             Case: 10-15442    Date Filed: 08/08/2013   Page: 1 of 30


                                                                    [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 10-15442
                          ________________________

                       D.C. Docket No. 5:08-cv-00091-HL



JOSHUA DANIEL BISHOP,

                                                            Petitioner - Appellant,

                                      versus

WARDEN, GDCP,

                                                           Respondent - Appellee.

                          ________________________

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

                                (August 8, 2013)

Before BARKETT, MARCUS and MARTIN, Circuit Judges.

MARCUS, Circuit Judge:

      Petitioner Joshua Daniel Bishop was convicted in 1996 of malice murder

and armed robbery, and sentenced to death. He appeals from the district court’s
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denial of habeas relief, raising two categories of claims: (1) three instances of

ineffectiveness of trial counsel, see Strickland v. Washington, 466 U.S. 668

(1984); and (2) a violation of Brady v. Maryland, 373 U.S. 83 (1963). After

thorough review, we conclude that Bishop is not entitled to relief on any of these

claims, and accordingly affirm.

                                           I.

                                          A.

      The basic facts surrounding the murder were set forth by the Georgia

Supreme Court on direct appeal:

      [Leverett] Morrison drove Bishop and Bishop’s co-indictee, Mark
      Braxley, to a bar. Bishop and Braxley decided to steal Morrison’s car.
      The three left the bar around 11:00 p.m. and drove to Braxley’s trailer.
      Bishop reached into the sleeping Morrison’s pocket for the car keys,
      but Morrison awoke and sat up. Bishop began to beat Morrison about
      the head and face with a blunt object. When Morrison was
      unconscious, Bishop took the car keys. Eventually realizing that
      Morrison was dead, Bishop and Braxley wrapped and then loaded the
      body into the back seat of Morrison’s car. They drove to a dumpster
      which was located a short distance from Braxley’s trailer. After
      unsuccessfully attempting to toss Morrison’s body into the dumpster,
      Bishop and Braxley left the body on the ground where it was
      discovered several hours later. They drove Morrison’s car into the
      nearby woods, set it on fire, and then walked back to Braxley’s trailer
      to dispose of evidence of their crimes. After his arrest, Bishop made a
      statement in which he admitted delivering the blows with a wooden
      rod until Morrison stopped breathing, and described how he and
      Braxley disposed of the body and burned the car.                 Bishop
      subsequently confessed that, some two weeks prior to the murder of
      Morrison, he participated in the murder of Ricky Lee Wills and that
      he buried Wills’ body in the woods near Braxley’s trailer. After
      investigators recovered Wills’ body, a grand jury indicted Bishop and
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      Braxley for that murder as well. The trial court admitted evidence
      regarding Bishop’s participation in Wills’ murder in aggravation of
      punishment during the penalty phase of this trial for Morrison’s
      murder.

Bishop v. State, 486 S.E.2d 887, 891 (Ga. 1997).

      Although both Bishop and Braxley initially denied any involvement in the

murder of Morrison, Bishop later confessed in a statement given to Detective

Ricky Horn. In his statement, which was audiotaped and played by the State for

the jury, Bishop explained at considerable length the events culminating in the

beating and murder of Morrison on the night of June 24, 1994. Bishop, Braxley,

and Morrison had been drinking through the afternoon and had smoked crack later

that evening. That night, Braxley suggested that Bishop take the keys to

Morrison’s Jeep; Morrison was lying in bed at the time. According to Bishop,

when he reached into Morrison’s pocket, Morrison “popped [him] and asked [him]

what [he] was doing.” Bishop then hit Morrison with a wooden stick that “was

like a closet rod.” In Bishop’s words, he used “[o]ne of them big heavy closet

rods.” Bishop explained, “I hit him too hard, I reckon, and he didn’t say anything.

He just wouldn’t breathe.” At one point in his statement Bishop said that he hit

Morrison on the backside of his head “about twice” and Braxley hit him “about

three times,” but later, Bishop claimed, “I hit [Morrison] like three times in the

head with that stick, just to see the first time if I could knock him out where I could



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get his keys. But he wouldn’t knock out. I hit him one more time and finally, he

looked like he was knocked out.”

      According to Bishop, he then exited the room, but left the key to Morrison’s

Jeep on a coffee table. Bishop added that, while he was outside the room, he

“heard something loud.” He elaborated: “When I went back in there after I left the

key on the coffee table, I walked back there and saw that [Morrison] was dead. I

saw we were messing up pretty bad. He wasn’t breathing. I checked him out and

he wasn’t breathing. He was dead.” Bishop explained that he and Braxley then

wrapped Morrison in a comforter and placed his body in the back seat of the Jeep,

and that they tried unsuccessfully to put Morrison’s body in a dumpster but ended

up leaving the body between two dumpsters. At Braxley’s suggestion, Bishop took

the Jeep to a nearby pond, poured gasoline all over it, and lit it on fire, destroying

all but the frame of the vehicle.

