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                                                             [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 14-14869
                           ________________________

                       D.C. Docket No. 2:07-cv-01962-LSC



MICHAEL BRANDON SAMRA,

                                                  Petitioner - Appellant,

versus

WARDEN, DONALDSON CORRECTIONAL FACILITY,

                                                  Respondent - Appellee.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Alabama
                           ________________________

                                (September 8, 2015)

Before ED CARNES, Chief Judge, and HULL and ROSENBAUM, Circuit Judges.

PER CURIAM:

         Petitioner-Appellant Michael Brandon Samra was convicted and sentenced

to death by an Alabama court in 1998 for the murders of four people, including
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two children. Samra’s conviction and sentence were upheld on direct appeal, and

the Alabama state courts rejected his claims for postconviction relief. Samra

sought federal habeas relief under 28 U.S.C. § 2254, but the district court denied

Samra’s federal petition. Samra now appeals raising two issues. First, Samra

argues that his trial counsel was ineffective for failing to investigate evidence of

brain dysfunction and for introducing and emphasizing evidence of Samra’s

membership in a Satanic gang, which he contends strengthened the state’s

aggravation case. Second, Samra asserts that his appellate counsel was ineffective

for not raising an argument on appeal that Samra was entitled to pretrial notice of

the specific statutory aggravating factor that the state intended to rely upon in

pursuing the death penalty. After a thorough review of the record, and with the

benefit of oral argument, we now affirm the denial of Samra’s federal habeas

petition.

                                         I.

A. The Criminal Offense

      Samra was convicted of capital murder, in violation of Alabama Code §

13A-5-40(a)(10), and he was sentenced to death for his role in the killings of

Randy Duke, Dedra Hunt, Chelsea Hunt, and Chelisa Hunt.         See Samra v. State

(Samra Direct Appeal), 771 So. 2d 1108, 1111-12 (Ala. Crim. App. 1999); Samra

v. Price (Samra § 2254 Proceeding), No. 2:07-cv-1962-LSC, 2014 WL 4452676,


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at *1 (N.D. Ala. Sept. 5, 2014). According to the evidence established at trial and

by Samra’s own confession, Randy Duke’s sixteen-year-old son Mark Anthony

Duke (“Duke”) devised the murder following an argument where Randy Duke

refused to allow Duke to use a pickup truck. Samra § 2254 Proceeding, 2014 WL

4452676, at *1. After planning the murder with Samra and two other friends,

David Collums and Michael Ellison, the group obtained two guns and returned to

Duke’s house. Samra § 2254 Proceeding, 2014 WL 4452676, at *1. Samra and

Duke entered the house while Collums and Ellison waited nearby. Id.

       Once inside, Duke went to the living room and shot his father, killing him.

Samra § 2254 Proceeding, 2014 WL 4452676, at *1. Meanwhile, Samra shot

Dedra1 non-fatally in the cheek, and she fled upstairs, locking herself in the master

bedroom’s bathroom with her six-year-old daughter Chelisa.                  Samra Direct

Appeal, 771 So. 2d at 1111; Samra § 2254 Proceeding, 2014 WL 4452676, at *1.

Duke broke down the bathroom door and shot Dedra to death. Samra § 2254

Proceeding, 2014 WL 4452676, at *1. But because they had run out of bullets,

Duke went downstairs to retrieve kitchen knives; he then slit Chelisa’s throat with

a kitchen knife. Id. Dedra’s seven-year-old daughter Chelsea was hiding under a

bed in another bedroom when Duke found her. Samra § 2254 Proceeding, 2014

WL 4452676, at *1. According to Samra’s statement, Chelsea pled with Duke to

       1
          Because three members of the Hunt family were involved in these facts, we refer to
each by first name to avoid confusion.
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stop and, as also evidenced by the defensive wounds on her body, vigorously

fought for her life. Samra § 2254 Proceeding, 2014 WL 4452676, at *1. Unable

to kill her by himself, Duke held Chelsea down while Samra slit her throat. Samra

§ 2254 Proceeding, 2014 WL 4452676, at *1; Samra Direct Appeal, 771 So. 2d at

1112. According to the testimony of the medical examiner, both girls died as a

result of drowning in their own blood.

         After committing the murders, Samra and Duke ransacked the house to

make it appear as though a burglary had gone wrong. Samra § 2254 Proceeding,

2014 WL 4452676, at *1. Duke later returned to his house on March 23, 1997,

where he called 911 to report the murders. After a couple of days of investigating,

the police determined that Duke, Samra, Collums, and Ellison were the

perpetrators. Samra confessed his role in the crime during questioning and assisted

police in recovering weapons. See Samra § 2254 Proceeding, 2014 WL 4452676,

at *1.

B. Trial Proceedings

         Samra was indicted for the four murders under § 13A-5-40(a)(10), Ala.

Code, which makes it a capital crime when “two or more persons are murdered by

the defendant by one act or pursuant to one scheme or course of conduct.” Samra

Direct Appeal, 771 So. 2d at 1111. The indictment itself was a single paragraph

listing the victims’ names and the weapons used to kill them. Later, the indictment


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was amended to add an aiding-and-abetting component and to clarify that Dedra

Hunt was killed with a gun. The indictment did not describe any further details of

the crime, and it did not specify any of the then-existing statutory aggravating

circumstances under § 13A-5-49, Ala. Code, that would permit imposition of the

death penalty.

      Samra was represented at trial and on appeal primarily by appointed counsel

Richard Bell, an experienced attorney who devoted approximately 35 to 40 percent

of his practice to criminal-defense work and had defended three capital cases prior

to Samra’s. Samra § 2254 Proceeding, 2014 WL 4452676, at *2. Based on his

initial investigations and interactions with Samra, Bell decided that his defense

strategy needed to focus on Samra’s mental condition and the influence of gang

membership on Samra’s actions. Samra § 2254 Proceeding, 2014 WL 4452676, at

*2. Bell concluded, though, that Samra had only “a very small chance of winning

the guilt phase,” and that the sentencing phase would be the main event. See Vol.

39 at 183.

      Before trial, Bell filed a motion to compel the state to disclose the

aggravating circumstances upon which it intended to rely in seeking a death

sentence, arguing that Samra needed to be informed of the aggravating factors that

the state intended to prove in order to prepare for the sentence hearing. Samra §

2254 Proceeding, 2014 WL 4452676, at *2. The state argued that it was not


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required to reveal this information prior to the sentencing phase but that in any

event, “the aggravating circumstances are very straight forward in the indictment.”

Samra § 2254 Proceeding, 2014 WL 4452676, at *2. The court denied Samra’s

motion, noting that the statute sets forth a very “limited” and “particularized” set of

aggravating factors.

      With respect to Samra’s mental condition, Bell enlisted the expertise of Dr.

