Summary:

In the early morning hours Blankenship left a bar after a night of drinking and began to walk home. As he walked past the victim's upstairs apartment, he decided that he wanted to break in. The victim, Sarah Mims Bowen, was a 78-year-old woman for whom Blankenship had done repair work.

He climbed up a railing to a porch of her apartment where he kicked out the lower pane of a window. After waiting and watching briefly, he entered the apartment, and grabbed Sarah from behind. Sarah struggled and fell and Blankenship fell on top of her. Sarah became unconscious, and Blankenship picked her up and took her back to her bed, where he raped her.

Her bloody and nude body was discovered by friends and neighbors She had been severely beaten, scratched, bitten and forcibly raped. A plastic bottle of hand lotion had been forced into her vagina. Footprints left by an unusually patterned sole were found at the scene and led toward Blankenship's house. His fingerprints were also found at the scene, and shoes identical to the type that made the prints were recovered from his possession.

After he was arrested by police, Blankenship made a confession. However, he denied that he beat Sarah Bowen severely, and at trial he recanted part of his confession and stated that he was unable to consummate the rape. Forensic evidence established that Sarah Bowen died from heart failure brought on by the trauma. Scrapings taken from the fingernails of the victim matched the blood type of Blankenship.

The death sentence was imposed three separate times after two reversals.

Citations:

Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505 (Ga. 1981). (Direct Appeal-Reversed)
Blankenship v. State, 247 Ga. 590, 280 S.E.2d 623 (Ga. 1981). (On Reconsideration)
Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369 (Ga. 1983). (Direct Appeal-Reversed)
Blankenship v. State, 258 Ga. 43, 365 S.E.2d 265 (Ga. 1988). (Direct Appeal - Affirmed)
Blankenship v. Hall, 542 F.3d 1253 (11th Cir. 2008). (Habeas)

Final/Special Meal:

Blankenship declined to request a special last meal and instead will be offered the institution's meal tray, consisting of chicken and rice, peas, carrots, collard greens, corn bread, a brownie and iced tea.

Final Words:

"I hope to see you again."

BLANKENSHIP, ROY W
GDC ID: 0000397505
YOB: 1955
RACE: WHITE
GENDER: MALE
EYE COLOR: BLUE
HAIR COLOR: BLN&STR
MAJOR OFFENSE: MURDER

CASE NO: 130375
OFFENSE: RAPE
CONVICTION COUNTY: CHATHAM COUNTY
CRIME COMMIT DATE: 03/02/1978
SENTENCE LENGTH: 20 YEARS, 0 MONTHS, 0 DAYS

CASE NO: 130375
OFFENSE: BURGLARY
CONVICTION COUNTY: CHATHAM COUNTY
CRIME COMMIT DATE: 03/02/1978
SENTENCE LENGTH: 20 YEARS, 0 MONTHS, 0 DAYS

CASE NO: 130375
OFFENSE: MURDER
CONVICTION COUNTY: CHATHAM COUNTY
CRIME COMMIT DATE: 03/02/1978

Georgia Department of Corrections
Brian Owens, Commissioner

Director of Public Affairs
Joan Heath

Blankenship Execution Media Advisory

Forsyth – Condemned murderer Roy Blankenship is scheduled for execution by lethal injection at 7:00 p.m. on Thursday, June 23, 2011, at Georgia Diagnostic and Classification Prison in Jackson. Blankenship was sentenced to death in the 1978 murder of a woman in Chatham County.

Media witnesses for the execution are Greg Bluestein, The Associated Press; Eddie Ledbetter, Statesboro Herald; and Mitchell E. Peace, The Claxton Enterprise.

Blankenship declined to request a special last meal and instead will be offered the institution's meal tray, consisting of chicken and rice, peas, carrots, collard greens, corn bread, a brownie and iced tea.

There have been 49 men executed in Georgia since the U.S. Supreme Court reinstated the death penalty in 1973. If executed, Blankenship will be the 27th inmate put to death by lethal injection. There are presently 101 men and one woman on death row in Georgia.

The Georgia Diagnostic & Classification Prison is located 45 minutes south of Atlanta off Interstate 75. From Atlanta, take exit 201 (Ga. Hwy. 36), turn left over the bridge and go approximately 1/4 mile. The entrance to the prison is on the left. Media covering the execution will be allowed into the prison’s media staging area beginning at 5:00 p.m. on Thursday.

Georgia Attorney General

PRESS ADVISORY

Monday, June 6, 2011

Execution Set for Roy Blankenship, Convicted of 1978 Murder of Elderly Savannah Woman Georgia Attorney General Samuel S. Olens offers the following information in the case against Roy Blankenship, who is currently scheduled to be executed on June 23, 2011 at 7:00 pm. On June 6, 2011, the Superior Court of Chatham County filed an order, setting the seven-day window in which the execution of Roy Blankenship may occur to begin at noon on June 23, 2011, and ending seven days later at noon on June 30, 2011. The Commissioner of the Department of Corrections then set the specific date and time for the execution as 7:00 pm on June 23, 2011. Blankenship has concluded his direct appeal proceedings and his state and federal habeas corpus proceedings.

Blankenship’s Crimes

On March 2, 1978, police officers were called to the residence of 78 year old Sarah Mims Bowen at 204 West 44th Street in Savannah, Georgia, where they were met by friends and neighbors of Mrs. Bowen. (T. 295, 315).[1] Upon discovering the nude body of Mrs. Bowen on the bed in her bedroom, officers cleared the apartment of people and secured the area until additional officers arrived. (T. 295-296, 299, 312).

In the living room of the apartment, officers found several blood-soaked paper towels on the floor, multiple blood-soaked towels on a chair, blood spatters on the wall above the chair, and the remaining portion of the roll of towels on an end table. (T. 298). In the bedroom, officers found several blood-soaked rags on a stool next to the head of the bed, on the foot of the bed and on the floor. Id. The nude body of the elderly victim showed multiple bruises and spots of blood on the forehead and above the eyes. (T. 299).