      Finally, Dr. James Dawson testified regarding Morrison’s injuries and cause

of death. He determined that Morrison died in the early morning hours of June 25,

1994, as a result of inner cranial bleeding, with contributing factors of a cerebral

contusion and aspiration of blood, all caused by blunt force trauma to the head.

Dr. Dawson confirmed that Morrison was beaten to death. Several of Morrison’s

seven significant head wounds appeared to have been caused by a cylindrical,

circular, or tubular object, while other wounds appeared to have been caused by a


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flat object. Dr. Dawson could not state the order in which the seven injuries took

place, nor could he state whether the first blow, the seventh blow, any of the blows

in between, or any combination of the blows caused the cerebral contusion

(bruising of the brain) or the hemorrhage resulting in inner cranial bleeding and

ultimately death; finally, the medical examiner confirmed that all seven injuries

occurred while Morrison was alive.

                                             B.

       On February 8, 1996, a Georgia jury found Bishop guilty of malice murder

and armed robbery. The trial then proceeded to the penalty phase. The State’s

presentation largely detailed Bishop’s involvement in the murder of another

individual, Ricky Willis, 1 a short time before Bishop killed Morrison. The jury

heard from a jailhouse informant, Seth Hatchett, that Bishop told him Bishop had

killed Willis by beating Willis in the head and cutting his throat. The State also

presented Joel Jason Arnett, who recalled that Bishop threatened Arnett at a local

bar, the Hilltop Grill, on the night of June 18, 1994. Bishop told him, “I’ve already

got one mother fucker buried down there and I’ll put you down there,” “down

there” referring to the ground near Braxley’s trailer. Arnett’s testimony was

thoroughly impeached, however, by the testimony of Delores Forshaw, who was at

the Hilltop Grill on the night of the alleged threats; she claimed to have seen a fight

1
 The record shows that Ricky Willis also went by the name Ricky Wills, and witnesses
confirmed that he went by both names. [DE 10 Ex. 95 at 18 & n.84.]
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between Braxley -- not Bishop -- and Arnett, during which Braxley beat Arnett

with a stick. In addition, Chief Deputy Sheriff Howard Sills testified that Bishop

was in jail for a nine-day period that included the night of the alleged threats.

      The State also presented a tape recording of a portion of Bishop’s interview

with law enforcement concerning the death of Willis. Bishop explained that two to

four weeks before the murder, his mother had been staying with Willis. His

mother told him that Willis had sexually assaulted her. Bishop confronted Willis,

Willis admitted the conduct, and Bishop “slapped the shit out of him and knocked

him on the bed.” The next day, Bishop learned that Willis had been bragging

about his encounter with Bishop’s mother. Bishop began beating Willis repeatedly

with his fists, causing Willis to hit his head on a metal door jamb and resulting in

Bishop breaking his own knuckle. According to Bishop, as Willis lay on the

ground, Braxley thought Willis was dead; Braxley instructed Bishop to “finish”

Willis off with a butcher knife. Bishop claimed he only hit Willis with his fists and

never intended to kill him, and that Braxley was the one who grabbed the knife and

cut Willis’ throat.

      Bishop further explained how he, again at Braxley’s direction, helped drag

Willis’ body to the edge of the woods near Braxley’s trailer, where the two men

dug a hole and buried the body the following morning. Bishop said that Willis was

“sticking out” of the hole at first, but Braxley “mashed him down in there” when


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Bishop went off to get a garden rake. Bishop also said that one night shortly after

Willis’ death, Bishop watched Braxley sharpen the knife used to kill Willis, and

Bishop noticed that Braxley had wrapped electrical tape around the handle.

      The State also presented the testimony of the medical examiner who

performed an autopsy on Willis. Dr. Anthony Clark testified that the cause of

death was sharp force wounds (stabbing or slashing) to the neck, although the other

injuries may have been contributing factors.

      Finally, the State offered the testimony of Bennie Aycock, a lifelong friend

of Bishop’s. In April 1994 (a few months before the murders of Willis and

Morrison), Bishop and Aycock got into a fight over Aycock’s missing hunting gun.

According to Aycock, Bishop hit him with an object, possibly a brick, breaking his

nose and cheekbone, knocking out one of his teeth, and causing permanent nerve

damage to his face. Aycock got in his truck and drove off, but testified that he

blacked out and awoke on the side of the road, where he managed to walk to a

friend’s house and call 911.

                                         C.

