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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 24-10834
NICHOLAS CODY TATE,
Petitioner-Appellant,
versus
WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION
PRISON,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:12-cv-00019-WMR
Before NEWSOM, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
More than twenty years ago, Nicholas Tate and two of his
brothers pleaded guilty to murdering Chrissie Williams and her
three-year-old daughter, Katelyn. At the time, Tate told the trial
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court and his attorneys that his religious beliefs required him to
confess what he had done and submit to a death sentence. He
elected to waive his right to a jury trial in part because his
experience with the trial judge gave him confidence that he would
receive a just sentence. And in the years since the state trial court
imposed the death penalty for Chrissie’s and Katelyn’s murders, he
has said more than once that he thought the sentence was fair and
ought to be carried out without delay.
Nonetheless, Tate’s brother filed “next friend” habeas
petitions challenging his death sentence in state and federal court,
and Tate eventually took up those challenges on his own behalf.
He raises three of his federal constitutional claims—two involving
the conduct of his own counsel and one alleging prosecutorial
misconduct at sentencing—in this appeal. At this stage, we can
grant federal habeas corpus relief only if we determine that the
state court’s denial of those claims involved an objectively
unreasonable determination of the facts or of clearly established
federal law. It did not.
The Georgia Supreme Court reasonably determined that
trial counsel’s recommendation to waive a jury trial for sentencing
did not fall below the level of competence guaranteed by the Sixth
Amendment, based on the information available to counsel at the
time. Because Tate instructed his attorneys not to present
evidence of his abusive childhood, drug abuse, and psychological
issues at the bench trial, the state court also reasonably determined
that he was not prejudiced by counsel’s alleged failure to
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investigate his background and discover that sort of mitigating
evidence. And the state court’s denial of Tate’s prosecutorialmisconduct claim was reasonable because the Supreme Court has
never held that a prosecutor’s argument for different
interpretations of the evidence in different codefendants’ cases
violates due process or the Eighth Amendment.
I.
One morning in December 2001, 21-year-old Nicholas Tate
and his two younger brothers—Dustin, 18, and Chad, 15—set out
from their mother’s house with plans to rape Chrissie Williams.
Ford v. Tate, 307 Ga. 383, 384 (2019). They knew that Chrissie’s
husband was a drug dealer, so they also hoped to find drugs and
money in her home. Id. They carried a stun gun, several
handguns, a shotgun, and an AR-15 semi-automatic rifle. Id. On
the way to Chrissie’s house, they stopped at a sporting goods store
to top off their arsenal with ammunition, a diver’s knife, duct tape,
and zip ties. Id.
The brothers expected to find Chrissie home alone. Id. But
her three-year-old daughter, Katelyn, answered the door when
they arrived, and her two-year-old son was asleep with Chrissie in
her room. Id.
Dustin shocked Chrissie with the stun gun as she slept,
thinking it would render her unconscious. Id. She awoke
screaming. Id. He dragged her across the hall to another bedroom,
where Tate and Chad helped him tie her to the bed. Id.
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Meanwhile, little Katelyn started screaming too. Id. Tate
tried covering her mouth with duct tape, putting her in the crib
with her brother, and telling her to shut up, but he could not get
her to stop. Id. at 384–85. He told Chad to take her in the back
bedroom and make her be quiet. Id. at 385. Chad took Katelyn in
the back bedroom and strangled her with a telephone cord until
she lost consciousness. Id. When she woke up and started crying
again, Chad got Tate’s knife and slit her throat multiple times. Id.
She eventually bled to death. Id. She was found naked, though she
had been wearing footie pajamas when she was dropped off earlier
that morning. Id. At his change-of-plea hearing, Tate admitted that
he took off her pajamas “for his sexual gratification.” Id.
When Dustin found out that Chad had murdered Katelyn,
he “went ape” and insisted that they leave. Id. (alteration adopted).
Tate told him to go wait outside. Id. Chrissie, who was still bound
to the bed with her eyes and mouth covered with duct tape,
became hysterical. Id. Tate put a cushion over her face and shot
her in the head, killing her. Id. He and Chad then followed Dustin
out, locking the door behind them and leaving Chrissie’s two-yearold son inside. Id.
