AP - June 2, 2008

ATLANTA - The Georgia Board of Pardons and Paroles has denied clemency for death row inmate Curtis Osborne. The board decided Monday not to commute the death sentence for Osborne, who faces execution on Wednesday for two 1990 murders. The board issued its decision without comment.

Osborne's lawyers argue his previous attorney deliberately put up a flimsy defense 18 years ago because he was ``infected by racism.'' They also say he was not informed that a life sentence plea was on the table.

Political luminaries including President Carter and the ex-chief justice of the Georgia Supreme Court urged the board to commute the sentence. Prosecutors, though, said he should face capital punishment for his crime.

Man Alleging Atty Racism Executed

AP - June 05, 2008

(JACKSON, Ga.) — A man who claimed his attorney was a racist who put up a flimsy defense was executed Wednesday for murdering two people, Georgia's second execution within a month. Curtis Osborne, 37, was executed at 9:05 p.m. at the state prison in Jackson. Osborne did not request a special last meal and refused to eat a cheeseburger. He did not make a final statement.

Osborne's execution was delayed for about two hours because the U.S. Supreme Court was considering his final appeal and then prison officials could not find a vein. While the lethal cocktail of drugs was administered, Osborne's eyes opened at one point and he took a deep breath. His eyes then closed again.

Osborne, who is black, was sentenced to death for the August 1990 fatal shootings of Linda Lisa Seaborne and Arthur Jones. The two were found shot to death in a car by the side of a dirt road in Spalding County, which is about 35 miles south of Atlanta.

After he was convicted, he claimed his attorney Johnny Mostiler, who is white, referred to him by a racial slur and refused to tell Osborne that prosecutors offered a life sentence for a plea. He also claimed Mostiler, who died in 2000, told another client that Osborne deserved the death penalty. Prosecutors dismissed those allegations. Griffin Judicial Circuit District Attorney Scott Ballard called them "outlandish."

Like the nation's high court, the Georgia Supreme Court also refused Wednesday to halt the execution. On Monday, a Georgia parole board declined Osborne's plea for mercy.

Osborne's case attracted the attention of former president Jimmy Carter and former U.S. Attorney General Griffin Bell, who both urged state officials to commute the death sentence to life without parole. Norman Fletcher, the ex-chief justice of the Georgia Supreme Court, showed up in person Monday to ask for leniency. It was the first time he had made such an appearance, but he said he was drawn in by the "extraordinary nature" of the case.

The lethal injection took 14 minutes to kill Osborne, which concerned protesters who held a vigil at the prison's entrance. "That was another signal that proves there is a problem with lethal injections," said Sara Totonchi of the Southern Center for Human Rights, one of about two dozen protesters. "This yet another reason why we must stop executing people until we know more about lethal injection."

Osborne was the fourth person in the nation executed since the U.S. Supreme Court upheld the constitutionality of lethal injection. Georgia's execution of William Earl Lynd on May 6 was the first in the nation after a seven-month halt on capital punishment.

Georgia murderer executed

June 4, 2008

Georgia Wednesday executed convicted murderer Curtis Osborne following a judicial review and rejection of clemency by the state Board of Pardons and Paroles.

Osborne, convicted of the 1990 murders of Arthur Jones and Linda Lisa Seaborne in a dispute over $400, was the second person in Georgia in a month to be put to death, The Atlanta Journal-Constitution reported. Osborne was also the fourth death row inmate to die since the U.S. Supreme Court upheld the constitutionality of lethal injection.

Osborne's execution was set for 7 p.m. EDT, but was delayed 55 minutes while the U.S. Supreme Court reviewed his final appeal, the newspaper said. The execution was delayed further as executioners searched 35 minutes to find a vein they could use to administer drugs to carry out the death sentence. Osborne was pronounced dead at 0:05 p.m.

At his trial, prosecutors said Osborne killed Jones when Jones demanded Osborne give him the $400 he obtained by selling Jones's motorcycle. Seaborne was slain because she witnessed the first murder.

Osborne's case for clemency had been championed by former President Jimmy Carter and former Deputy U.S. Attorney General Larry Thompson, who each wrote letters to the clemency board pleading for mercy. Also speaking on Osborne's behalf was former U.S. Attorney General Griffin Bell, the newspaper said.

New: video presentation about Mr. Osborne's case

New: Amnesty International Urgent Action Appeal: 29 May 2008
Death penalty/Imminent execution
USA (Georgia)
Curtis Osborne (m), black, aged 38

Curtis Osborne is scheduled to be executed in Georgia at 7pm local time on 4 June. He was sentenced to death in August 1991 for two murders in August 1990. He has a clemency hearing at 9am on 30 May before the Georgia Board of Pardons and Paroles. He has been on death row for nearly 17 years.

The bodies of Linda Seaborne and Arthur Jones were found in the front of a car in Griffin, Georgia, on 7 August 1990. Both had been shot, apparently from the back seat of the vehicle. Curtis Osborne was arrested and subsequently told police that he had shot Jones, to whom he owed money, because Jones had threatened to beat him and was reaching for a weapon.

On 14 August 1991, a jury convicted Osborne on two counts of murder, finding that Seaborne’s murder was committed in the course of Jones’s murder, an aggravating circumstance that made the crime eligible for the death penalty.