Charles Scott, a forensic psychiatrist.        Samra § 2254 Proceeding, 2014 WL

4452676, at *2.        Dr. Scott prepared a 21-page report based on a six-hour

psychiatric interview with Samra, an interview with Samra’s parents, and a review

of Samra’s school and medical records. Id. Based on these interviews and records,

Scott concluded that Samra was not suffering from a mental illness or defect that

precluded him from distinguishing right from wrong and that he appreciated the

wrongfulness of his conduct.         In light of Samra’s history and Dr. Scott’s

interactions with Samra, Dr. Scott recommended to Bell that Samra undergo “a

complete neuropsychological evaluation, neurology consultation and brain

imaging,” either through a SPECT or PET2 scan, or if those tests were unavailable,

at least an MRI or x-ray. See Samra § 2254 Proceeding, 2014 WL 4452676, at

      2
         “SPECT” stands for single-photon emission computed tomography, a method for
imaging the function of internal organs, including blood flow to the brain. Tests and
Procedures: SPECT Scan, MAYO CLINIC (Feb. 20, 2014), http://www.mayoclinic.org/tests-
procedures/spect-scan/basics/definition/prc-20020674. “PET” stands for positron emission
tomography, a similar function-imaging procedure. Tests and Procedures: Positron Emission
Tomography (PET) Scan, MAYO CLINIC (May 6, 2014), http://www.mayoclinic.org/tests-
procedures/pet-scan/basics/definition/prc-20014301.
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*2.3 Dr. Scott’s report noted that his “preliminary opinion” of Samra’s culpability

could change based on the results of these tests.

       In accordance with Dr. Scott’s recommendation, Bell obtained an MRI of

Samra’s brain. It showed no structural abnormalities. Bell did not procure a

SPECT or PET scan. 4 Samra § 2254 Proceeding, 2014 WL 4452676, at *2.

Ultimately, Bell chose not to present Dr. Scott as a witness since he believed that

Dr. Scott’s testimony would be unfavorable to Samra. Samra § 2254 Proceeding,

2014 WL 4452676, at *2.

       Because Bell had no evidence of brain dysfunction or mental disease and

could not suppress Samra’s confession, he rested his guilt-phase trial strategy on

Samra’s gang membership. As Bell explained, “Frankly . . . it appeared that that

was the only thing I had.” Bell began laying the groundwork for this strategy

during voir dire and in his opening statement, referring to Samra’s and Duke’s

membership in the Forever Our Lord King Satan (“FOLKS”) gang.




       3
          Dr. Scott’s report listed as examples of types of brain imaging only MRI or PET
scanning. Bell testified during the state postconviction hearing that Dr. Scott had also
recommended to him obtaining a SPECT scan. The SPECT scan was also mentioned in an
affidavit that Bell prepared on Dr. Scott’s behalf but was never signed by Dr. Scott. Although
the state contends, correctly, that Dr. Scott’s report did not mention a SPECT scan, the record
supports Samra’s claims that Dr. Scott did otherwise recommend a SPECT scan to Bell.
        4
          An MRI images anatomical structure, while a SPECT or PET scan images the function
of organs. Magnetic Resonance Imaging (MRI), WEBMD, http://www.webmd.com/a-to-z-
guides/magnetic-resonance-imaging-mri (last updated Sept. 9, 2014).


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      During trial, the prosecution introduced photos and video recordings of the

walls in Duke’s bedroom, which had various symbols and words carved into them.

These etchings included Samra’s nickname, “Baby D.”               At one point, the

prosecutor described Duke’s room as having “gang-type writings” in it. During

cross-examination of multiple police witnesses at trial, Bell emphasized the

etchings and their affiliation with FOLKS and a “gang within a gang” known as

the “Insane Gangster Disciples.” Photos of Samra’s tattoos were also admitted into

evidence, although it is not clear if they were ever identified as gang-related.

      The defense called three witnesses during the guilt-phase of the trial. Dr.

Kathleen Ronan, a clinical psychologist at the state’s Taylor Hardin Secure

Medical Facility, testified that she had been ordered by the court to evaluate

Samra’s competency to stand trial and his mental state at the time of the murders.

Samra § 2254 Proceeding, 2014 WL 4452676, at *3. Dr. Ronan conducted a

background interview, a mental status exam, a personality inventory, a discussion

of the crime, and a trial-competency assessment. Vol. 13 at 19-20. Although Dr.

Ronan did not perform a full IQ test, she testified that Samra possessed borderline

intelligence based on her screening and the results of a test performed by another

psychologist.    She also opined that Samra displayed signs of depression and

anxiety, had internal conflicts about being dependent on others, was “insecure in




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his interpersonal interactions,” and could become confused during periods of high

stress.

          In addition, Dr. Ronan also testified that Samra told her he was affiliated

with the FOLKS gang. The prosecutor then interrupted Bell’s questioning to point

out that the gang question opened the door, allowing the prosecutor to present Dr.

Ronan’s opinion that the murders had nothing to do with the gang membership,

testimony the prosecutor conceded was otherwise inadmissible.                   Bell

acknowledged that he understood that the prosecutor would ask that question, and

the court also commented that it “underst[ood] all of that could be very appropriate

strategy.”

          On cross examination, Dr. Ronan testified that she concluded Samra was

competent to stand trial and that she found no evidence of any psychiatric disorder

or mental disease that rendered him out of touch with reality or that impaired his

sense of right and wrong. Samra § 2254 Proceeding, 2014 WL 4452676, at *3.

She also testified that there was no evidence that Samra acted under duress or

under the substantial domination of anyone at the time of the offense.           The

prosecutor asked Dr. Ronan what Samra told her about the connection between his

gang membership and the murders, to which she answered that Samra said the




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killings had nothing to with the gang.5 Dr. Ronan also testified that Samra had a

lack of emotionality when recounting the killings and that, based on the

information available, she would “lean towards” that being indicative of antisocial

personality disorder rather than emotional repression.

       The defense’s second witness was Dr. George Twente, a licensed

psychiatrist. Samra § 2254 Proceeding, 2014 WL 4452676, at *3. Dr. Twente

testified that he had studied the FOLKS gang, which he described as a close-knit

drug-distribution organization that offered its members a sense of identity,

belonging, and excitement. Dr. Twente also testified that to rise in the ranks of the

gang, a member had to commit various illegal activities, and to rise to the highest

level of “Set King,” he had heard a rumor that the member was required to kill his

own mother. Dr. Twente confirmed that the symbols found in Duke’s bedroom

were similar to symbols used by other FOLKS affiliates.                      According to Dr.

Twente, if a member wanted to leave the gang he was told that he or a family

member would be killed, but in Dr. Twente’s experience, nothing bad ever actually

happened to members who left the gang. Dr. Twente asserted that usually gang

killings were over territory or drugs, or they were retaliation for insults. Finally,



       5
          Before the prosecutor asked this question, he asked for a bench conference to find out if
Bell would object. Bell said he would object because he did not think that asking about Samra’s
gang affiliation opened the door to Samra’s statements about whether the killings were related to
that affiliation. The court overruled the objection and permitted the state to ask Dr. Ronan a
single question about what Samra told her about the killings’ relation to gang membership.
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Dr. Twente conceded that he had never spoken with Samra nor made any

determination whether these killings were in any way gang related.