Adjacent to the bedroom was a family room which contained hanging plants and flowers and opened onto a second story balcony. (T. 296). The apartment was extremely dusty. (T. 313). In the dust, officers saw shoe prints which appeared to have been made by tennis shoes in a trail from the family room to the second story porch. Id. Broken glass from the door between the balcony and family room was found inside the room. (T. 312). A struggle had obviously occurred in the living room as evidenced by the disarray and blood on the floor, a bloody pillow on the floor, bloody hand towels on the floor and a small chair or stool that was overturned. Id.

In the dust, officers found dirt from footprints, as well as from the previously mentioned set of footprints. (T. 313). One set of prints led around the exterior of the house and then came upstairs; footprints were found on the iron lattice post going up to the second story balcony, as well as on the top of the banister. (T. 313-314). There was a trail of footprints in the dust between the family room and the porch. Id. A set of footprints also led from the house at a southwest angle into the street. Id. Blankenship lived one block across the street from the victim in a southwest direction, in the same direction as the footprints leading away from the victim’s apartment. Id. On March 11, 1978, pursuant to a search warrant, Detective Jones seized tennis shoes from Blankenship’s house, which had similar ridges to the footprints found in the dust. (T. 314-315).

On March 17, 1978, Blankenship was interviewed by former Detective Coy James and Detective McQuire. (T. 311, 317-318). After being advised of and signing a waiver of his constitutional rights, Blankenship gave an oral statement, which was taken down by a secretary and then typed into a written version of Blankenships statement. (T. 318-319, 321). After the typed statement was read to Blankenship, he signed the statement. Id. Blankenship's statement was read in its entirety to the jury. (T. 323-325).

In his statement, Blankenship admitted that he: climbed up the iron rail to the second story porch; climbed over the banister and kicked in the window; he entered the next room and saw the bedroom, but saw no one; he went up to the door of the next room and saw the reflection in a mirror of a woman sitting in a chair; he grabbed her and covered her mouth so she would not scream; she slid down in the chair and fell on the floor and he fell on top of her; he then noticed blood coming out of her head; he carried her back to the bed, placed her on the bed, took her pajamas off her, and got my pleasure or whatever you want to call it; he dressed himself and left, leaving the apartment after forty-five minutes to an hour. (T. 323-324). Blankenship stated that he had been drinking that night and had to be drunk.

Dr. Roderick Guerry conducted the autopsy of the victim on March 3, 1978. (T. 357-359). The pathologist described the elderly victim as having been beaten severely about the face, arms and over much of her body. (T. 359). There were many bruises on her face. Id. The victim’s vagina, anal area and mouth were bruised and red. Id. The victim’s lips were scraped and bruised, as well as her tongue. Id. The pharynx in the back of her mouth was also bruised, ripped and torn. Id. There were numerous other bruises and lacerations about her face and body. Id. The pathologist found signs of severe pericarditis which can result in death if the person is subjected to severe emotional and physical stress. (T. 359-360). The victim also evidenced severe cardioarteriosclerosis. Id. The victim also evidenced scarring in her lungs. Id. The pathologist concluded that there were three possible causes of death: heart attack; heart failure; or strangulation, as indicated by marks on her neck. Id. A whitish fluid was found in both her mouth and vagina. (T. 361). The face was badly bruised, with much swelling around the eyes; the face and lips were purple and pink; blood was all over her face. (T. 362). The right side of her face was more severely beaten, giving rise to an inference that the assailant was left-handed. (T. 363-364). Blankenship is left-handed. (T. 315).

Forensic Serologist Linda Tillman tested samples taken from both the victim and Blankenship. (T. 376-381). The blood scrapings evidenced type O blood and both the victim and Blankenship were type O secretors. (T. 381-382). While no sperm was found in the oral smear-microscopic slide, Ms. Tillman testified that sperm often are not found following evidence of oral sexual activity. (T. 382, 384). Tests revealed sperm in the vaginal smear and in the anal and vaginal swabs. (T. 383).

As mitigating evidence, Blankenship’s counsel decided to attempt to present the jury with the possibility that someone else could have committed the murder. In fact, defense counsel attempted to implicate Gary X. Nelson, a black male who was convicted for the oral and anal rape and stabbing murder of a six-year old black female. (T. 394).

Blankenship also presented the testimony of Roger Parian, Director of the Savannah Crime Lab branch, who found a broken segment of negroid hair on the victims body. (T. 401). Mr. Parian described the one hair was broken on both ends and stated that it was so small that it could have come from anywhere. (T. 404, 409). Mr. Parian also stated that four fibers he had previously identified as negroid hairs with the naked eye were, upon microscopic analysis, synthetic fibers. (T. 407).

Blankenship also presented the testimony of Medical Examiner Dr. Joe Burton in an attempt to absolve Blankenship. (T. 413). Dr. Burton testified that he did not view the injuries to the victim as severe and opined that the victim’s medical history and her medication could explain some of the bruises and other injuries found during the autopsy. (T. 438-440).

Especially significant for purposes of reviewing resentencing trial counsels effectiveness is the fact that Blankenship testified in his behalf and denied committing these crimes, but admitted his presence in the victim’s apartment. (T. 451). Blankenship contended he simply broke in the victim’s apartment to steal a car to sell, overheard the voice of a third person talking to the victim, heard a commotion, found her on the floor, placed her on the bed, and left after she awoke and screamed. (T. 460-464).

Blankenship claimed that his inculpatory statement to police was the result of intoxication. (T. 464-465). However, Detective James testified that Blankenship did not appear to be under the influence of any alcohol or drugs when Blankenship’s statement was taken. (T. 319). Significantly, Blankenship admitted that his testimony at this trial was inconsistent the testimony given at both his initial trial and his first resentencing trial, especially as to the subject of sex with the victim. (T. 478, 480, 482). Blankenship refused to explain the inconsistencies because of a vow between himself and God and, additionally, refused to identify the third person who was allegedly present in the apartment that night. (T. 478, 483).