      Defense counsel then presented an extensive mitigation case. Thirteen

witnesses in all were called by Bishop. Although Bishop claims that counsel’s

main strategy at the penalty phase was to establish that Braxley was the more

culpable actor, the actual penalty phase strategy was more complex than that. In


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fact, a three-fold strategy was presented, as trial counsel Combs testified during the

state habeas proceedings: the use of residual doubt from the guilt phase to establish

again that Braxley was the more culpable actor; the presentation of extensive

background concerning Bishop’s tragic upbringing; and finally, the use of a

psychiatric diagnosis from Dr. Thomas Brown. We summarize the mitigation

presentation in some detail, because it bears directly on Bishop’s claims that his

counsel performed ineffectively at the penalty phase.

      First, defense counsel’s opening argument at the penalty phase urged the

jury to “consider what is known in the law as residual or lingering doubt that you

may have as to who actually took the life of Leverett Lewis Morrison.” At the

guilt phase, counsel had pointed out the age difference between the nineteen year

old Bishop and the thirty-five year old Braxley. Counsel also had sought to

emphasize, based on Bishop’s statements to law enforcement, that although Bishop

beat Morrison over the head, he left the room after taking Morrison’s car keys and

Braxley was the one who administered the fatal blow.

      During the penalty phase, defense counsel called Daphne Knowles, who

further impeached the testimony of Arnett. Knowles testified that she was at the

Hilltop Grill on the night Bishop allegedly threatened Arnett, and that Arnett and

Braxley were at the restaurant. Defense counsel next called Braxley’s girlfriend

Sylvia Stiles and her son Stephen to show that a butcher knife with electrical tape


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around the handle, which was recovered from a tackle box in Sylvia Stiles’ house

by law enforcement officers, belonged to Braxley.

      The mitigation presentation then detailed at length Bishop’s terrible

childhood. Much of the testimony was apparently emotional, leaving some jurors

and others in the courtroom in tears. Indeed, counsel Combs testified that the

presentation of Bishop’s mother was “the high point emotionally of the case.”

Bishop first called Angela Prosser, an employee of the Baldwin County

Department of Family and Children’s Services (“DFACS”). She explained that

DFACS came into contact with the Bishop family back in 1972, before Bishop was

even born, and there was regular contact between case workers and the family

from 1972 through January 1975 for checkups and in order to respond to repeated

reports of parental neglect. Prosser said that there were many instances when

Bishop and his older brother Michael went unsupervised. Moreover, case workers

observed the use and abuse of drugs and alcohol in the home, along with many

incidents of family violence. Prosser testified about a shooting incident while a

young Bishop and his brother were at home.

      Prosser amplified that in 1981, when Bishop was only about 6 years old,

DFACS took Bishop and his brother into temporary custody for the first time. But

it was hardly the last; from that point forward, Bishop and his brother were moved

in and out of several foster and group homes, periodically returning to their


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mother’s custody. But each time they returned, the mother’s alcohol abuse, violent

relationships, and total lack of supervision resulted in Bishop and his brother being

returned to state custody. Prosser also described Bishop as a lovable and polite

child who never exhibited any signs of violence. Prosser added that she became

attached to the family and that Bishop showed real concern about his mother and

her problems with alcoholism.

      Another DFACS case worker, Ida Hart Freeman, similarly testified that

Bishop was sweet, quiet, and passive, and that he had a strong bond with his

mother. Freeman also testified that Bishop’s mother had a violent relationship

with her boyfriend; she failed to provide a safe and stable home; and she was often

visibly intoxicated when she visited her children. Still a third case worker, Lucy

Stewart, testified. She observed the petitioner during his early teenage years,

noting that he was very friendly and polite, although withdrawn. She too described

Bishop’s mother as an unreliable alcoholic, but noted Bishop held out the hope that

his mother would get better and he could eventually live with her. She testified

that Bishop’s own behavior went downhill, that he was placed in a local youth

detention center, and that he developed problems with drugs and alcohol. And, as

Stewart explained, Bishop and his mother were often left homeless, living “a hand

to mouth existence.”




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      Defense counsel also presented the expert testimony of Dr. Thomas W.

Brown, a psychiatrist specializing in the treatment of drug and alcohol dependency.

Brown opined that Bishop could think clearly and did not suffer from any mental

abnormalities, but did evince a pattern of emotional problems and unexplained

aggressive outbursts throughout his life. Brown explained that a biochemical

disorder called “intermittent explosive disorder” (“IED”) caused Bishop to develop

these outbursts and a loss of control. Dr. Brown also offered that Bishop suffered

from bipolar disorder. He added that in June 1994, at the time of the murders,

Bishop suffered from at least four years of alcohol and drug dependency. He noted

Bishop’s history of inhaling gasoline fumes and his “peculiar devotion to his

mother through thick and thin.” Finally, Brown opined that Bishop would function

well in a controlled prison environment, and that intermittent explosive disorder

can be treated successfully with medication.