      Samra’s final witness was Sara Woodruff, a FOLKS member and friend of

Samra, Duke, Collums, and Ellison. She commented that Samra was her “least

favorite” because he wasn’t “all there,” although he could carry on normal

conversations with her. Woodruff testified that Duke told her about the killings.

On cross examination, she stated that Samra and Duke were good friends who got

along well, and the local “gang” consisted basically of the four boys and her. With

respect to the night that Duke told her about the killings, Woodruff observed no

indication of hostility or threat between Duke and Samra, and she thought that they

were friendly to each other. She also added that Duke said that the killings were

about a dispute he had with his father and that he did not tell her it had anything to

do with the gang, although Duke did make her swear an oath before he discussed

the killings with her.

      On March 16, 1998, the jury returned a verdict of guilty on the charges of

capital murder. Following a half-hour recess after receiving the verdict, the court

began the sentencing phase of the trial. At this point, the state confirmed that it

was pursuing the eighth statutory aggravating factor under § 13A-5-49, Ala.

Code—that the offense was especially heinous, atrocious, or cruel—to justify

imposition of a death sentence.


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      The evidence introduced during the guilt phase was adopted for the

sentencing phase. The state called a single witness, Thomas Hunt, the father of the

two girls and ex-husband of Dedra, who testified as to the impact of their murders

on him.

      During the penalty phase, Bell’s strategy shifted towards humanizing Samra.

The defense called three members of Samra’s family: his aunt, his father, and his

mother. The aunt testified that Samra was a loving and non-violent child. Samra’s

father testified that, as a small child, Samra was developmentally slow and suffered

tremors in his hands. His father testified that Samra was a good, obedient child

until about 15 or 16 when he started using marijuana. His father then recounted

various legal troubles Samra had concerning marijuana, until eventually he gave

Samra an ultimatum: attend rehab for the marijuana use or leave the house. Samra

moved out. Samra’s father stated that he suspected Samra was hanging around

“gang-type people.”    His father also recalled that Samra had been in special

education most of his life and eventually dropped out of high school. Finally, he

noted that Samra was never really capable of expressing his emotions, but could

still be loving.   Samra’s mother echoed his father’s testimony about Samra’s

developmental difficulties and learning disabilities and his lack of emotionality.

      On the same day that the penalty phase began, March 16, 1998, the jury

returned a unanimous verdict recommending death. Samra § 2254 Proceeding,


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2014 WL 4452676, at *4. The court sentenced Samra to death on May 7, 1998.

The court found that the sole aggravating circumstance proved was that the crime

was especially heinous, atrocious, or cruel as compared to other capital offenses.

The court determined that two of seven statutory mitigating factors existed: a lack

of significant criminal history and Samra’s age (nineteen) at the time of the

offense.   Ala. Code § 13A-5-51.      In addition, the court concluded that the

following non-statutory mitigating factors existed “to some degree” and were

“worthy of consideration in the weighing of mitigating circumstances and

aggravating circumstances”: Samra’s age and maturity; learning difficulties and

disabilities; “family history and background and caring nature of Defendant”; “the

effect of gang or group involvement upon Defendant”; Samra’s cooperation and

truthfulness with law enforcement; Samra’s remorse; and the existence of only a

solitary aggravating factor. The court nevertheless found that “when weighed

against the many mitigating circumstances, both statutory and non-statutory, the

aggravating circumstance substantially outweighs the mitigating circumstances,”

and imposed a sentence of death by electrocution.




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C. Direct Appeals

       Samra raised several issues on direct appeal, including a claim of ineffective

assistance of trial counsel6 for failing to investigate whether Samra “suffered from

any neurological or organic mental disease or defect that would have rendered him

unable to appreciate the nature and quality or wrongfulness of his acts at the time

of the offense.” Samra Direct Appeal, 771 So. 2d at 1119. Samra also argued that

counsel was ineffective for failing to adequately prepare a defense that Samra was

not guilty by reason of mental disease or defect. Id. The Alabama Court of

Criminal Appeals (“ACCA”) rejected the ineffective-trial-counsel claim, finding

that Samra failed to support it with evidence but that, in any event, counsel

“adequately investigated the appellant’s competence and sanity.” Id. at 1120.

       Samra’s counsel did not raise on direct appeal the argument rejected by the

trial court that Samra was entitled to advance notice of which statutory aggravating

factors the state planned to rely on to support the death penalty.

       The ACCA affirmed the death sentence. Samra Direct Appeal, 771 So. 2d

at 1121-22. After finding no plain error and agreeing that the evidence supported

the death sentence, the Alabama Supreme Court affirmed. Ex parte Samra, 771

So. 2d 1122, 1122 (Ala. 2000). The United States Supreme Court denied certiorari


       6
          Samra was represented by Bell on appeal with respect to all of his claims except the
ineffective-assistance claim. The court appointed a separate attorney to argue that claim. See
Samra Direct Appeal, 771 So. 2d at 1119 n.3.
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on October 10, 2000, making Samra’s conviction final. Samra v. Alabama, 531

U.S. 933, 121 S. Ct. 317 (2000) (mem.).

D. State Collateral Proceedings

      Samra filed a state petition for postconviction relief under Rule 32 of the

Alabama Rules of Criminal Procedure on October 1, 2001. The petition was

amended three times, with the final petition being filed on August 16, 2002. Of the

claims advanced in his Rule 32 petition, the following ones are relevant here:

      (1) Samra was denied effective assistance of trial counsel during the penalty

phase because of counsel’s “failure to adequately investigate organic brain

damage/brain dysfunction.”

      (2) Trial counsel during the penalty phase “was ineffective for presenting

mitigating evidence that was actually aggravating,” citing counsel’s repeated

references to Samra’s membership in a Satanic gang.

      (3) Trial counsel was ineffective for “failing to adequately object to the

admission of pictures of wall etchings, ‘gang-type’ writings, and tattoos on Mr.

Samra’s arms.”

      (4) Appellate counsel was ineffective for arguing that Samra’s death

sentence “violates the due process clause of the Fourteenth Amendment because

the petitioner did not receive notice of the actual statutory aggravating




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circumstance used at the sentencing phase, until after he had already been

convicted of capital murder.”

      The Rule 32 court held a hearing on the brain-dysfunction claim. See Samra

§ 2254 Proceeding, 2014 WL 4452676, at *5. During the hearing, Samra called

two medical witnesses and two attorney witnesses, including Bell. Bell testified

that he did not obtain a SPECT test because he was told none were available in

Birmingham, Alabama, and the closest machine was located in Nashville,

Tennessee. Bell also submitted an affidavit stating that he did not request that

Samra be transferred out of state for SPECT or PET testing. Although Bell

recognized that a SPECT scan showing abnormalities could have been used as

mitigating evidence, he testified that he did not obtain further neuropsychological

testing on Samra because, “The neuropsychologist that we had contacted I believe

stated that he would not or could not for some reason that I really don’t know what

the reasons were that he could not do the testing of our client.” In addition, Bell

attested that no further neuropsychological testing was conducted because Bell

“believed Dr. Scott’s psychiatric examination covered this area.”

