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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 18-14671
JIMMY DAVIS, JR.,
Petitioner-Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF
CORRECTIONS,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 1:07-cv-00518-CLS
Before JORDAN, ROSENBAUM, JILL PRYOR, BRANCH, GRANT, LUCK,
LAGOA, ABUDU, and KIDD, Circuit Judges. *
* Chief Judge Pryor, Judge Newsom, and Judge Brasher recused themselves
and did not participate in the en banc poll.
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BY THE COURT:
A petition for rehearing having been filed and a member of
this Court in active service having requested a poll on whether this
appeal should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted
against granting rehearing en banc, IT IS ORDERED that this appeal will not be reheard en banc. The Petition for Rehearing en
banc filed by Jimmy Davis, Jr. (D.E. 97) is denied.
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18-14671 BRANCH, J., Concurring 1
BRANCH, Circuit Judge, joined by GRANT, Circuit Judge, Concurring in the Denial of Rehearing En Banc:
In 1994, an Alabama jury convicted Jimmy Davis, Jr., of the
capital offense of murder committed during a robbery in the
first-degree. As we recounted in the majority opinion:
The state’s evidence showed that on March 17, 1993,
Davis, Alphonso Phillips, and Terrance Phillips made
plans to rob the Direct Oil Station, a gasoline service
station in Anniston. According to the plan, Davis,
who possessed a .25 caliber semiautomatic pistol,
would point the pistol at the station operator, Alphonso would grab the money, and Terrance would
act as a lookout. The state’s evidence supported the
conclusion that Davis was the principal actor in the
conspiracy. He conceived the idea to rob the station
and he recruited the others to help him. As the trio
approached the station, Terrance changed his mind,
abandoned the conspiracy, and walked away. Alphonso and Davis approached the station; Davis confronted the operator, Johnny Hazle, in the doorway
of the station, pointed the pistol at him, and said,
“Give it up, fuck-n*****.” Davis almost immediately
fired two shots from the pistol, which struck Hazle in
the chest and abdomen. Terrance testified that he
was about a block from the station, walking toward
his home, when he heard two or three shots fired. After the shooting, Davis and Alphonso ran from the
scene. Hazle died from these wounds shortly thereafter. Three empty .25 caliber shell casings were recovered at the scene, and two bullets of the same
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2 BRANCH, J. Concurring 18-14671
caliber were recovered from Hazle’s body. The pistol
was subsequently recovered. The ballistics evidence
showed that the two bullets recovered from Hazle’s
body and the three empty shell casings found at the
scene had been fired from Davis’s pistol.
Both Alphonso and Terrance pleaded guilty to conspiracy to commit robbery in the first-degree and testified against Davis. Alphonso testified that, when
they reached the door of the gas station, Davis
“pointed the pistol at Hazle and said, ‘Give it up, fuckn*****’; that Hazle . . . smiled; and that Davis shot
Hazle when he smiled.” Similarly, although Terrance
was walking home when the robbery occurred, Terrance testified that Davis told him after the robbery
that:
he had told [Hazle], Give it up, fuck-n*****.
And then he said the man had smiled or something at him, laughed or something. And then
he said he had shot and the man had kicked the
door. And then he shot again. . . . And then he
said they ran.
Other individuals similarly testified that Davis relayed
similar information and told them that he had robbed
the gas station and shot someone.
The jury found Davis guilty of murder committed
during a robbery in the first-degree as charged.
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18-14671 BRANCH, J., Concurring 3
Davis v. Comm’r, Ala. Dep’t of Corr., 120 F.4th 768, 774–75 (2024) (alterations adopted) (quotations and citations omitted). Following
the penalty phase, at which Davis’s mother and cousin testified,
along with psychometrist Annie Storey, the jury returned an 11 to
1 advisory recommendation in favor of the death penalty. 1 Id. at
776–79. The trial court imposed the death penalty, and the Alabama Court of Criminal Appeals (“ACCA”) affirmed. Davis v. State,
718 So. 2d 1148 (Ala. Crim. App. 1995).
Thereafter, postconviction proceedings and appeals proceeded in the state court for over a decade, but Davis was unsuccessful. Having exhausted his state avenues for relief, Davis filed a
28 U.S.C. § 2254 federal habeas petition in the federal district court.
Following the denial of his § 2254 petition, Davis obtained a certificate of appealability from this Court in which he argued that the
ACCA unreasonably applied Strickland v. Washington, 466 U.S. 668
(1984), in denying his claims that trial counsel rendered ineffective
assistance in the penalty phase of his capital trial by (1) failing to
investigate and present mitigating evidence of childhood abuse and
(2) failing to investigate and present mitigating evidence of the
1 Approximately 40 minutes into deliberations, the jury submitted a question
to the court asking whether the court could “accept seven for death and five
for life?” The trial court explained that there had to be at least 10 votes for
death or 7 for life and instructed the jury to keep deliberating. See Ala. Code
§ 13A-5-46(f) (1993) (explaining that a recommendation of life required only a
bare majority vote of the jurors, but a recommendation of death required the
vote of at least 10 jurors). Additionally, at the time of Davis’s trial, the jury’s
recommendation was merely advisory. The trial court had the ultimate sentencing authority. Id. § 13A-5-47(a) (1993).
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4 BRANCH, J. Concurring 18-14671
circumstances of his prior conviction for third-degree robbery. A
divided panel of this Court affirmed, holding that the ACCA’s conclusion that Davis was not prejudiced by his trial counsels’ failure
to present evidence of Davis’s childhood abuse and the circumstances of his prior Alabama third-degree robbery conviction was
not contrary to, or an unreasonable application of, clearly established federal law under 28 U.S.C. § 2254(d). See Davis, 120 F.4th at
789–99. I concur in the denial of rehearing en banc for the reasons
set forth in the majority opinion. See id.
My dissenting colleague misreads our panel decision and incorrectly asserts that our treatment of the jury’s initial hesitation in
the context of our prejudice discussion “created a new limit on
clearly established law.” To be clear, our majority panel opinion
did not dispute that juror hesitation could be an indicator of prejudice or that the state court could have considered this information
as part of a prejudice analysis. See id. at 797–98. Such hesitation is
a valid factor—one of many—that a court may consider in assessing prejudice. Our majority decision merely rejected the dissent’s contention that the ACCA’s prejudice decision was an unreasonable application of federal law because it failed to expressly consider
the jury’s initial hesitation in its prejudice analysis. Id. at 797. Our
conclusion was a proper application of Supreme Court precedent
and AEDPA. Not only did Davis never make an argument about
the state court’s failure to consider the initial juror hesitation as
part of the prejudice analysis—it was instead raised for the first time
in the dissenting opinion—but the Supreme Court has never held
that a jury’s hesitation in reaching a verdict is necessarily a
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18-14671 BRANCH, J., Concurring 5
presumptive indicator of prejudice under Strickland or that such a
factor must be considered or should weigh more heavily in the
prejudice analysis. Strickland is a very general standard, and Judge
Abudu’s contention that the ACCA was required to consider the
jury’s initial hesitation because it falls within the ambit of Strickland’s general framework of considering what happened at the
original trial is an improper attempt “to refine or sharpen a general
principle” into a specific legal rule that the Supreme Court has not
announced. See Marshall v. Rodgers, 569 U.S. 58, 64 (2013). While
Strickland requires “a court hearing an ineffectiveness claim [to]
consider the totality of the evidence before the judge or jury,” 466
U.S. at 695, that imperative “is a far cry from a federal court requiring that a state court prove to a federal court that it did so by setting
out every relevant fact or argument in its written opinion,” see Lee
v. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172, 1212 (11th Cir. 2013).
Yet, that heightened standard is essentially the standard Judge Abudu’s dissent calls for state courts to employ in order for state court
decisions to be deemed reasonable under AEDPA. Her standard
turns AEDPA and its highly deferential framework on its head.
In sum, as explained in the majority opinion, Davis failed to
show that the ACCA’s determination that he did not suffer prejudice was “so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement.” Harrington v.