The Tate brothers fled the state. Id. They kidnapped a
woman in Mississippi and held her overnight before driving her car
to Oklahoma, where they finally surrendered to law enforcement.
Id.
Several months after the brothers’ arrest, Dustin and Chad
each pleaded guilty to two counts of malice murder, child
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molestation, and numerous other charges related to the events
surrounding the deaths of Chrissie and Katelyn Williams. They
received negotiated sentences of life in prison with the possibility
of parole. Id. at 387.
Initially, Tate worked with his attorneys to negotiate a
similar plea agreement. Id. at 387–88, 389–90. He received a plea
offer for a life sentence, but he rejected it because he did not want
to plead guilty to the child-molestation charge. Id. at 388, 389–90.
Over time, however, Tate’s attitude changed. He dedicated
himself to reading the Bible in jail and became a “fairly intense
biblical scholar.” His religious studies convinced him that death
was the only appropriate penalty for his crimes. He told his
attorneys that he wanted to plead guilty and did not want to
present mitigating evidence at sentencing. He asked his lead trial
counsel, Marc Cella, to negotiate a guilty plea with a sentence of
death.
Cella refused. He tried to convince Tate that his religious
convictions were misplaced—and when that failed, he told him
that it was not possible to simply plead guilty and accept a death
sentence. He told him that he would have to have a jury trial
whether he wanted one or not. He also told Tate that he had to
present some mitigating evidence because “that was what [he] was
appointed for” and if he didn’t present any evidence in mitigation
they would “end up having to do this all over again.”
Cella changed his mind about insisting on a jury trial after
spending three weeks in jury selection and finding that prospective
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jurors in Paulding County, Georgia overwhelmingly favored the
death penalty for Tate’s crimes. After that experience, Cella
accepted Tate’s decision to enter a guilty plea and advised him to
request a bench trial for sentencing.
Tate agreed and elected to have the judge alone decide his
sentence. But he and his attorneys disagreed about what their goal
should be at sentencing. Tate strongly believed that God required
him to confess his crimes, and that “the punishment should fit the
crime, life for life.” He did not want his attorneys to present
evidence designed to generate sympathy for him so that he could
avoid a death sentence.
At the sentencing bench trial, Tate “tolerated” the
presentation of some mitigating evidence, only because his counsel
told him he had no choice. But he made clear that he did not want
to present evidence related to his mental health, drug and alcohol
abuse, or childhood sexual abuse by his older brother. He also did
not want his mother or his brothers to testify at sentencing, partly
because of his religious beliefs and partly to spare them from crossexamination.
Tate’s lawyers were “exasperated” by his intractable
position because they thought facts about his “horrible, horrible”
childhood made for an effective mitigation case—that evidence
featured parental abuse and neglect, lack of education, repeated
rape and molestation by his older brother Curtis, and
“psychological issues” that were related to all of the above. But
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because of his religious views, Tate would not budge: “[n]one of
that could come out.”
Ultimately, Tate called two witnesses to testify at the
sentencing trial: his father, who testified that Tate should receive
the same life-with-the-possibility-of-parole sentence as his brothers
because all three were equally guilty of the murders; and a
volunteer chaplain at the county jail, who testified about Tate’s
Bible study and desire to accept responsibility for his crimes. With
Tate’s permission, counsel also submitted the indictment and
conviction of his brother Curtis for sexually molesting him when
he was a child—information already known to the judge—and
several cards and letters from his mother and his brother Dustin.
The court sentenced Tate to death for the two murders. Id.
at 383. At a status hearing several years after sentencing, Tate
waived the opportunity to file a motion for new trial, informing
the court that he did not wish to challenge his death sentence. He
did not want to file an appeal either, but he acknowledged that a
direct appeal was mandatory in any capital case under Georgia law.
The Georgia Supreme Court affirmed his convictions and
sentences. Tate v. State, 287 Ga. 364 (2010).