      Dr.   Michael     Gelbort,    a   clinical   psychologist     specializing   in

neuropsychology, also testified at the Rule 32 hearing. Dr. Gelbort performed a

neuropsychological evaluation on Samra in 2002. His evaluation established that

Samra possessed a verbal IQ of 79 (11-12th percentile), a nonverbal IQ of 87 (40th


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percentile),7 and a full-scale IQ of 81. Dr. Gelbort gave Samra the Categories Test,

a test that measures “primarily frontal lobe and whole brain functioning.” Samra

made 51 errors, placing him on the “cusp” between normal and brain impaired. As

for Samra’s reading and math abilities, Dr. Gelbort found them to be in the 30th

and 19th percentiles, respectively. On the Trailmaking test, which tests “cognitive

flexibility and processing speed or efficiency,” Samra’s scores again placed him on

the “cusp” between normal and slightly impaired. Samra’s scores on a memory

test were also consistent with being on the line between average and mildly

impaired. On the MMPI, which tests for gross psychopatholgy, Samra showed

signs of mild depression but no signs of psychosis.

       Based on his clinical evaluations, Dr. Gelbort opined that Samra’s brain

“would not be classified as normal or typical,” and that Samra possessed “some

type of brain dysfunction.” Dr. Gelbort observed that this dysfunction “ha[d] more

to do with verbally mediated skills as opposed to nonverbal or visual spatial

skills.” Dr. Gelbort localized the dysfunction to the left side and frontal lobe,

although he noted that there was no “focal damage” but “rather a diffuse pattern of

dysfunction.” Ultimately, Dr. Gelbort concluded that Samra would have a more

difficult time functioning than a normal person but that he was not “grossly

impaired.” Dr. Gelbort also testified that he reviewed the testing results that the

       7
          This test was incomplete because the prison would not allow Dr. Gelbort to bring in
certain equipment.
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state’s expert, Dr. Glen King, had obtained and found those to be consistent with

his own testing.

      Besides these witnesses, Samra presented the testimony of Dr. James

Mountz, a specialist in nuclear medicine and radiology. Between 1991 and 2003,

Dr. Mountz was at the University of Alabama—Birmingham (“UAB”) where he

“built up” the “functional brain imaging protocols.” Dr. Mountz testified that a

dual-head camera SPECT machine was available at UAB at least by the time he

arrived there in late 1990, and possibly as early as 1988. A PET scan was not

available at UAB, however, until July 2001.

      Dr. Mountz testified that a SPECT scan, as relevant to this case, measures

blood flow in the brain. As Dr. Mountz explained SPECT scans, a SPECT scan

does not distinguish between a normal and an abnormal brain but rather between

normal and abnormal blood flow. Dr. Mountz also distinguished a SPECT scan

from an MRI, in that an MRI measures anatomical structure while the SPECT scan

measures blood flow to those structures; “function as opposed to structure.” He

further explained that an MRI may show a normal structure, but a decreased blood

flow may lead to abnormal brain functioning.

      Dr. Mountz conducted a SPECT scan on Samra on August 1, 2002. From

the scan, Dr. Mountz concluded that “[t]here were areas of decreased blood flow

which were abnormal.” Dr. Mountz testified to two basic abnormalities: one that


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“falls into the milder category” and could just constitute normal variability, and a

second “obvious abnormality in blood flow to the posterior frontal superior

temporal region” of the right side of Samra’s brain. Dr. Mountz did not reach an

opinion about Samra’s brain function but did opine that his brain blood flow was

about one standard deviation below normal. He later characterized the blood flow

as “low normal.” In a carefully worded answer, Dr. Mountz testified that the

“abnormalities found in [Gelbort’s neuropsychological report] are not inconsistent

with the brain SPECT scan” conducted on Samra. On cross examination, Dr.

Mountz testified that a SPECT scan does not provide any insight into why a person

commits murder or whether he can appreciate the wrongfulness of his conduct. He

also testified that a more detailed analysis would be required to determine what

functions the abnormal area controls in Samra’s specific case. Finally, Dr. Mountz

also conceded that Samra’s brain scan could have looked much different in 1998.

      The state called two witnesses. The first, Dr. King, a clinical psychologist

and attorney, conducted a neuropsychological evaluation of Samra. Dr. King

performed an achievement test with Samra, where he scored Samra as reading at

an eighth-grade level, spelling at a high-school level, and completing arithmetic at

a sixth-grade level. According to Dr. King, an individual who has dropped out of

school can be expected to score lower on these tests, as would an individual with a

low IQ.


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      Dr. King administered an outdated IQ test, but the corrected results placed

Samra’s full-scale IQ in the high borderline range of around 79 and his verbal and

nonverbal IQ scores were consistent with what Dr. Gelbort found.            Samra

performed well on some perceptual tests but poorly on others. His nondominant

hand was weaker than expected, indicating “some lateralizing effect,” and his fine

motor control was “below the cutoff.” Dr. King also concluded that Samra had

some impairment in his visual-spatial area.

      Dr. King also administered the MMPI test. Consistent with Dr. Gelbort’s

MMPI, Dr. King found that Samra suffered from mild depression and anxiety and

immature interpersonal development but not any psychosis. Besides these tests,

Dr. King administered the Categories Test, and Samra committed 52 errors,

consistent with Dr. Gelbort’s testing and finding of mild impairment. Similarly,

Samra scored slightly impaired on Dr. King’s Trailmaking test.

      As a result of his examinations, Dr. King concluded that Samra suffers from

some impairment in his cognitive functioning. He further opined that at the time of

the offense, Samra did not have any serious mental illness or mental defect that

would have rendered him incapable of understanding the nature and consequences

of his actions.   While acknowledging a debate among experts about whether

someone with borderline or retarded intellectual ability suffers from brain

impairment, Dr. King ultimately concluded that Samra “has impairment of


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functioning that is consistent with what we would expect in someone who is in the

borderline range of intellectual ability” but that this impairment did not impact

Samra’s ability to appreciate the criminality of his conduct.

      Dr. Helen Mayberg, a neurologist, also testified for the state. She stated that

the “generally accepted clinical uses of a SPECT technology are extremely

limited,” and include diagnosing strokes, evaluating dementia, and identifying

abnormalities associated with epilepsy, and identifying abnormalities following

trauma. Like with any radiological procedure, Dr. Mayber explained, experience

in evaluating SPECT scans is important in determining when a scan is “normal.”

      Dr. Mayberg reviewed Dr. Mountz’s report and found that it contained the

typical elements of a SPECT report. According to Dr. Mayberg, though, one

standard deviation was not abnormal but rather, still fell within the normal range.