Richter, 562 U.S. 86, 103 (2011). And that question is the only one
we were tasked with answering under AEDPA. See Pye v. Warden,
Ga. Diagnostic Prison, 50 F.4th 1025, 1041–42 (11th Cir. 2022) (en
banc) (“Applying AEDPA to Strickland’s prejudice standard, we
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6 BRANCH, J. Concurring 18-14671
must decide whether the state court’s conclusion that [counsel’s]
performance at the sentencing phase . . . didn’t prejudice [petitioner]—that there was no substantial likelihood of a different result—was so obviously wrong that its error lies beyond any possibility for fairminded disagreement.” (quotations omitted)). Because fairminded jurists could disagree regarding the correctness of
the ACCA’s application of Strickland to Davis’s penalty phase ineffective-assistance claims, we were bound by AEDPA and Supreme
Court precedent to conclude that he was not entitled to habeas relief. As a result, the Court properly denied en banc review.
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18-14671 ROSENBAUM, J., Dissenting 1
ROSENBAUM, Circuit Judge, Dissenting from the Denial of Rehearing En Banc:
For the reasons I gave in my dissenting opinion, Davis v.
Comm’r, Ala. Dep’t of Corr., 120 F.4th 768, 818–45 (11th Cir. 2024)
(Rosenbaum, J., dissenting), I continue to think that we wrongly
decided Davis. Judge Abudu also makes some excellent points
highlighting the problems with the panel opinion.
If the panel opinion is wrong, Davis perhaps should not be
executed. So this case seems to me to involve “a question of exceptional importance.” I therefore respectfully dissent from the denial of rehearing en banc.
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18-14671 ABUDU, J., Dissenting 1
ABUDU, Circuit Judge, Dissenting from the Denial of Rehearing En
Banc:
Jimmy Davis, Jr., an Alabama prisoner, seeks habeas corpus
relief from his death sentence based on his attorney’s errors at trial
that made his sentencing fundamentally and constitutionally unfair. 1 Without deciding whether his attorney’s performance was so
poor as to be constitutionally deficient, a split panel of this Court
denied relief, concluding the state court reasonably found Davis did
not suffer any prejudice from his attorney’s failures. Davis v.
Comm’r, Ala. Dep’t of Corr., 120 F.4th 768, 799 (11th Cir. 2024). For
the reasons Judge Rosenbaum articulated in her dissent from the
panel majority opinion, the district court should have granted Davis habeas relief. Id. at 818–51 (Rosenbaum, J., dissenting). As she
thoroughly explained, the panel majority: (1) misapplied the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and
on-point Supreme Court caselaw, e.g., Rompilla v. Beard, 545 U.S.
374 (2005), and Porter v. McCollum, 558 U.S. 30 (2009), to deny relief;
(2) unreasonably minimized the mitigation value of the evidence
Davis’s attorney failed to present at trial, which showed that Davis
suffered horrific childhood trauma and had no serious history of
violence; and (3) gave no weight to the fact the jury—despite
1 The Supreme Court established the test for ineffective assistance of counsel
in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, a
petitioner must show: (1) his counsel’s performance was deficient; and (2) the
deficient performance prejudiced his defense. Id. at 687.
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2 ABUDU, J. Dissenting 18-14671
counsel’s severe failures—was split, hesitant, and ultimately not
unanimous in its recommendation to impose the death penalty.
All three of these errors, separately and combined, are sufficient to vacate the district court’s ruling. However, the panel majority’s dismissive treatment of the jury’s hesitation warrants special attention. Davis was prejudiced by his attorney’s failure to present weighty mitigation evidence at trial, and the jury’s initial
split—where nearly half of the jury was in favor of a life sentence—
and the fact that the jury never reached a unanimous sentencing
recommendation, show a reasonable probability that the missing
pieces of mitigation evidence would have altered the outcome.
The panel majority’s treatment of the jury’s hesitation to impose the death penalty and its ultimate non-unanimous vote improperly suggests the jury’s role is far less important than history
and precedent demonstrate. The Supreme Court has repeatedly
ruled that juries must be given the authority to determine the facts
necessary for sentencing and must reach their conclusions unanimously. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); Hurst
v. Florida, 577 U.S. 92, 94 (2016); Ramos v. Louisiana, 590 U.S. 83, 90
(2020). In Strickland itself, the Supreme Court established a test for
ineffective assistance claims that requires courts to look at the relevant decisionmaker’s on-the-record conduct at trial. See 466 U.S.
at 695. Here, that means the jury’s conduct as the decisionmaker
is of critical importance and should not be cast aside in a prejudice
analysis. In a death penalty scheme like Alabama’s, where the question of life and death is submitted to a jury, these principles compel
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18-14671 ABUDU, J., Dissenting 3
a conclusion that juries must unanimously agree to impose the
death penalty for a death penalty sentence to be imposed. Cf. Hurst,
577 U.S. at 102–03; Spaziano v. Florida, 468 U.S. 447, 469–70 (1984)
(Stevens, J., concurring and dissenting) (arguing that this protection is guaranteed under the Eighth Amendment); Ring v. Arizona,
536 U.S. 584, 614 (2002) (Breyer, J., concurring) (same). Any reasonable application of Strickland to a non-unanimous and conflicted jury must be informed by the Constitution’s focus on the
jury trial right and a proper appreciation of the jury’s role in our
legal system. Such a historically informed view of the Sixth
Amendment shows that courts must weigh jury hesitation when
assessing prejudice.
Given the jury’s role in death penalty sentencing, moreover,
effective assistance in the death penalty context requires adequate
investigation and presentation of mitigating evidence to aid a jury
in fairly determining whether to impose a death sentence. See, e.g.,
Rompilla, 545 U.S. at 387–90; Wiggins v. Smith, 539 U.S. 510, 520–29
(2003). “Although a sentencing authority may decide that a sanction less than death is not appropriate in a particular case, the fundamental respect for humanity underlying the Eighth Amendment
requires that the defendant be able to present any relevant mitigating evidence that could justify a lesser sentence.” Sumner v. Shuman, 483 U.S. 66, 85 (1987); see also Boyde v. California, 494 U.S. 370,
387 (1990) (Marshall, J., dissenting) (“The insistence in our law that
the sentencer know and consider the defendant as a human being
before deciding whether to impose the ultimate sanction operates
as a shield against arbitrary execution and enforces our abiding
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4 ABUDU, J. Dissenting 18-14671
judgment that an offender’s circumstances, apart from his crime,
are relevant to his appropriate punishment.”). When Davis’s counsel’s performance and the jury’s hesitation and non-unanimity are
reviewed with this historical and doctrinal backdrop, the state
court’s conclusion that Davis suffered no prejudice is untenable.
The panel majority was wrong to diminish the jury’s lack of consensus to impose the death penalty and to minimize Davis’s mitigating evidence, and its reasoning erodes the Sixth Amendment’s
rights to effective assistance of counsel and a fair jury trial.
The full facts of the case are not recounted here. See Davis,
120 F.4th at 818–51 (Rosenbaum, J., dissenting). The key point is
that Davis’s counsel presented a woefully inadequate mitigation
case during the penalty phase of trial. Id. at 818. After 40 minutes
of deliberation, the jury submitted a question to the trial court:
“Can you accept seven [jurors voting] for death and five for life? If
not, what procedure should we go by?” Id. at 779 n.6 (majority
opinion). After the trial judge said that the jury could not be split
this way, the jury deliberated further and returned a non-unanimous verdict: 11 to 1 for the death penalty. Id. at 779 & n.6. Then,
despite the jury’s non-unanimous recommendation, the trial judge
“found that two statutory aggravating circumstances existed” and
imposed the death penalty. Id. at 779.
In rejecting Davis’s appeal, the panel majority broke new
ground and rejected the jury’s behavior as irrelevant. First, it stated
that the Supreme Court has “never held that a jury’s hesitation . . . is necessarily an indicator of prejudice . . . .” Id. at 798.
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18-14671 ABUDU, J., Dissenting 5
Second, it concluded that the Supreme Court has never held that
jury hesitation “must be considered” by a court assessing prejudice.
Id.
To be clear, the panel majority only reached these holdings
because they were necessary to answer the question Davis raised
in his habeas petition, on which this Court granted him a certificate
of appealability. See Freeman v. Comm’r, Ala. Dep’t of Corr., 46 F.4th
1193, 1215 (11th Cir. 2022) (explaining that certificates of appealability “encompass any issue that ‘must be resolved before reaching
the merits’ of a claim identified in” that certificate of appealability).