After the trial court scheduled Tate’s execution, his brother
Dustin filed a “next friend” habeas corpus petition in state court on
his behalf. Tate successfully moved to dismiss that petition, but
shifted gears and filed his own state habeas petition on the day his
execution was to take place. Tate, 307 Ga. at 402. He claimed,
among other things, that his trial counsel were ineffective for
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failing to discover and present at the sentencing trial extensive
evidence of childhood physical and sexual abuse, drug and alcohol
abuse, mental illness, and brain damage. The state habeas court
denied Tate’s petition with respect to his convictions but granted
relief from his death sentence on the ground that he had received
ineffective assistance of counsel at sentencing. Id. at 383. The
Georgia Supreme Court reversed, reimposing Tate’s death
sentence and denying his cross-appeal. Id.
Meanwhile, Dustin also filed a “next friend” habeas corpus
petition on Tate’s behalf in federal court. Tate later filed an
amended federal habeas petition on his own behalf, raising many
of the same claims he had litigated in state court. The district court
denied Tate’s habeas petition but granted a certificate of
appealability on selected claims.
On appeal, Tate argues that his trial counsel provided
ineffective assistance by persuading him to waive his right to a jury
trial for sentencing and by failing to adequately investigate and
present mitigating evidence at the sentencing bench trial, and that
the prosecution violated his Eighth and Fourteenth Amendment
rights by presenting conflicting arguments about who killed
Katelyn Williams at his sentencing trial and at his brothers’ plea
hearings.
II.
We review a district court’s ruling on a state prisoner’s
habeas corpus petition de novo. Allen v. Sec’y, Florida Dep’t of Corr.,
611 F.3d 740, 745 (11th Cir. 2010). Under the Antiterrorism and
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Effective Death Penalty Act, federal courts may grant habeas
corpus relief to a state prisoner whose constitutional claims were
denied on the merits in state court only if the state court’s decision
was (1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States;” or (2) “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). We must presume
that the state court’s factual findings are correct, unless the
petitioner rebuts that presumption by clear and convincing
evidence. Id. § 2254(e)(1). “The question under AEDPA is not
whether a federal court believes the state court’s determination
was incorrect but whether that determination was unreasonable—
a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465,
473 (2007).
III.
When a convicted defendant seeks to overturn his death
sentence on the ground that he received ineffective assistance of
counsel at sentencing, he must make two showings. He first must
show that his attorney’s performance was deficient, meaning that
the attorney “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
And second, he must prove that counsel’s deficient performance
prejudiced his defense. Id. at 687, 693. Prejudice exists if “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
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reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. If a petitioner fails to satisfy
either component of the Strickland inquiry, his ineffectiveassistance claim fails. Id. at 697, 700.
Tate claims that his trial counsel provided ineffective
assistance at sentencing in two ways: by convincing him to waive
his right to a jury trial for sentencing, and by failing to discover and
present extensive mitigating evidence related to his background
and mental health.
A.
Tate contends that advising him to place the sentencing
decision in the hands of the trial judge was unreasonable because it
was based on “courthouse small talk” and “rumors” that the judge
was unlikely to impose the death penalty. We reject that
characterization.
In fact, Cella endeavored to predict how the trial judge
would rule at sentencing in the same way lawyers everywhere—
and perhaps especially in small towns—make those judgments: by
speaking with colleagues who knew the judge in and out of the
courtroom and measuring their experience against his own
impressions. Cella spoke to other lawyers “who had seen [the
judge] presiding and seen the decisions that he had made over the
course of his career.” And “every single person” he spoke to—
including “people in the DA’s office”—thought the judge would
not sentence Tate to death. Cella also consulted with his cocounsel, Bradley Reed, who had appeared before the trial judge in
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other criminal cases. In Reed’s experience, the judge tended to be
more lenient in sentencing, and perhaps more fair or “openminded” than other judges. These impressions were reinforced by
counsel’s observations of the trial judge during pretrial proceedings
and voir dire. Based on what they learned about the judge, both
defense attorneys were convinced that he would return a life
sentence for Tate.
What’s more, the information Cella gathered about the trial
judge was not the only reason he recommended that Tate waive
his right to a jury for sentencing; his negative experience trying to
select an unbiased Paulding County jury also played a role. During
voir dire, Cella read the indictment to the prospective jurors and
asked if they could give “fair consideration” to a sentence of life
with the possibility of parole for those crimes. Out of about 200
prospective jurors, only a handful—less than half the number
needed for the sentencing jury—gave positive responses. Day after
day for three weeks, juror after juror said they could not consider
any sentence other than death if Tate were found guilty of the
murders charged in the indictment.