The trial moved into the sentencing phase at which a number of witnesses, including Osborne's stepfather, sister, girlfriend, former employer and acquaintances testified to his good character and their experience of him as a hardworking and non-violent person.

Curtis Osborne also testified on his own behalf: "There were certain circumstances that took place that night [of the crime], and sometimes things happen out of emotion and not just deliberation. Just things sometimes happen in certain ways. I want to say I’m sorry and I just ask you people to have mercy on me." On 15 August 1991, the jury recommended that Curtis Osborne be sentenced to death.

Among the issues raised on appeal has been the claim that Curtis Osborne was denied effective legal representation at the sentencing phase because the trial lawyer failed to present expert mental health evidence in mitigation.

Osborne’s federal appeal lawyer has presented evidence to the courts that Curtis Osborne suffered from major depressive disorder and post-traumatic stress disorder, and that the trial lawyer could have hired mental health experts to present such evidence to the jury in arguing for a sentence of less than death. The courts have rejected the claim of inadequate assistance of counsel.

At the 30 May clemency hearing, Curtis Osborne’s lawyers will present the testimony of a psychiatrist, Dr George Woods, who has interviewed Osborne and family members and reviewed relevant medical records. He says that "none of this was done at the time of trial, except for a brief interview of Mr Osborne".

Dr Woods states that medical health testimony would have been important at trial to help to explain a crime that was "so out of character with the previous person that Mr Osborne had been for many, many years." Dr Woods found that Osborne comes from a "family of significant physical abuse, emotional abuse as well," and that his childhood was "profoundly isolated and abusive."

He has also concluded that Curtis Osborne’s family has a "significant history of psychiatric disease" going back at least three generations, and that Osborne himself suffered from a major depressive disorder.

From 1989, after losing his job, his mental health deteriorated and, according to Dr Woods, Osborne began to self-medicate with cocaine. Dr Woods suggests that the combination of Osborne’s drug use and his mental health problems would have led to a “magnification of the paranoia, of the hyper-vigilance, of the hyper-reactivity, and of the misperception of reality,” and “impaired his ability to conform his behaviour to the law”. Such evidence, Dr Woods suggests, could have helped to explain to the jury the "tremendous change" in the defendant leading up to the crime.

Curtis Osborne’s federal appeal lawyer has also claimed that the trial lawyer’s failure to do an adequate investigation of his client by hiring expert witnesses was born of that white lawyer’s racial animosity towards his African-American client.

The appeal lawyer obtained a sworn affidavit from a white man, Gerald Huey, who had been in jail with Osborne before Osborne’s trial and who shared the same trial lawyer, Johnny Mostiler.

The affidavit states: "The first time I recall Mr Mostiler saying anything about Curtis Osborne’s case was when he said, 'the little nigger deserves the death penalty.' I was shocked because I knew that Mr Osborne had not gone to trial yet… That wasn’t the only time Mr Mostiler said something like that though. I recall Mr Mostiler telling me that I wouldn’t believe the amount of money he was going to spend on my case. He said he was going to hire a private investigator and get expert witnesses. He said the money he would spend on me was going to be a lot more than he would spend on Mr Osborne because 'that little nigger deserves the [electric] chair.' Mr Mostiler made similar comments to me both before and after Mr Osborne’s trial."

Another lawyer has recalled a case from around 1992 in which another African-American client of Johnny Mostiler, Derek Middlbrooks, stated in open court that Mostiler had referred to him as “one dumb nigger” for not accepting the plea bargain offered by the state.

Questioned by the court, Mostiler reportedly replied that he could “not recall” whether or not he had said this. Curtis Osborne’s lawyer has recently obtained the transcript of proceedings in the Middlbrooks case, in which the defendant seeks a new lawyer because of Mostiler’s alleged use of this racial epithet.

According to the transcript, Middlbrooks says that Mostiler "indicated to me that he wouldn’t, he couldn’t go up there around those niggers because them niggers would kill me."

Middlbrooks subsequently states: "I find it kind of hard, you know, kind of hard to have an attorney to represent me when he uses those types of words; it doesn’t help my confidence in my attorney, you know." Questioned by the court, Johnny Mostiler responded that he could not remember if he had used this epithet, and also that he did not "use those terms out in public."

Since the USA resumed executions in 1977, 1,102 prisoners have been put to death, 41 of them in Georgia. There have been three executions in the USA this year, including one in Georgia on 6 May. On 22 May, the Georgia Board of Pardons and Paroles commuted the death sentence of Samuel David Crowe to life imprisonment without parole shortly before he was due to be executed.

Although it gave no reason for its decision, the Board had heard testimony from various people, including a former prison officer, about Crowe’s model behaviour and his remorse while on death row. In Curtis Osborne’s case, the Board will hear statements from the prison chaplain about Osborne’s constructive role on death row, and from Osborne’s daughter as to the important role he continues to play in her life.

Georgia executes man who killed 2 in 1990

AP - June 5, 2008

JACKSON, Ga. --A man who claimed his attorney was a racist who put up a flimsy defense was executed Wednesday for murdering two people, Georgia's second execution within a month. Curtis Osborne, 37, was executed at 9:05 p.m. at the state prison in Jackson. Osborne did not request a special last meal and refused to eat a cheeseburger. He did not make a final statement.