This highly important legal issue is squarely before us and the answer to the issue could determine whether Davis will be executed. 2
Because the Supreme Court has instructed courts to consider jury hesitation when determining whether deficient performance prejudices the outcome, and because the historical scope of
the right to a jury counsels against the panel majority’s holdings,
we should have reheard this case en banc to correct the panel majority’s errors.
2 There was no requirement, nor would there have been any grounds, for Davis to raise a standalone claim based on the jury’s hesitation: his claim throughout has been that his attorney was deficient and he was prejudiced by that
deficiency. See Davis, 120 F.4th at 773 (“Before us are Davis’s arguments that
the state court unreasonably applied Strickland . . . in denying his claim that
trial counsel rendered ineffective assistance in the penalty phase of his capital
trial . . . .”). Thus, Judge Rosenbaum’s panel dissent and this opinion address
an issue of exceptional importance.
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6 ABUDU, J. Dissenting 18-14671
I. AEDPA, STRICKLAND, & JUROR HESITATION
When AEDPA applies, a federal court may grant habeas relief only if the decision of the state court: (1) was contrary to, or an
unreasonable application of, clearly established federal law, as determined by the Supreme Court, or (2) was based on an unreasonable determination of the facts considering the evidence presented
in the state court proceeding. 28 U.S.C. § 2254(d)(1), (2). If AEDPA
deference does not apply, a federal court applies de novo review to
a petitioner’s claim. Calhoun v. Warden, Baldwin State Prison, 92
F.4th 1338, 1346 (11th Cir. 2024), cert. denied, 145 S. Ct. 443 (2024)
(mem.); Adkins v. Warden, 710 F.3d 1241, 1250 (11th Cir. 2013).
“‘[C]learly established federal law’ for purposes of” AEDPA
“includes only the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” Woods v. Donald, 575 U.S. 312, 316
(2015) (quoting White v. Woodall, 572 U.S. 415, 419 (2014)). When
the Supreme Court “relies on a legal rule or principle,” even a
seemingly broad rule or principle, “to decide a case, that principle
is a ‘holding’” for purposes of AEDPA. Andrew v. White, 604 U.S.
86, 92 (2025); id. at 94 (“General legal principles can constitute
clearly established law for purposes of AEDPA . . . .”). While
AEDPA precludes federal habeas relief in situations where relief requires the extension of federal law, Woodall, 572 U.S. at 424–26, this
does not mean “that § 2254(d)(1) requires an ‘identical factual pattern before a legal rule must be applied,’” id. at 427 (quoting Panetti
v. Quarterman, 551 U.S. 930, 953 (2007)). “[C]ertain principles [can
be] fundamental enough that when new factual permutations arise,
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18-14671 ABUDU, J., Dissenting 7
the necessity to apply the earlier rule will be beyond doubt.” Andrew, 604 U.S. at 95 (quoting Woodall, 572 U.S. at 427).
Importantly, there is a difference between deference to a
state court’s application of precedent and a federal court’s “independent obligation” to determine what the law is. Id. The questions regarding what constitutes “clearly established law,” and
when that law applies in a given case are “threshold,” and our review is “de novo,” without deference to state courts. Id.; Lockyer v.
Andrade, 538 U.S. 63, 71 (2003); Walker v. Cromwell, 140 F.4th 878,
890 n.3 (7th Cir. 2025). AEDPA’s deferential standard does not in
any way eliminate an Article III court’s obligation to determine
anew what law applies to a given case and, as applies here, what
the Sixth Amendment requires. 3
With the significance of juror hesitation at issue, the panel
majority should have answered, de novo, the question of what federal law requires. Strickland answers both: (1) how much harm a
petitioner like Davis must suffer from counsel’s performance to
3 See, e.g., Loper Bright Enters. v. Raimondo, 603 U.S. 369, 385 (2024) (“It is emphatically the province and duty of the judicial department to say what the
law is.” (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803))); id. at 430 (Gorsuch, J., concurring); Anthony G. Amsterdam & James S. Liebman, Loper
Bright and the Great Writ, 56 COLUM. HUM. RTS. L. REV. 54, 153–57 (2025) (exploring tension between AEDPA and the Supreme Court’s precedent in other
contexts); see also Williams v. Taylor, 529 U.S. 362, 402 (2000) (O’Connor, J.,
concurring) (“We have always held that federal courts, even on habeas, have
an independent obligation to say what the law is.” (citation omitted)).
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8 ABUDU, J. Dissenting 18-14671
show prejudice; and (2) what courts must consider in assessing
whether a petitioner has suffered prejudice.
As to how much harm, Strickland says a petitioner needs to
show that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” 466 U.S at 694. “This standard” is not so stringent
as to require “a defendant to show that it is more likely than not
that adequate representation would have led to a better result . . . .” Thornell v. Jones, 602 U.S. 154, 163–64 (2024). Instead,
a court must ask whether counsel’s poor performance simply has
created a “reasonable probability” of a different result that is “sufficient to undermine confidence in the outcome.” Id. at 164 (quoting
Cullen v. Pinholster, 563 U.S. 170, 189 (2011)). Yet, assessing prejudice in every ineffectiveness case does not require hard and fast
rules; it is a practical inquiry. See Strickland, 466 U.S. at 696. Courts
must “be concerned with whether . . . the result of a particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Id.
As to how to assess harm, “a court must ‘consider the totality
of the evidence before the judge or jury’—both mitigating and aggravating” and the underlying proceedings. Thornell, 602 U.S. at 164
(emphasis added) (quoting Strickland, 466 U.S. at 695). This rule is
straightforward: to assess whether counsel’s errors affected the
proceeding, a court must review what happened and compare it to
what hypothetically would have happened if counsel had not been
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18-14671 ABUDU, J., Dissenting 9
deficient.4 In Davis’s case, this means the state court should have
compared the conduct of Davis’s attorney to that of a reasonable
attorney to determine whether Davis suffered prejudice from his
attorney’s failures. For Davis to prevail on prejudice, he had to
show only a reasonable probability that the jury would have
reached a different result. Strickland, 466 U.S. at 695. The fact that
the jury already was conflicted is of paramount importance in undertaking this analysis.
This especially is clear because the Supreme Court discussed
essentially this issue in Strickland. Id. The Supreme Court explained that a court assessing prejudice must focus on what actually
happened on the record at trial. Cf. id. (“[E]vidence about the actual process of decision, if not part of the record of the proceeding
under review . . . should not be considered.” (emphasis added)). It
contrasted this proper on-the-record focus with what a court
“should not” do, which would be to consider outside sources that
might shed light on “the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency,” because those facts are irrelevant. Id. The jury here expressed its hesitation and its split on the record at trial, id., so the
hesitation must be considered under the Supreme Court’s test in
Strickland.
4 As my colleague has put it, Strickland requires “a predictive human endeavor
based on a hypothetical construct.” Pye v. Warden, Ga. Diagnostic Prison,
50 F.4th 1025, 1058 (11th Cir. 2022) (en banc) (Jordan, J., concurring).
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The state court in Davis’s case failed to discuss or consider
the fact that five jurors were predisposed to a life sentence even
though Davis’s counsel failed to present any substantive mitigation
evidence. Moreover, the mitigation evidence counsel should have
uncovered, if an adequate investigation had been performed,
painted a very different story than that told at trial.
At trial, the State presented evidence of two statutory aggravating circumstances in support of its position that the jury should
sentence Davis to death: (1) the murder Davis committed occurred
during a robbery; and (2) Davis had a prior 1992 conviction for
third-degree robbery. Davis, 120 F.4th at 839 (Rosenbaum, J., dissenting); see also Ala. Code. § 13A-5-51 (1994) (statutory aggravators). The State argued the prior robbery was “dangerous to human life” and a “very, very aggravating circumstance.” Davis, 120
F.4th at 827 n.11 (Rosenbaum, J., dissenting). The State introduced
a record of Davis’s conviction for the 1992 robbery, which Davis’s
attorney stipulated was accurate. Id. at 775 (majority opinion). In
mitigation, Davis’s counsel suggested Davis’s mother “raised him
the best she could without a father,” and that Davis did not have
“somebody in the home that . . . could really discipline him.” Id. at
819 (Rosenbaum, J., dissenting). Davis’s attorney had Davis’s
mother testify, where she stated she “had problems with [Davis]”
since he was nine years old. Id.