One observer, a paralegal working for defense counsel, said
many of the jurors expressed “hate and anger” toward Tate after
hearing Cella read the charges; the “venom in their voices” when
they declared that death was the only appropriate penalty surprised
the paralegal and upset Tate. When they had exhausted the pool
of jurors, Tate was relieved to not have to hear from any more of
them. “To him it seemed like a lost cause trying to get enough
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jurors to hear the case,” and he was glad the first round of jury
selection was over.
Cella too was dismayed by the jurors’ responses, and
concluded that a bench trial might offer a better chance for a life
sentence. During a recess to summon a new pool of jurors, Cella
conceded to Tate’s desire to enter a guilty plea, and they jointly
decided to request a bench trial for sentencing. They each had
different reasons for seeking a bench trial: Cella and his co-counsel
believed that a bench trial was Tate’s best hope for avoiding the
death penalty. Tate may have believed the opposite, based in part
on his discussions with Cella. Knowing that Tate believed he
should get the death penalty, Cella had told him, “If you give me
twelve jurors all I need to do is get one of them on my side. You
have to get all twelve on your side. If you want to get what you
want and beat me at this trial you’re better off having just one
person, one mind to persuade.”
Tate also had personal experience with the trial judge, who
had sentenced him as a juvenile to an in-patient psychiatric
evaluation. In explaining his decision to waive a jury trial for
sentencing, Tate reminded the judge about his experience in
juvenile court and said he thought the judge was “a very fair
person” who would impose “the appropriate sentence.”
Under these circumstances, Tate cannot overcome the
presumption that Cella’s recommendation for a bench trial “might
be considered sound trial strategy.” Strickland, 466 U.S. at 689
(quotation omitted). Counsel recommended the option he
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thought most likely to save his client’s life, based on the
information available to him about the trial judge and the jury
pool. Even if he was wrong about the trial judge in hindsight, we
cannot say that he “took an approach that no competent lawyer
would have chosen” based on the same information. Dunn v.
Reeves, 594 U.S. 731, 739 (2021). So the Georgia Supreme Court’s
decision that counsel’s performance was adequate was not
objectively unreasonable, and Tate cannot obtain federal habeas
corpus relief on this claim. See Bell v. Cone, 535 U.S. 685, 698–99
(2002).
B.
Tate also challenges the Georgia Supreme Court’s decision
on his claim that trial counsel provided ineffective assistance by
failing to discover and present mitigating evidence of childhood
physical and sexual abuse, drug and alcohol use, mental illness,
PTSD, and brain damage. He points to evidence presented during
state habeas proceedings that his parents abused him physically and
emotionally: his father beat him and his siblings “with belts,
extension cords, and his fists,” and his mother “flew into sudden
rages, whipped Tate for wetting the bed, hit Tate and his siblings
with her fists, whipped them with belts, routinely yelled at them,
called them profane names, berated them, and forced them to
kneel and hold their ankles, sometimes while nose to nose.” Tate,
307 Ga. at 407. The evidence also showed that his mother’s live-in
boyfriend “not only physically abused Tate’s mother but also
abused Tate and his brothers by force-feeding them, holding them
at gunpoint, and forcing them to kneel for 24 to 36 hours at a time
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on frozen rice scattered on the floor with only bread to eat and
water to drink.” Id. at 408.
In addition to this physical and emotional abuse, Tate was
also sexually abused as a child. When he was about nine years old,
his mother reported that his older brother Curtis had been
molesting him and his younger siblings. Id. at 407. Tate later told
a social worker that he had been anally raped for a year. Id. Curtis
was sent to juvenile detention, but when he was released, he again
molested Tate and raped his sister. Id. at 408. And when Tate was
13 years old, he was sexually molested by his paternal aunt’s
husband. Id.
The horrific abuse Tate endured as a child took a
psychological toll. Experts testified during state habeas
proceedings that Tate exhibited symptoms consistent with a severe
form of PTSD from repeated childhood trauma. Id. at 411. One
expert conducted neuropsychological testing and concluded that
Tate had right parietal lobe and frontal lobe brain damage that
might have been caused either by being hit in the head or by
chronic traumatic stress. See id. at 411–12. Tate’s medical records
also contained reports that he had attempted to commit suicide at
least once. Id. at 416.