      The defense also presented the testimony of three of Bishop’s foster parents

and one group home administrator. Weldon Brooks, Bishop’s foster father in the

early 1980’s, testified that Bishop was a good boy who didn’t cause major

problems and was a “victim of circumstances.” Jeffrey Lawrence, an assistant

administrator at the group home where Bishop lived between the ages of 12 and

14, likewise said that Bishop was affectionate, sweet, kind, and well-mannered,

and that he bonded quickly with the staff. Lawrence also described periodic


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episodes of anger where Bishop would have to be restrained, but that Bishop later

would express remorse and accept responsibility for his behavior. In 1989, at the

end of his stay, Bishop’s aggressive behavior escalated and he was removed from

the home. Another of Bishop’s foster parents, Roy Thigpen, observed that

Bishop’s mother was bruised, and apparently beaten on more than one occasion.

      Bishop’s older brother Michael testified that he was the primary caregiver

for Bishop, because of their mother’s extensive alcohol and drug addiction.

Michael explained that violence permeated their household almost every day. He

recounted an incident when his mother Carolyn’s off-again-on-again boyfriend

Townsend fired a gun at the trailer where the family was staying, and the mother’s

boyfriend at the time returned gunfire, hitting Townsend. Michael also described

how their mother would take him and Bishop to a babysitter and leave them for up

to a week at a time. Like some of the other witnesses, Michael explained that as

Bishop got older, Bishop began inhaling gasoline fumes and later developed a

problem with alcohol and drugs.

      Finally, Bishop’s mother Carolyn testified. She said that her own parents

were alcoholics, and that she was raped by a friend of her parents when she was

only twelve years old. Carolyn also spent time in the foster system. She

developed a drinking problem shortly afterwards, and married Michael Bishop, Sr.,

the father of her eldest son Michael. Michael Bishop, Sr. left, and Carolyn began


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seeing several men, including Ray Morrison (the victim Leverett Morrison’s

brother). She became pregnant with Bishop; she never knew for certain who

Bishop’s biological father was.

      Carolyn described her drug and alcohol abuse; she admitted that she abused

drugs and alcohol while pregnant with Bishop, and that she used drugs and alcohol

with Bishop as he grew up. In fact, she relayed an anecdote from when Bishop

was three or four: she caught Bishop drinking from one of her beers, so she made

Bishop and his brother each drink an entire beer.

      After spending some time in state custody, Bishop was returned to the care

of his mother when he was about 14 years old. Carolyn said she knew he was

drinking, inhaling gasoline, and taking pills. Carolyn herself was in and out of jail

with no permanent place to stay, so Bishop would live at different places with or

without her, including in cars or under a bridge. In January 1994, Carolyn was

released after serving over a year in prison. She explained that she and Bishop

begged and performed odd jobs to earn enough to survive; they pooled their money

for the purchase of food, alcohol, and drugs. Carolyn also testified that she was

sexually assaulted one night in late May 1994 by Willis, and that Bishop woke up

and intervened on her behalf. Carolyn concluded her emotional testimony by

begging the jury to spare her son’s life and blaming herself for the horrible life he

had led.


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                                             D.

       On February 12, 1996, the jury, after approximately nine hours of

deliberation, found a statutory aggravating circumstance -- that Bishop murdered

Morrison while engaged in armed robbery2 -- and unanimously recommended a

sentence of death. The following day, the trial court sentenced Bishop to die in

accordance with the jury’s recommendation, and sentenced Bishop to a

consecutive life sentence for the armed robbery conviction.

       After unsuccessfully moving for a new trial, Bishop appealed to the Georgia

Supreme Court, which affirmed his convictions. Bishop, 486 S.E.2d 887, cert.

denied, 522 U.S. 1119 (1998), reh’g denied, 523 U.S. 1089 (1998). Bishop then

filed a state habeas petition in the Superior Court of Butts County raising numerous

Strickland claims, including the three presented to this Court. The state habeas

court conducted an evidentiary hearing and denied Bishop’s petition in its entirety.

The Georgia Supreme Court denied Bishop’s application for a certificate of

probable cause to appeal and motion for reconsideration.

       On March 28, 2008, Bishop filed his federal habeas petition in the United

States District Court for the Middle District of Georgia. After limited discovery,

the district court denied all of Bishop’s claims and rejected his Rule 59 motion to

2
  See O.C.G.A. § 17-10-30(b)(2) (aggravating circumstance where “[t]he offense of murder,
rape, armed robbery, or kidnapping was committed while the offender was engaged in the
commission of another capital felony or aggravated battery”).


