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                                                                [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 11-11928
                             ________________________

                        D.C. Docket No. 2:06-cv-00062-WCO



TOMMY LEE WALDRIP,

                           Petitioner - Appellant,

versus

CARL HUMPHREY,

                           Respondent - Appellee.

                             ________________________

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

                                   (August 21, 2013)

Before BARKETT, HULL, and WILSON, Circuit Judges.

PER CURIAM:

         Tommy Lee Waldrip appeals the district court’s denial of his petition for

habeas corpus after being convicted and sentenced to death for the murder of Keith
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Evans. 1 The district court granted a Certificate of Appealability (COA), 2 which we

expanded to include the following issues:

   1. Is petitioner’s Summary Report Brady [v. Maryland, 373 U.S. 83, 83 S. Ct.
      1194 (1963),] claim procedurally defaulted and if it is not, was the Georgia
      Supreme Court’s determination that the Summary Report [prepared by
      Assistant District Attorney (ADA) Raymond George] was inadmissible
      hearsay and would not lead to admissible evidence an incorrect or
      unreasonable application of federal law?
   2. Whether the state court’s decision that petitioner’s constitutional rights were
      not violated under Edwards v. Arizona, 451 U.S. 477[, 101 S. Ct. 1880]
      (1981), is an unreasonable application of federal law.
   3. Whether the state court’s decision that petitioner’s custodial confessions
      were not involuntary is an unreasonable application of federal law.
   4. Was the state court’s decision that petitioner’s trial counsel was not
      constitutionally ineffective for failing to present appropriate mitigating
      evidence at the sentencing phase an incorrect or unreasonable application of
      federal law?

                                    I. BACKGROUND

A. Facts

       On the evening of April 13, 1991, two days before he was scheduled to

testify in an unrelated armed robbery trial against Waldrip’s son, John Mark

Waldrip, Keith Evans did not return home from work. Around midnight, Evans’s

unoccupied truck was found burning in a remote area. A current automobile

       1
          Waldrip was convicted of: (1) malice murder, (2) two counts of felony murder, (3)
kidnapping with bodily injury, (4) aggravated battery, (5) five counts of aggravated assault, (6)
theft by taking a motor vehicle, (7) arson in the second degree, (8) influencing a witness, (9)
concealing a death, (10) possession of a firearm by a convicted felon, and (11) two counts of
possession of a firearm during the commission of a felony.
       2
         Waldrip’s final claim—whether he “establish[ed] cause and prejudice to excuse the
procedural default of his incompetence to stand trial claim”—is deemed abandoned, as he did not
address the issue in his brief. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
2003).
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insurance card for a Ford Tempo, registered in the name of Waldrip’s wife, was

found near the burning vehicle.

      On April 14, 1991, Georgia Bureau of Investigation (GBI) Special Agent

Jimmy Berry and Dawson County Sheriff Randy Chester—a close, personal friend

of the Evans family—interviewed Waldrip and his wife at their home. Police

questioned Waldrip about his whereabouts without issuing any warnings pursuant

to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Later that day, while

executing a search warrant on the Ford Tempo, Berry and former ADA George

again asked Waldrip for information about the Evans disappearance. Waldrip

requested counsel, and no further questioning occurred.

      On April 16, 1991, law enforcement arrested Waldrip for an unrelated

probation violation and transported him to the Dawson County Jail. Berry read

Waldrip his Miranda rights, gave Waldrip a form listing those rights, and obtained

a waiver. Berry then questioned Waldrip for 15 to 20 minutes. Waldrip did not

request an attorney, but invoked his right to remain silent and the interview ended.

However, according to a Summary Report—written by former ADA George, and

which was not disclosed to the defense until Waldrip’s state post-conviction

proceedings—Sheriff Chester allegedly interviewed Waldrip minutes after he

arrived at the jail but prior to his interview with Berry. The Summary Report




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stated that Waldrip requested counsel during that April 16 interview with Sheriff

Chester at the jail.3

       On April 17, 1991, while Waldrip was in custody, a visibly upset and tearful

Sheriff Chester went to Waldrip’s cell. Without administering Miranda warnings,

Sheriff Chester asked about the location of Evans’s body. 4 Waldrip remained

silent, and Sheriff Chester left Waldrip’s cell.5 Around 8:30 a.m. the next

morning, Waldrip asked to speak to Sheriff Chester. When the Sheriff arrived,

Waldrip divulged the general location of Evans’s body. At no point during the

exchange did Sheriff Chester administer any Miranda warnings.