Osborne's execution was delayed for about two hours because the U.S. Supreme Court was considering his final appeal and then prison officials could not find a vein. While the lethal cocktail of drugs was administered, Osborne's eyes opened at one point and he took a deep breath. His eyes then closed again.

Osborne, who is black, was sentenced to death for the August 1990 fatal shootings of Linda Lisa Seaborne and Arthur Jones. The two were found shot to death in a car by the side of a dirt road in Spalding County, which is about 35 miles south of Atlanta.

After he was convicted, he claimed his attorney Johnny Mostiler, who is white, referred to him by a racial slur and refused to tell Osborne that prosecutors offered a life sentence for a plea. He also claimed Mostiler, who died in 2000, told another client that Osborne deserved the death penalty. Prosecutors dismissed those allegations. Griffin Judicial Circuit District Attorney Scott Ballard called them "outlandish."

Like the nation's high court, the Georgia Supreme Court also refused Wednesday to halt the execution. On Monday, a Georgia parole board declined Osborne's plea for mercy. Osborne's case attracted the attention of former president Jimmy Carter and former U.S. Attorney General Griffin Bell, who both urged state officials to commute the death sentence to life without parole.

Norman Fletcher, the ex-chief justice of the Georgia Supreme Court, showed up in person Monday to ask for leniency. It was the first time he had made such an appearance, but he said he was drawn in by the "extraordinary nature" of the case.

The lethal injection took 14 minutes to kill Osborne, which concerned protesters who held a vigil at the prison's entrance. "That was another signal that proves there is a problem with lethal injections," said Sara Totonchi of the Southern Center for Human Rights, one of about two dozen protesters. "This yet another reason why we must stop executing people until we know more about lethal injection."

Osborne was the fourth person in the nation executed since the U.S. Supreme Court upheld the constitutionality of lethal injection. Georgia's execution of William Earl Lynd on May 6 was the first in the nation after a seven-month halt on capital punishment.

If Your Lawyer Wants You Executed

Monday, Jun. 02, 2008

In 1990, Curtis Osborne, a small-time cocaine dealer and addict, killed two people in a dispute over $400. His crime revulsed the town of Griffin, Georgia, one measure of which was the bigoted remark a local inmate reported hearing at the jail: "That little nigger deserves the chair."

As repulsive as the remark was on its own, far more disturbing was the fact that the person alleged to have uttered it was Osborne's own court-appointed lawyer. And somehow, through years of appeals in state and federal courts, no tribunal has squarely confronted this basic but fundamental question: is a person on trial for his life entitled to a lawyer who does not hold him in contempt and believe he should be executed?

Osborne is scheduled to be executed Wednesday. His last-ditch plea to have his sentence commuted to life in prison was denied this morning by the state Board of Pardons and Paroles, despite supportive letters from Georgia luminaries including former President Jimmy Carter and former deputy attorney general Larry Thompson — a Democrat and a Republican, respectively.

His case is a vivid example of the way legal "technicalities" have tipped the scales from favoring death row prisoners to favoring the state. Georgia officials, after all, never had to try to prove that Osborne's lawyer was not a bigot, or even that his feelings about his client shouldn't matter one way or the other. Instead, they were the beneficiaries of court rulings that said the issue was moot for procedural reasons.

From the record of his case, Curtis Osborne was a numbskull junkie who managed to sell his friend's motorcycle for $400, then pocketed the money. When the friend came after the cash, Osborne shot the man and his girlfriend at close range.

He later tried to explain the gunshot residue on his hands by saying that he fed his dog doses of gunpowder, but the authorities weren't impressed. Osborne eventually cracked and confessed.

Soon after, the flamboyant Johnny Mostiler, a local lawyer known for his abundant jewelry, handlebar moustache and overwhelming caseload, became his attorney. In those days, Mostiler represented all the indigent inmates in the county for a flat annual fee, hundreds and hundreds of felony cases.

His clients often filed into court shackled to one another in rows to enter their guilty pleas, according to a profile in American Prospect magazine. So suffice it to say that he didn't have a lot of time for Osborne.

Preparation for a first-rate capital defense can often take hundreds of hours, including an extensive investigation of the accused's childhood, mental health, drug abuse history and so on. But the law does not promise a first-rate defense.

As a panel of judges from the 11th Circuit Court of Appeals said in denying Osborne's request for a new trial, "for a petitioner to show deficient performance" by an attorney, "he must establish that no competent counsel would have taken the action that his counsel did take." And how do you show that? "There are no absolute rules," the judges said vaguely.

So throughout Osborne's legal odyssey state and federal judges combed through his appeals in an effort to decide just how third-rate Mostiler's work actually was. Osborne argued that Mostiler should have uncovered exculpatory evidence. The courts decided that the evidence wasn't exculpatory enough. Osborne's lawyers said Mostiler should have called experts to challenge the prosecution case. Courts decided that experts would not have changed the outcome.

Osborne challenged the failure to conduct a robust examination of the role of mental illness and addiction in his unraveling. The courts believed Mostiler's testimony that he never saw any evidence of drug abuse or illness. Instead, Mostiler chose to argue to the jury that Osborne's crimes were not premeditated, an ultimately unsuccessful strategy that appeals courts found to be nonetheless reasonable.