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alter or amend the judgment. The district court granted a Certificate of

Appealability (COA) on three Strickland claims, and we expanded the COA to

include a Brady claim.

                                         II.

      Because Bishop commenced his federal habeas petition after the 1996

effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

28 U.S.C. § 2254, AEDPA governs the petition and the scope of our review. Penry

v. Johnson, 532 U.S. 782, 792 (2001); Grossman v. McDonough, 466 F.3d 1325,

1335 (11th Cir. 2006). The basic law is clear. Under AEDPA, when a state court

has adjudicated the petitioner’s claim on the merits, a federal court may not grant

habeas relief unless the state court’s decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding,” id. § 2254(d)(2). A state court’s factual findings are

presumed correct unless rebutted by clear and convincing evidence. Id.

§ 2254(e)(1); Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir. 2011).

      AEDPA “imposes a highly deferential standard for evaluating state court

rulings” and “demands that state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks omitted).


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“A state court’s determination that a claim lacks merit precludes federal habeas

relief so long as fairminded jurists could disagree on the correctness of the state

court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (internal

quotation marks omitted). “It bears repeating that even a strong case for relief does

not mean the state court’s contrary conclusion was unreasonable.” Id. (citing

Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The Supreme Court has repeatedly

instructed lower federal courts that an unreasonable application of law requires

more than mere error or even clear error. See, e.g., Mitchell v. Esparza, 540 U.S.

12, 18 (2003); Lockyer, 538 U.S. at 75 (“The gloss of clear error fails to give

proper deference to state courts by conflating error (even clear error) with

unreasonableness.”); Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n

unreasonable application of federal law is different from an incorrect application of

federal law.”).

      Our review of the district court’s decision to deny habeas relief is de novo.

Spencer v. Sec’y, Dep’t of Corr., 609 F.3d 1170, 1177 (11th Cir. 2010);

Fotopoulos v. Sec’y, Dep’t of Corr., 516 F.3d 1229, 1232 (11th Cir. 2008). We

review any factual findings made by the district court for clear error, however.

Spencer, 609 F.3d at 1177.

                                          A.




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      To succeed on an ineffective assistance of counsel claim, Bishop has the

burden of demonstrating both deficient performance and prejudice: he must

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

reasonableness,” and that “there is a reasonable probability that, but for counsel’s

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

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); accord Wiggins v.

Smith, 539 U.S. 510, 521-22 (2003); Darden v. Wainwright, 477 U.S. 168, 184

(1986). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. The Supreme Court also

made clear in Strickland that a court need not address both prongs if the petitioner

has made an insufficient showing on one of them, and that “a court need not

determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. at

697; accord Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“[T]he court

need not address the performance prong if the defendant cannot meet the prejudice

prong, or vice versa.” (citation omitted)).

      Moreover, we do not apply Strickland de novo, but rather through the

additional prism of AEDPA deference. See 28 U.S.C. § 2254(d)(1). Under this

standard, “[t]he pivotal question is whether the state court’s application of the

Strickland standard was unreasonable.” Richter, 131 S. Ct. at 785; accord id. (“A


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state court must be granted a deference and latitude that are not in operation when

the case involves review under the Strickland standard itself.”). With these

principles in mind, we address each Strickland claim in turn.

                                                1.

         Bishop first says that his trial counsel, Brian Combs and Reginald Bellury,

were ineffective in the penalty phase for failing to introduce the testimony of the

lead law enforcement officers -- Sheriff William Massee, Jr., Chief Detective

Ricky Horn, and Chief Deputy Howard Sills -- concerning their opinions about

Bishop’s apparent remorse and relative culpability.

         The law enforcement officers did not testify in person during the state

habeas proceedings; rather, Detective Horn and Deputy Sills submitted written

affidavits.3 Detective Horn’s affidavit says that he is a strong supporter of capital

punishment, but that he has always believed that a life without parole sentence

would be an appropriate punishment for Bishop. Detective Horn explained that

when he spoke to Bishop sometime after the investigation, Bishop “appeared to

[him] to be remorseful for his crimes.” Horn also said that he was skeptical of co-

defendant Braxley’s exculpatory account of the murders. Finally, Detective Horn

opined that a death sentence for Bishop was inappropriate because Braxley had

received a lighter sentence.


3
    There was no testimony from Sheriff Massee at the habeas proceedings.
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      Deputy Sills’ affidavit is similar in some respects. He averred that Bishop

“is the kind of person who will tell the whole truth when he realized you have the

goods on him,” while Braxley was the “kind of liar” you “never get the real story

from.” He pointed out that both men initially denied their roles in the murders of

Morrison and Willis, but that he believed Bishop came clean, while Braxley never

did. Deputy Sills also said that during his interactions with Bishop, the petitioner

appeared to be truthful and remorseful. Sills explained that he was a strong

supporter of capital punishment, but unlike Horn, he did not believe Bishop should

have received a life sentence. Rather, he thought that both Bishop and Braxley

should have gotten the death penalty.