       Approximately two hours later, GBI Special Agent Tim Attaway went to

Waldrip’s cell. After receiving Miranda warnings and executing a waiver,

Waldrip led authorities to the location of Evans’s body and, later, to the location of

the shotgun used in the murder. During further interrogations conducted on April

18, 1991, and after receiving Miranda warnings and waiving his rights each time,

Waldrip eventually confessed that he, John Mark, and Howard Livingston,

Waldrip’s brother-in-law, shot Evans, beat him to death, buried him in a shallow


       3
         The statement in the Summary Report reads: “Tommy was initially interviewed by
Sheriff Chester[.] However, he asked for an attorney and the interview was terminated.”
       4
          Chester said, “Tommy, I am a Christian man, and . . . you claim to be Christian too . . .
please help me find where Keith Evans is at, because . . . if he is somewhere he may be starving
to death . . . we have got to know, and I have got to relieve—help this family relieve some of
their grief.”
       5
           As he left, Sheriff Chester yelled, “May God help you.”
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grave, and burned his truck. On April 19, 1991, after receiving Miranda warnings

and waiving his rights, Waldrip gave a conflicting statement that John Mark and

Livingston murdered Evans and burned his truck, and that he was merely a

bystander. In a third Mirandized statement given on April 22, 1991, Waldrip again

stated that all three individuals participated in the crimes.

B. Procedural History

       On May 10, 1991, after attorneys J. Richardson Brannon and Anne Watson

were appointed as counsel, 6 Waldrip moved to suppress his post-arrest statements

on the grounds that, inter alia, law enforcement violated his Miranda rights and

that mental illness prevented him from competently executing a waiver. On June

29, 1993, the trial court ruled that Waldrip’s pre-Miranda statements to Sheriff

Chester and the directions to the location of Evans’s body were inadmissible, but

that Waldrip’s post-Miranda statements to Agent Attaway and the other GBI

agents during the April 18–22 interrogations were voluntary and not coerced, and

therefore admissible. In a joint interim appeal to the Georgia Supreme Court,

Waldrip again challenged the voluntariness of his statements on mental illness

grounds, and claimed that the state’s repeated Miranda violations and coercive

tactics undermined his ability to effectuate a voluntary waiver. The Georgia



       6
         Watson moved to Montana in August 1992, two years before Waldrip’s trial. Don
Pulliam, a contract attorney, was appointed to assist part-time with the trial.
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Supreme Court affirmed the denial of relief for the same reasons articulated by the

trial court. See Livingston v. State, 444 S.E.2d 748, 754 (Ga. 1994).

      After a five-day hearing on September 12–16, 1991—at which prosecution

mental health experts, as well as defense psychological expert Dr. John Currie,

testified—a jury found Waldrip competent to stand trial. During the guilt phase,

Dr. Currie again testified about Waldrip’s mental health issues; however, the jury

found Waldrip guilty. During the penalty phase, Watson presented eight friends

and family members as character witnesses, but did not present any mental health

evidence. The jury sentenced him to death. On direct appeal, the Georgia

Supreme Court affirmed Waldrip’s conviction and death sentence. Waldrip v.

State, 482 S.E.2d 299, 313 (Ga. 1997). The United States Supreme Court denied

certiorari. Waldrip v. Georgia, 522 U.S. 917, 118 S. Ct. 305 (1997).

      Waldrip filed a petition for writ of habeas corpus in state court on March 17,

1998, alleging, inter alia, Brady and voluntariness violations, as well as ineffective

assistance of counsel. On June 8, 2004, after an evidentiary hearing and the

submission of numerous affidavits regarding Waldrip’s mental health issues from

trial counsel, psychological experts, and family members, the state habeas court

denied all claims after concluding that: (1) that Waldrip’s Brady claim was

procedurally defaulted; (2) notwithstanding that default, the Summary Report was




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not Brady material 7; and (3) Waldrip’s trial counsel was not ineffective at the

penalty phase.

       The Georgia Supreme Court granted Waldrip’s application for a certificate

of probable cause to appeal and affirmed the denial of relief on alternative grounds.

The Georgia Supreme Court did not apply any procedural default but reached the

merits of Waldrip’s Brady claim. As to the state habeas court’s analysis “that the

‘Summary Report’ was not Brady material,” the Georgia Supreme Court expressly

noted several deficiencies in the state habeas court’s reasoning that it was not

Brady material. Waldrip v. Head, 620 S.E.2d 829, 832–33 (Ga. 2005). First, the

Georgia Supreme Court pointed out that the state habeas court’s reliance on Foster

v. State, 374 S.E.2d 188 (1988), was misplaced as the Georgia Supreme Court

“explicitly noted in Foster that that case did not involve the constitutional right to

exculpatory information under Brady.” Id. at 832. As another deficiency in the

state habeas court’s not-Brady-material analysis, the Georgia Supreme Court

pointed out: (1) “the [state] habeas court’s analysis fail[ed] to address the

possibility that the ‘Summary Report’ could have been used at trial as admissible

evidence of the Sheriff’s own knowledge of Waldrip’s alleged request for

counsel”; and (2) that “[i]t is one thing to say the State had no constitutional duty

       7
          The state habeas court found that the Summary Report “was not Brady material but,
instead, constituted work product of the State and, as such, was not discoverable by the defense.”
The court also found that the Summary Report was not Brady material because Waldrip himself
“was aware that he told law enforcement that he wanted to speak to an attorney.”
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to remind a defendant of his or her own pretrial allegations of fact contained in his

or her own statement to law enforcement officers, but it would be another case

altogether if the state failed to disclose evidence confirming the defendant's

allegations.” Id. (first emphasis added).

