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                                                                 [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 12-13039
                            ________________________

                        D.C. Docket No. 3:09-cv-00041-DHB



ANDREW H. BRANNAN,

                                                                  Petitioner-Appellant,

                                         versus

GDCP WARDEN,

                                                                 Respondent-Appellee.

                            ________________________

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

                                   (August 8, 2013)

Before HULL, WILSON and MARTIN, Circuit Judges.

PER CURIAM:

      Petitioner Andrew Brannan, a Georgia prisoner on death row, appeals from

the district court’s denial of his first petition for writ of habeas corpus, brought
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pursuant to 28 U.S.C. § 2254. The district court denied the petition in a written

order which also denied Brannan a certificate of appealiability. This Court granted

Brannan a limited certificate of appealability on two claims:

      (1) the prosecutor exercised peremptory strikes in a racially
      discriminatory manner in violation of Batson v. Kentucky, 476 U.S.
      79, 106 S. Ct. 1712 (1986).

      (2) he was denied effective assistance of counsel during all phases of
      his trial in violation of his rights under the Fifth, Sixth, Eighth, and
      Fourteenth Amendments to the United States Constitution.

After careful review of the state court record and federal proceedings, we affirm

the district court’s judgment denying habeas relief.

                               I.       BACKGROUND

      On January 12, 1998, Brannan shot and killed Laurens County Deputy

Sheriff Kyle Dinkheller during a routine traffic stop. Brannan v. State, 561 S.E.2d

414, 418–19 (Ga. 2002) (Brannan I). This case is unusual in that almost all of this

tragic event was captured on videotape from the dashboard of Deputy Dinkheller’s

patrol car. Id. at 419. A detailed description of the traffic stop and murder are set

forth in the Georgia Supreme Court’s opinion on direct appeal. Id. at 418–20.

      During jury selection, the state used seven of its ten peremptory strikes to

remove prospective African-American jurors from the panel. Id. at 422. Three

African-Americans served on the jury, although there were eleven African-

Americans on the jury panel before jury selection. Id. Brannan made a Batson


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challenge immediately after the state made its peremptory strikes. Before the trial

court had an opportunity to rule on whether Brannan had made a prima facie

showing of discriminatory intent, the state offered race-neutral reasons for each of

its seven strikes, rendering a preliminary showing of a prima facie case

unnecessary. Id. at 422 (citing Hernandez v. New York, 500 U.S. 352, 359, 111 S.

Ct. 1859, 1866 (1991)). After hearing the state’s proffered reasons and Brannan’s

response to each of the seven jurors individually, the trial court ruled separately on

each juror. In each instance, the trial court denied Brannan’s Batson challenge.

      Brannan was found guilty of malice murder for the shooting death of Deputy

Dinkheller. Id. at 418. The same jury unanimously recommended a death

sentence after finding three aggravating circumstances: (1) “the offense of murder

was outrageously or wantonly vile, horrible or inhuman in that it involved torture,

depravity of mind, and an aggravated battery to the victim before death;” (2) “the

offense of murder was committed against a peace officer while engaged in the

performance of his official duties;” and, (3) “the murder was committed for the

purpose of avoiding, interfering with, or preventing a lawful arrest of the

defendant.” Id. at 418; see also Ga. Code. Ann. § 17-10-30(b)(7), (8), (10).

      Brannan’s conviction and death sentence were affirmed by the Georgia

Supreme Court in a written opinion which expressly considered and rejected

Brannan’s Batson claim. Id. at 422, 429. The United States Supreme Court denied


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Brannan’s petition for writ of certiorari. Brannan v. Georgia, 537 U.S. 1021, 123

S. Ct. 541 (2002), reh’g denied, 537 U.S. 1150, 123 S. Ct. 957 (2003).

       In May 2003, Brannan filed a state habeas petition in the Superior Court of

Butts County. After holding an evidentiary hearing in August 2006, the state

habeas court issued a written order finding that Brannan had been denied effective

assistance of counsel in numerous respects and vacating his death sentence for

purposes of retrial.

       On November 3, 2008, the Georgia Supreme Court reversed the state habeas

court’s judgment and reinstated Brannan’s conviction and death sentence in a

written opinion. Hall v. Brannan, 670 S.E.2d 87, 91 (Ga. 2008) (Brannan II).1 The

state supreme court expressly considered and rejected Brannan’s ineffective

assistance of counsel claims on the merits, concluding that counsel did not perform

deficiently and that Brannan did not suffer prejudice as a result of trial counsel’s

alleged deficiencies. Id. at 91–96. The court denied reconsideration on December

15, 2008. Id. at 87.