      Bishop’s counsel learned of the law enforcement officers’ opinions prior to

trial. The officers had spoken to defense counsel for the purpose of helping them

negotiate a plea with the District Attorney -- a negotiation that was ultimately

unsuccessful. However, the officers unequivocally said that their opinions were

“off the record,” and that they were unwilling to voice such opinions on the

witness stand. Counsel Combs testified at the state habeas proceeding that the

officers made the comments “when we were one-on-one,” that it was made clear to

him that the officers “were not going to go on the record,” and that, when he asked

Deputy Sills whether he would go on the record, Sills replied with “something to

the effect of, you know, hell, no, I’m not going to help you on that.”


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      The state habeas court denied Bishop’s Strickland claim on both

performance and prejudice grounds. At the outset, to the extent Bishop claims

relief is warranted because the state habeas court engaged in little analysis and

summarily found no prejudice, the argument is without merit. It is by now

abundantly clear that AEDPA deference applies to summary dispositions of a state

court, because “§ 2254(d) does not require a state court to give reasons before its

decision can be deemed to have been ‘adjudicated on the merits.’” Richter, 131 S.

Ct. at 785; accord id. at 784 (“There is no text in the statute requiring a statement

of reasons.”). Moreover, “[a] judicial decision and a judicial opinion are not the

same thing,” and even prior to Richter, it had long been the law in this Circuit that

nothing in AEDPA “requires the state court adjudication that has resulted in a

decision to be accompanied by an opinion that explains the state court’s rationale.”

Wright v. Sec’y, Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002). As we

explained, “[t]elling state courts when and how to write opinions to accompany

their decisions is no way to promote comity” and “[r]equiring state courts to put

forward rationales for their decisions so that federal courts can examine their

thinking smacks of a ‘grading papers’ approach that is outmoded in the post-

AEDPA era.” Id. (citing Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997)).

Our task is to determine whether the decision of the state habeas court was an

unreasonable application of Strickland.


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      We need not address counsel’s performance, because, even if we were to

assume that counsel were ineffective in failing to call the officers, the state court’s

prejudice determination was not an unreasonable one. The officers’ testimony

would not have undercut in any way the conduct Bishop himself admitted to,

including striking the first blows against both Morrison and Willis, dumping the

victims’ bodies, and stealing Morrison’s Jeep. Relatedly, the officers’ testimony

also would not have undermined in any way the statutory aggravator found by the

jury -- that Bishop committed the murder of Morrison during the course of an

armed robbery.

      Moreover, putting the officers on the stand was a double-edged sword, and

could have harmed Bishop in a variety of ways. Defense counsel were told by the

officers, in no uncertain terms, that they were willing to offer their opinions to help

counsel obtain a plea for Bishop, but that they were unwilling to testify at trial.

Bishop claims that his counsel’s fear that the officers might lie was unreasonable,

but, even if we were to accept this, the downside risks were broader. Two hostile

officers could have answered counsel’s questions curtly, evasively, or not at all.

And even assuming they would have expressed an opinion about Bishop’s

remorse, the officers could also have highlighted the egregious nature of the

murders, including the savage beatings of both Morrison and Willis, which were

initiated by Bishop, not Braxley. Similarly, the officers could have underscored


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Bishop’s admitted involvement in disposing of the bodies and his theft of the

victim Morrison’s Jeep and its ultimate destruction. Moreover, the officers

undoubtedly would have been asked to highlight that there were two murders at

issue here, not just the one, and that Bishop was, by his own words, heavily

involved in both. Finally, it would have been impossible for the officers to opine

at Bishop’s trial about any disparity in sentence between Bishop and Braxley,

because Bishop was sentenced to death before Braxley took a plea to a life

sentence.4

       We do not suggest with certainty that the officers’ testimony would have

been unhelpful to Bishop. But our review is constrained by the requirements of

AEDPA. In light of all of the evidence presented and the dangers inherent in

questioning the officers on matters they were unwilling to share at trial, we cannot

say that the state court’s prejudice determination was objectively unreasonable.

See Richter, 131 S. Ct. at 786-87.

                                                 2.

       Bishop also claims that his counsel were ineffective because they failed to

present more evidence of Braxley’s bad character, his criminal history, and his past

incidents of violence. This evidence included information about Braxley’s



4
 Indeed, as set forth infra at 26-30, we are obliged to accept as correct the state court’s finding
that Braxley had not even been offered a plea before the close of Bishop’s trial.
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criminal record, his history as a drug dealer, and his violent behavior towards more

than one of his past girlfriends.