      The Georgia Supreme Court implicitly ruled that the Summary Report was

suppressed Brady material, which is why that Court then turned to an examination

of whether Waldrip was prejudiced by the suppression of the Summary Report.

The Georgia Supreme Court concluded that Waldrip could not prove prejudice

under Brady because the Summary Report was “the written hearsay statement of

its author [ADA George]” and was also “quite possibly double hearsay” and thus

inadmissible at Waldrip’s trial. Id. at 833. In other words, even if the Summary

Report was turned over and not suppressed, the Georgia Supreme Court explained

why the report was inadmissible at trial to support any of Waldrip’s claims. The

Georgia Supreme Court held that “[i]n light of the complete absence of admissible

evidence showing any prejudice to Waldrip’s defense at trial, this individual claim

does nothing to contribute to a showing of overall prejudice arising from

suppressed evidence.” Id.

      The United States Supreme Court again denied certiorari. Waldrip v. Terry,

547 U.S. 1016, 126 S. Ct. 1605 (2006). Waldrip filed a timely petition for writ of

habeas corpus in federal court on May 1, 2006. On March 30, 2011, the district


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court denied habeas relief on all claims. 8 Waldrip v. Terry, N.D. Ga. 2011, (No.

06-00062, Mar. 30, 2011).

                             II. STANDARD OF REVIEW

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

petition. The district court’s factual findings are reviewed for clear error, while

mixed questions of law and fact are reviewed de novo.” McNair v. Campbell, 416

F.3d 1291, 1297 (11th Cir. 2005) (citations omitted). “An ineffective assistance of

counsel claim is a mixed question of law and fact subject to de novo review.” Id.

       “Federal habeas review of a petitioner’s claim is typically precluded when

the petitioner procedurally defaulted on or failed to exhaust the claim in state

court.” Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012),

cert. denied, 133 S. Ct. 1625 (2013). “[I]n order to exhaust state remedies, a

petitioner must fairly present every issue raised in his federal petition to the state’s

highest court, either on direct appeal or on collateral review.” Ward v. Hall, 592

F.3d 1144, 1156 (11th Cir. 2010). “Whether a particular claim is subject to the

doctrine of procedural default is a mixed question of fact and law, which we

review de novo.” Doorbal v. Dep’t of Corr., 572 F.3d 1222, 1227 (11th Cir. 2009)

(alterations and internal quotation marks omitted).

       8
        The district court held that: (1) Waldrip’s Edwards claim was procedurally defaulted;
(2) Waldrip was not entitled to an evidentiary hearing on his Edwards claim; and (3) Waldrip’s
Brady claim was not procedurally defaulted. Waldrip, N.D. Ga. 2011, (No. 06-00062, Mar. 30,
2011).
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      The doctrine of procedural default dictates that “[a] state court’s rejection of

a petitioner’s constitutional claim on state procedural grounds will generally

preclude any subsequent federal habeas review of that claim,” but only “if the state

procedural ruling rests upon [an] ‘independent and adequate’ state ground.” Judd

v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). To determine whether a state

court’s disposition of a claim warrants such preclusive effect, the ruling must

satisfy the following standard: (1) “the last state court rendering a judgment in the

case must clearly and expressly state that it is relying on state procedural rules to

resolve the federal claim without reaching the merits of that claim”; (2) “the state

court’s decision must rest entirely on state law grounds and not be intertwined with

an interpretation of federal law”; and (3) “the state procedural rule must be

adequate, i.e., firmly established and regularly followed and not applied in an

arbitrary or unprecedented fashion.” Ward, 592 F.3d at 1156–57 (internal

quotation marks omitted). In addition, the “procedural default rule does not

preclude federal habeas review of a petitioner’s constitutional claim if the state

court adjudicates the federal claim on the merits.” Remeta v. Singletary, 85 F.3d

513, 516 (11th Cir. 1996). However, “where a state court has ruled in the

alternative, addressing both the independent state procedural ground and the merits

of the federal claim, the federal court should apply the state procedural bar and




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decline to reach the merits of the claim.” Alderman v. Zant, 22 F.3d 1541, 1549

(11th Cir. 1994).

