonable application of Strickland. See 28 U.S.C. § 2254(d)(1). The

record shows that, in preparation for the mitigation portion of the trial, counsel

hired an investigator, Guevara, who conducted an extensive investigation into


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Esposito’s background by interviewing over 80 witnesses, including his family

members, friends, teachers, psychiatrists, and social workers. Guevara presented

his findings from these interviews to counsel in thorough written reports that

detailed Esposito’s childhood abuse and psychological issues. Given this extensive

investigation, it was reasonable for the state habeas court to conclude that counsel

were not deficient in investigating potential mitigation evidence for the penalty

phase.

         Nor was it unreasonable for the state court to conclude that there was no

deficiency in counsel’s presentation of the mitigation evidence. Counsel were

permitted to make strategic decisions about which witnesses to call. See Conklin,

366 F.3d at 1204. The witnesses counsel called in mitigation described the

physical and sexual abuse Esposito suffered, as well as his attendant psychological

issues. Esposito contends that it was unreasonable for counsel not to call Veach,

but we disagree. Although counsel had intended to call Veach and planned to pick

her up at the airport, the plan went awry when she could not be found, and as a

result she arrived at the courthouse at the end of the penalty phase. By then,

counsel had no time to prepare her to testify. At that point, counsel’s decision not

to call her as a witness was not unreasonable. That counsel may have been able to

avoid the mishap with more careful planning and execution does not make their

performance deficient under Strickland.


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      Counsel’s decisions to call certain witnesses but not others were made after

a thorough investigation into Esposito’s childhood abuse and mental illness.

Esposito thus has failed to show that the state habeas court’s rejection of this claim

was an unreasonable application of Strickland.

C. Inadequate Closing Argument in Penalty Phase

      Lastly, Esposito argues that he was denied effective assistance of counsel

during the penalty phase because his counsel’s brief closing argument was

inadequate. He explains that the closing argument failed to reference the

mitigating circumstances in evidence and “gave jurors no cogent basis on which to

impose a sentence less than death.” Appellant’s Br. at 70. The state habeas court

summarily rejected this claim.

      Esposito has failed to show that there was no reasonable basis for the state

habeas court to reject this claim. See Harrington, 562 U.S. at 98 (“Where a state

court’s decision is unaccompanied by an explanation, the habeas petitioner’s

burden still must be met by showing there was no reasonable basis for the state

court to deny relief.”). Even if counsel’s closing argument was deficient, Esposito

has not shown that he was prejudiced by that deficiency. See id. Esposito asserts

that he was prejudiced by the inadequate closing argument because it “was the

culmination of counsel’s many failures up to that point and independently

harmful.” Appellant’s Br. at 73. This cumulative prejudice argument fails for the


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same reason as his other claim of ineffective assistance in the penalty phase—that

is, counsel’s performance in investigating and presenting evidence in mitigation

was not deficient under Strickland. Esposito advances no argument explaining

how he was prejudiced by his counsel’s closing argument alone. Accordingly, he

is entitled to no relief on this claim.

                                  IV.     CONCLUSION

       For the above reasons, the district court’s denial of Esposito’s petition for a

writ of habeas corpus is affirmed.

       AFFIRMED.




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