      The state habeas court rejected this claim too on both Strickland prongs.

The court held that counsel were not ineffective, because the additional evidence

would not have been admissible under Georgia law. The court also held that

Bishop failed to show prejudice.

      Bishop is not entitled to federal habeas relief on this claim either. The

additional evidence may have been admissible as mitigation, but we cannot

conclude that the state court’s prejudice determination was an unreasonable one.

In the first place, the additional evidence was largely cumulative. The state habeas

court found, and the record fairly reflects, that the jury learned that Braxley used

drugs, abused alcohol, engaged in violent acts, and acted deceptively. Moreover,

as the state court noted, the additional evidence did not in any way alter the fact

that Bishop admitted to having reasons to attack Morrison and Willis, that Bishop

in fact struck Morrison in the head many times with a heavy rod, and that Bishop

initiated the beating of Willis and delivered repeated violent blows to Willis,

causing Bishop to break his own knuckle in the process. In other words, the

evidence showed that Bishop, not Braxley, initiated the violence that led to the

deaths of both Morrison and Willis. Finally, we observe that additional evidence

concerning Braxley’s violence towards his past girlfriends is far more tenuously


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connected to the murders at issue than Bishop’s own admitted conduct. On this

ample record, we cannot find that the state court’s prejudice determination was

objectively unreasonable.

                                          3.

      Bishop’s final Strickland claim is that his counsel were ineffective for failing

to request funds for and failing to present the testimony of a forensic blood spatter

expert. Bishop argues that this mitigating evidence would have demonstrated

Braxley’s involvement in the beating and murder of Morrison.

      The state habeas court addressed and rejected this claim too, both on

performance and prejudice grounds. The court held that counsel performed

reasonably by using their limited funds to hire other experts to assist in mitigation,

and that Bishop failed to show prejudice because the State did not dispute that

Braxley was involved in the two murders. There was nothing unreasonable about

either determination. As for the performance prong, when a “Petitioner’s claim is

that his trial counsel should have done something more, we first look at what the

lawyer did in fact.” Williams v. Allen, 598 F.3d 778, 793 (11th Cir. 2010)

(internal quotation marks and alterations omitted). Counsel put forth an extensive

mitigation presentation that focused on Bishop’s horrific childhood and troubled

adolescence and his mental infirmities. Moreover, counsel did not neglect to seek

funds for expert assistance. On the contrary, counsel moved the trial court several


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times for funding, received some but not all of the funds they requested, and used

their limited funds to hire an investigator, a psychologist, a psychiatrist, and a jury

consultant. In fact, the state habeas court found that counsel Combs spent

approximately six thousand dollars of his own money on the experts they hired.

Nor does petitioner tell us which expert should have been cast aside to make funds

available for a blood spatter expert.

      In any event, we’re hard-pressed to see how the defendant was prejudiced.

The blood spatter evidence, even if it corroborated Bishop’s account that Braxley

was in the room and took part in the beating of Morrison, did not lessen in any way

Bishop’s involvement in the murder, including Bishop’s admission that he initiated

the beating and struck Morrison with a heavy rod to the point of not breathing. In

addition, no one at trial ever disputed Braxley’s involvement in the murder of

Morrison. Indeed, it was the State that put before the jury Bishop’s statements to

law enforcement suggesting that Braxley delivered the fatal blow. In closing

argument at the guilt phase, the prosecutor explained to the jurors that if they

believed Bishop’s account that he only hit Morrison two times and that “Braxley

finished [Morrison] off . . . [Bishop is] still guilty of murder.” The State also

acknowledged at both phases of the trial Braxley’s presence at the scene and his

participation in dumping the body of the victim.




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      In light of the evidence as a whole, including Bishop’s admitted role in

beating Morrison and Willis, disposing of the bodies, stealing the victim

Morrison’s Jeep, and burning that Jeep, the state court’s Strickland determination

was not objectively unreasonable.

                                           B.

      Finally, Bishop claims that the prosecution violated Brady v. Maryland, 373

U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). At several

points during Bishop’s trial, the prosecutor said that Bishop’s co-defendant

Braxley would have his day in court and that another jury would weigh in on

Braxley’s part in the crimes. Bishop claims that these statements were false and

misleading because Braxley had already been offered a plea to a life sentence, and

that the prosecution suppressed the evidence of this plea offer by failing to disclose

it to Bishop’s defense counsel.