Therefore, in addition to Blankenship’s statement which was found to have been voluntarily entered, other significant evidence linking Blankenship to the crimes included the fact that it was established that Blankenship’s shoes matched an unusually patterned sole print that was left at the victim’s home where she was raped and murdered, Blankenship’s fingerprints were in the victims home, Blankenship’s blood type O was found under the victims fingernails, and Blankenship lived approximately one block from the victim.

The Original Trial and Appeal Proceedings (1980-1981)

In April of 1980, Blankenship was originally convicted in the Superior Court of Chatham County of murder, burglary and rape. Blankenship was sentenced to death for murder and received two twenty year sentences for the burglary and rape, to run consecutively to the death. On direct appeal to the Georgia Supreme Court, Blankenship’s convictions for murder and rape were affirmed; but his conviction for burglary was reversed and the sentence for burglary vacated as a lesser included offense of felony murder. Blankenship v. State, 247 Ga. 590, 596 (1981). Additionally, Blankenship’s death sentence for murder was reversed due to a finding of error under Witherspoon v. Illinois, 391 U.S. 510 (1968), and Blankenship’s case was remanded to the trial court for resentencing. Id. at 594.

First Resentencing Trial and Appeal (1982-1983)

Blankenship’s first resentencing trial was held in the Superior Court of Chatham County, Georgia in September of 1982. The jury found the existence of two statutory aggravating circumstances as contained in O.C.G.A. § 17-10-30(b)(2) and (b)(7), and recommended a sentence of death, which was imposed by the trial court. On direct appeal, the Georgia Supreme Court found that Blankenship had been impermissibly restricted in presenting evidence in mitigation and thus, reversed the death sentence and ordered a second resentencing trial. Blankenship v. State, 251 Ga. 621 (1983)

Second Resentencing Trial and Appeal (1986-1988)

Blankenship’s second resentencing trial was held in June of 1986. The jury found the existence of the same statutory aggravating circumstances as previously found in his prior sentencing proceedings, and sentenced Blankenship to death for a third time on June 13, 1986. On direct appeal, the Georgia Supreme Court affirmed Blankenship’s death sentence. Blankenship v. State, 258 Ga. 43 (1988). Blankenship filed a petition for writ of certiorari in the United States Supreme Court, which was denied on October 3, 1988. Blankenship v. Georgia, 488 U.S. 871 (1988).

First State Habeas Proceeding (1989-1992)

Blankenship, represented by Donald Thompson, Kelli Smith and Gary Alexion, filed his first state habeas corpus petition in the Superior Court of Butts County on May 15, 1989. An evidentiary hearing was held on February 28, 1990. On March 13, 1991, the state habeas corpus court denied Blankenship state habeas corpus relief. Blankenship’s application for a certificate of probable cause to appeal filed in the Georgia Supreme Court was denied on September 25, 1991. Blankenship then filed a petition for writ of certiorari in the United States Supreme Court, which was denied on March 30, 1992. Blankenship v. Georgia, 503 U.S. 962 (1992).

First Federal Habeas Corpus Proceeding (1993)

Blankenship, represented by Donald Thompson, Kelli Smith and G. Terry Jackson, filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Georgia on February 8, 1993. On March 15, 1993, the Georgia Supreme Court entered a decision in another capital felony appeal, holding that it was rejecting the chain of circumstances analysis utilized by the Court in Blankenship’s first direct appeal. Thompson v. State, 263 Ga. 23 (1993). The Georgia Supreme Court stated that to the extent that the opinion in Blankenship, 247 Ga. at 591 (2), conflicted with Thompson, it was overruled. Id. at 26.

Based upon the Georgia Supreme Courts decision in Thompson, the parties agreed that a state court, rather than a federal court should determine what, if any, effect this ruling may have on Blankenship’s case, and to this end, agreed to Blankenship’s filing a state habeas corpus petition exclusively on this issue. Blankenship subsequently filed a motion in the federal district court to dismiss the federal habeas corpus petition without prejudice pending the determination of the state law claim.

Second State Habeas Corpus Proceeding (1993-2005)

Blankenship, represented by Donald Thompson and Kelli Smith, filed his second state habeas corpus petition in the Superior Court of Butts County, Georgia on April 15, 1993. An evidentiary hearing was held on February 16, 2001. On September 8, 2003, the state habeas corpus court denied Blankenship state habeas corpus relief. Blankenship’s application for a certificate of probable cause to appeal filed in the Georgia Supreme Court was denied on September 15, 2004. Blankenship then filed a petition for writ of certiorari in the United States Supreme Court, which was denied on June 27, 2005. Blankenship v. Head, 545 U.S. 1150 (2005).

Second Federal Habeas Corpus Proceeding (2005-2008)

Blankenship, represented by Thomas H. Dunn and G. Terry Jackson, filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Georgia on October 21, 2005. The district court denied Blankenship federal habeas corpus relief on December 13, 2007. The district court denied a motion to alter and amend judgment on January 2, 2008. The district court granted Blankenship a certificate of appealability on February 6, 2008.

11th Circuit Court of Appeals (2008)

The case was orally argued before the Eleventh Circuit on July 16, 2008. On September 15, 2008, the Eleventh Circuit issued an opinion which denied relief. Blankenship v. Hall, 542 F.3d 1253 (11th Cir. 2008). Blankenship filed a petition for panel rehearing, which was denied on November 20, 2008.

United States Supreme Court (2009-2011)

Blankenship filed a petition for writ of certiorari in the United States Supreme Court on April 20, 2009, which was denied January 24, 2011. Blankenship v. Hall, 2011 U.S. LEXIS 1014 (Case No. 08-9917).

New Execution Date Set (February 9, 2011)

On January 27, 2011, Judge Michael L. Karpf of the Superior Court of Chatham County filed an order, setting the seven-day window in which the execution of Blankenship may occur to begin at noon, February 9, 2011, and ending seven days later at noon on February 16, 2011.

DNA Testing (2011)

On February 4, 2011, the State Board of Pardons and Paroles entered a stay of execution. The District Attorney and Blankenship’s attorney subsequently agreed to a consent order for the performance of DNA testing. DNA testing has been completed, and the results failed to exculpate Blankenship.