In Dr. Mayberg’s view, “brain damage” is too generalized a term, and the SPECT

scan is too sensitive to blood-flow variation to make a good screening test for brain

damage. Dr. Mayberg also reviewed Samra’s childhood records and speculated

that he may have had a neurological problem as a child that improved over time.

Finally, she agreed that Samra’s MRI from 1998 was normal.

      On January 12, 2005, the trial court denied Samra’s Rule 32 petition. See

Samra § 2254 Proceeding, 2014 WL 4452676, at *9. With regard to the brain-

dysfunction claim, the court held that Bell’s performance was not deficient as far


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as investigating brain damage because he had pursued some investigation and had

settled on another strategy. The court also determined that Samra suffered no

prejudice because the results of Dr. Gelbort’s and Dr. Mountz’s testing only

affirmed the information of Samra’s borderline intellectual abilities already before

the jury. The court also rejected the idea that Samra suffered from any organic

brain dysfunction. Id.    Nonetheless, the court added that even if Samra had

reduced blood flow to his brain at the time of the offense, no evidence established

that it would have affected Samra’s culpability, judgment, or insight. Further

elaborating on prejudice, the trial court determined that no reasonable probability

existed that the jury would have reached a different recommendation if Samra had

presented Dr. Gelbort’s and Dr. Mountz’s evidence during the penalty phase of

Samra’s trial.

      With respect to Samra’s argument that the gang evidence was more

aggravating than mitigating, the Rule 32 court found that Bell’s strategy to portray

Samra as gang-influenced was reasonable in light of the fact that Bell had no

evidence of any other mental defect or prior history of violence.        The court

determined that Samra’s argument about Bell’s failure to object to the admission of

gang etchings and tattoos was “wholly without merit” because the evidence

complemented Bell’s own defense strategy. Apparently, the Rule 32 court did not

reach the prejudice prong of the ineffective-assistance analysis with respect to


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these gang-related claims. The Rule 32 court also did not address the aspect of

Samra’s due-process claim regarding notice of the aggravating factors; instead, it

dealt with Samra’s related argument that Alabama’s sentencing procedure violated

due process because it allows the judge to impose the sentence.

      On August 24, 2007, the ACCA affirmed the denial of postconviction relief.

With respect to Samra’s due-process claim that he had not received notice of the

aggravating factors, the ACCA determined that the claim failed on the merits

because neither Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)—

decided before Samra’s conviction became final—nor Ring v. Arizona, 536 U.S.

584, 122 S. Ct. 2428 (2002)—decided after—“modified prior Alabama caselaw,

‘which holds that aggravating circumstances do not have to be alleged in the

indictment.’”   And to the extent that Ring could be read to support Samra’s

argument, the ACCA noted that it was decided two years after his conviction

became final and that appellate counsel could not have been ineffective for failing

to anticipate changes in the law.

      The ACCA also affirmed the Rule 32 court’s ruling on the brain-dysfunction

claim, finding that Bell employed a “well thought-out defense strategy,” and

determining that Bell had no cause to investigate Samra’s organic brain function

any further than he did. As for the evidence provided by Dr. Gelbort and Dr.

Mountz, the ACCA concluded that it was not compelling and that, in any event,


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this additional evidence would not have “influenced the jury’s appraisal of Samra’s

moral culpability.”      After quoting the trial court’s discussions of whether the

evidence was more aggravating than mitigating and whether Bell was ineffective

for not objecting to the gang writings, the ACCA adopted and affirmed those

conclusions without discussion. Following the ACCA’s affirmance of the denial

of Samra’s Rule 32 petition, the Alabama Supreme Court denied certiorari on

September 19, 2008. See Ex parte Samra, 34 So. 3d 737, 737 (Ala. 2008) (table

decision).8

E. Federal Habeas Proceedings

       Samra filed a petition for habeas corpus under 28 U.S.C. § 2254 in the

Northern District of Alabama on October 26, 2007, and an amended petition on

February 21, 2014. See Samra § 2254 Proceeding, 2014 WL 4452676, at *10.

The district court denied Samra’s § 2254 petition on September 5, 2014. Id. at

*46. Applying the doubly deferential standard of Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052 (1984), and § 2254 to Samra’s ineffective-assistance-of-

counsel claims, the district court determined that the ACCA did not misapply

Strickland when it held that Bell’s investigation of Samra’s brain condition was not

       8
         After Duke’s death sentence was vacated in light of the United States Supreme Court’s
decision in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005), because Duke was under
eighteen at the time of the murders, Samra filed a successive Rule 32 petition arguing that his
death sentence should be set aside because, essentially, it was unjust and disproportionate to
execute Samra, who, although nineteen years old at the time of the offense, was a less culpable
party than Duke. The state courts rejected this argument. The issues raised in Samra’s
successive Rule 32 petition are not before us.
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deficient. Id. at *27. The district court noted that Bell had obtained Dr. Scott’s

evaluation and an MRI, and he had investigated Samra’s background (including his

tremors) and interacted with Samra. Id. Because nothing uncovered by Bell would

have raised “red flags” as to an organic brain dysfunction, the district court deemed

Bell’s investigation to be extensive and not deficient. Id. at *28-29.

      The district court also distinguished Samra’s reliance on the Fifth Circuit

case of Lockett v. Anderson, 230 F.3d 695 (5th Cir. 2000). After observing that

was it not a Supreme Court precedent, the district court concluded that “Samra has

not presented any evidence that he has a mental illness or any connection between

his purported ‘organic brain damage’ and his participation in these murders.” Id. at

*29. Nor did the district court find that the prejudice determination was contrary to

law. As the district court viewed the record, the murders were heinous, the SPECT

test was not trustworthy, and all of the Rule 32 testing was merely cumulative of

the evidence of Samra’s low IQ. Id. at *30-31.

      The district court similarly found Bell’s decision to emphasize Samra’s

membership in the FOLKS gang as unassailable because Bell reached that decision

after concluding that Samra had no mental defect or illness that would serve as a

defense. Id. at *34. With regard to Bell’s presentation of Dr. Ronan’s testimony,

the district court saw no error because her overall conclusion supported Bell’s

defense theory, even if her testimony about the lack of gang involvement did not.


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Id. at *35. The district court likewise determined that Bell’s failure to object to the

photographic gang-related evidence was in keeping with his defense strategy, so

the state court did not misapply Strickland when it rejected Samra’s argument. Id.

at *37. The district court did not discuss the prejudice prong of Strickland with

respect to the gang-related claims. See id. at *31-37.

      Turning to Samra’s ineffective-assistance-of-appellate-counsel claim, the

district court concluded that the ACCA “mischaracterized” the claim as a defective

indictment issue rather than a notice issue. See id. at *38. And because the state

courts did not address the merits of the notice claim, the district court determined

that de novo review was appropriate rather than deferential review under § 2254.

Id. at *39.