A psychiatrist specializing in substance abuse assessed Tate’s
chronic drug and alcohol use, which the expert opined “began
wholly as an effort to self medicate for the serious depression,
extreme anxiety, and feelings of shame” resulting from childhood
trauma and sexual abuse. Id. at 412. According to the expert,
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Tate’s drug use leading up to and on the day of the murders
exacerbated his cognitive impairments and mental health
symptoms and diminished his ability “to control his impulses, to
think clearly, and to cope with a chaotic and downward spiraling
situation, especially after his brother Chad killed the child.” Id.
The expert also opined that it was “unlikely that the situation
would have occurred without the substance abuse.” Id.
The Georgia Supreme Court held that, even assuming trial
counsel were at fault for failing to discover all this evidence, Tate
was not entitled to relief from his death sentence because he could
not establish that the allegedly deficient performance prejudiced
him. Id. at 406, 417–18. Applying Schriro v. Landrigan, 550 U.S. 465
(2007), the court concluded that because Tate “made an informed
and knowing decision when he instructed trial counsel not to
present mitigating evidence at his sentencing trial,” he could not
establish a reasonable probability that he would not have been
sentenced to death if counsel had conducted a more thorough
investigation. Id. at 417–18; see 550 U.S. at 477–78.
This decision was based in part on the state habeas court’s
findings that Tate “did not want trial counsel to present mitigating
evidence” and “wanted to receive the death penalty,” and the
Georgia Supreme Court’s own findings that Tate understood what
mitigating evidence was, understood what it was for, and generally
understood what kinds of mitigating evidence could be used in his
case. Tate, 307 Ga. at 395, 405–18. Those findings are well
supported in the record.
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Tate and his trial attorneys all testified that he told them he
did not want them to present mitigating evidence, and that he
wanted to be sentenced to death. Counsel tried to talk him out of
this position, which arose from “fervent” religious beliefs formed
during years of Bible study in jail, but he did not waver. Tate told
his attorneys that he believed in “an eye for an eye” and that he
deserved the death penalty because he had committed a “sin
worthy of death.” He explained his religious beliefs in similar
terms to the psychologist who evaluated him twice for competency
before he pleaded guilty—and found both times that he was
competent—and again to the trial court at his guilty-plea hearing.
He told the trial judge that he believed he had committed a “crime
worthy of death,” so he was “refusing not to die.” And when the
trial court tried to clarify whether Tate “want[ed]” the death
penalty or just thought that he deserved it, Tate responded, “No.
Let’s stick with want. We’ll stick with want.”
Because of these beliefs, Tate did not want counsel “to even
try to save his life.” “Basically,” his lawyer recalled, “he did not
want to really put anything up.” In particular, he made clear that
he did not want his attorneys to present mental health evidence,
evidence of his drug and alcohol abuse, or evidence of childhood
sexual abuse. He also did not want them to call his mother or his
brothers to testify at sentencing.
The record also supports the Georgia Supreme Court’s
finding that Tate made a knowing and informed decision to forgo
this kind of mitigating evidence. See Tate, 307 Ga. at 417–18. As
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the state court found, “the record shows that trial counsel were
aware of the vast majority of this evidence and discussed presenting
it as mitigating evidence with Tate.” Id. at 408. Tate’s attorneys
met with him many times and talked to him about his childhood,
his relationship with his parents, physical and sexual abuse he
experienced, his mental health history and any mental health issues
in his family, substance abuse, and more. And they had him
evaluated by a psychologist, Dr. Kevin Richards, not just to verify
that he was competent to stand trial, but also to evaluate “any
mitigating factors regarding mental status” at the time of the
crimes. Counsel reviewed the psychologist’s report—which
described Tate’s history and noted that he experienced “physical
and sexual abuse at the hands of multiple perpetrators” during his
childhood and adolescence—and discussed it with both Dr.
Richards and Tate.