       Because the Georgia Supreme Court ruled on the merits of Waldrip’s Brady,

Edwards, and voluntariness claims, see Waldrip, 620 S.E.2d at 833, and the state

habeas court reached the merits of Waldrip’s ineffective assistance of counsel

claim, 9 we review all claims under the deferential Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA). See Ward, 592 F.3d at 1155. AEDPA

precludes federal courts from granting habeas relief on claims that were previously

adjudicated on the merits in state court unless the 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)(1)–(2). The United States Supreme Court has distinguished

between the two clauses as follows:

       Under the “contrary to” clause, a federal habeas court may grant the
       writ if the state court arrives at a conclusion opposite to that reached
       by this Court on a question of law or if the state court decides a case
       differently than this Court has on a set of materially indistinguishable
       facts. Under the “unreasonable application” clause, a federal habeas
       court may grant the writ if the state court identifies the correct


       9
          Because the Georgia state habeas court was the “last state court [to] render[] judgment”
on Waldrip’s penalty phase ineffective assistance of counsel claim, we look to that court’s ruling
on the issue. See Ward, 592 F.3d at 1156.
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      governing legal principle from this Court’s decisions but unreasonably
      applies that principle to the facts of the prisoner’s case.

Williams v. Taylor, 529 U.S. 362, 412–13, 120 S. Ct. 1495, 1523 (2000); see

Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001) (quoting Williams, 529 U.S. at

412–13, 120 S. Ct. at 1523).

      Normally, § 2254(d)(1) imposes a “highly deferential standard for

evaluating state-court rulings, . . . which demands that state-court decisions be

given the benefit of the doubt.” Ponticelli v. Fla. Dep’t of Corr., 690 F.3d 1271,

1291 (11th Cir. 2012) (internal quotation marks omitted), cert. denied, 81

U.S.L.W. 3702 (2013). However, “[w]here we have determined that a state court

decision is an unreasonable application of federal law under 28 U.S.C. §

2254(d)[1], we are unconstrained by § 2254’s deference and must undertake a de

novo review of the record.” McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1266

(11th Cir. 2009).

      To determine whether the state court unreasonably applied clearly
      established federal law in adjudicating [Waldrip’s] habeas petition,
      this Court must conduct the two-step analysis that the Supreme Court
      set forth in Harrington v. Richter, — U.S. —, 131 S. Ct. 770 (2011).
      First, this Court must determine what arguments or theories supported
      or, [if none were stated], could have supported the state court’s
      decision. Second, this Court must ask whether it is possible
      fairminded jurists could disagree that those arguments or theories are
      inconsistent with the holding in a prior decision of [the Supreme]
      Court. In other words, we may issue a writ of habeas corpus only
      when the state court’s ruling on the claim being presented in federal
      court was so lacking in justification that there was an error well


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      understood and comprehended in existing law beyond any possibility
      for fairminded disagreement.

Ponticelli, 690 F.3d at 1291 (citations and internal quotation marks omitted)

(alterations in original); see Hill v. Humphrey, 662 F.3d 1335, 1346 (11th Cir.

2011) (en banc) (“Phrased more simply and maybe a little more clearly: if some

fairminded jurists could agree with the state court’s decision, although others

might disagree, federal habeas relief must be denied.” (internal quotation marks

omitted)).

      Under § 2254(d)(2), “[t]he question whether a state court errs in determining

the facts is a different question from whether it errs in applying the law.” Rice v.

Collins, 546 U.S. 333, 342, 126 S. Ct. 969, 976 (2006); see Ponticelli, 960 F.3d at

1291. “[A] determination of a factual issue made by a State court shall be

presumed to be correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C. §

2254(e)(1). Similar to the “unreasonable application” prong, “[a] state court’s . . .

determination of the facts is unreasonable only if no fairminded jurist could agree

with the state court’s determination or conclusion.” Holsey v. Warden, Ga.

Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) (internal quotation marks

omitted), cert. denied, 81 U.S.L.W. 3679 (2013).




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                                III. DISCUSSION

A. Summary Report

      Waldrip first argues that the Summary Report conclusively proves that he

requested counsel while in custody before making any incriminating statements,

and that the state violated Brady by failing to disclose the report. Second, Waldrip

avers that because the Summary Report was admissible and proved that he

requested counsel immediately after he was arrested, all of the un-counseled

custodial interrogations that followed contravened Edwards and violated his Sixth

Amendment rights. We will address each argument in turn.

   1. Brady Claim

      Waldrip contends that the Georgia Supreme Court unreasonably applied

clearly established federal law when it concluded that the Summary Report was

inadmissible hearsay and therefore per se immaterial. Brady requires that the

prosecution turn over all “evidence favorable to an accused.” 373 U.S. at 87, 83 S.

Ct. at 1196. To successfully make out a claim for relief under Brady, Waldrip

must establish that: (1) “the evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is impeaching”; (2) the evidence was

“suppressed by the State”; and (3) “prejudice . . . ensued.” Strickler v. Greene, 527

U.S. 263, 281–82, 119 S. Ct. 1936, 1948 (1999).