      Even applying de novo review, though, the district court determined that

Samra’s claim failed. Id. at *39-40. The district court held that due process

requires that a defendant receive notice of the charges against him only, not notice

of the statutory aggravating factors that the state intended to use to justify a death

sentence. Id. at *40. Because no due-process right existed, the district court

reasoned, Bell was not deficient for failing to raise the argument on appeal. Id.

Having concluded that Bell’s performance was not deficient, the court did not

further address the prejudice prong of this inquiry. See id.




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      Following the district court’s rejection of his federal habeas petition, Samra

sought appellate review. We granted a certificate of appealability with respect to

two issues:

               (1) Did the Alabama courts unreasonably apply
               Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
               (1984), when they determined that Samra’s trial counsel
               was not ineffective when trial counsel (a) failed to
               investigate and present evidence of brain impairment in
               mitigation of the death penalty; (b) introduced evidence
               during trial of Samra’s affiliation with a Satanic gang;
               and (c) did not object to the introduction at trial of
               Satanic markings found in his co-defendant’s bedroom
               and Samra’s own gang tattoos.

               (2) As to the claim that appellate counsel rendered
               ineffective assistance by failing to raise the issue of
               whether due process requires pretrial notice to a capital
               defendant of the specific statutory aggravating
               circumstances that the State intends to rely on in seeking
               a death sentence: (a) Is any component of this claim
               barred by the Teague 9 non-retroactivity doctrine? (b) Is
               28 U.S.C. § 2254(d) deference due on any component of
               this claim? (c) Does due process require pre-trial notice
               to a capital defendant of which specific statutory
               aggravating circumstances the State intends to rely on in
               seeking a death sentence? (d) Was it ineffective
               assistance for the petitioner’s appellate counsel not to
               raise this issue on direct appeal?




      9
          Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989).
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                                         II.

A. General Habeas Standards

      Federal law permits a prisoner held “in custody pursuant to the judgment of

a State court” to seek habeas relief “only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

2254(a). Generally, a prisoner must first “fairly present” his federal claims to the

state court and exhaust his state-court remedies before seeking federal habeas

relief. Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998).

      We review a district court’s denial of a § 2254 petition de novo. Sims v.

Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). If the state courts do not address

the merits of a fairly presented claim, a federal court’s review of that claim is de

novo. See Davis v. Sec’y for the Dep’t of Corr., 341 F.3d 1310, 1313 (11th Cir.

2003) (per curiam). But when a state court has adjudicated a prisoner’s claim on

the merits, a federal court may not grant habeas relief with respect to such a claim

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

             (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).
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      These standards are highly deferential and demand that we give state-court

decisions the benefit of the doubt. Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316,

1325 (11th Cir. 2013) (en banc). A decision “is not ‘contrary to’ federal law unless

it ‘contradicts the United States Supreme Court on a settled question of law or

holds differently than did that Court on a set of materially indistinguishable facts.’”

Id. (quoting Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1355 (11th Cir.

2009)). Nor is a state court’s decision “an ‘unreasonable application’ of federal

law unless the state court ‘identifies the correct governing legal principle as

articulated by the United States Supreme Court, but unreasonably applies that

principle to the facts of the petitioner’s case, unreasonably extends the principle to

a new context where it should not apply, or unreasonably refuses to extend it to a

new context where it should apply.’” Id. The federal court does not ask whether

the state decision is correct, but rather whether it is unreasonable. Id.

B. Ineffective Assistance of Counsel

      To prevail under Strickland on a claim of ineffective assistance of trial

counsel, a petitioner must show that (1) counsel’s performance was so deficient

that “counsel was not functioning as the ‘counsel’ guaranteed” by the Sixth

Amendment and (2) that counsel’s performance prejudiced the defense to the

extent that the defendant was deprived of a fair, reliable trial. Strickland, 466 U.S.

at 687, 104 S. Ct. at 2064. A court need not conduct this analysis in a particular


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sequence, and a court need not address both prongs if a petitioner fails to make a

required showing on one of them. Id. at 697, 104 S. Ct. at 2069.

       Establishing deficient performance requires the petitioner to demonstrate

that   “‘counsel’s   representation    fell        below   an     objective      standard   of

reasonableness.’” Harrington v. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 787

(2011) (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2064). A court applies a

strong presumption that counsel’s representation fell within the wide range of

reasonable professional conduct.      Id.     To show prejudice, a petitioner “must

demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the outcome.’” Id. (quoting

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). We evaluate claims of ineffective

assistance of appellate counsel under the same Strickland standards. Philmore v.

McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) (per curiam).

                                            III.

       Samra contends that he is entitled to federal habeas relief because his trial

counsel was ineffective. Specifically relevant to this appeal, he asserts that his

counsel failed to adequately investigate and present evidence of brain dysfunction

in mitigation of the death penalty.         He also contends that Bell’s strategy of

emphasizing Samra’s involvement in a satanic gang, including Bell’s failure to


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object to evidence of certain gang-related drawings and tattoos was more

aggravating than mitigating. For the reasons discussed in this section, we find that

Samra has failed to establish prejudice with respect to his ineffective-trial-counsel

claim. And because he has not shown prejudice, we neither reach nor offer any

opinion on trial counsel’s performance. See Strickland, 466 U.S. at 697, 104 S. Ct.

at 2069.

A. Bell’s Investigation of Samra’s Brain Function

      Samra argues that the ACCA unreasonably applied federal law when it

determined (a) that Bell’s investigation of Samra’s neuropsychological health was

not deficient and (b) that the failure to introduce the evidence developed by Dr.

Gelbort and Dr. Mountz during the Rule 32 proceedings did not prejudice Samra.

With respect to the deficient-performance prong of the Strickland analysis, Samra

contends that Bell was deficient for not pursuing functional brain testing,

particularly a SPECT test, and also for not pursuing further neuropsychological

testing when Bell’s own expert, Dr. Scott, had recommended those tests. Samra

asserts that the failure to investigate prejudiced him because the postconviction

evidence establishes that Samra does suffer from organic brain dysfunction and

that such evidence is powerfully mitigating, thus undermining confidence in the

death sentence.




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      The state counters that Bell’s investigation of Samra’s brain function was

adequate. In the state’s view, moreover, Samra was not prejudiced because the

new evidence is cumulative and consistent with the evidence presented of Samra’s

borderline intellectual ability, does not undermine Samra’s culpability, and would

have had no chance of altering the jury’s balance of aggravating and mitigating

factors in light of the brutal nature of the killings. We agree with the state that

Samra has failed to establish that the state courts unreasonably applied Strickland

when they found no prejudice.

      As we have noted, to demonstrate prejudice under Strickland, Samra must

“show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466

U.S. at 694, 104 S. Ct. at 2068. “In assessing prejudice, we reweigh the evidence

in aggravation against the totality of available mitigating evidence,” including all

mitigating evidence produced at trial and developed during the collateral

proceedings. Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527, 2542 (2003);

Williams v. Taylor, 529 U.S. 362, 397-98, 120 S. Ct. 1495, 1515 (2000).