       Brannan then filed a § 2254 petition for writ of habeas corpus in the district

court for the Southern District of Georgia. After briefing, the district court denied

the petition in a comprehensive 120 page order. With respect to Brannan’s


1
  The Georgia Supreme Court observed that the state habeas court’s “order clearly vacate[d]
Brannan’s death sentence; however, it was unclear whether it also vacate[d] Brannan’s
conviction.” Brannan II, 670 S.E.2d at 91.
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ineffective assistance of counsel claims, the district court considered and rejected

eight separate allegations. Ultimately, the district court determined that the

Georgia Supreme Court’s adjudication of Brannan’s ineffective assistance of

counsel claim was neither contrary to, nor an unreasonable application of,

Stickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), nor an

unreasonable determination of the facts. The district court also rejected Brannan’s

argument that the state court’s adjudication of his Batson claim was: (1) an

unreasonable application of Batson under § 2254(d)(1); or (2) an unreasonable

determination of the facts under § 2254(d)(2). The district court individually

considered each of the seven black jurors stricken by the state.

                         II.    STANDARD OF REVIEW

      “We review de novo a district court=s grant or denial of a habeas corpus

petition.” Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). To warrant habeas

relief under the Antiterrorism and Effective Death Penalty Act (AEDPA), Brannan

must establish not only that his constitutional claim is meritorious, but also that the

state court’s adjudication of that claim:

      (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.


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28 U.S.C. § 2254(d); see also McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252,

1266 (11th Cir. 2009) (“Where we have determined that a state court decision is an

unreasonable application of federal law under 28 U.S.C. § 2254, we are

unconstrained by § 2254’s deference and must undertake a de novo review of the

record.”).

      In addition, a state court’s finding of fact is entitled to a presumption of

correctness. 28 U.S.C. § 2254(e)(1). AEDPA’s “statutory presumption of

correctness applies only to findings of fact made by the state court, not to mixed

determinations of law and fact.” Parker v. Head, 244 F.3d 831, 836 (11th Cir.

2001). We must presume the state court’s factual findings to be correct unless the

petitioner rebuts that presumption by clear and convincing evidence. Id. at 835–

36; see also 28 U.S.C. § 2254(e)(1).

      As relevant to Brannan’s case, a determination of purposeful discrimination

at Batson’s third step is a pure question of fact entitled to a presumption of

correctness. See Hernandez, 500 U.S. at 364–65 (plurality opinion). In contrast,

determinations of deficient performance and prejudice under Strickland are mixed

questions of law and fact, not entitled to a presumption of correctness. See Cade v.

Haley, 222 F.3d 1298, 1302 (11th Cir. 2000). We consider each of Brannan’s

constitutional claims in turn.




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                                   III.   BATSON

      In Batson, the Supreme Court outlined a three-step test for evaluating

whether a prosecutor’s use of peremptory challenges is a constitutional violation:

(1) the defendant must establish a prima facie case to support an inference of

purposeful discrimination; (2) if a prima facie case is established, the prosecutor

must provide race neutral reasons for the strike; and (3) the trial court then has “the

duty to determine if the defendant has established purposeful discrimination.” 476

U.S. at 96–98, 106 S. Ct. at 1723–24. Only the third step is at issue here.

      Under AEDPA, a state court’s finding of no purposeful discrimination at

Batson’s third-step is entitled to deference unless it is: (1) contrary to, or an

unreasonable application of, Batson and its progeny, see 28 U.S.C. § 2254(d)(1); or

(2) “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,” id. § 2254(d)(2). As relevant to

Brannan’s case, we have held a state court unreasonably applies Batson’s third-

step under § 2254(d)(1) when it does “not consider ‘all relevant circumstances’ in

its analysis of the trial court’s ruling.” McGahee, 560 F.3d at 1261; see also id. at

1264. If the state court does not unreasonably apply federal law at Batson’s third-

step—that is, the state court “confront[s] the decisive question and evaluate[s] the

credibility of the prosecution’s explanation, in light of all evidence with a bearing

on it,” Parker v. Allen, 565 F.3d 1258, 1270 (11th Cir. 2009) (quotation marks and


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citation omitted)—the petitioner may obtain relief only by showing that the state

court’s conclusion was an unreasonable determination of the facts under

§ 2254(d)(2). See id. at 1271.