      Contrary to Waldrip’s contentions, there is no holding by the Georgia


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Supreme Court that the Summary Report was not Brady material. Indeed, the

Georgia Supreme Court pointed out several deficiencies in the state habeas court’s

reasoning about whether the Summary Report was Brady material. The Georgia

Supreme Court’s hearsay analysis related to the prejudice prong of Waldrip’s

Brady claim, not to whether the evidence was exculpatory or favorable to Waldrip

in the first place. The Georgia Supreme Court effectively agreed with Waldrip that

the Summary Report was suppressed Brady material. The Georgia Supreme Court

then held that Waldrip’s Brady claim failed on the third Brady prong—prejudice—

because the Summary Report was inadmissible hearsay evidence and Waldrip had

failed to show any specific lawful use to which the Summary Report could have

been put at his trial. 10 Therefore, the Summary Report could not have, in

reasonable probability, altered the outcome of his trial. Waldrip, 620 S.E.2d at

832–33, 835–36.

       Before addressing the Georgia Supreme Court’s prejudice-prong conclusion,

we note that Brady evidence often comes in the form of written court statements

       10
           The Georgia Supreme Court noted that former ADA George did not recall the
basis for his notation that Waldrip requested counsel after being arrested. The court
concluded:

       Given Waldrip’s failure to show the relevant statement in the “Summary Report”
       to be anything other than hearsay and quite possibly double hearsay, his failure to
       attempt any showing of why the general exclusion of hearsay should not apply in
       this case, and his failure to show any specific lawful use of the statement, the
       statement in the “Summary Report” must be regarded as completely inadmissible
       and without probative value.
Waldrip, 620 S.E.2d at 833.
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that appear to be hearsay evidence on their face. Indeed, the Supreme Court has

routinely found material such as notes in a police investigation file similar to the

Summary Report to be subject to Brady, its apparent hearsay qualities

notwithstanding. See, e.g., Smith v. Cain, — U.S. —, 132 S. Ct. 627, 630–31

(2012) (investigating detective’s notes containing witness statements); Strickler,

527 U.S. at 282, 119 S. Ct. at 1948–49 (materials in police files, including notes by

a detective and letters from a witness); Kyles v. Whitley, 514 U.S. 419, 441, 115 S.

Ct. 1555, 1569 (1995) (witness and informant statements to the police, both written

and oral); cf. Brady, 373 U.S. at 84, 83 S. Ct. at 1195 (witness’s out-of-court

statements); Moore v. Illinois, 408 U.S. 786, 791–93, 92 S. Ct. 2562, 2566–67

(1972) (out-of-court witness statements, picture of alleged suspect, extrajudicial

statement of prosecutor, and out of court written statements and drawing by

witness). The Georgia Supreme Court properly concluded the Summary Report

was Brady material suppressed by the state.

      The question here then is whether the Georgia Supreme Court’s decision that

Waldrip did not show prejudice is “contrary to” or “involve[d] an unreasonable

application of[] clearly established Federal law.” 28 U.S.C. § 2254(d)(1). Even if

the state had disclosed the Summary Report to Waldrip before his suppression

hearing, and even assuming it was admissible, he has not shown a “reasonable

probability” that the outcome of his suppression hearing or his jury trial would


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have been different. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375,

3383 (1985). Throughout all of these proceedings, Waldrip has never himself

stated—through affidavit, deposition, or live testimony—that he ever requested

counsel, a fact within his own knowledge. Moreover, on the same day that he was

arrested, Waldrip waived counsel in writing. Former ADA George did not

personally witness Waldrip request counsel, nor could George recall the exact

source or exactly how he learned of that information. Sheriff Chester also testified

that he did not recall ever interviewing Waldrip on April 16. Even now, there is

nothing in the record that shows Waldrip requested counsel, aside from the cursory

reference in the Summary Report itself.

      In the absence of any testimony supporting Waldrip’s allegation that he

actually requested counsel, and in light of all the contrary evidence, we cannot say

that the Summary Report, in and of itself, is sufficient to create a reasonable

probability that the outcomes of the pre-trial suppression hearing or the trial would

have been different. We therefore cannot conclude that the suppression of the

Summary Report “undermines confidence in the outcome” of the suppression

hearing or the trial. Kyles, 514 U.S. at 434, 115 S. Ct. at 1566 (internal quotation

marks omitted). Accordingly, Waldrip’s Brady claim fails because the Georgia

Supreme Court’s prejudice ruling is not an unreasonable application of clearly

established federal law.


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    2. Edwards Claim

      Waldrip alleges that because the Summary Report establishes that he

requested counsel when Sheriff Chester spoke to him on April 17, 1991, all

subsequent interrogation by law enforcement occurred in violation of Edwards.