The facts presented in Davis’s ineffectiveness claim paint a
very different picture than the facts the jury considered. Davis was
22 at the time of the prior robbery. Id. at 818. The crime began
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18-14671 ABUDU, J., Dissenting 11
when Davis and three of his friends ordered a pizza. Id. Once the
pizza deliveryman arrived, one of the men made a finger gesture in
his pocket as if he had a gun, and then the group took the pizzas
and $50 from the deliveryman and ran off. Id. The police quickly
caught them and found Davis carrying a pizza. Id. No evidence
suggested that Davis was the ringleader, and neither weapons nor
violence were involved. Id. In fact, the deliveryman later said that
“there really was never a threat made to him.” Id. Davis’s counsel
never investigated these facts, and thus never argued (or presented
available evidence) that this prior conviction—Davis’s only prior
conviction underlying the aggravating factor—did not involve violence or weapons and was not, as the State put it at trial, “dangerous to human life” and a “very, very aggravating circumstance.”
Id. at 827 n.11.
Davis’s counsel also failed to investigate and present evidence of the extreme abuse Davis suffered throughout his childhood at the hands of his own mother, resulting in serious physical
and psychological injuries. Id. at 819. Once, when Davis was in
the second grade, she beat him until his head was “dented,”
“warped,” and “swollen,” and “his ear was partially severed.” Id.
Several times, after vicious beatings, Davis went “into spasm[s]”
and shook for days. Id. Davis’s file with the Alabama Department
of Human Resources included photographs of his injuries and, after examining him, a local social worker stated that she had “never
seen a back that looked worse than Jimmy’s.” Id. This abuse lasted
at least until Davis was 14 or 15 years old. Id. Even so, Davis’s
counsel only cursorily interviewed Davis and his mother (his
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12 ABUDU, J. Dissenting 18-14671
abuser) and never investigated this horrific history of abuse. Id.
Davis’s attorney then called Davis’s mother as a mitigation witness
and, unsurprisingly, she provided testimony that hurt Davis’s case.
Id.
The Alabama Court of Criminal Appeals rejected Davis’s ineffective assistance claim on procedural grounds but noted the
weight of this evidence and the jury’s hesitation, stating that “[c]ertainly, it is reasonable to conclude that the evidence of Davis’s child
abuse could very well have tipped the scales in the other direction.”
Davis v. State, 9 So. 3d 514, 524 (Ala. Crim. App. 2006) (“Davis I”),
overruled, 9 So. 3d 537 (Ala. 2007). Two years later, however, ruling
on the merits, the same court reasoned that none of this evidence
would have changed the outcome of trial. Davis v. State, 9 So. 3d
539, 553 (Ala. Crim. App. 2008) (“Davis II”). 5 In that opinion, the
relevant decision for AEDPA’s purposes, the state court did not
consider the jury’s hesitation in its analysis of whether there was a
reasonable probability the outcome would have been different had
Davis’s counsel presented this mitigation evidence. See id.
To sidestep the obvious import of the jury’s initial unwillingness to impose the death penalty without knowledge of any of
the highly mitigating facts summarized above—and the state
court’s obvious error in failing to consider that hesitation and non5 After being reversed by the Alabama Supreme Court, the state court changed
course and called its rulings—e.g., that Davis’s mitigation evidence was “powerful” and that it “would be compelled to grant relief and order a new sentencing hearing,” Davis I, 9 So. 3d at 522—“dicta,” Davis II, 9 So. 3d at 553.
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18-14671 ABUDU, J., Dissenting 13
unanimity—the panel majority created a new limit on clearly established law. It held that juror hesitation is not “necessarily an
indicator of prejudice” or a fact that “must be considered” or given
weight, because the Supreme Court has never so held. Davis,
120 F.4th at 798 (majority opinion). These conclusions violate
Strickland and Andrew and confuse the inquiry. Federal law, which
we determine de novo, provides the rule: a court must undertake a
holistic review of the omitted evidence and the record of the proceedings. Strickland, 466 U.S. at 694–96. No court applying Strickland can ignore what happened at trial when assessing prejudice.
Id. The state court’s failure to apply this blackletter law—i.e., to
consider the totality of circumstances, including the jury’s hesitation, in assessing prejudice—should have triggered de novo review.
Calhoun, 92 F.4th at 1346; Adkins, 710 F.3d at 1250.
AEDPA does not require the Supreme Court to have decided a case with identical facts as Davis’s for us to say the Alabama
courts unreasonably applied Strickland by not considering this
highly relevant circumstance. Andrew, 604 U.S. at 95; Woodall, 572
U.S. at 427. Indeed, the panel majority cites no cases where juror
hesitation has not been considered by a court assessing prejudice;
our cases, and the cases from our sister circuits, uniformly go in the
other direction.6 Alabama courts themselves have considered juror
6 See, e.g., Blanco v. Singletary, 943 F.2d 1477, 1505 (11th Cir. 1991); Cave v. Singletary, 971 F.2d 1513, 1519 (11th Cir. 1992); Lawhorn v. Allen, 519 F.3d 1272,
1297–98 (11th Cir. 2008); Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248,
1276 (11th Cir. 2016); Sears v. Warden GDCP, 73 F.4th 1269, 1298 (11th Cir.
2023); Hardwick v. Sec’y, Fla. Dep’t of Corr., 803 F.3d 541, 564 (11th Cir. 2015); USCA11 Case: 18-14671 Document: 110-1 Date Filed: 02/19/2026 Page: 23 of 41
14 ABUDU, J. Dissenting 18-14671
hesitation in this context when it has been presented—except, it
seems, in the second decision in Davis’s case. E.g., Reeves v. State,
974 So. 2d 314, 325 (Ala. Crim. App. 2007); Ex parte Carroll, 852 So.
2d 833, 836 (Ala. 2002). In this way, the panel majority opinion is
an extreme outlier; making us the first state or federal court to suggest—in the 40 years since Strickland—that a court may ignore the
jury’s behavior in assessing prejudice.
This uniform caselaw and practice only further demonstrates that the Supreme Court in Strickland already has determined
that jury hesitation is relevant. The panel majority was thus also
wrong to limit Strickland in a way the Supreme Court never has.
Cf. Motorcity Ltd. ex rel. Motorcity, Inc. v. Se. Bank N.A., 120 F.3d 1140,
1143 (11th Cir. 1997) (en banc) (“[We] must follow Supreme Court
precedent that has ‘direct application’ in a case, even if it appears
that the reasoning of the Supreme Court precedent has been rejected in other cases. Only the Supreme Court has ‘the prerogative
of overruling its own decisions.’” (citation omitted) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989))); United States v. Johnson, 921 F.3d 991, 1001 (11th Cir. 2019)
(en banc) (“[W]e must apply Supreme Court precedent neither narrowly nor liberally—only faithfully.”).
Jordan v. Hargett, 34 F.3d 310, 316 (5th Cir. 1994); Mason v. Mitchell, 543 F.3d
766, 780 (6th Cir. 2008); Stankewitz v. Wong, 698 F.3d 1163, 1175 (9th Cir. 2012);
Vega v. Ryan, 757 F.3d 960, 974 (9th Cir. 2014); Williams v. Stirling, 914 F.3d
302, 318 (4th Cir. 2019); Sanders v. Davis, 23 F.4th 966, 994–95 (9th Cir. 2022). USCA11 Case: 18-14671 Document: 110-1 Date Filed: 02/19/2026 Page: 24 of 41
18-14671 ABUDU, J., Dissenting 15
Prejudice is assessed by considering “the totality of the new
mitigating evidence,” and “juxtapos[ing]” it with the evidence presented in that original trial, in light of what happened at the original
trial. Pye, 50 F.4th at 1058 (Jordan, J., concurring). The jury was an
integral and constitutionally required part of the original trial, so
the only reasonable application of Strickland’s test is (1) to consider
that the jury was hesitant to impose the death penalty and (2) to
conclude that Davis’s strong mitigating evidence is clearly “sufficient to undermine confidence in the outcome” of the trial. Thornell, 602 U.S. at 163–64. For these reasons, a rule that minimizes
the jury’s role in assessing prejudice departs from the clear federal
law the Supreme Court established in Strickland. 7
II. THE JURY’S ROLE & THE CONSTITUTION
Even though the panel majority’s errors under AEDPA justified en banc review, the panel majority’s treatment of jury hesitation suffers from a broader problem: it minimizes the importance
of the jury in our legal system. The Constitution requires that we
take juries seriously. In Davis’s case, even with counsel’s failures,
the State never obtained a unanimous jury recommendation for
the death penalty. In fact, notwithstanding the jury’s non-unanimous verdict, the state court made findings that statutory aggravating circumstances were present. In this context, Davis’s nonunanimous sentencing verdict not only clearly shows Strickland
7 In fact, the Supreme Court has expressly rejected the adoption of “strict
rules” in applying Strickland, such as the no-consideration of juror hesitation
rule the panel majority approved here. Cullen, 563 U.S. at 196.