      Brannan argues the state violated Batson by using at least one peremptory

strike in a racially discriminatory manner. Brannan concedes the state courts’

application of Batson’s first two steps was not unreasonable. However, he

contends that many of the reasons offered by the state are contradicted by the

transcript and that the state courts failed to assess the plausibility of the state’s

proffered reasons in light of the totality of the evidence, as required by Batson.

      After carefully reviewing the state court record, we cannot say the Georgia

Supreme Court failed to consider all relevant circumstances in adjudicating

Brannan’s Batson claim, such that its adjudication was contrary to, or an

unreasonable application of clearly established federal law within the meaning of

§ 2254(d)(1). Nor can we conclude, as § 2254(d)(2) requires, that the state court’s

adjudication of his Batson claim “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.” Just the opposite is true.

      Here, after the Georgia Supreme Court explicitly identified Batson as the

governing standard and accurately summarized the composition of the jury, the

court rejected Brannan’s Batson claim, stating:


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      The trial court ruled that Brannan did not meet his burden of showing
      that the State acted with discriminatory intent. This ruling will be
      affirmed unless clearly erroneous.

             Five of the prospective jurors expressed reservations about
      imposing the death penalty, in addition to other valid race-neutral
      reasons, such as being previously charged with a criminal offense,
      claiming hardship due to bankruptcy or physical disability, or having
      a relative currently facing criminal prosecution. The sixth prospective
      juror learned in nursing school about post-traumatic stress disorder,
      which was to figure prominently in Brannan’s defense, and the district
      attorney’s office had previously prosecuted her for fraud. These were
      valid race-neutral reasons for the State to strike her. See Jackson v.
      State, 463 S.E.2d 699 (1995) (“‘Unless a discriminatory intent is
      inherent in the . . . (proponent’s) explanation, the reason offered will
      be deemed race neutral.’”). The seventh prospective juror served four
      years in the Marine Corps in the 1960’s, including a tour in Vietnam
      as a truck driver. He said that he had known Marines with post-
      traumatic stress disorder (“PTSD”) who would “freak out” or “snap,”
      and that he knew they had PTSD because “the corpsman said they had
      [it].” The State explained that a white Vietnam veteran they did not
      strike was not similarly situated. That prospective juror had served 21
      years in the Marine Corps as a sergeant, including a combat tour in
      Vietnam in the infantry, and, when asked about PTSD, said, “I ain’t
      never had the problem with that.” The trial court did not err by
      finding that this reason was race-neutral. Since Brannan failed to
      carry his burden of proving purposeful discrimination by the State
      during jury selection, this enumeration of error is without merit.

Brannan I, 561 S.E.2d at 422 (alterations in original) (some citations omitted).

      As the Supreme Court has said, a state court’s finding of no discriminatory

intent is a fact-finding entitled to deference and “we presume the [Georgia] court’s

factual findings to be sound unless [Brannan] rebuts the ‘presumption of

correctness by clear and convincing evidence.’” Miller-El , 545 U.S. at 240, 125

S. Ct. at 2325. Brannan has not met that burden. We cannot, therefore, substitute
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our evaluation of the record for that of the state trial court or the state supreme

court. Based on the state courts’ reasonable application of clearly established

federal law, acceptance of the prosecutor’s stated reasons for its strikes, and

consideration of all the relevant circumstances bearing on the question of

discriminatory intent, the district court did not err in concluding that the state court

reasonably applied Batson and that Brannan failed to prove purposeful

discrimination. See Parker, 565 F.3d at 1272.

               IV.    INEFFECTIVE ASSISTANCE OF COUNSEL

      The merits of Brannan’s ineffective assistance of counsel claim are

“squarely governed” by the Supreme Court’s holding in Strickland , 466 U.S. 668,

104 S. Ct. 2052. See Williams v. Taylor, 529 U.S. 362, 390, 120 S. Ct. 1495, 1511

(2000). Under Strickland, Brannan must show that “counsel’s performance was

deficient” and that “the deficient performance prejudiced the defense.” 466 U.S. at

687, 104 S. Ct. at 2064. To show prejudice, Brannan must show there is

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

the proceeding would have been different.” Id. at 694, 104 S. Ct. 2068.