All in all, Osborne's has been a fairly typical capital appeal, in which the defense team heaps allegations on the original lawyer — the high-living Mostiler died of a coronary in 2000 — while the prosecution extols the brilliance of the condemned man's trial attorney. "Mostiler was the toughest trial lawyer in Spalding County," one prosecutor declared of a man far better known for engineering guilty pleas than for winning cases in the courtroom.

Which leaves the alleged racist remarks and the attorney's apparent belief that his own client deserved to die.

Those words didn't actually surface until years after they were allegedly uttered, when another Mostiler client at the time of Osborne's trial reported the slur. He said Mostiler indicated that he wasn't planning to work very hard to save the killer and that he wasn't telling Osborne that the state was offering a plea bargain to life in prison.

The issue of the plea deal had already been raised in an earlier appeal before the lawyer's death, and when Mostiler testified that he conveyed the state's offer and Osborne turned it down, the appellate judges chose to believe him over his former client.

It's too late to ask him about the n-word in Osborne's case — but this is not the first time Mostiler has been accused of using the word to describe a client. In another case, a defendant unsuccessfully tried to get a new lawyer because Mostiler was calling him hateful names. When the judge turned to the lawyer, Mostiler didn't deny it. "I honestly can't say whether I said it or not. I don't use those terms out in public," was as far as he would go.

But neither Mostiler nor the State of Georgia was ever pressed on the matter. State courts ruled that Osborne waited too long to raise the issue, and federal courts deferred to that decision. The 11th Circuit panel closed the matter in dry and technical terms: "The state trial court relied upon Georgia procedural rules in denying Osborne relief on this claim. As such, the claim is barred from federal review."

Of course, we are talking about a confessed killer of two people. Some Americans believe that all such aggravated murders should be punished by death. That's not the law, however: in 1976, the Supreme Court ruled that mandatory death sentences are unconstitutional. Instead, each capital case must be individually scrutinized on its own merits.

But is this individual scrutiny possible when the prisoner's attorney slurs him and says he deserves to die? For Curtis Osborne, the ultimate insult is that such a crucial question is barred from review.

Osborne v. State, 263 Ga. 214, 430 S.E.2d 576 (Ga. 1993) (Direct Appeal).

Defendant was convicted of two counts of murder and sentenced to death after jury trial in the Superior Court, Spalding County, Andrew J. Whalen, Jr., J. Defendant appealed. The Supreme Court, Clarke, C.J., held that: (1) prosecutor's explanations for striking black jurors were sufficient race neutral to overcome accusation of race discrimination; (2) Miranda warnings given to defendant were sufficient, even though they were not in exact language urged as necessary by defendant; and (3) Miranda warnings and waiver of rights on day of defendant's arrest had not grown stale by next day so that statements made by defendant to sheriff and deputy on next day were admissible in murder trial. Affirmed. Benham, J., concurred in judgment only with respect to division 3.

CLARKE, Chief Justice.

This is a case in which a death sentence has been imposed. The appellant, Curtis Osborne, was convicted by a Spalding County jury of the murder of Arthur Lee Jones and Linda Lisa Seaborne. The two victims were found in an automobile by the side of a dirt road. Both had been shot through the head. After investigation,

Osborne was arrested, and eventually admitted shooting the victims, claiming that Jones had reached toward the floor for a weapon. However, the crime scene evidence, including powder burns and blood spatters, showed that Jones had been sitting upright when he was shot by a gun whose muzzle was only an inch from his skull.

Although the murder weapon was not recovered, ballistics examination of the bullets showed that the murder weapon had been a Ruger single-action .357 revolver firing Winchester .357 magnum copper-wash, wad-cutter bullets. Bullets identical in brand and type to the murder bullets were found in Osborne's home, and his parents admitted owning a .357 Ruger that was now missing.

The evidence supports the verdict. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The crime occurred August 6, 1990. The trial began on August 5, 1991 and ended on August 19, 1991. A motion for new trial was filed and denied at hearing on December 14, 1992. The case was docketed in this court on January 5, 1993, and argued orally April 12, 1993.

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Osborne also complains that when the sheriff interrogated Osborne the next day, he merely reminded him of his rights instead of restating them to Osborne. Further, after Osborne agreed in this interview to help the police search for the murder weapon, a deputy talked to Osborne during the ensuing search effort without re-advising him of his rights, or reminding him of them.

On the day of his arrest, Osborne was Mirandized three times. He signed a written waiver. These warnings and waiver had not grown “stale” by the next day when the sheriff reminded him of his rights and elicited from Osborne an acknowledgment of the latter's understanding of his rights. Moten v. State, 231 Ga. 642, 203 S.E.2d 527 (1974). Compare Biddy v. Diamond, 516 F.2d 118 (5th Cir.1975) (warnings not stale after 12 days). The statements made by Osborne to the sheriff and later to a deputy during the unsuccessful hunt for the murder weapon, in which Osborne willingly participated, were properly admitted.

5. The jury found as a statutory aggravating circumstance that the murder of Linda Lisa Seaborne was committed while the defendant was engaged in the commission of another capital felony, to wit: the murder of Arthur Lee Jones. OCGA § 17-10-30(b)(2). The evidence supports this finding. OCGA § 17-10-35(c)(2).

6. We do not find that the death sentence was imposed as the result of passion, prejudice, or other arbitrary factor. OCGA § 17-10-35(c)(1). The similar cases listed in the Appendix support the imposition of a death sentence for the murder of Linda Lisa Seaborne, considering both the crime and the defendant. OCGA § 17-10-35(c)(3). Judgment affirmed.