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16 ABUDU, J. Dissenting 18-14671
prejudice, it should foreclose his death sentence altogether. While
our rulings in the habeas context might not fix unconstitutional
death penalty schemes, we should view Davis’s Strickland claim of
prejudice through the context and historical tradition of valuing
and prioritizing the jury’s perspective. Applying this historical tradition and precedent shows that the jury’s non-unanimity and hesitation is one of the best, if not the best, indication of prejudice.
The Sixth Amendment guarantees that defendants like Davis receive effective assistance of counsel and that “[i]n all criminal
prosecutions” they “enjoy the right to a speedy and public trial, by
an impartial jury . . . .” U.S. CONST. amend. VI. As the Supreme
Court has explained, juries “protect against unfounded criminal
charges brought to eliminate enemies and against judges too responsive to the voice of higher authority.” Duncan v. Louisiana, 391
U.S. 145, 156 (1968). This “[p]rovid[es] . . . an inestimable safeguard against the corrupt or overzealous prosecutor and against
the compliant, biased, or eccentric judge.” Id. (holding that this
protection applies to state prosecutions because “[t]he deep commitment of the Nation to the right of jury trial in serious criminal
cases” serves “as a defense against arbitrary law enforcement”). 8
As the Supreme Court recently explained in Ramos, the right
to a jury trial is substantive; it means “something.” 590 U.S. at 89
8 “Beyond this, the [rights to a jury trial] in the Federal and State Constitutions
reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one
judge or to a group of judges.” Duncan, 391 U.S. at 156.
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18-14671 ABUDU, J., Dissenting 17
(emphasis in original). Historically, one of the core and “unmistakable” features of the right is “unanimity.” Id. at 90. 9 The jury’s role
in sentencing, also with its required unanimity, also is protected by
the Constitution and proven through historical practice. Historically, juries in England could, and did, refuse to convict on capital
charges when they believed the crimes did not warrant execution.
See Jones v. United States, 526 U.S. 227, 245–46 (1999); Thomas A.
Green, VERDICT ACCORDING TO CONSCIENCE: PERSPECTIVES ON
THE ENGLISH CRIMINAL TRIAL JURY 1200-1800, 18–20 (1985) (“The
power of the jury may have reflected more than its institutional
setting and role: it may have reflected a social understanding about
the appropriate circumstances under which a person’s life might be
surrendered to the Crown.”). After the founding, juries’ refusals to
return verdicts of guilty to avoid subjecting a defendant to execution led to criminal reforms that cut down on “the number of capital offenses” and “separate[d] murder into degrees.” Woodson v.
North Carolina, 428 U.S. 280, 290–93 (1976); see also Winston v. United
States, 172 U.S. 303 (1899) (reversing murder conviction where
9 Indeed, the “origins” of nonunanimous convictions in state courts “are
clear,” and intentionally aimed to thwart the Sixth Amendment’s protections.
Ramos, 590 U.S. at 88. States adopted provisions allowing for nonunanimous
juries during the Jim Crow era to nullify the votes of Black citizens participating in juries for the first time. Id.; see also id. at 88 n.4 (citing, among others,
Thomas Ward Frampton, The Jim Crow Jury, 71 VAND. L. REV. 1593 (2018));
Frampton, 71 VAND. L. REV. at 1613 (explaining that some sources “endorsed
the adoption of nonunanimous verdicts as a way of placating those intent on
committing extralegal forms of racial violence”).
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18 ABUDU, J. Dissenting 18-14671
district court had improperly limited the jury’s discretion to impose
a life sentence).
Given the role of juries in the development of our criminal
legal system and the structural protections afforded by having a
trial by jury—and, again, because it had served as a valuable tool
for resistance against colonial England—it is natural that the jury
trial right was of utmost importance to the founders. See Albert W.
Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in
the United States, 61 U. CHI. L. REV. 867, 869–75 (1994) (detailing the
history that led to the Sixth Amendment); cf. SEC v. Jarkesy, 603 U.S.
109, 121 (2024) (civil context) (“The right to trial by jury is ‘of such
importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right’ has always
been and ‘should be scrutinized with the utmost care.’” (quoting
Dimick v. Schiedt, 293 U.S. 474, 486 (1935))). To protect this right,
James Madison drafted the Bill of Rights to include criminal and
civil “protections for the jury trial right.” Erlinger v. United States,
602 U.S. 821, 830 (2024). The Sixth Amendment, the Supreme
Court has explained, was designed to alleviate “fear[]” that the
“government might fall prey to the kinds of temptations that led
the British to restrict the jury trial right in the colonies.” Id. Given
that history, it is logical that the Supreme Court repeatedly has
stepped in to protect the right to a jury trial and to preserve juries’
role. The Court has done so in numerous ways.
For instance, both the Supreme Court and this Court have
recognized many times that the Constitution requires juries to be
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18-14671 ABUDU, J., Dissenting 19
representative of the community and selected in a non-discriminatory manner. See, e.g., Strauder v. West Virginia, 100 U.S. 303 (1880);
Witherspoon v. Illinois, 391 U.S. 510 (1968); Taylor v. Louisiana, 419
U.S. 522 (1975); Duren v. Missouri, 439 U.S. 357 (1979); Batson v. Kentucky, 476 U.S. 79 (1986); J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127
(1994); Pena-Rodriguez v. Colorado, 580 U.S. 206 (2017); Flowers v.
Mississippi, 588 U.S. 284 (2019); United States v. Brown, 996 F.3d 1171
(11th Cir. 2021) (en banc); Sockwell v. Comm’r, Ala. Dep’t of Corr., 141
F.4th 1231 (11th Cir. 2025). Then, once a jury is constitutionally
selected, and a criminal case proceeds to a trial, juries are given significant deference in finding facts and are presumed to follow the
court’s instructions. 10 See, e.g., United States v. Pulido, 133 F.4th
1256, 1276 n.17 (11th Cir. 2025); see also Jackson v. Virginia, 443 U.S.
307, 319 (1979); United States v. Ramirez, 426 F.3d 1344, 1352 (11th
Cir. 2005) (“A jury is presumed to follow the instructions given to
it by the district judge.”). We affirm convictions if any rational jury
could possibly have reached the result the jury did in a given case.
10 Indeed, if a jury’s factual findings lead to an acquittal, as the Supreme Court
has explained, that “jury’s verdict of acquittal is inviolate.” McElrath v. Georgia,
601 U.S. 87, 94 (2024). Thus, while judges can step in to acquit a defendant
after a jury convicts to avoid manifest injustice, e.g., United States v. Tapia, 761
F.2d 1488, 1492 (11th Cir. 1985), juries “hold[] an ‘unreviewable power . . . to
return a verdict of not guilty’ even ‘for impermissible reasons,’” Smith v. United
States, 599 U.S. 236, 253 (2023) (quoting United States v. Powell, 469 U.S. 57, 63
(1984)). In light of this constitutionally protected asymmetry between judges
and juries, Alabama’s death penalty scheme, which puts judges as the driver
of the death penalty sentencing proceedings notwithstanding the jury’s view,
is ahistorical and unconstitutional, as explained above.
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20 ABUDU, J. Dissenting 18-14671
See id.; United States v. Burnette, 65 F.4th 591, 604 (11th Cir. 2023)
(“[A] guilty verdict need only ‘be reasonable, not inevitable, based
on the evidence presented at trial.’” (quoting United States v.