Roy Blankenship

ProDeathPenalty.com

In the early morning hours of March 2, 1978, Roy Blankenship left a bar at which he had been drinking and began to walk home. As he walked past the victim's upstairs apartment, he decided that he wanted to break in. The victim, Sarah Mims Bowen, was a seventy-eight-year-old female for whom Blankenship had done repair work. He climbed up a railing to a porch of her apartment where he kicked out the lower pane of a window. After waiting and watching briefly, he entered the apartment.

Sarah, who suffered from a respiratory illness, was sitting in a chair because she had trouble breathing when she slept. Blankenship came up behind Sarah and grabbed her by placing his hand over her mouth and nose to keep her from screaming. She struggled and fell from the chair, and he fell on top of her. Sarah became unconscious, and Blankenship picked her up and took her back to her bed, where he raped her. He then dressed and left Sarah Bowen's apartment the same way that he entered it.

Neighbors concerned about Sarah due to her poor health eventually discovered her body. She had been severely beaten, scratched, bitten and forcibly raped. Footprints left by an unusually patterned sole were found at the scene and led toward Blankenship's house. His fingerprints were also found at the scene, and shoes identical to the type that made the prints were recovered from his possession.

After he was arrested by police, Blankenship made a confession; however, he denied that he beat Sarah Bowen severely, and at trial he recanted part of his confession and stated that he was unable to consummate the rape. Forensic evidence established that Sarah Bowen died from heart failure brought on by the trauma. Scrapings taken from the fingernails of the victim established that her attacker had international type 0 blood, the same as Blankenship.

At around 4:15 p.m. on March 2, 1978, officers from the Savannah Police Department responded to a call at 404 West 44th Street. They were directed to the second-floor apartment of Sarah Mims Bowen. Several members of Bowen's family already had arrived, having been contacted by her downstairs neighbor. Inside the apartment, police found a blood-stained paper towel in the living room. In the bedroom, the body of 78-year-old Bowen lay dead and naked on her bed. She had bruises on her arms and hands, and her face was beaten and bloodied. A plastic bottle of hand lotion had been forced into her vagina. There were footprints found on the porch outside Bowen's apartment. Police found similar prints inside the apartment. Outside the house, they traced the prints from the bannister supporting the porch southwest along the ground towards the street, in the general direction of the apartment of Roy Willard Blankenship.

Dr. Rodrick Guerry performed an autopsy. He determined Bowen had been severely beaten, suffering repeated blows to her face. Bowen had preexisting chronic pericarditis and arterioscleorosis, and the autopsist attributed Bowen's death to heart failure precipitated by a severe assault. The autopsy also revealed she had been vaginally raped. Semen was found in her vagina, which tests demonstrated came from a blood type-O individual. Both Blankenship and Bowen were type-O. In addition, Dr. Guerry stated the inside of Bowen's mouth and throat were red and bloodied, injuries consistent with oral rape. However, tests did not reveal the presence of semen.

Scrapings beneath the nails on Bowen's right hand also tested positive for type-O. Based on the condition of the body, the coroner concluded Bowen had been raped while alive, was beaten, and suffered heart failure as a result. A fingerprint lifted from glass broken in from the balcony and found inside the apartment matched Blankenship.

On March 11, an arrest warrant for Blankenship was prepared, as well as search warrants for his apartment. Inside the apartment, police found shoes belonging to Blankenship whose tracks matched those found in and around Bowen's apartment. Police arrested Blankenship and he waived his right to remain silent. Blankenship spoke with police and described his presence in Bowen's apartment in the early morning of March 2, 1978. His oral statement was transcribed, and he signed the transcription. In it, he confessed to the following: I went up on the iron rail on the side of the porch and climbed over the banister. I stood up there for a few minutes thinking, what the hell, I really didn't know what to think. I had to be drunk. Stoned. And I kicked the window in and I waited. When I kicked the window in to see if anybody heard it, I could've got shot or something. I guess I should have. It would have been better. I went in through the window, I think. I scraped my arm on the window. I don't think it cut it. I went into the next room, I saw no one. Just the bedroom. I looked around there and the door was opened into the next room. I went up to the door and started to go through when I saw a mirror straight ahead in the next room where the lady was. I seen her reflection through the mirror sitting in a chair so I stood beside the door for awhile watching her pray or something. Moaning. I don't know. Then I grabbed her. I think her mouth so she did not scream. I covered her mouth and her nose and then she slid down in the chair. She fell on the floor and I fell on top of her. After I fell over on top of her I didn't have to hold her mouth or anything. She was not screaming or kicking or anything. So this blood was coming out of her head, I think, on the right side. I think. I pushed this little stool back and I picked her up and I carried her and laid her on the bed. All right. I put her on the bed. She had some pajamas on, I think. I took them off. It's crazy. When I put her on the bed and took her clothes off, I was drunk, I guess. I said I may as well go ahead and get some pleasure. That's when I had the relationship with her. As far as I know, I thought I was in the right hole. After that I got up and was afraid that I might have hurt her. I thought I'd better get out of there. I left as soon as I did that shit. I left. I went the same way I came. I was wearing the same shoes that the police confiscated from my house today. I watched her about 10 minutes. After I grabbed her she fell to the floor and I put her on the bed.

Right after that I shot off or got my pleasure or whatever you want to call it. I put back on my clothes and left. It probably was not long. I was in the house maybe 45 minutes or an hour all together. I don't know why I did it. I was drunk. I know I had to be drunk. That time in the morning I had to be just coming back from the Orential Lounge. I came by myself. I had been at the bar with Joe and Alex. They left the bar about 1:30 or 2:00. I know I stayed until closing, 3:00. I walked from the bar to the house. The Orential Lounge on Abercorn Street. I shoot pool all the time. It takes me about five to seven minutes to get to my house walking. I never did make it home. I stopped at her house and went upstairs before I went home. I know the witnesses in the bar—waitresses, sorry. I know the waitresses in the bar. I don't dance. I just shoot pool and get high and get drunk. I was drinking that night. I was drinking burbon and coke. I don't remember anything about the plastic bottle." Based on the confession and physical evidence, Blankenship was charged with burglary, rape, and felony murder.

Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505 (Ga. 1981). (Direct Appeal-Reversed)

Defendant was convicted before the Superior Court, Chatham County, Dunbar Harrison, J., of burglary, murder and rape, and he appealed. The Supreme Court, Clarke, J., held that: (1) evidence was sufficient to sustain verdict and sentence; (2) trial court's error in failing to charge that defendant could not be convicted of felony-murder and also of underlying felony warranted reversal of conviction of underlying felony, but did not warrant new trial; (3) since evidence showed that burglary was initial felony which began chain of events which ultimately led to death of victim, burglary offense merged with felony-murder conviction; (4) trial court did not err in charging on voluntary intoxication; (5) trial court properly excluded two jurors who were unequivocally opposed to capital punishment; (6) trial court committed reversible error in excluding juror who provided ambiguous answer in response to question of his feelings concerning imposition of capital punishment; (7) state could impose death penalty notwithstanding that indictment did not allege aggravating circumstances; (8) trial court did not abuse discretion in denying defendant's motion for additional psychiatrist; (9) trial court did not err in allowing chief investigating officer to remain in courtroom after rule of sequestration had been invoked; and (10) trial court did not err in allowing photographs of victim to be introduced in evidence. Affirmed in part, reversed in part, and remanded. Jordan, C. J., and Undercofler and Marshall, JJ., dissented in part.

CLARKE, Justice. The defendant was indicted for the offenses of aggravated sodomy, burglary, murder and rape. He was found guilty of burglary, murder and rape, and sentenced to death for murder and two 20-year sentences for burglary and rape to run consecutive to the death sentence, but concurrent to each other. The case is here on direct appeal and mandatory sentence review.

ENUMERATIONS OF ERROR

1. In his first four enumerations of error, the defendant contends that the evidence was insufficient to sustain the verdict and the sentence. From the evidence presented at trial, the jury was authorized to find the following factual situation: In the early morning hours of March 2, 1978, the defendant left a bar at which he had been drinking and began to walk home. As he walked past the victim's upstairs apartment, he decided that he wanted to break in. The victim was a seventy-eight year old female for whom defendant had done repair work. The defendant climbed up a railing to a porch of the victim's apartment where he kicked out the lower pane of a window. After waiting and watching briefly, defendant entered the apartment. The victim, who suffered from a respiratory illness, was sitting in a chair because she had trouble breathing when she slept. The defendant came up behind the victim and grabbed her by placing his hand over her mouth and nose to keep her from screaming. She struggled and fell from the chair; he fell on top of her. The victim became unconscious, and the defendant picked her up and took her back to the bed. She was dressed in pajamas, and he pulled her pajama bottoms down and raped the victim. He then dressed and left the victim's apartment the same way that he entered it. Neighbors concerned about the victim due to her poor health eventually discovered her body. The victim had been severely beaten, scratched and bitten. She had been forceably raped, and a plastic bottle was found inserted in her vagina. She had suffered severe trauma to her oral cavity although forensic evidence could not establish oral sodomy.

Footprints left by an unusually patterned sole were found at the scene and led toward the defendant's house. The defendant's fingerprints were found at the scene, and shoes identical to the type which made the prints were recovered from the defendant's possession. The defendant made a confession; however, he denied that he beat the victim severely and at trial he recanted part of his confession and stated that he was unable to consummate the rape.

Forensic evidence established that the victim died from heart failure brought on by the trauma. Scrapings taken from the fingernails of the victim established that her attacker had international type “O” blood, the same type blood that the defendant possessed. However, scrapings taken from the left hand of the victim showed both international group “O” blood and an unexplained presence of a minute amount of “B” antigen which would have been presented in individuals of an international group “B” type blood.

A very small segment of Negroid hair was found from combings of the victim's pubic hair. However, the state introduced testimony that the black attendant at the autopsy had handled the body, and the jury was authorized to find that the small segment of Negroid hair had come from that source. We have reviewed the record in this case and find the evidence supports the verdict of the jury beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The defendant's fifth enumeration of error argues that the trial court erred in not instructing the jury that if defendant was found guilty of felony murder, he could not be convicted of the underlying felony.

In the present case the defendant was found guilty of felony murder and therefore the underlying felony is a lesser included offense. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979); Atkins v. Hopper, 234 Ga. 330, 216 S.E.2d 89 (1975). While the court erred in failing to charge that defendant could not be convicted of felony murder and also the underlying felony, the remedy is not a new trial, but a reversal of the conviction of the underlying felony. Collier v. State, supra; Thomas v. State, 240 Ga. 393, 242 S.E.2d 1 (1977). To determine which felony formed the basis of the felony murder where more than one felony is charged in addition to the murder, one must look to the indictment, or if it is not specified as it is not in this case, then to the evidence. Collier v. State, supra. Following that rationale, in the instant case the evidence shows that the burglary was the initial felony which began the chain of circumstances which ultimately led to the death of the victim. Therefore, this offense merged with the felony murder conviction. The conviction for burglary alleged in Indictment No. 28455 is reversed, and the sentence as to that offense is vacated. Collier v. State, supra; Dampier v. State, 245 Ga. 427, 265 S.E.2d 565 (1980).

3. In enumeration of error six, defendant contends the trial court erred in charging on voluntary intoxication. The trial court charged: “The fact that one accused of a crime was under the influence of alcohol or drugs at the time of the alleged crime may be shown as illustrative of his motive in the transaction but one voluntarily under the influence of alcohol or drugs is presumed to intend the legitimate consequences of his act and the question is whether he intended to do the act or whether he intended the consequences of the act. If a person under the influence of alcohol or drugs is sufficiently intelligent to know or understand and intend to do a certain act and to understand that certain consequences are likely to result from it and does the act, he is criminally liable for the consequences of his act.