Osborne v. Terry, 466 F.3d 1298 (11th Cir. 2006) (Habeas).

Background: Following affirmance of his capital murder convictions and sentence, 263 Ga. 214, 430 S.E.2d 576, and denial of his state habeas corpus petition, death row inmate sought federal habeas relief. The United States District Court for the Northern District of Georgia, No. 01-00067-CV-JTC, Jack T. Camp, J., denied relief and, after petitioner's appeal, granted a certificate of appealability (COA).

Holdings: The Court of Appeals, Dubina, Circuit Judge, held that:
(1) petitioner's trial counsel did not render ineffective assistance by failing to present exculpatory material;
(2) trial counsel was not ineffective for failing to call experts to challenge the state's ballistics evidence;
(3) trial counsel was not ineffective for failing to challenge the state's crime scene reconstruction expert;
(4) trial counsel was not ineffective for failing to conduct a reasonable investigation into petitioner's background to discover mitigating evidence to present at the penalty phase of trial;
(5) ineffective assistance claim based on trial counsel's alleged conflict of interest was barred from federal habeas review;
(6) ineffective assistance claim arising from trial counsel's alleged racial animosity and based on the Sixth Amendment was barred from federal habeas review;
(7) petitioner's Eighth Amendment racial animosity claim also was procedurally barred; and
(8) even if the Eighth Amendment racial animosity claim was not procedurally barred, the claim lacked merit. Affirmed. DUBINA, Circuit Judge:

Petitioner, Curtis Osborne (“Osborne”), a death row inmate, appeals the district court's order denying him federal habeas relief pursuant to 28 U.S.C. § 2254. After a thorough review of the record, and having the benefit of the parties' briefs and oral argument, we affirm the district court's judgment.

I. BACKGROUND

A. Facts

Special Agent David Mitchell (“Agent Mitchell”) of the Georgia Bureau of Investigation (“GBI”) testified at Osborne's trial that at approximately 1:45 p.m. on August 7, 1990, he received a call to investigate a murder on Pine View Road in Spalding County, Georgia. When he arrived at the scene,

Agent Mitchell noticed glass fragments lying in the dirt roadbed and saw a 1978 Pontiac Grand Prix about 40 yards from the glass. The car was in gear and still running. Agent Mitchell observed that the driver's side window was shattered and part of the glass was inside the car on the front seat, floorboards, and armrests.

The windshield was cracked, and the passenger window was rolled down. Agent Mitchell saw two individuals, a woman, later identified as Linda Lisa Seaborne (“Seaborne”), and a man, later identified as Arthur Jones (“Jones”), in the front seat of the car. Seaborne, who was in the driver's seat, was slumped over Jones. Both victims had been shot. Agent Mitchell also noticed a black stick, similar to a policeman's nightstick, lying on the floorboard to the rear of the driver's seat.

Agent Mitchell testified that he inspected the car and noticed that a bullet had struck the windshield and passed underneath it through the padded dash. The bullet was lying on the vent. There was also a bullet resting on the driver's door where the glass was shattered. Jones had sustained a gunshot wound below his left eye, and Seaborne had been shot in the neck. Agent Mitchell stated that there was blood all over the interior of the vehicle.

Special Agent Chris Tolbert (“Agent Tolbert”) of the GBI testified that early on the day following the crime, he interviewed Jones's sister, Melinda Jones (“Melinda”), and Jones's mother. Melinda's boyfriend, Osborne, was at her house when Agent Tolbert arrived. Osborne told Agent Tolbert that three weeks earlier, Jones had asked Osborne to help him (Jones) sell his (Jones) motorcycle.

Osborne stated that he did not sell the motorcycle and had not spoken to Jones since that time. Osborne also told Agent Tolbert that the only contact he had with Seaborne was several days earlier when he was trying to change the title on Jones's motorcycle.

Agent Tolbert interviewed Marcus Matthews (“Matthews”), who told Agent Tolbert that a week before the murders, Osborne sold him Jones's motorcycle for $400. After obtaining this information, Agent Tolbert considered Osborne a suspect and gave Osborne his Miranda rights before interviewing him a second time. Osborne repeated the same story that he had told Agent Tolbert earlier.

Osborne elaborated a bit, though, and told Agent Tolbert that Jones had approached him about selling the motorcycle because he needed the money. Osborne had offered Jones an opportunity to sell cocaine for money, but Jones declined.

The next day, police arrested Osborne and interviewed him again. During this interview, Osborne admitted that he had sold Jones's motorcycle to Matthews, and he had kept the money. Osborne denied any involvement in the shootings and consented to a gun residue test. He informed the police that the test would be positive for gun residue because he fed his dog gunpowder on a daily basis. Osborne explained that the blood under his cuticles was the result of a hangnail.

He also told police that his fingerprints could be on the car in which the victims were found because he had ridden in the car a week earlier when he went to WalMart, where Seaborne worked, to get a title for the motorcycle, and Seaborne asked him to move her car from one parking spot to another. Osborne provided police with the clothes he was wearing on the day of the murders, but he told the police that his mother previously had washed the clothes in bleach.