Tate knew this background information could be
mitigating. He was opposed to emphasizing it at sentencing
specifically because it would weigh in favor of a life sentence, and
“that’s not what he wanted.” Cella’s “most vivid memory” of
discussing mitigating evidence with Tate was of a long
conversation about how helpful evidence of the violent sexual
assaults by his brother would be for sentencing, and how important
it was for the judge or jury making the sentencing decision to have
that information. But Tate “was absolutely firm in his order” that
counsel “not go into that.” Cella’s “best recollection” was that
Tate’s instruction “seemed to be more driven by his desire to
receive the death penalty than by embarrassment.” Tate himself
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testified at a post-sentencing status hearing that he had “wanted to
just leave out any mitigating evidence and all.” In fact, he was
angry because he believed his lawyers lied to him when they
insisted that they had to present at least some mitigating evidence
at sentencing.
Under these facts, the Georgia Supreme Court’s application
of Landrigan to determine that Tate could not establish prejudice
for his ineffective-assistance claim was not objectively
unreasonable. Contrary to Tate’s argument, this case is more like
Landrigan than Porter v. McCollum or Rompilla v. Beard. In Porter and
Rompilla, the Supreme Court held that the failure of petitioners’
attorneys to conduct a thorough mitigation investigation
constituted deficient performance despite their clients’ “fatalistic,”
“uncooperative,” or even “actively obstructive” behavior during
the investigation. Porter v. McCollum, 558 U.S. 30, 40 (2009);
Rompilla v. Beard, 545 U.S. 374, 381–84 (2005). And in both cases, a
reasonable probability existed that the mountain of mitigating
evidence presented during state postconviction proceedings would
have outweighed the aggravating circumstances and made a
difference at sentencing. Porter, 558 U.S. at 40–44; Rompilla, 545
U.S. at 393.
In Landrigan, by contrast—as in this case—the issue was not
whether counsel’s investigation was deficient or whether the
available mitigation might have outweighed the aggravating
circumstances, but that the “failure to investigate further could not
have been prejudicial under Strickland” if the petitioner instructed
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his attorneys not to present mitigating evidence at sentencing. 550
U.S. at 475. To show prejudice from an allegedly deficient
investigation, a petitioner who told trial counsel not to present
mitigating evidence must first establish “a reasonable probability
that, had he been more fully advised about the available mitigation
evidence, he would have allowed counsel to present it on his
behalf” at the penalty phase. Krawczuk v. Sec’y, Florida Dep’t of Corr.,
873 F.3d 1273, 1296 (11th Cir. 2017). And “the petitioner’s burden
to prove prejudice, as required under Strickland and Landrigan,
cannot be met with evidence showing merely that the petitioner
cooperated with counsel’s efforts to investigate his personal
background and that he at one point was open to presenting some
mitigation evidence.” Id.
As we’ve said, the record before the Georgia Supreme Court
supported its finding that Tate instructed his attorneys not to
present mitigating evidence. When counsel told him that he did
not have the option to forgo all mitigation, he reluctantly agreed
to allow some evidence—but he drew the line at evidence of
childhood abuse, mental health history, substance abuse, or other
evidence designed to avoid the death penalty by generating
sympathy for him.
These facts do not precisely correspond to the facts in
Landrigan, but it is reasonable to apply the same principle. Because
Tate sharply limited the kinds of mitigating evidence his lawyers
could present—eliminating broad categories of evidence related to
his background and mental health—he cannot show that he was
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prejudiced by their alleged failure to investigate those areas unless
he first establishes a reasonable probability that he would have
allowed counsel to present the undiscovered evidence at
sentencing. See id.; Pope v. Sec’y, Florida Dep’t of Corr., 752 F.3d 1254,
1266 (11th Cir. 2014).
He has not met that burden. He has never testified that he
would have consented to the introduction of the evidence from
state habeas proceedings at sentencing. To the contrary,
statements he made on the record before and after sentencing favor
the opposite conclusion. At the guilty plea hearing, he explained
that because of his religious beliefs, he would not oppose the death
penalty. At a status hearing after sentencing, he confirmed that he
had discussed mitigating evidence with his attorneys before trial
and told them that he did not want to present any of it, and he
informed the court that he still did not want to challenge his death
sentence.