      The district court, like the state habeas court, determined that Bishop’s

Brady claim was procedurally defaulted because it was not raised at trial or on

direct appeal. “Federal courts may not review a claim procedurally defaulted

under state law if the last state court to review the claim states clearly and

expressly that its judgment rests on a procedural bar, and the bar presents an

independent and adequate state ground for denying relief.” Hill v. Jones, 81 F.3d

1015, 1022 (11th Cir. 1996) (citing Harris v. Reed, 489 U.S. 255, 260-61, 263


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(1989)). The state habeas court clearly and expressly held that Bishop’s Brady

claim was procedurally barred: “Bishop’s claims of prosecutorial misconduct and

corresponding denial of his constitutional rights concerning Braxley’s plea are

procedurally defaulted.”

      Procedural default may be overcome, however, by a showing of (1) cause

and prejudice; or (2) a fundamental miscarriage of justice. Id. at 1022-23. Bishop

concedes the default and does not claim there has been a fundamental miscarriage

of justice, but he asserts that he has shown cause and prejudice to overcome his

procedural default. As a general matter, “cause” for procedural default exists if

“the prisoner can show that some objective factor external to the defense impeded

counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier,

477 U.S. 478, 488 (1986). In the context of Brady claims, the state’s suppression

of evidence may amount to “cause.” Banks v. Dretke, 540 U.S. 668, 691 (2004);

Strickler v. Greene, 527 U.S. 263, 282 (1999).

      To show cause in this case, Bishop must first establish that there was

something for the State to suppress; namely, that the District Attorney Fred Bright

offered Braxley a plea prior to the close of Bishop’s trial. The state habeas court

found otherwise. After hearing conflicting evidence on the timing of the plea

offer, the state habeas court credited the testimony of District Attorney Bright and

made a square factual finding that Bright did not make an offer before the


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conclusion of Bishop’s trial. We must presume this factual finding is correct, and

Bishop bears the burden of rebutting the presumption of correctness by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1). Clear and convincing evidence is a

“demanding but not insatiable” standard, requiring proof that a claim is highly

probable. Ward v. Hall, 592 F.3d 1144, 1177 (11th Cir. 2010) (quoting Miller-El

v. Dretke, 545 U.S. 231, 240 (2005)). “Highly probable” is a standard that requires

“more than a preponderance of the evidence but less than proof beyond a

reasonable doubt.” Id.

      Bishop has failed to meet this burden. The evidentiary picture before the

state habeas court was this. It is undisputed that Braxley took a plea to a life

sentence on September 11, 1996, well after the conclusion of Bishop’s trial in

February of that year. The issue was when the plea was offered. District Attorney

Bright testified in the state habeas proceeding that he did not make an offer prior to

the close of Bishop’s trial. In contrast, Bishop presented testimony from Andrew

Prince (Braxley’s counsel), Prince’s paralegal, and other attorneys involved in

Braxley’s defense. Prince recalled that there was a plea offer on the table during

Bishop’s trial, although he did not have any notes from the case or other evidence

to support his recollection. None of the other defense attorneys claimed direct

knowledge of the timing of the plea offer; rather, their affidavits described a

meeting that took place on February 13, 1996, one day after Bishop was sentenced


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to death, at which they recalled discussing that there was an open plea offer to

Braxley.

      The record reflects that both District Attorney Bright and Braxley’s counsel

Prince claimed direct knowledge of the timing of the plea offer. Both were armed

only with their own recollections, and neither possessed any additional evidence

conclusively documenting the timing of the plea offer. The state habeas court

heard from both witnesses and, as we’ve said, credited Bright’s recollection over

Prince’s. In the absence of clear and convincing evidence, we have no power on

federal habeas review to revisit the state court’s credibility determinations. See

Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (federal habeas courts have “no

license to redetermine credibility of witnesses whose demeanor has been observed

by the state trial court, but not by them”); Consalvo v. Sec’y, Dept. of Corr., 664

F.3d 842, 845 (11th Cir. 2011) (denying habeas relief on Brady and Giglio claims

that “turn[ed] upon credibility,” because “[d]etermining the credibility of witnesses

is the province and function of the state courts, not a federal court engaging in

habeas review”); see also Turner v. Crosby, 339 F.3d 1247, 1273 (11th Cir. 2003)

(The deference compelled by AEDPA “requires that a federal habeas court more

than simply disagree with the state court before rejecting its factual determinations.

Instead, it must conclude that the state court’s findings lacked even fair support in

the record.” (quoting Lonberger, 459 U.S. at 432)). The state court’s factual


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finding found fair support in the record testimony of District Attorney Bright; there

was no clear and convincing evidence to rebut that testimony. 28 U.S.C.

§ 2254(e)(1). Quite simply, Bishop cannot show cause to overcome his procedural

default, and therefore we have no need to address whether he has shown actual

prejudice. See, e.g., Howard v. United States, 374 F.3d 1068, 1072 (11th Cir.

2004).

      Accordingly, we affirm the district court’s denial of habeas relief.

      AFFIRMED.




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