Spalding County Sheriff Richard Cantrell (“Sheriff Cantrell”) testified at trial that he interviewed Osborne on August 10, 1990. Sheriff Cantrell taped the interview. During the interview, Osborne told Sheriff Cantrell that on the day of the crime, he left a message for Jones to come to Griffin, Georgia, to pick up the money from the sale of Jones's motorcycle.

Osborne stated that he spent the rest of the day on the street selling cocaine. Osborne further stated that later in the day, Jones and Seaborne approached him and told him to get in the car. Jones then hit Osborne with a nightstick. Jones asked Osborne for the money from the sale of the motorcycle, and Osborne told him that the money was in a hotel room with two Cuban drug dealers from Florida named Jeff and Scott.

Osborne stated that they stopped at a motel, and one of the Cuban drug dealers gave Osborne a .38 caliber gun that he put in his pants. Osborne further stated that he shot Jones in the back of the head because Jones had threatened to beat him and was reaching for a weapon on the floorboard of the car. Osborne stated that he climbed out of the driver's side window and ran. At no time did Osborne state where he left his gun and pager.

Ron Buchanan (“Buchanan”), an investigator with the Sheriff's Department testified that he searched for a weapon and pager, but could not find either. Buchanan also testified that he went by the hotel where Osborne claimed the Cuban drug dealers were staying, and Osborne pointed out Room 213 as the room they occupied. However, the manager of the hotel, Ramesh Parekh, testified that the hotel records showed that Room 213 was not occupied on the day in question.

Dr. Randy Hanzlick (“Dr. Hanzlick”), the Fulton County medical examiner, testified that he performed the autopsies on the victims. The autopsy of Jones revealed that he died as a result of a gunshot wound to the back of the head which exited to the left of his eye.

The blood pattern showed that Jones's body was in an upright position when he was shot and that the gun was only an inch away from his head when the perpetrator fired. The bullet fractured Jones's skull, causing hemorrhage and destruction of brain tissue. Dr. Hanzlick stated that the wound would indicate that the perpetrator used a .38 caliber, 9 millimeter, or a .357 magnum weapon; more likely, it was a 9 millimeter or a .357 magnum.

Dr. Hanzlick testified that Seaborne died as a result of a gunshot wound to the back of the neck. The bullet entered the right side of her neck, grazed the shoulder up through the spinal cord, went through the bottom of her skull and exited through her left cheek. He stated that the gunshot wound was inflicted from one to two feet away from Seaborne. Dr. Hanzlick testified, however, that the wound was not typical of an “execution” style wound. (State Record Exh. 6, pp. 1268-69.)

Additionally, Osborne's mother testified that her husband's .357 Ruger was missing. Kelly Fite, the state crime lab firearms examiner testified that she received a .357 magnum lead bullet that Agent Tolbert had found at Osborne's home pursuant to a search warrant. Larry Hankerson, the latent fingerprint examiner, testified that Osborne's fingerprints were found on the door of the driver's side of the vehicle in which the victims' bodies were found.

B. Procedural History

A Spalding County jury convicted Osborne on two counts of malice murder and two counts of felony murder, with the underlying felonies consisting of aggravated assault. The jury found that Seaborne's murder was committed in the course of Jones's murder, itself a capital felony. The jury based their death recommendation on this aggravating circumstance.

Following the trial court's denial of his motion for new trial, Osborne filed his direct appeal in the Georgia Supreme Court, which affirmed Osborne's convictions and sentences. See Osborne v. State, 263 Ga. 214, 430 S.E.2d 576 (1993). Osborne filed a petition for writ of certiorari, which the United States Supreme Court denied. See Osborne v. Georgia, 510 U.S. 1170, 114 S.Ct. 1205, 127 L.Ed.2d 552 (1994).

Osborne then filed a state habeas corpus petition on June 28, 1994, and filed an amended petition on May 31, 1996. The trial court conducted an evidentiary hearing in September 1996 and thereafter denied Osborne habeas relief.

Osborne filed an appeal from the trial court's denial of state habeas relief and an application for certificate of probable cause (“CPC”) to appeal. The Georgia Supreme Court denied Osborne's application for a CPC on April 28, 2000, and the United States Supreme Court subsequently denied Osborne's petition for certiorari review.

On April 24, 2001, Osborne filed his federal habeas petition, including for the first time a claim that his trial counsel's performance was deficient because trial counsel exhibited racial animosity toward Osborne. Osborne subsequently filed an amended petition. After the State responded, the district court denied Osborne relief on certain claims raised in his amended petition.

The district court initially dismissed Osborne's claim of racial animosity, then upon motion to reconsider, asked the parties to be prepared to argue at the habeas hearing whether the claim should be reinstated. In the interim, Osborne filed a second state habeas petition raising the racial animosity claim. The state court denied relief on the claim. (Federal Record, Vol. 2-14.)

On February 21, 2003, the district court conducted oral argument on the petition. The parties addressed the racial animosity claim in terms of exhaustion, procedural default, and necessity for discovery. On August 18, 2003, the district court denied Osborne federal habeas relief on the claims raised in his amended petition, including the racial animosity claim, with the exception of a claim of ineffective assistance of appellate counsel. ( Id. at Vol. 1-22.)

The district court later denied Osborne relief on this claim as well. ( Id. at Vol. 1-32.) Osborne then filed a motion for new trial and/or to alter or amend judgment, which the district court denied. Osborne filed a notice of appeal and a motion for a certificate of appealability (“COA”). The district court granted the COA as to three claims of ineffective assistance of counsel. This court denied Osborne's request to expand the COA.