Browne, 505 F.3d 1229, 1253 (11th Cir. 2007))). We often explain
that it is a jury’s role—not a court’s—“to weigh the evidence, make
credibility determinations, and [to] draw any legitimate inferences
from the facts.” Hicks v. Middleton, 141 F.4th 1174, 1180 (11th Cir.
2025) (civil context); see also United States v. Brown, 53 F.3d 312, 316
(11th Cir. 1995) (“All questions of credibility are for the jury”). So
great is our deference to the jury that we repeatedly have held that
if a jury disbelieves a defendant’s testimony, the jury may consider
that disbelief as “substantive evidence of the defendant’s guilt.”
Brown, 53 F.3d at 314 (emphasis in original) (collecting cases);
United States v. Beaufils, 160 F.4th 1147, 1164 (11th Cir. 2025)
(same). 11
11 In some respects, the law calls on us to afford juries greater deference even
than we give to experienced judges. See, e.g., Joseph Blocher & Brandon L.
Garrett, Fact Stripping, 73 DUKE L.J. 1, 21–22 (2023) (describing the “typical
rule[]” that deference to a jury’s finding of facts is more deferential than clear
error review, which applies to judge-found facts, but arguing that recent practice has undermined this rule). So, while this Court has “habit[ually]” failed to
give appropriate deference to our district court colleagues, Otto v. City of Boca
Raton, 41 F.4th 1271, 1285 (11th Cir. 2022) (Jordan, J., dissenting from the denial of reh’g); see also Fla. Decides Healthcare, Inc. v. Fla. Sec’y of State, No. 25-12370, 2025 WL 3738554, at *9 (11th Cir. Sept. 9, 2025) (Abudu, J., dissenting)
(same), we traditionally have been consistent about giving deference to juries,
see Brown, 996 F.3d at 1183 (“Jurors are ordinary people. They are expected to
speak, debate, argue, and make decisions the way ordinary people do in their
daily lives. Our Constitution places great value on this way of thinking,
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18-14671 ABUDU, J., Dissenting 21
The jury’s role at sentencing also is constitutionally protected and rooted in history. 12 As the Supreme Court has held, the
Constitution provides a “time-honored guarantee that a unanimous jury ordinarily must find beyond a reasonable doubt any fact
that increases a defendant’s exposure to punishment.” Erlinger, 602
U.S. at 836; see also, e.g., Apprendi v. New Jersey, 530 U.S. 466 (2000);
Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington,542 U.S.
296 (2004); Alleyne v. United States, 570 U.S. 99 (2013); Hurst, 577
U.S. at 94. Accordingly, in a situation like Davis’s, where state law
creates statutory aggravating circumstances that affect whether the
death penalty should be imposed, see Ala. Code. § 13A-5-51 (1994);
Davis, 120 F.4th at 775 n.4 (majority opinion), the Constitution establishes that those factors must be tried to a jury and the jury, not
a judge, must unanimously conclude that the government established the existence of those aggravating circumstances, see Ring,
536 U.S. at 609 (majority opinion) (“Because Arizona’s enumerated
aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ Apprendi, 530 U.S. at 494 n.19, the Sixth
Amendment requires that they be found by a jury.”); see also id. at
speaking, and deciding.” (emphasis supplied) (quoting Pena-Rodriguez, 580 U.S.
at 236 (Alito, J., dissenting))).
12 See Nancy J. King, The Origins of Felony Jury Sentencing in the United States, 78
CHI.-KENT. L. REV. 937, 937–38 (2003) (describing the history, beginning in the
1790s, of juries determining the appropriate sentence in state courts); Nancy J.
King, The American Criminal Jury, 62 L. & CONTEMP. PROBS. 41, 64 (Spr. 1999)
(“One of the most unique tasks of the criminal jury in the United States is deciding whether a convicted criminal will be put to death for his [or her]
crime.”).
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22 ABUDU, J. Dissenting 18-14671
612 (Scalia, J., concurring) (“Accordingly, . . . wherever [aggravating] factors exist they must be subject to the usual requirements of
the common law, and to the requirement enshrined in our Constitution, in criminal cases: they must be found by the jury beyond a
reasonable doubt.”); Hurst, 577 U.S. at 102 (holding the Sixth
Amendment “right require[s] Florida to base . . . death sentence[s]
on a jury’s verdict, not a judge’s factfinding”). 13
As noted, Strickland already says that a jury’s hesitation
should be considered in the totality of circumstances analysis applicable to assessing prejudice in a case like this. Supra, Section I.
Given the history of juries and the reaffirmation of the paramount
protection of the jury trial right in Supreme Court caselaw, it is not
plausible that Strickland instructs courts to do something different
than they do in every other jury trial context and disregard the jury.
Therefore, the panel majority’s reading of Strickland and application of AEDPA on the issue of juror hesitation flies in the face of
this great body of caselaw and historical practice cementing the importance of juries and giving shape to the right to a fair jury trial.14
13 Hurst, Ramos, and Ring show that aggravating circumstances themselves
must be tried to a jury and the jury must reach a conclusion on those circumstances unanimously. There is no question that Alabama’s death penalty sentencing scheme provided various aggravating circumstances in 1994, Ala.
Code. § 13A-5-51 (1994), Davis, 120 F.4th at 779 (majority opinion), so the Sixth
Amendment (and precedent) establishes that a unanimous jury verdict should
have been required on those issues.
14 As noted previously, a court applying Strickland must “be concerned with
whether . . . the result of the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system counts on to produce
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18-14671 ABUDU, J., Dissenting 23
See United States v. Rahimi, 602 U.S. 680, 738 (2024) (Barrett, J., concurring) (explaining that history “can reinforce our understanding
of the Constitution’s original meaning; liquidate ambiguous constitutional provisions; [and] provide persuasive evidence of the
original meaning” (citations and quotations omitted)); Russian Volunteer Fleet v. United States, 282 U.S. 481, 491 (1931) (“Acts of Congress are to be construed and applied in harmony with and not to
thwart the purpose of the Constitution.” (quoting Phelps v. United
States, 274 U.S. 341, 344 (1927))). The Sixth Amendment has always
instructed courts to respect and consider the perspectives of the
community members our system entrusts with determining guilt
and punishment, so our interpretation of AEDPA and Strickland
should reflect that same structural concern and reverence.
III. JURIES AND THE DEATH PENALTY
In 1972, the Supreme Court held that the imposition of the
death penalty in the cases before it violated the Constitution. Furman v. Georgia, 408 U.S. 238, 239–40 (1972). 15 In the years that
just results.” Strickland, 466 U.S. at 696. Just results, in this context, necessarily
means that the proceeding be consistent with traditional understandings of
fairness. Ramos, 590 U.S. at 89 (“Imagine a constitution that allowed a ‘jury
trial’ to mean nothing but a single person rubberstamping convictions without
hearing any evidence . . . .”). For the same reason, we must ask, at the prejudice stage, what a fair trial, with constitutional representation and a unanimous jury, would have looked like. See Pye, 50 F.4th at 1058 (Jordan, J., concurring).
15 Rachel E. Barkow, The Court of Life and Death: The Two Tracks of Constitutional
Sentencing Law and the Case for Uniformity, 107 MICH. L. REV. 1145, 1151–52
(2009) (“[The Furman Court’s] central concern was avoiding arbitrary and
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24 ABUDU, J. Dissenting 18-14671
followed, the Supreme Court retreated from Furman, laying out the
framework for the resumption of executions and death penalty trials—like Davis’s in Alabama—after a moratorium of several years.
See Gregg v. Georgia, 428 U.S. 153, 207 (1976) (opinion of Stewart, J.);
id. at 207, 226 (White, J., concurring); id. at 227 (Blackmun, J., concurring). In the post-Furman years, however, the Supreme Court
revisited and reshaped the death penalty, approving and disapproving aspects of individual states’ death penalty schemes. In doing so,
it attempted to establish meaningful safeguards to avoid states reverting to death penalty schemes that would be as arbitrary and
random as those that the Furman Court found unconstitutional.16
This reform also touched on the role of juries. In the Court’s view,
procedural and substantive reforms would prevent the death penalty from being “wantonly and freakishly impose[d].” Instead, a
“jury’s discretion [would be] channeled” and “circumscribed by the
legislative guidelines.” Id. at 207.
capricious death sentences. To be sure, the opinions were splintered, but a
majority of Justices shared that same basic sentiment.” (footnote omitted)).