      As described above, Dr. Gelbort’s examination, which was largely

consistent with Dr. King’s examination, suggested some mild impairment of

Samra’s brain’s functioning.     But Dr. Mountz’s SPECT scan indicated just a

different blood flow in one region of Samra’s brain approximately one standard


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deviation below the “normal” level of flow. And while Samra emphasizes what he

describes as the abnormal nature of this blood flow, Dr. Mayberg opined that this

result still fell within “normal” levels. Nor does Samra present any argument or

evidence that his blood-flow level has had any cognitive or behavioral impact. In

other words, there is no evidence that the blood flow level was so much an organic

brain problem, as opposed to merely an organic brain anomaly, to the extent that it

was even anomalous. Even Dr. Mountz testified, carefully, that the abnormal

blood flow was “not inconsistent” with Dr. Gelbort’s diagnosis of mild

impairment, not that the blood flow itself was indicative of impairment. And Dr.

Mountz added that further analysis would be required to determine what the

section of Samra’s brain with the different blood flow actually controls. While we

recognize, of course, that any abnormality is admissible mitigation evidence, even

assuming that the blood flow was abnormal, in the absence of any evidence

explaining its effect on Samra, its mitigating impact is significantly reduced.

      Samra cites a number of cases that stand for the proposition that organic

brain damage can be a significant mitigating factor in capital sentencing

proceedings. And we agree and have recognized in the past that evidence of

organic brain damage can be a powerful mitigating factor. See, e.g., Debruce v.

Comm’r, Ala. Dep’t of Corr., 758 F.3d 1263, 1276 (11th Cir. 2014); Ferrell v.

Hall, 640 F.3d 1199, 1234-35 & n.17 (11th Cir. 2011). But in those cases, the


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evidence established the existence of impairment—indeed, significant brain

impairment. See Debruce, 758 F.3d at 1270 (petitioner suffered from “lingering

emotional damage and social impairments associated with having been raised in a

violent community,” as well as “blackout episodes consistent with seizures

accompanied by periods of non-responsive staring and loss of memory”); Ferrell,

640 F.3d at 1203, 1234 (petitioner suffered from “extensive” and “disabling . . .

organic brain damage to the frontal lobe, bipolar disorder, and temporal lobe

epilepsy”). Even Lockett, the Fifth Circuit case upon which Samra heavily relies,

dealt with a defendant who likely suffered from temporal-lobe epilepsy and

paranoid schizophrenia. 230 F.3d at 713-14. Unlike the cases he cites, Samra

possesses mild functional impairments and, based on his MRI scan, suffers from

no structural brain abnormalities.

      Contrary to Samra’s argument on appeal that his counsel presented a paucity

of mitigating evidence at his trial, the sentencing jury heard, and the sentencing

judge found, several mitigating factors related to Samra’s mental health, including

his borderline intelligence, schooling problems, substance abuse, childhood hand

tremors, and lack of emotionality. And unlike in cases such as Wiggins, Debruce,

or Ferrell, there is absolutely no evidence in Samra’s case of an abusive

upbringing that could have contributed to a mental disorder.




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      Ultimately, after weighing the evidence adduced in the postconviction

proceedings from Dr. Gelbort and Dr. Mountz along with the evidence introduced

during the guilt and sentencing phases, the state court concluded that Samra had

not established a reasonable probability that this mitigating evidence undermines

confidence in his unanimous death sentence.         This was not an unreasonable

application of Strickland’s prejudice analysis. Harrington, 562 U.S. at 100-01,

131 S. Ct. at 785.

      The fact remains that Samra participated in the gruesome murders of four

people—including personally slitting the throat of a seven-year-old girl, causing

her to drown in her own blood—all because his friend Duke’s father refused to let

Duke use a pickup truck. Samra § 2254 Proceeding, 2014 WL 4452676, at *1.

None of the brain-impairment evidence Samra has provided leads us to conclude

that a jury would have found that the killings were less heinous, atrocious, or cruel,

or that Samra’s mild brain impairments outweighed the heinousness, atrociousness,

or cruelty of the crime, had evidence similar to that presented at the Rule 32

hearing been introduced during the penalty phase of Samra’s trial. Absent the

required showing of prejudice, we do not consider the sufficiency of Bell’s

investigation. Samra’s claim that his trial counsel was ineffective for failing to

adequately investigate Samra’s brain function must be denied.




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B. Bell’s Gang-Influence Strategy

      Samra contends that Bell’s strategy of emphasizing Samra’s membership in

the FOLKS gang—including its connection to Satan, its violent character

(including alleged matricide), and its association with drugs and prison—put

evidence that was more aggravating than mitigating in front of the jury.          In

Samra’s view, Bell was deficient for choosing and presenting this strategy and for

failing to object to the prosecution’s introduction of other photographic evidence of

FOLKS-related markings found in Duke’s room and Samra’s tattoos. For its part,

the state contends that Bell’s strategic decision to present a “substantial

domination” defense is unassailable.

      While neither the state courts nor the district court reached the prejudice

prong of this analysis, we find under a de novo review that, regardless of the

competency of Bell’s chosen strategy, Samra has failed to establish a reasonable

probability that it undermines confidence in the death sentence. We acknowledge,

as we have previously, that evidence of gang membership and satanic worship has

the potential to unduly prejudice a defendant. See United States v. Jernigan, 341

F.3d 1273, 1284-85 (11th Cir. 2003) (“[W]e do not wish to understate the

prejudicial effect that evidence of a criminal defendant’s gang membership may

entail. Indeed, modern American street gangs are popularly associated with a

wealth of criminal behavior and social ills, and an individual’s membership in such


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an organization is likely to provoke strong antipathy in a jury.”); cf. McCorkle v.

Johnson, 881 F.2d 993, 995 (11th Cir. 1989) (per curiam) (recognizing the

“violence inherent in Satan worship”).

       But the facts of this crime belie this prejudice here. Even if we disregard the

gang-related evidence and argument, the state presented overwhelming evidence—

including Samra’s own confession—of the heinousness of this crime. By Samra’s

own admission, after he assisted in killing three people, he slit the throat of a

seven-year-old girl who was pleading and struggling for her life. Samra § 2254

Proceeding, 2014 WL 4452676, at *1. We find no reasonable probability that,

absent evidence or discussion of Samra’s gang involvement, the jury would not

have found these murders to be as especially heinous, atrocious, or cruel as it

found them. Harrington, 562 U.S. at 104, 131 S. Ct. at 787. As a result, Samra’s

claim that his trial counsel was ineffective for pursing a gang-related strategy and

for failing to object to gang-related evidence must be denied.10

                                              IV.