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Osborne contends that his trial counsel was ineffective for failing to conduct a reasonable investigation into his background to discover mitigating evidence to present at the penalty phase of his trial. Osborne challenges his trial counsel's failure to present evidence of his drug use, his mental health condition, and evidence from mental health experts.

Osborne presents the affidavit of James Larson, Ph.D., who opines that Osborne suffers from Major Depressive Disorder and Post Traumatic Stress Disorder. Osborne claims that his trial counsel could have obtained the assistance of an independent mental health expert who could have testified to these diagnoses.

The expert's testimony would have been relevant to a defense of voluntary manslaughter because when Osborne saw Jones make a move, it triggered Osborne's trauma recollection and caused him to react by shooting Jones to abate the perceived threat. Osborne also asserts that there was evidence of drug use and possible cocaine hallucinosis that trial counsel failed to present at sentencing.

Osborne argues that the state courts' resolution of this claim of ineffective assistance of counsel was both contrary to clearly established law and an unreasonable application of clearly established Supreme Court precedent.

The state court concluded that the facts of the case did not warrant a finding of unreasonableness by Mostiler. The court noted that Mostiler extensively investigated the case, knew Osborne's history, and presented many of the same witnesses that Osborne's present attorney presented in the form of affidavits.

In fact, the trial court commented that Mostiler presented nine witnesses at the penalty phase of Osborne's trial. The trial court then detailed the mitigating evidence that Mostiler presented at the sentencing phase of trial.

The witnesses presented on behalf of Petitioner at trial included his former employer Howard Drawdy. Mr. Drawdy testified that Petitioner worked for him for approximately six years and that he had always been a hard worker and that he had never known Petitioner to have a propensity for violence. Mr. Drawdy also testified, “Curtis was real close to his mother.

In fact, he helped support his mother for as long as I've known him.” Ronnie Higgins testified on Petitioner's behalf at the sentencing phase that he had known Petitioner for approximately 12 years. Mr. Higgins ran a pharmacy and had seen Petitioner come into the pharmacy to obtain[ ] medicine for [ ]his mother. Mr. Higgins described Petitioner as a “very polite young man.”

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C. Ineffective Assistance of Counsel Based on Racial Animosity

Osborne asserts that his trial counsel labored under a racial animus toward him that deprived him of the effective assistance of counsel guaranteed by the Sixth Amendment and deprived him of the right to be free from cruel and unusual punishment in violation of the Eighth Amendment. Specifically, Osborne claims that because of his racial animosity, Mostiler did not disclose to him the State's offer of a life plea. To support his claim,

Osborne presents the affidavit of Mr. Gerald Huey (“Huey”), a white client of Mostiler's. Huey recalls that he was aware of the Osborne case, but did not know Osborne until he was put in an isolation cell near Osborne. Huey states that Osborne was not in the jail for very long and the only communication they had was a verbal argument. Huey avers that one day Mostiler visited him at jail and mentioned Osborne.

The first time I recall Mr. Mostiller (sic) saying anything about Curtis Osborne's case was when he said, “The little nigger deserves the death penalty.” I was shocked because I knew that Mr. Osborne had not gone to trial yet ... That wasn't the only time Mr. Mostiller (sic) said something like that though. I recall Mr. Mostiller (sic) telling me that I wouldn't believe the amount of money he was going to spend on my case.

He said he was going to hire a private investigator and get expert witnesses. He said the money he would spend on m[e] was going to be a lot more than he would spend on Mr. Osborne because “that little nigger deserves the chair.” Mr. Mostiller (sic) made similar comments to me both before and after Mr. Osborne's trial. (Federal Record Vol. 2-14, App. A.)

We note, however, that the exact claim Osborne proffers now, that because his trial attorney harbored racial animosity toward Osborne, he failed to disclose the life plea to Osborne, was not asserted in state court until Osborne filed his second state habeas petition, which followed his federal habeas petition.

In his first state habeas petition proceedings, Osborne's counsel filed a motion to amend his petition to include a claim of ineffective assistance based on counsel's failure to inform Osborne of a plea agreement. The trial court reserved ruling on the motion until the habeas hearing.

At the hearing, Mostiler testified that he recalled “trying to talk Curtis into accepting the plea offer from the State, which was a life sentence.” (State Record, Exh. 9, p. 172-73.) Mostiler stated that he did discuss a plea offer with the District Attorney and did try to get Osborne to accept that plea. ( Id. at 200-01.)

In his Post-Hearing Memorandum in state court, Osborne raised the claim that his attorney's failure to communicate to him the offer of a plea of life prior to his trial violated his Sixth, Eighth, and Fourteenth Amendment rights. ( Id., Exh. 12, Respondent's Exh. 30, p. 55.) There is no mention in the supporting portion of Osborne's brief that Mostiler did not convey the life plea because Mostiler harbored racial animosity toward Osborne.

The trial court rejected Osborne's claim that his trial counsel was ineffective for failing to convey the life plea offer to him pre-trial. The trial court credited Mostiler's testimony that Osborne did not authorize him to solicit a plea offer; that Mostiler did discuss with the District Attorney a plea offer; and that Mostiler did attempt to get Osborne to accept the plea offer.