And his certainty on that front was not fleeting. Years later,
at a hearing on his brother’s attempt to file a state habeas petition
on his behalf, he told the court, “I have held my same position since
the very beginning that, you know, I have done something
horrible, heinous, malicious. It was an aforethoughted [sic] act of
violence. And it should be dealt with the utmost punishment,
which is capital punishment.” He confirmed that he had “made
this very well clear to everyone” who represented him, including
his trial attorneys. “I mean, I pled guilty. I had a chance to accept
life without parole,” he said. “I do not want life without parole.”
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Two years after that, at the evidentiary hearing on his state
habeas petition—after his habeas attorneys had collected the
mitigation evidence he now says should have been presented at
sentencing—he told the court that he had carefully considered his
claims, “deliberat[ed]” with his attorneys, and wished to withdraw
his habeas petition to “allow the State’s sentence of death to be
carried out without any further protests on [his] behalf.” Tate, 307
Ga. at 437–38 & n.27 (Blackwell, J., concurring).
Tate repeatedly and consistently expressed that he did not
want mitigating evidence presented at sentencing. The Georgia
Supreme Court reasonably concluded that he almost certainly
would have taken the same position at trial if his attorneys had
conducted the more thorough investigation he now contends was
mandatory. See id. at 402.
IV.
Tate also argues that the prosecution violated his Eighth and
Fourteenth Amendment rights by arguing at his sentencing trial
that he killed three-year-old Katelyn Williams, after taking the
position in his brother Chad’s case that Chad killed the child. 1 He
argues that the prosecutor’s use of “inherently factually
1 Tate also argues that trial counsel were ineffective for failing to adequately
counter the prosecutor’s argument that he killed Katelyn. We decline to consider that argument because the district court did not grant Tate a certificate
of appealability on the issue, and we denied his motion to expand the certificate of appealability to include it. See 28 U.S.C. § 2253(c)(1)(A); Hodges v. Att’y
Gen., State of Florida, 506 F.3d 1337, 1340 (11th Cir. 2007).
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contradictory theories” in his and his codefendants’ cases meant
that his death sentence was unfair and based in part on “materially
inaccurate” evidence, in violation of due process and the
constitutional prohibition against cruel and unusual punishment.
The Georgia Supreme Court rejected this claim on the
ground that the State never fully endorsed the Tate brothers’
position that Chad killed Katelyn, though the prosecutors
acknowledged their statements to that effect in all three cases.
Tate, 307 Ga. at 428–31. That is a reasonable interpretation of the
record: at Chad’s plea hearing, the prosecutor recounted the
brothers’ story that after taking Katelyn in the back room and
strangling her with a telephone cord, Chad got Tate’s knife and—
“according to his version”—cut the child’s throat with it. The
prosecutor also pointed out that Tate told the police, “I gave that
child every chance to shut up, but she wouldn’t shut up,” and that
there were discrepancies between Chad’s and Tate’s stories about
how Chad got Tate’s knife—implying that Tate may have had
more to do with the child’s murder than Chad’s “version”
indicated.
At Tate’s guilty-plea hearing, the prosecutor again
acknowledged that “[b]y Chad’s statement,” Chad cut Katelyn’s
throat with Tate’s knife. But he noted that some evidence
suggested that that was “not necessarily what happened.” And
indeed, Tate admitted for the first time at his plea hearing that he,
not Chad, took Katelyn into the bedroom and removed her
clothing. He also confessed for the first time that, after his brother
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Dustin told him that he could not kill her, he intentionally shot
Chrissie Williams in the head—not by accident, as he and his
brothers had previously maintained.
At Tate’s sentencing trial, the prosecutor once again
recognized that that the brothers claimed that Chad had killed
Katelyn, but that only they knew for sure how the murders really
happened. He went on to suggest the “possibility” that they may
have falsely blamed Chad because he was too young for the death
penalty. He also capitalized on Tate’s new confessions to propose
that Tate may have cut Katelyn’s throat after Chad failed to kill her
with the telephone cord—just like he killed her mother when
Dustin was unable to do it. And he noted that even under the
brothers’ version of events, Chad killed Katelyn after Tate told him
to take her in the back and make her be quiet. In other words, if
Chad did kill Katelyn, he did it on Tate’s orders.