Edwards mandates that once “an accused . . . ha[s] expressed his desire to deal

with the police only through counsel, [he] is not subject to further interrogation by

the authorities until counsel has been made available to him, unless the accused

himself initiates further communication, exchanges, or conversations with the

police.” 451 U.S. at 484–85, 101 S. Ct. at 1885. Moreover, Edwards establishes

“that when an accused has invoked his right to . . . counsel . . ., a valid waiver of

that right cannot be established by showing only that he responded to further

police-initiated custodial interrogation even if he ha[d] been advised of his rights.”

Id. at 484, 101 S. Ct. at 1884–85.

      In Edwards, however, there was no question about whether the defendant

had invoked his right to counsel. Id. at 479, 101 S. Ct. at 1882. Instead, the

primary focus of the case was whether Edwards made a voluntary, knowing, and

intelligent waiver of that invocation—such that his incriminating statements and

confession were admissible—when he spoke to police officers who had reinitiated

post-invocation questioning. Id. at 479, 101 S. Ct. at 1882. Here, in an effort to

make out a valid Edwards claim, Waldrip asks that we engage in conjecture and


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presume the truth of the Summary Report’s contents: that he did, in fact, invoke his

right to counsel. Based on the evidence before us, however, we cannot do that.

Both Georgia state courts recognized, and we concur, that there is no other

evidence in the record, outside of the Summary Report, that Waldrip requested

counsel. Once again, Waldrip’s failure to state—either through affidavit,

deposition, or live testimony—that he ever requested counsel is as fatal to his

Edwards claim as it is to his Brady claim. Accordingly, the Georgia Supreme

Court did not unreasonably apply clearly established federal law in denying

Waldrip’s Edwards claim.

B. Voluntariness of Confessions

          Waldrip further contends that the Georgia Supreme Court engaged in an

unreasonable application of clearly established federal law and an unreasonable

interpretation of the facts when it failed to engage in a “totality of the

circumstances” analysis to determine whether his custodial statements on April

18–22, 1991, constituted a knowing and voluntary waiver of his right to remain

silent.

          When law enforcement officers conduct a custodial interrogation of a

suspect without the benefit of Miranda warnings, there is a presumption that the

suspect’s statements are compelled. See Arizona v. Roberson, 486 U.S. 675, 681,

107 S. Ct. 2093, 2087 (1988) (“[T]he prophylactic protections that the Miranda


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warnings provide [are] to counteract the inherently compelling pressures of

custodial interrogation.” (internal quotation marks omitted)). However, “[a]

subsequent administration of Miranda warnings to a suspect who has given a

voluntary but unwarned statement ordinarily should suffice to remove the

conditions that precluded admission of the earlier statement.” Oregon v. Elstad,

470 U.S. 298, 314, 105 S. Ct. 1285, 1296 (1985). As such, the admissibility of any

subsequent statement turns on whether, under the totality of the circumstances, the

subsequent statement was knowingly and voluntarily made. See Schneckloth v.

Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047 (1973); see also United

States v. Gonzalez-Lauzan, 437 F.3d 1128, 1134 (11th Cir. 2006). When looking

at the totality of the circumstances, we consider “the defendant’s intelligence, the

length of his detention, the nature of the interrogation, the use of any physical force

against him, or the use of any promises or inducements by police.” Hubbard v.

Haley, 317 F.3d 1245, 1253 (11th Cir. 2003). There is a presumption that, “[o]nce

warned, the suspect is free to exercise his own volition in deciding whether or not

to make a statement to the authorities.” Gonzalez-Lauzan, 437 F.3d at 1133

(internal quotation marks omitted).

      Although both state habeas courts concluded that Waldrip’s un-Mirandized

statements to Sheriff Chester regarding the location of Evans’s body were

inadmissible, the courts did a thorough job reviewing each contact between


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Waldrip and law enforcement and, under the totality of the circumstances, parsing

the contacts that were proper from those that were not. Contrary to Waldrip’s

contention, the courts considered the totality of the circumstances, as well as his IQ

and alleged mental illness. Like the Georgia Supreme Court, we conclude that,

notwithstanding Sheriff Chester’s violation of Waldrip’s Miranda rights, Waldrip’s

subsequent, Mirandized statements on April 19–22, 1991, were knowingly and

voluntarily made. The thorough analysis conducted by the state habeas courts, in

conjunction with the remainder of the record, are more than sufficient to establish

that Waldrip “exercise[d] his own volition in deciding whether or not to make a

statement to the authorities.” Id. at 1133 (internal quotation marks omitted). As

such, we cannot say that the Georgia Supreme Court unreasonably applied clearly

established federal law in concluding as such.

C. Ineffective Assistance of Counsel

      Waldrip finally contends that Anne Watson—the attorney who was

primarily responsible for the penalty phase of trial—conducted an unreasonable,

eleventh-hour, truncated mitigation investigation. Waldrip argues that despite his

obvious mental health issues exhibited during attorney-client meetings, and despite

defense counsel’s decision to file a pre-trial special plea of incompetency to stand

trial, Watson’s failure to present any mental health evidence whatsoever at the

penalty phase was deficient and prejudicial, and not simply a strategic decision.