The trial court concluded that there was no evidence to support Osborne's assertion that Mostiler failed to convey to him a plea of life. (State Record, Exh. 13, Respondent's Exh. 32, p. 16-17.) Accordingly, the trial court denied Osborne relief on this claim.

In Osborne's federal habeas petition, which he filed before his second state habeas petition, he raised the claim that Mostiler's racial animosity toward him affected Mostiler's representation; specifically, that because of Mostiler's racial animosity, he failed to disclose the plea offer to Osborne. The district court initially dismissed the claim because it was not exhausted.

Osborne then proceeded to file a second habeas petition with the state court alleging that his trial counsel was a racist and that as a result of his racism, his representation violated Osborne's Sixth, Eighth, and Fourteenth Amendment rights. (Federal Record, Vol.2-14, App. A, p.4.) In support of his claim, Osborne presented the affidavit of Huey and alleged that Mostiler failed to convey to him pre-trial the plea offer.

The state trial court denied Osborne relief on this claim. Noting that it was deciding all issues under O.C.G.A. § 9-14-51FN4 because the petition was a second habeas petition, the trial court concluded:

FN4. This section, entitled “Effect of failure to raise grounds for relief in original or amended petition,” provides:All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition.

Any grounds not so raised are waived unless the Constitution of the United States or of this state otherwise requires or unless any judge to whom the petition is assigned, on considering a subsequent petition, finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.O.C.G.A. § 9-14-51 (2006).

The Court takes notice of Petitioner's first habeas petition in which Petitioner asserted a claim of ineffective assistance of counsel, citing numerous alleged deficiencies. In fact, one such deficiency was a failure to communicate a plea offer. In its order of August 18, 1997, this Court held that the plea offer was communicated to and refused by Petitioner.

Therefore, that allegation is res judicata. Furthermore, the affidavit of Gerald Huey, which is merely hearsay, could have been procured before or during the pendency of Petitioner's first habeas and, therefore, does not constitute new evidence. Petitioner cites no other examples and presents no new evidence of this alleged racial bias on the part of his trial counsel. ( Id., App. B, p. 2.) Thus, the district court directed the parties to be prepared to discuss at the federal hearing whether the claim should be reinstated.

At the federal habeas hearing, the parties agreed that at that time, the claim was exhausted. However, the State argued that the claim was procedurally barred from federal review because the state court relied on a state procedural rule in denying Osborne relief on the claim.

Osborne's counsel conceded that the Sixth Amendment claim regarding counsel's failure to convey the plea agreement was barred from federal review, but maintained that Osborne's Eighth Amendment claim based on McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262, was properly before the federal court for review. (Federal Record, Vol. 5.)

In its order, the district court considered the two claims together because it found that the crux of the two claims was Osborne's assertion that Mostiler failed to disclose to him that the State offered him a plea of life imprisonment. The district court then invoked the AEDPA standards and presumed that the state court's findings on these claims were correct. See 28 U.S.C. § 2254(e)(1).

The district court found that Osborne did not meet his burden of rebutting this presumption by clear and convincing evidence. The district court noted that the Huey affidavit is not clear and convincing evidence that Mostiler failed to convey the plea offer because of his racial animosity.

The district court also found that the affidavit is not sufficient to rebut the State court's factual finding based on Mostiler's clear testimony that he told Osborne about the plea offer, that Osborne rejected the offer, and that Osborne never wavered from that position. Accordingly, the district court denied Osborne relief on these claims.

We agree with the district court that Osborne is not entitled to relief on these claims. First, Osborne's claim based on the Sixth Amendment is clearly barred from federal habeas review. The state trial court found the claim res judicata and even Osborne's counsel conceded such.

Second, our reading of the state trial court's order on Osborne's second state habeas petition convinces us that Osborne's Eighth Amendment McCleskey claim is also procedurally barred from federal review.

The state trial court relied upon Georgia procedural rules in denying Osborne relief on this claim. As such, the claim is barred from federal review. See Harris, 489 U.S. at 262, 109 S.Ct. at 1043; see also, Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.1994) (stating that as long as a state court explicitly invokes a state procedural bar rule as a separate basis for a decision, an alternative ruling on the merits does not preclude the federal courts from applying the state procedural bar).

Assuming arguendo that the McCleskey claim is not procedurally barred from federal habeas review, we conclude that the claim lacks merit. Even if the affidavit correctly recounts Mostiler's statements to Huey, it does not establish that Mostiler failed to convey the plea offer to Osborne.

Moreover, Osborne presents no other evidence to support his claim that Mostiler's alleged racial animosity affected his representation. Furthermore, McCleskey discusses the racial animus of the decisionmakers, not defense counsel; therefore, Osborne's claim does not fit within the McCleskey rubric. See, e.g, Meeks v. Moore, 216 F.3d 951, 967 (11th Cir.2000) (noting that the “decisionmaker” in the case was either the prosecutor or the jury); Jones v. White, 992 F.2d 1548 (11th Cir.1993) (noting that the “decisionmakers” in the case were the prosecutor and jurors).

Accordingly, the state court's finding regarding Mostiler's alleged racial animosity is neither contrary to clearly established federal law nor based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Accordingly, Osborne is not entitled to relief on this claim.

V. CONCLUSION

For the foregoing reasons, we affirm the district court's order denying Osborne habeas relief. AFFIRMED.