       Samra also contends that he is entitled to federal habeas relief because his

appellate counsel was constitutionally ineffective. Specifically, Samra argues that

he had a due-process right to be informed before his trial of the actual aggravating


       10
          As with the brain-dysfunction claim, we do not opine on whether counsel’s selection
and implementation of this defense strategy was constitutionally sufficient. See Strickland, 466
U.S. at 697, 104 S. Ct. at 2069.
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factor or factors upon which the state intended to rely in seeking the death penalty

and that his appellate counsel was deficient for not challenging the trial court’s

rejection of this argument. Without deciding whether such a due-process right

exists, we find that Samra’s counsel was not deficient in failing to raise the issue

during Samra’s direct appeals. 11

       Samra bases his due-process notice argument on two Supreme Court cases

that were decided before his conviction became final: Jones v. United States, 526

U.S. 227, 119 S. Ct. 1215 (1999) and Apprendi v. New Jersey, 530 U.S. 466, 120

S. Ct. 2348 (2000). In Jones, the Supreme Court construed the federal carjacking

statute, 18 U.S.C. § 2119, and concluded that the statutory provisions that

enhanced a sentence based on a finding of bodily injury or death should not be

viewed merely as sentencing factors but as elements of distinct offenses that must

be charged in an indictment.           See 526 U.S. at 251-52, 119 S. Ct. at 1228.

Similarly, in Apprendi, the Court confirmed the principle expressed in Jones:

“Other than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S. Ct. at

2362-63. Under Apprendi, sentencing factors that increase punishment beyond the
       11
          The state contends that the district court erred in considering this claim de novo after
determining that the Alabama state courts had mischaracterized Samra’s claim. Instead, the state
urges that we extend double deference under § 2254 and Strickland to the manner in which the
state courts did decide this claim. We need not resolve this issue, however, because even under
de novo review, Samra has failed to demonstrate deficient performance.
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statutory maximum are “the functional equivalent of an element of a greater

offense than the one covered by the jury’s guilty verdict.” Id. at 494 n.19, 120 S.

Ct. at 2365 n.19 (emphasis added).

         Because the statutory aggravating factors are required under Alabama law to

increase the maximum punishment from life imprisonment to death, in Samra’s

view, they constitute elements of the capital offense. And because due process

generally requires advance notice of offense elements, Samra argues that he had a

constitutional entitlement to advance notice of the specific aggravating factors that

the state was pursuing in his case. Samra asserts that the performance of his

appellate counsel was constitutionally deficient because counsel neglected to

challenge the trial court’s refusal to provide this notice.

         But   Samra   cannot    demonstrate    that   his     appellate   counsel   was

constitutionally deficient for failing to raise this due-process argument. We judge

counsel’s performance from the perspective of an attorney operating at the time

that the challenged decision was made. Strickland, 466 U.S. at 689, 104 S. Ct. at

2065. Here, Samra has cited no precedent—and we have found none—existing at

the time of his direct appeal that required a state to provide advance notice of the

specific aggravating factor it intended to prove.             In fact, in our view, the

circumstances existing at that time actually counseled that such an argument lacked

merit.


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      First, the Supreme Court had granted certiorari in Jones just a month before

Samra filed his notice of direct appeal, and it did not decide Apprendi until after

the Alabama Supreme Court upheld Samra’s death sentence. See Jones v. United

States, 523 U.S. 1058, 118 S. Ct. 1405 (1998) (Mem.) (amending the grant of

certiorari to two specific questions); Apprendi, 530 U.S. at 466, 120 S. Ct. at 2348;

Ex parte Samra, 771 So. 2d at 1122. Samra suggests that his appellate counsel

should have recognized from the grant of certiorari in Jones—a case involving the

federal carjacking statute—that the issue of whether a state is required to provide

capital defendants with advance notice of specific aggravating factors was an

unresolved question of law. Although an exceptionally skilled or creative attorney

may have anticipated the arguments and outcome of Jones (and later Apprendi)

and sought to extend that rationale to the capital-sentencing context, we have

repeatedly held that an attorney is not required to foresee changes in the law to

provide constitutionally sufficient representation. See, e.g., LeCroy v. Sec’y, Fla.

Dep’t of Corr., 421 F.3d 1237, 1261 n.27 (11th Cir. 2005) (“[A]ppellate counsel

was not ineffective for failing to anticipate the change in the law”); Spaziano v.

Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (“We have held many times that

‘[r]easonably effective representation cannot and does not include a requirement to

make arguments based on predictions of how the law may develop.’” (quoting




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Elledge v. Dugger, 823 F.2d 1439, 1443 (11th Cir.) (per curiam), modified in

unrelated part, 833 F.2d 250, 250 (11th Cir. 1987) (per curiam)).

      Second, a substantial body of federal and state case law available to his

appellate counsel at the time, while not necessarily foreclosing Samra’s due-

process argument, strongly suggested such an argument would face an uphill battle

with little chance of success. See, e.g., Walton v. Arizona, 497 U.S. 639, 647-49,

110 S. Ct. 3047, 3054-55 (1990) (expressly holding that capital aggravating factors

are not elements of the offense, a holding that was specifically affirmed in Jones

and Apprendi and not overruled until Ring), overruled by Ring, 536 U.S. at 589,

122 S. Ct. at 2432; Spenkelink v. Wainwright, 442 U.S. 1301, 1303-06, 99 S. Ct.

2091, 2092-94 (Rehnquist, Circuit Justice 1979) (denying stay of execution and

asserting belief that no four Justices would agree to hear a claim that due process

required advance notice of capital aggravating factors); Clark v. Dugger, 834 F.2d

1561, 1566 (11th Cir. 1987) (due process satisfied by statute listing potential

aggravating factors and particularized notice of specific factors is not required);

Knotts v. State, 686 So. 2d 431, 448-449 (Ala. Crim. App. 1995) (“A defendant has

no right to advance notice of the state's intention to rely on any of the aggravating

circumstances enumerated in § 13A–5–49.”).

      In light of this case law existing at the time that Samra’s appeal was filed, an

attorney could not be faulted for declining to pursue the argument that capital


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sentencing factors were functionally equivalent to the elements of an offense and

were required by due process to be disclosed in advance of trial. Philmore, 575

F.3d at 1264 (“In assessing an appellate attorney’s performance, we are mindful

that ‘the Sixth Amendment does not require appellate advocates to raise every non-

frivolous issue.’ Rather, an effective attorney will weed out weaker arguments,

even though they may have merit.” (citation omitted) (quoting Heath v. Jones, 941

F.2d 1126, 1130-31 (11th Cir. 1991)). Thus, even if counsel had foreseen such an

argument—and he was not required to have done so—counsel would not have

been deficient in declining to pursue that argument. Because Samra’s appellate

counsel’s performance was not deficient, Samra cannot prevail on his ineffective-

appellate-counsel claim here. We therefore do not address the prejudice prong and

the underlying merits of Samra’s due-process argument. See Strickland, 466 U.S.

at 697, 104 S. Ct. at 2069; Philmore, 575 F.3d at 1264-65.

                                         V.

      For the reasons set forth above, we find that Samra has failed to make the

required showings to prevail on his ineffective-assistance-of-counsel claims.

Accordingly, we affirm the district court’s denial of Samra’s § 2254 petition.

AFFIRMED.




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