So while the prosecutor did not explicitly contest the
brothers’ statements about who killed Katelyn until Tate’s guiltyplea hearing, he did not adopt their version of events either. And
as long as prosecutors do not “use ‘necessarily contradictory’
evidence” against different codefendants, they are free to make
inconsistent, “alternative arguments” about “what inference the
[factfinder] should draw from the same evidence.” United States v.
Hill, 643 F.3d 807, 832–33 (11th Cir. 2011) (quoting Parker v.
Singletary, 974 F.2d 1562, 1578 (11th Cir. 1992)). That is what
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happened here—the only new or contradictory evidence was
introduced by Tate himself at his guilty-plea hearing.
Our precedents aside, “[w]hat matters under § 2254(d)(1)—
the standard relevant here—is whether a decision is contrary to, or
involves an unreasonable application of, [the Supreme] Court’s
holdings.” Klein v. Martin, 607 U.S. 213, 221 (2026). Tate has not
identified any Supreme Court precedent holding that a
prosecutor’s use of conflicting theories in different codefendants’
cases violates due process or the Eighth Amendment. And for good
reason—the “Supreme Court has never held that a state violates
due process or the Eighth Amendment when it presents
contradictory theories at separate capital trials.” Raleigh v. Sec’y,
Florida Dep’t of Corr., 827 F.3d 938, 952 (11th Cir. 2016); see also
Bradshaw v. Stumpf, 545 U.S. 175, 190 (2005) (Thomas, J.,
concurring) (“This Court has never hinted, much less held, that the
Due Process Clause prevents a State from prosecuting defendants
based on inconsistent theories.”).
Conceding that the “Supreme Court has not expressly held
that the use of inconsistent theories at the sentencing phase violates
due process,” Tate falls back on a general principle: that
“prosecutors’ prejudicial or misleading statements violate due
process if they render a trial or capital sentencing fundamentally
unfair.” See Andrew v. White, 604 U.S. 86, 92–93 (2025). But this
reframing of the issue as a broad general rule does not help Tate,
because he has not shown that the prosecutor’s arguments
rendered his sentencing trial fundamentally unfair.
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First, we have already explained that the prosecutor’s
alternative arguments in Tate’s and his brothers’ cases were not
improperly prejudicial or misleading. See Hill, 643 F.3d at 832–33.
The prosecutor did misstate the evidence at one point during his
argument by stating that only Tate’s jeans had Katelyn’s blood on
them, but he corrected himself a few minutes later and
acknowledged that a second pair of jeans (apparently Chad’s) also
bore a smaller amount of Katelyn’s blood. 2
And second, Tate has not shown that the prosecution’s
theory that he may have killed Katelyn himself rendered his
sentencing trial fundamentally unfair. His contention here is that
his death sentence was arbitrary and unfair because it was based in
part on “materially inaccurate” evidence—by which he
presumably means the prosecutor’s argument that he may have
cut the child’s throat himself. But Tate’s death sentence was not
predicated on evidence that he killed Katelyn. Before imposing the
sentence, the trial court found that Tate “caused and directed Chad
Everett Tate to commit the murder of Katelyn Paige Williams.” In
other words, the sentencing court found that Chad killed Katelyn,
but he did so on Tate’s orders. That finding takes a view of the
facts that is consistent with the proffer made at Chad’s guilty-plea
2 During the sentencing trial, a law enforcement officer also initially testified
that only one pair of jeans—a pair marked with an “N” on the label—had
Katelyn’s blood on them. But after defense counsel refreshed his recollection
on cross-examination, the witness corrected his testimony and agreed that a
second pair of jeans that apparently belonged to Chad also had Katelyn’s blood
on them.
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hearing and does not incorporate the prosecutor’s alternative
argument that Tate killed the child himself. Even under Tate’s
proposed general principle, therefore, the prosecutor’s argument
did not violate his due process rights by making his sentencing
proceeding “fundamentally unfair,” and the Georgia Supreme
Court’s decision on this claim was not contrary to or an
unreasonable application of clearly established federal law. See
Andrew, 604 U.S. at 92–93.
* * *
Tate has not shown that the Georgia Supreme Court’s
decision on any federal claim was “contrary to, or involved an
unreasonable application of, clearly established Federal law,” or
“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). We therefore affirm the district court’s denial of his
petition for federal habeas corpus relief.
AFFIRMED.