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      In order to prove that Watson rendered ineffective assistance at the penalty

phase, Waldrip “must show that counsel’s performance was deficient, and that the

deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.

Ct. 2527, 2535 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984)). A court need not “address both components of the inquiry

if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at

697, 104 S. Ct. at 2069.

   1. Performance

      “To establish deficient performance, a petitioner must demonstrate that

counsel’s representation fell below an objective standard of reasonableness.”

Wiggins, 539 U.S. at 521, 123 S. Ct. at 2535 (internal quotation marks omitted). In

making such an assessment, we must inquire “whether, in light of all the

circumstances, the identified acts or omissions were outside the wide range of

professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at

2066. Our review of counsel’s conduct is highly deferential, and “we must indulge

a strong presumption that counsel’s performance was reasonable and that counsel

made all significant decisions in the exercise of reasonable professional judgment.”

Newland v. Hall, 527 F.3d 1162, 1184 (11th Cir. 2008) (internal quotation marks

omitted).




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      “The failure to conduct a reasonable investigation of possible mitigating

evidence may render counsel’s assistance ineffective.” Clark v. Dugger, 834 F.2d

1561, 1568 (11th Cir. 1987). “[C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations

unnecessary,” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066, and has an

“obligation to conduct a thorough investigation of the defendant’s background.”

Williams v. Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 1515 (2000). “In assessing

counsel’s investigation, we must conduct an objective review of their performance,

measured for reasonableness under prevailing professional norms, which includes

a context-dependent consideration of the challenged conduct as seen from

counsel’s perspective at the time.” Wiggins, 539 U.S. at 523, 123 S. Ct. at 2536

(citation and internal quotation marks omitted). “[S]trategic choices made after

thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional judgments

support the limitations on investigation.” Strickland, 466 U.S. at 690–91, 104 S.

Ct. at 2066.

      We conclude that the record is insufficient to overcome the high deference

that we afford counsel’s conduct. See Newland, 527 F.3d at 1184. Here, neither

Watson’s mitigation investigation nor her penalty phase representation “fell below


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an objective standard of reasonableness.” Wiggins, 539 U.S. at 521, 123 S. Ct. at

2535 (internal quotation marks omitted).

      Both Watson and Brannon espoused the same strategic goals in their use of

Waldrip’s mental health evidence: attempting to show that Waldrip’s mental

illness predisposed him to protect his family, even if it meant confessing to crimes

that he did not actually commit. The same jury that sat during the penalty phase

heard Dr. Currie’s guilt-phase testimony regarding Waldrip’s mental illness,

including evidence of Waldrip’s delusions about a monitoring system, hearing

voices, bodily radiation, and an apparent conspiracy against him. Moreover,

counsel elicited much of the specific testimony from Dr. Currie that Waldrip now

claims should have been presented: that Waldrip was in the “upper part of the

mentally retarded range, to the lower part of the borderline range,” and that

Waldrip suffered from “delusional disorder and psychotic disorder.” While every

minute detail of Waldrip’s background was not presented to the jury during the

penalty phase, the jury heard from multiple family members and friends who

testified as character witnesses, all of whom testified in keeping with counsel’s

penalty phase strategy to “present evidence to paint [Waldrip] in a sympathetic

light with the jury.” Finally, while it is true that the guilt and penalty phases are

two distinct stages of trial, it is clear that defense counsel conducted a pre-trial

mitigation investigation into Waldrip’s mental health and delusions in order to


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present such testimony during the guilt phase, and that such mental health

investigations dated back prior to the pre-trial competency hearing.

      Because we conclude that Watson’s mitigation investigation and her

penalty-phase performance were not deficient, and that the state habeas court did

not unreasonably apply clearly established federal law or make an unreasonable

determination of the facts, we need not reach the issue of prejudice. See

Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (“[T]here is no reason for a court

deciding an ineffective assistance claim to . . . address both components of the

inquiry if the defendant makes an insufficient showing on one.”).

                                IV. CONCLUSION

      For the foregoing reasons, we affirm the denial of habeas relief.

      AFFIRMED.




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BARKETT, Circuit Judge, concurring in the result only:

      I concur in the majority’s opinion with the exception of its discussion of Mr.

Waldrip’s Brady claim, which misapprehends the law of Brady v. Maryland, 373

U.S. 83 (1963), and fails to acknowledge that a state court cannot use its

evidentiary rules to deny a defendant’s constitutional rights.

      Initially, I do not agree with the majority’s statement that: “[t]he Georgia

Supreme Court implicitly ruled that the Summary Report was suppressed Brady

material, which is why that Court then turned to an examination of whether

Waldrip was prejudiced by the suppression of the Summary Report.” Slip Op. at 8.