“However, if because of the influence of alcohol or drugs one's mind becomes so impaired as to render him incapable of forming an intent to do the act charged, or to understand that a certain consequence would likely result from it, he would not be criminally responsible for the act. “Whether or not that is true is a question for you, the jury, to determine.”

The defendant argues that the first sentence of the trial court's charge violates the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Sandstrom held that the charge, “The law presumes that a person intends the ordinary consequences of his voluntary acts,” was unconstitutional for two reasons: (1) the jury may have interpreted that presumption as conclusive; and (2) the jury may have interpreted that presumption as shifting the burden of persuasion to the defendant on the element of intent. The Supreme Court of the United States held that either interpretation would violate the Fourteenth Amendment requirement that the state prove every element of a crime beyond a reasonable doubt.

Pretermitting that the defendant was found guilty of felony murder, Bridges v. State, 246 Ga. 323, 271 S.E.2d 471 (1980), and that the charge was more favorable to the defendant than required, Code Ann. s 26-704; McLaughlin v. State, 236 Ga. 577, 224 S.E.2d 412 (1976), we find no Sandstrom violation in the first sentence of the jury's instructions under attack. The trial judge charged the jury on the burden of proof, presumption of innocence, reasonable doubt, direct and circumstantial evidence, and that the burden is not upon the defendant to establish his innocence but that the burden is upon the state to prove his guilt. A jury instruction should not be considered in isolation, but the charge must be examined as a whole. Moses v. State, 245 Ga. 180, 263 S.E.2d 916 (1980), and cites. This charge is not similar to that charge considered in Sandstrom v. Montana, supra, but merely illustrates that the defendant has the burden, once criminal intent has been shown, of illustrating that his voluntary intoxication rose to a level required to negate intent. By its very terms, it is not a mandatory presumption and it is readily apparent that no reasonable jury would have viewed the instructions as mandatory or conclusive, nor would they have understood them as shifting the burden of persuasion to the accused as to a necessary element of the crime. See Patrick v. State, 245 Ga. 417, 265 S.E.2d 553 (1980). Affirmative defenses such as this one are permissible. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Moses v. State, supra (insanity); Franklin v. State, 245 Ga. 141, 263 S.E.2d 666 (1980) (accident); Hinkle v. Iowa, 290 N.W.2d 28 (1980) (voluntary intoxication). See also, Simmons v. State, 246 Ga. 390, 271 S.E.2d 468 (1980); Lackey v. State, 246 Ga. 331, 271 S.E.2d 478 (1980); Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979).

4. In enumerations of error 8 and 9, the defendant contends the trial court erred in excluding three jurors as being conscientiously opposed to capital punishment. All three were asked if their feelings towards capital punishment are such they would never vote to impose the death penalty, regardless of what the facts in the case might be. Two jurors were unequivocal in their negative answer and the trial court did not err in excusing them. The answers of the third juror demand closer scrutiny. The colloquoy between the court and the juror was as follows:

“CLERK: Are any of you conscientiously opposed to capital punishment? NOTE: (One juror raised his hand.) THE COURT: All, you jurors have a seat. You remain standing there, please. What JUROR: Lamar Halstead. It might be listed as John Halstead. THE COURT: You are conscientiously opposed to capital punishment? MR. HALSTEAD: Not not opposed to capital punishment but but for myself, yes. I don't believe I could sentence someone to capital punishment. THE COURT: Well, let me ask you this. Are your feelings towards the imposition of capital punishment such that you would never vote to impose the death penalty, regardless of what the facts in the case might be? MR. HALSTEAD: Well, right now it is a personal thing to where I don't believe I could impose that. THE COURT: All right. Step out. MR. HALSTEAD: Thank you.“

The question here is whether this juror should have been excused in light of the holding in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Witherspoon, the United States Supreme Court said, “Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.” We must determine whether there is any ambiguity in the answers given by Mr. Halstead. Among other things he said he was not opposed to capital punishment and followed this by saying he did not believe he could sentence someone to capital punishment himself. His last statement was, “Well, right now it is a personal thing to where I don't believe I could impose that.” Each of these statements is fraught with ambiguity. In his initial comment, he expressed no opposition to capital punishment. This was followed by a qualification that he did not believe that he could personally impose it. The absence of disagreement with the principle of capital punishment coupled with a doubt of his own willingness to impose the penalty is an ambiguity. His final statement is also ambiguous in at least three respects. He uses the phrase “right now” which seems to be an equivocation as to the time at which he might be able to impose the penalty. At the time this answer was given he, of course, had not heard any of the evidence in the case. He said it was a personal thing and this statement leaves a doubt as to whether he might be able to overcome his personal feelings in order to comply with the mandates of the law. He did not say he could not impose capital punishment. He simply said he did not believe he could impose the penalty. This is equivocal to the point of being ambiguous. “The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out ....” Witherspoon, supra at 522, n.21, 88 S.Ct. at 1777, n.21.

We find that the court erred in excusing Mr. Halstead as a prospective juror. We therefore reverse the sentence of death and remand the sentencing phase of the case for retrial.

5. In enumeration of error 10, the defendant contends the state cannot impose the death penalty in this case because, although the state had notified the defendant of its intention to seek the death penalty, the indictment did not allege the aggravating circumstances as defined in Code Ann. s 27-2534.1(b), which the state would rely on in seeking the death penalty. The same issue was dealt with by this court in Bowden v. Zant, 244 Ga. 260, 260 S.E.2d 465 (1979), and found to be without merit.

6. In enumeration of error 11, the defendant contends the trial court erred in overruling his motion to appoint as an expert witness a certain psychiatrist who specialized in the type of behavior exhibited by the defendant. The trial court previously ordered that the defendant be examined by the Georgia Regional Hospital. The Forensic Service Program at the Regional Hospital, after consultation, found the defendant to be responsible for his actions at the time of the alleged offense and also found him competent to stand trial. It has been held that the trial court is under no constitutional or statutory duty to appoint a state paid psychiatrist to evaluate a defendant even though a special plea of insanity has been filed. There was therefore no abuse of discretion in denying defendant's motion for an additional psychiatrist here. Corn v. State, 240 Ga. 130(3), 240 S.E.2d 694 (1977); Leggett v. State, 244 Ga. 226(1), 259 S.E.2d 476; Dampier v. State, supra.