16 See Gregg, 428 U.S. at 206 (opinion of Stewart, J.) (“The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case,
sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could
only be called freakish.”).
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18-14671 ABUDU, J., Dissenting 25
One aspect of this narrowing jurisprudence 17 tried “to ensure that only the most deserving of execution are put to death.”
Atkins v. Virginia, 536 U.S. 304, 319 (2002). 18 Only adult offenders
17 Chelsea Creo Sharon, The “Most Deserving” of Death: The Narrowing Requirement and the Proliferation of Aggravating Factors in Capital Sentencing Statutes,
46 HARV. C.R-C.L. L. REV. 223, 225 (2011) (“The narrowing requirement demands that aggravating factors limit the death-eligible class to the most heinous offenders, whom jurors are likely to deem especially deserving of death
sentences.”); see also Graham v. Florida, 560 U.S. 48, 89 (2010) (Roberts, C.J.,
concurring) (describing “the unique context of the death penalty, a punishment that our Court has recognized must be limited to those offenders who
commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution” (quotations omitted)
(quoting Roper v. Simmons, 543 U.S. 551, 568 (2005)).
18 The Supreme Court’s narrowing jurisprudence is best contextualized, in
part, as a response to the numerous distinguished members of that Court who
argued, convincingly, that the death penalty is, in all circumstances, unconstitutional. See, e.g., Gregg, 428 U.S. at 227–31 (Brennan, J., dissenting) (“The fatal
constitutional infirmity in the punishment of death is that it treats ‘members
of the human race as nonhumans, as objects to be toyed with and discarded.
[It is] thus inconsistent with the fundamental premise of the [Eighth Amendment] that even the vilest criminal remains a human being possessed of common human dignity.’” (quoting Furman, 408 U.S. at 273 (Brennan, J., concurring))); id. at 231–41 (Marshall, J., dissenting) (“The death penalty, unnecessary
to promote the goal of deterrence or to further any legitimate notion of retribution, is an excessive penalty forbidden by the Eighth and Fourteenth
Amendments.”); Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J.,
dissenting) (“From this day forward, I no longer shall tinker with the machinery of death. . . . I feel morally and intellectually obligated simply to concede
that the death penalty experiment has failed. It is virtually self-evident to me
now that no combination of procedural rules or substantive regulations ever
can save the death penalty from its inherent constitutional deficiencies.”); John
Calvin Jeffries, JUSTICE LEWIS F. POWELL: A BIOGRAPHY 451–52 (1994) (explaining that, after his retirement, Justice Powell stated: “I have come to think that USCA11 Case: 18-14671 Document: 110-1 Date Filed: 02/19/2026 Page: 35 of 41
26 ABUDU, J. Dissenting 18-14671
who commit murder, and who are not insane or suffering from severe disabilities in areas of reasoning, judgment and control of their
impulses, are eligible for the death penalty. 19 Another aspect of this
jurisprudence put procedures in place so that death penalty cases
would be fair and, to a higher degree than other state criminal processes, uniform both in their substantive criminal phase and in their
sentencing phase.20 The Supreme Court has reviewed death
capital punishment should be abolished”); Baze v. Rees, 553 U.S. 35, 81 (2008)
(Stevens, J., concurring) (“The time for a dispassionate, impartial comparison
of the enormous costs that death penalty litigation imposes on society with
the benefits that it produces has surely arrived.”); Glossip v. Gross, 576 U.S. 863,
908–09 (2015) (Breyer, J., joined by Ginsburg, J., dissenting) (explaining that
changes in society and recent scholarship, “taken together with . . . 20 years of
experience on th[e Supreme] Court, . . . lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishmen[t]’” (quoting U.S. CONST. amend. VIII)).
19 See, e.g., Thompson v. Oklahoma, 487 U.S. 815, 838 (1988) (plurality opinion);
Roper, 543 U.S. at 578; Miller v. Alabama, 567 U.S. 460, 465 (2012); Coker v. Georgia, 433 U.S. 584, 598 (1977) (plurality opinion); Kennedy v. Louisiana, 554 U.S.
407, 413 (2008); Enmund v. Florida, 458 U.S. 782, 801 (1982); Ford v. Wainwright,
477 U.S. 399, 410 (1986); Atkins, 536 U.S. at 306; Hall v. Florida, 572 U.S. 701,
704 (2014).
20 The Supreme Court’s cases addressing procedural safeguards in the death
penalty context are legion. See, e.g., Sumner, 483 U.S. at 85; Roberts v. Louisiana,
428 U.S. 325, 336 (1976) (plurality opinion); Woodson, 428 U.S. at 301 (plurality
opinion); Beck v. Alabama, 447 U.S. 625, 627 (1980); Simmons v. South Carolina,
512 U.S. 154, 161–62 (1994) (plurality opinion); id. at 178 (O’Connor, J., concurring in judgment); Ring, 536 U.S. at 588–89; Hurst, 577 U.S. at 94; Lynch v.
Arizona, 578 U.S. 613 (2016); Cruz v. Arizona, 598 U.S. 17, 20 (2023). The Court
also has ensured that the actual process of executions themselves is constitutional and fair, see, e.g., Nelson v. Campbell, 541 U.S. 637, 644–47 (2004); Baze v.
Rees, 553 U.S. 35, 40 (2008) (plurality opinion); Ramirez v. Collier, 595 U.S. 411, USCA11 Case: 18-14671 Document: 110-1 Date Filed: 02/19/2026 Page: 36 of 41
18-14671 ABUDU, J., Dissenting 27
penalty schemes many times since 1972, creating a unique body of
substantive and procedural law that has changed in the decades
since Davis’s trial.
The procedural rulings around the death penalty produced
anomalies with respect to juries, however. For one thing, while
juries must be unanimous to convict a defendant of a crime, Ramos,
590 U.S. at 93, around the time of Davis’s trial, a splintered Supreme Court approved Alabama’s death penalty scheme, which did
not require jury unanimity for sentencing or vest sentencing authority in the hands of the jury, see Harris v. Alabama, 513 U.S. 504,
515 (1995). So, while a jury was required at sentencing, its role was
minimized at this critical stage. In fact, a judge could override a
jury’s recommendation not to impose the death penalty. See id. at
515 (Stevens, J., dissenting) (“In Alabama, unlike any other State in
the Union, the trial judge has unbridled discretion to sentence the
defendant to death—even though a jury has determined that death
is an inappropriate penalty, and even though no basis exists for believing that any other reasonable, properly instructed jury would
impose a death sentence.”).
In light of Ramos, it is apparent that this non-unanimous aspect of Alabama’s death penalty sentencing scheme—which was in
place at the time of Davis’s trial—is irreconcilable with the Sixth
Amendment’s “vital” promise of jury unanimity. 590 U.S. at 90.
The Supreme Court’s more recent sentencing precedent—such as
416 (2022); Nance v. Ward, 597 U.S. 159, 162 (2022), to some extent, see Boyd v.
Hamm, 146 S. Ct. 40, 40–44 (2025) (Sotomayor, J., dissenting).
USCA11 Case: 18-14671 Document: 110-1 Date Filed: 02/19/2026 Page: 37 of 41
28 ABUDU, J. Dissenting 18-14671
Hurst, Ring, and Apprendi—further confirms Alabama’s death penalty sentencing scheme flouted the Sixth Amendment multiple
times over: a judge, not the jury, decided whether statutory aggravating circumstances existed, and the jury did not need to reach a
unanimous conclusion in the punishment phase of the trial. Yet
Alabama’s scheme was also constitutionally unsupportable at the
time. As Justice Marshall explained, “[i]t approaches the most literal sense of the word ‘arbitrary’ to put one to death in the face of
a contrary jury determination where it is accepted that the jury had
indeed responsibly carried out its task.” Jones v. Alabama, 470 U.S.