The question of whether suppressed evidence prejudiced a defendant is not

segregable from the question of whether it constitutes Brady material in the first

instance. As the Supreme Court has explained, there are three “essential

components of a Brady violation”: 1) “[t]he evidence at issue must be favorable to

the accused . . .”; 2) “that evidence must have been suppressed by the State, either

willfully or inadvertently”; 3) “and prejudice must have ensued.” Strickler v.

Greene, 527 U.S. 263, 280-82 (1999)(emphasis added). As each of these

components is “essential,” evidence does not become subject to the Brady due

process protections unless all three components are present. In other words, each

component is a necessary condition for a court to find that a particular piece of

evidence constituted Brady evidence. As Justice Stevens wrote for the Court,


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“strictly speaking, there is never a real ‘Brady violation’ unless the nondisclosure

was so serious that there is a reasonable probability that the suppressed evidence

would have produced a different verdict.” Id. at 281 The Georgia Supreme Court

recognized that two of the three necessary conditions of a Brady violation were

present in this case, namely that the Summary Report was favorable to Mr.

Waldrip and that it was suppressed by the government. But by holding that Mr.

Waldrip was not prejudiced by the suppression of the Summary Report, the

Georgia Supreme court necessarily held that the suppression of the Summary

Report did not constitute Brady material. Thus, I think it is inaccurate to say the

Georgia Supreme Court implicitly found that the Summary Report was Brady

material.

      That point aside, I think the reasoning by which the Georgia Supreme Court

reached its conclusion that Mr. Waldrip was not prejudiced by the nondisclosure of

the Summary Report constituted an unreasonable application of federal law. While

we do not sit in appellate review of a state court applying state evidentiary law, we

have a duty to ensure that the application of state law does not serve to deny a

habeas petitioner’s federal constitutional rights. See Breedlove v. Moore, 279 F.3d

952, 963 (11th Cir. 2002); see also Jones v. Cain, 600 F.3d 527, 536 (5th Cir.

2010) (“Regardless of how a state court applies state evidence rules, a federal

habeas court has an independent duty to determine whether that application


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violates the Constitution.”). By applying Georgia evidentiary law to find that the

failure to disclose the Summary Report was not prejudicial, the Georgia Supreme

Court impermissibly narrowed the scope of what can constitute Brady evidence.

Brady evidence often comes in the form of written out of court statements that

appear to be hearsay evidence on their face. 1 To hold that material of this kind is

exempt from Brady disclosure requirements because it is hearsay evidence narrows

the scope of Brady in violation of Supreme Court precedent and would

impermissibly exclude a wide swath of exculpatory and probative evidence.

Indeed, the Supreme Court has routinely found material such as notes in a police

investigation file similar to the Summary Report to be subject to Brady, its

apparent hearsay qualities notwithstanding. See, e.g., Smith v. Cain, 132 S. Ct. 627

(2012) (investigating detective’s notes containing witness statements); Strickler,

527 U.S. at 273-75 (1999) (materials in police files including notes by a detective

and letters from a witness); Kyles v. Whitley, 514 U.S. 419 (1995) (witness and

informant statements to the police, written and oral); cf. Moore v. Illinois, 408 U.S.


       1
         Note that while the Summary Report is hearsay on its face, it qualifies under Georgia
law as an exception to the hearsay rule as a party-opponent admission. O.C.G.A. § 24-3-31
(2012) (repealed January 1, 2013) (“The admission by a party to the record shall be admissible in
evidence when offered by the other side[.]”); O.C.G.A. § 24-3-33 (2012) (repealed January 1,
2013)(“Admissions by an agent or attorney in fact, during the existence and in pursuance of his
agency, shall be admissible against the principal.”). Whether Mr. George had personal
knowledge of Mr. Waldrip’s request is irrelevant as party-opponent admissions are admissible
not because “the party making them[] is speaking from his personal knowledge, but upon the
ground that a party will not make admissions against himself unless they are true.” Mayo v.
Owen, 208 Ga. 483, 486 (1951) (internal quotation omitted).
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786 (1972) (out-of-court witness statements, picture of alleged suspect,

extrajudicial statement of prosecutor, and out of court written statements and

drawing by witness); Brady, 373 U.S. at 83 (witness’s out-of-court statements). A

state court cannot use its evidentiary rules to deny an individual access to a

fundamental constitutional right, especially one that the Supreme Court has so

consistently held to apply in factually similar situations. Therefore, the Georgia

Supreme Court’s holding that the Summary Report was not Brady evidence

because it was hearsay is an unreasonable application of federal law and we must

therefore review his Brady claim de novo. McGahee v. Ala. Dep’t of Corr., 560

F.3d 1252, 1266 (11th Cir. 2009).

      Nonetheless, I agree that under de novo review, Mr. Waldrip cannot

establish that he was prejudiced by the nondisclosure of the Summary Report and

his Brady claim fails as a result.




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