      Brannan argues he was denied the right to effective assistance of counsel at

all phases of his capital trial. He broadly avers the Georgia Supreme Court’s

reversal of the state habeas court’s grant of relief was contrary to and unreasonable

application of clearly established federal law and based on an unreasonable


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determination of the facts. Specifically, Brannan says trial counsel were

ineffective in three distinct ways: (1) failing to present evidence that the offense

was directly related to Brannan not being medicated; (2) failing to present

testimony from Dr. Boyer (Brannan’s treating psychiatrist); and (3) failing to

investigate and present a detailed and corroborated mitigation case concerning

Brannan’s experience in Vietnam and post-traumatic stress disorder.

       Since a habeas petitioner must show both deficiency and prejudice, we may

dispose of a Strickland claim based on a determination that a defendant has failed

to show either prong without considering the other. See Strickland, 466 U.S. at

697, 104 S. Ct. at 2069. This case can be resolved by consideration of only the

prejudice prong.

       Assuming, without deciding, that Brannan could show his trial counsels’

performance was deficient and that he could pierce AEDPA’s deference,2 we

2
  It is not necessary to devote resources to deciding the question of whether AEDPA deference
applies in this case because, even if AEDPA deference does not apply, Brannan “cannot show
prejudice under de novo review, the more favorable standard of review.” Berghuis v.
Thompkins, 560 U.S. 370, ___, 130 S. Ct. 2250, 2265 (2010) (“Courts can . . . deny writs of
habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA
deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his
or her claim is rejected on de novo review, see § 2254(a).”); see also Wellons v. Warden, 695
F.3d 1202, 1213 (11th Cir. 2012) (conducting de novo review without deciding whether AEDPA
deference applies); Trepal v. Sec=y, Fla. Dep=t of Corr., 684 F.3d 1088, 1109B10 (11th Cir. 2012)
(same). We emphasize that we are not deciding whether AEDPA deference applies to the state
court’s adjudication of Brannan’s Strickland claim. We are well aware that the Supreme Court
has repudiated the notion that AEDPA’s “unreasonableness question” is the same as an appellate
court’s “confidence in the result it would reach under de novo review.” Harrington v. Richter,
___ U.S. ___, ____, 131 S. Ct. 770, 786 (2011).

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conclude that he has not demonstrated Strickland prejudice even under de novo

review. We have carefully reviewed the Georgia Supreme Court’s two written

opinions which together detail the facts and circumstances underlying Brannan’s

offense, trial, penalty phase, and state postconviction proceedings. See Brannan I,

561 S.E.2d 414; Brannan II, 670 S.E.2d 87.

      We have also independently reviewed the entire state court record, given due

consideration to the parties’ briefs, and had the benefit of oral argument. We

conclude, for the combination of reasons expressed by Georgia Supreme Court, see

Brannan II, 670 S.E.2d at 93–96, and the district court, that there is no “reasonable

probability that, but for counsel=s unprofessional errors, the result of the [guilt

phase] proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.

Ct. 2068. With respect to Brannan’s death sentence, we have carefully considered

“‘the totality of the available mitigation evidenceCboth that adduced at trial, and

the evidence adduced in the habeas proceeding’Cand ‘reweig[hed] it against the

evidence in aggravation.’” Porter v. McCollum, 558 U.S. 30, 41, 130 S. Ct. 447,

453B54 (2009) (quoting Williams, 529 U.S. at 397B98, 120 S. Ct. at 1515). Based

upon the evidence from the state court record and in light of Strickland, we

conclude there is no “reasonable probability that, but for counsel=s unprofessional

errors, the result of the [sentencing] proceeding would have been different.”

Strickland, 466 U.S. at 694, 104 S. Ct. 2068.

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      The evidence presented during the postconviction hearing “would barely

have altered the sentencing profile presented to the sentencing judge.” Id. at 700,

104 S. Ct. at 2071. To be sure, Brannan’s postconviction case for mitigation is

decidedly better than that presented at his trial. However, the differences between

his postconviction and trial mitigation are not meaningful enough to establish a

reasonable probability of a different outcome, as in Porter and other cases in which

the Supreme Court has found deficient performance and prejudice, such as

Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456 (2005), Wiggins v. Smith, 539

U.S. 510, 123 S. Ct. 2527 (2003), and Williams, 529 U.S. 362, 120 S. Ct. 1495.

      For all of these reasons, we affirm the district court’s denial of habeas relief.

AFFIRMED.




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