1062, 1065 (1985) (Marshall, J., dissenting).21
21 The Supreme Court approved similar schemes in other states as well. See
Spaziano v. Florida, 468 U.S. 447 (1984), overruled by Hurst, 577 U.S. at 101;
Hildwin v. Florida, 490 U.S. 638 (1989), overruled by Hurst, 577 U.S. at 101; see
also Raoul G. Cantero, Death is Different: The Need for Jury Unanimity in Death
Penalty Cases, 22 ST. THOMAS L. REV. 4, 33 (2009) (“Florida stands alone in allowing a simple majority of the jury both to recommend a sentence of death
and to decide whether aggravating circumstances exist, and does not even require that majority to decide on the same aggravator.”). After Hurst (and Ramos), the unconstitutionality of these schemes has been made clear, yet defendants like Davis have received little benefit from those rulings. For example, despite Hurst, Florida has re-enacted a new non-unanimous sentencing
scheme, which suffers from the same problem as Alabama’s scheme that was
applied in Davis’s case. See Jackson v. State, __ So.3d __, 2025 WL 3673716, at
*21 (Fla. 2025) (Labarga, J., concurring in the judgment) (noting that Florida
law began requiring unanimity after Hurst until a new statute was enacted to
allow non-unanimity in 2023); see also id. at 22 (“[A] jury’s unanimous recommendation of death provides a narrowing function that is wholly warranted in
this state that, with 30 exonerations, still leads the nation in exonerations from
death row.”).
USCA11 Case: 18-14671 Document: 110-1 Date Filed: 02/19/2026 Page: 38 of 41
18-14671 ABUDU, J., Dissenting 29
For another thing, while jurors are supposed to be impartial
and represent a fair cross-section of the community, States that pursue the death penalty have often sought and obtained the dismissal
of jurors opposed to the death penalty. See Stephen Gillers, Deciding Who Dies, 129 U. PA. L. REV. 1, 4–5 (1980). Such a practice also
is foreign to the historical scope of the jury trial right. Id. Taken
together, these features of Alabama’s scheme neutered the critical
role of juries as impartial decisionmakers and checks on government overreach. See supra, Section II. 22 In states like Alabama,
where judges are often elected, these schemes have been accused
of incentivizing judges to impose the death penalty if they perceive
that doing so will help their election chances, even if a jury did not
so recommend.23 These features further minimized the
22 See G. Ben Cohen & Robert J. Smith, The Death of Death Qualification,
59 CASE W. RSRV. L. REV. 87, 89 (2008) (“Modern ‘death-qualification jurisprudence frustrates the Framers’ understanding as to the role of the criminal
jury.”); see also Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s
Uneasy Relationship with the Jury, 71 OHIO ST. L.J. 959, 965 (2010) (“Mutations
in the original jury-and our understanding of its role-have left today’s jury
seeming, at best, like the original jury’s distant cousin, and not at all like its
twin.”); Douglas Colby, Death Qualification and the Right to Trial By Jury: An
Originalist Assessment, 43 HARV. J.L. & PUB. POL’Y 815, 841 (2020) (“Death qualification does not seem to have had a direct analogue at common law or early
American practice.”).
23 See Richard R. W. Brooks & Steven Raphael, Life Terms or Death Sentences:
The Uneasy Relationship Between Judicial Elections and Capital Punishment,
92 J. CRIM. L. & CRIMINOLOGY 609, 638–39 (2002); Paul Brace & Brent D.
Boyea, State Public Opinion, the Death Penalty, and the Practice of Electing Judges,
52 AM. J. POL. SCI. 360, 370–71 (2008).
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30 ABUDU, J. Dissenting 18-14671
importance of the jury and produced unfairness, as evidenced by
the fact that literature around the time suggested “that jurors were
more ‘life-prone’ (more likely to sentence a defendant to life than
death) than judges.” Katheryn K. Russell, The Constitutionality of
Jury Override in Alabama Death Penalty Cases, 46 ALA. L. REV. 5, 19
(1994).
In 2017, the Alabama legislature ended the past practice of
judicial override of jury recommendations against the death penalty. Alabama Abolishes Judge Override in Death Penalty Cases, EQUAL
JUST. INIT. (Jan. 29, 2026, at 02:32 PM), https://eji.org/news/alabama-legislature-passes-law-abolishing-judicial-override/ [https://
perma.cc/6SN4-JZKJ]. All the same, relief has not been retroactive; many prisoners in Alabama await execution even though their
jury did not unanimously recommend a death sentence. See Alabama’s Death Penalty, EQUAL JUST. INIT. (Jan. 29, 2026, at 02:34 PM
ET), https://eji.org/issues/alabama-death-penalty/ [https://
perma.cc/7K2S-EEMG]. The number of affected defendants can
be attributed, in part, to the fact that judges in Alabama imposed
death sentences over a jury’s recommendation of life much more
frequently than they imposed life sentences over a death recommendation. See Woodward v. Alabama, 571 U.S. 1045, 1046 & n.1
(2013) (Sotomayor, J., dissenting).
While Alabama’s scheme devalues juries, our de novo reading of Strickland and the Sixth Amendment should place juries in
their rightful place as a protection against unfair and arbitrary punishment. See Ramos, 590 U.S. at 110 (rejecting a rule that would
USCA11 Case: 18-14671 Document: 110-1 Date Filed: 02/19/2026 Page: 40 of 41
18-14671 ABUDU, J., Dissenting 31
“have us discard a Sixth Amendment right in perpetuity rather than
ask two States to retry a slice of their prior criminal cases”); Duncan,
391 U.S. at 156. Otherwise, we simply are importing Alabama’s
unconstitutional scheme into our interpretation and application of
Strickland.
* * *
Considering the whole body of Supreme Court precedent
on the right to a jury under the Sixth Amendment, we should not
promote non-unanimous death sentences and invasions on the
right to a jury trial in death penalty cases. 24 See Furman, 408 U.S. at
371 (Marshall, J., concurring) (“This is a country . . . that clings to
fundamental principles, cherishes its constitutional heritage, and
rejects simple solutions that compromise the values that lie at the
roots of our democratic system.”). We also should give more deference, not less, to the jury’s behavior when its hesitation suggests
the defendant should not be subjected to the “ultimate sanction.”
Id. at 286 (Brennan, J., concurring). Davis was entitled to a trial by
a jury of his peers, and he was entitled to have courts listen to and
respect the voice of the jury. Alabama instead provided him a trial
where the jury was deprived of highly relevant information, and
courts ignored that the jury was still hesitant and non-unanimous,
even without that information, to impose the death penalty.
24 See Richa Bijlani, Note, More Than Just a Factfinder: The Right to Unanimous
Jury Sentencing in Capital Cases, 12 U. MICH. L. REV. 1499, 1502 (2022) (“The
uniqueness of death penalty sentencing requires that the Sixth Amendment
confer more protection to defendants facing capital punishment, not less.”). USCA11 Case: 18-14671 Document: 110-1 Date Filed: 02/19/2026 Page: 41 of 41
32 ABUDU, J. Dissenting 18-14671
For these reasons, the state court should have viewed the
jury’s hesitation to impose the death penalty here for what it was:
a strong sign that Davis suffered prejudice and that the mitigation
evidence his attorney failed to present would have changed the
outcome. The state court’s contrary ruling was unreasonable, and
the panel majority’s opinion resurrects unconstitutional aspects of
Alabama’s 1993 death penalty scheme, importing them into our
Sixth Amendment precedent. We should have, instead, left ahistorical jury minimization in the past. See Ramos, 590 U.S. at 88, 93;
Roberts, 428 U.S. at 336 (“The Eighth Amendment, which draws
much of its meaning from ‘the evolving standards of decency that
mark the progress of a maturing society,’ Trop v. Dulles, 356 U.S. 86,
101 (1958) (plurality opinion), simply cannot tolerate the reintroduction of . . . practice[s] so thoroughly discredited.”).
To Jimmy Davis, Jr., the question of whether a death penalty
system might ever be fair and constitutionally applied is purely academic. He has experienced Alabama’s death penalty system, and
his trial was constitutionally unfair; his attorney’s performance was
woefully inadequate, and he was prejudiced by that performance.
State courts failed to correct those constitutional errors, and federal
courts have abdicated their responsibility to do so in their stead.
While we, as a lower federal court, cannot fix all the problems with
the death penalty, we should have fixed the errors in the case before us. I respectfully dissent.