Note should be taken of the fact that defendant requested and was granted funds to hire a pathologist for independent examination of medical testimony, and that he was also granted funds to hire an independent investigator. The denial of defendant's motion did not violate the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution nor the due process and equal protection clause of the Georgia Constitution.

7. In enumeration of error 12, the defendant contends the trial court erred in allowing Detective James to remain in the courtroom after the rule of sequestration had been invoked. Detective James was the chief investigating officer. At the conclusion of defendant's opening statement to the jury, the prosecutor asked that Detective James be allowed to remain in the courtroom although by the nature of his testimony, he would have to be used at different intervals throughout the trial in order to keep the continuity of the state's case. The prosecutor went on to say that they needed the detective two or three times during the trial. The court quered the prosecutor, “Do you need him?” The prosecutor replied, “We need him and request him.” The defense counsel objected. It is well established that a district attorney may have the chief prosecuting officer or investigating officer sit with him at the state's table to assist him during the trial. This is within the sound discretion of the trial court, even though the officer may testify after other witnesses have already testified. Jarrell v. State, 234 Ga. 410(6), 216 S.E.2d 258 (1975); Smith v. State, 245 Ga. 168(8), 263 S.E.2d 910 (1980). We find no merit in this enumeration of error.

8. In enumeration of error 13, the defendant contends the trial court erred in allowing photographs of the victim to be introduced in evidence. “We have considered similar questions in a large number of cases and unless there are some very exceptional circumstances the photographs of the deceased are generally admissible to show the nature and extent of the wounds, the location of the body, the crime scene, the identity of the victim and other material issues. See Godfrey v. State, 243 Ga. 302, 304, 253 S.E.2d 710 (1979); Stevens v. State, 242 Ga. 34, 38, 247 S.E.2d 838 (1978), and Lamb v. State, 241 Ga. 10, 13, 243 S.E.2d 59 (1978). Doubtless, photographs of the victim are prejudicial to the accused, but so is most of the state's pertinent testimony. The pictures may be gory, but murder is usually a gory undertaking.” Moses v. State, 245 Ga. 180(6), 263 S.E.2d 916 (1980). We find no merit in this enumeration of error.

The convictions for murder and rape are, therefore, affirmed, and the conviction for burglary is reversed. The death penalty is reversed and remanded for retrial on the issue of sentencing.

Affirmed in part, reversed in part, and remanded. All the Justices concur, except JORDAN, C. J., and UNDERCOFLER and MARSHALL, JJ., dissent to Division 4 and reversal of the death penalty.

Blankenship v. State, 247 Ga. 590, 280 S.E.2d 623 (Ga. 1981). (On Reconsideration)

Defendant was convicted before the Superior Court, Chatham County, Dunbar Harrison, J., of burglary, murder and rape, and he appealed. The Supreme Court, Clarke, J., 277 S.E.2d 505, affirmed in part, reversed in part and remanded. On motion for reconsideration, the Supreme Court, Clarke, J., held that in such case in which death penalty was imposed, improper exclusion from the initial panel of an otherwise qualified juror in violation of Witherspoon was reversible error regardless of whether State utilized all of its peremptory strikes. Motion denied. Gregory, J., specially concurred and filed opinion.

CLARKE, Justice.

On motion for reconsideration, the state urges that a Witherspoon error is harmless and not reversible when the state fails to exhaust its peremptory strikes as was the case here. We reject this argument and deny the motion for reconsideration. In so doing, we recognize that this court has previously indicated the establishment of a rule contrary to the one established here. See Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978) and Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (1979). However, we have reexamined Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339, in light of Burns v. Estelle, 592 F.2d 1297 (5th Cir. 1979), aff'd en banc Burns v. Estelle, 626 F.2d 396 (1980). Having done so, we now hold that in cases where the death penalty is imposed, the improper exclusion from the initial panel of an otherwise qualified juror in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), is harmful error regardless of whether the state utilized all of its peremptory strikes.

GREGORY, Justice, concurring specially in Addendum.

I concur in the majority opinion on motion for reconsideration because I do not believe the mechanics of jury selection in death penalty cases will permit the harmless error rule announced in Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978). The mechanics of the selection procedure require that 42 jurors be impaneled. Code Ann. s 59-801. The defendant is allowed 20 peremptory challenges and the state 10. Code Ann. s 59-805. Beginning with the first juror impaneled, each juror is put first upon the state for consideration as to use of a peremptory challenge, and then upon the defendant. Code Ann. s 59-808. This process is most complex and a highly variable sequence of events may ensue. The use or non-use of a challenge by one party or the other sets up an entirely new group of possibilities with regard to the remaining jurors impaneled.

To illustrate, suppose the court permits a juror to be impaneled who, on voir dire, has given answers disqualifying him or her under Witherspoon. Assume that juror is number 36 and that another juror who is even more objectionable to the state is impaneled as number 39. Suppose as juror number 36 is placed upon the state in the selection process, a total of 10 jurors have been selected, and the state has 1 challenge remaining while the defendant has 4. What does the state do? If the state peremptorily challenges number 36 it will have no way to eliminate number 39. So, the state does not challenge number 36. Neither does the defendant. Then suppose neither party challenges juror number 37. The panel of 12 is complete. The state has remaining one unused challenge.

It just does not follow that it is harmless error to wrongfully excuse a juror as being disqualified under Witherspoon simply because the state does not use all its peremptory challenges and therefore could have been expected to use a challenge to eliminate the juror even if impaneled. There are too many variables which may give rise to the non-use of a peremptory challenge.

Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369 (Ga. 1983). (Direct Appeal-Reversed)

Defendant was convicted before the Superior Court, Chatham County, Dunbar Harrison, J., of burglary, murder and rape, and he appealed. The Supreme Court, Clarke, J., 247 Ga. 590, 277 S.E.2d 505, affirmed in part, reversed in part and remanded. Thereafter, the Supreme Court, Clarke, J., 280 S.E.2d 623, denied motion for reconsideration. On retrial, the defendant was again sentenced to death by the Superior Court, Chatham County, Dunbar Harrison, J., and appeal was taken. The Supreme Court, Clarke, J., held that when sentencing phase of death penalty case was retried by jury other than one which determined guilt, evidence presented by defense, as well as evidence presented by State, could not be excluded on ground that it would only go to the guilt or innocence of defendant, and thus defendant was entitled to offer evidence relating to circumstances of crime. Reversed.

CLARKE, Justice.

This is the second appearance of this death penalty case. In its first appearance, the defendant's convictions for the offenses of murder, rape and aggravated sodomy were affirmed. The conviction for burglary was reversed because we found it to have merged with the felony murder conviction. Because of error under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the death penalty was set aside and the case remanded for retrial on the issue of sentence. Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505 (1981). On retrial, the defendant was again sentenced to death. The case is here on direct appeal and for mandatory review of the sentence. The issue here is the scope of evidence admissible in mitigation and whether the limitations imposed on Blankenship were permissible. We find he was impermissibly restricted; therefore, we reverse.

Evidence presented at the original trial was summarized in our prior opinion. Briefly, it showed that the victim, a seventy-eight year old woman in ill health, was raped and beaten by an intruder and subsequently died from heart failure brought on by the trauma. In our review of the evidence, we noted the unexplained presence of blood, which was neither the victim's nor the defendant's, in the fingernail scrapings taken from the victim's left hand. We noted also that a segment of Negroid hair was discovered in combings taken from the victim's pubic hair, for the presence of which a plausible, though not conclusive, explanation was offered by the state. We concluded, from our review of the evidence, including footprint and fingerprint evidence and the defendant's confession, that the evidence was sufficient to support the convictions. However, in our review of the evidence, it was not necessary to determine, nor did we, that the evidence left no doubt as to the possible involvement of a third party.

The errors committed during the retrial had their genesis in, and are illustrated by, the following colloquy which occurred just prior to the presentation of the evidence: “MR. HENDRIX: [for the defendant] Your Honor please, at some point that is convenient with the Court, we would like Your Honor to examine the file of the District Attorney only to determine whether or not there is any matter contained in his file with regard to the identification and presence of the Negroid hair findings that were found in the combing of the body --- “THE COURT: That would go to the guilt or innocence of the defendant. “MR. HENDRIX: Your Honor please, we would respectfully submit that any matters that could possibly show the presence of any individual other than the defendant must be considered in the --- “THE COURT: I disagree with you entirely. All of that could have been presented to the Supreme Court of Georgia and got a ruling from them on it. I don't know what the evidence was as to that. But apparently from some later statement by somebody that that could have gotten there by being handled by a Negro at the hospital, as I recall. “MR. KIRKLAND: [for the state] There was testimony, sir, that there was an attendant --- “THE COURT: I mean that's just to show that somebody else had done that and not this defendant. But that didn't hold water, as we know. The jury didn't accept that. They found him guilty. “MR. HENDRIX: Yes, sir, that's for sure. “THE COURT: And I'm not going to retry this again. “MR. HENDRIX: Your Honor, we are not asking to go into that matter --- “THE COURT: It seems to me that you are asking to retry this case again, and I've said ten times I'm not going to do it. Now, any evidence you have as to mitigation of punishment, of course you'll have a right to that. But all this other stuff has nothing to do with it. “MR. HENDRIX: Your Honor, if there is any evidence to show that someone else could have participated with the defendant, then certainly that's in mitigation insofar as the death penalty --- “THE COURT: There was no evidence that anybody participated in this thing, other than that one hair, and this defendant. * * * “MR. HENDRIX: ... [A]t the trial that we are relying on now as to guilt, there is also testimony which indicates that originally there existed more findings of Negroid hair than that which was presented to the expert witness the Court authorized the defendant to hire.... Therefore, the number becomes important. “THE COURT: I don't think it does at all. Suppose somebody else was involved in this thing. He's just as guilty as that person would be if he aided and abetted, or if they aided and abetted him. That has nothing to do with the guilt or innocence that we have to determine right now. You see what I mean? Suppose fifteen other people had been involved in this thing. How does that relieve him of his responsibility and having already been found guilty of murder?”

During the presentation of evidence, the state was allowed to present evidence tending to prove that the defendant had entered the victim's apartment, alone, and had beaten and raped her. The defendant's cross-examination of the state's witnesses, however, was in several instances curtailed. Moreover, although the defendant was allowed to testify to his version of the events, testimony which would have tended to corroborate his testimony that a third person was present was excluded. The trial court reasoned that since the defendant had been convicted of rape and murder by a previous jury, the circumstances of the offense and whether someone else had been involved were matters irrelevant to this jury's decision as to sentence.

We conclude that the trial court's view of the scope of evidence admissible in mitigation was too narrow. In one of the earliest cases decided under our 1973 law, we held: “The statute is clear that the pre-sentence hearing is for additional evidence and in no way excludes from consideration on sentence the matters heard on the issue of guilt or innocence.” Eberheart v. State, 232 Ga. 247, 253-254, 206 S.E.2d 12 (1974). Later, we held that, when guilt and sentence are determined by the same jury, as is usually the case, the jury must be informed that it can consider all the facts and circumstances of the case as presented during both phases of the trial. Spivey v. State, 241 Ga. 477, 481, 246 S.E.2d 288 (1978).

Indeed, a reading of the pronouncements of the United States Supreme Court appears to impart to the thesis of Eberheart a Constitutional tenure. In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the plurality opinion observed: “We ... conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” 438 U.S. at 604, 98 S.Ct. at 2964-65 (Emphasis in original.) The plurality in Lockett was adopted by the majority of the United States Supreme Court in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and we perceive it to state the scope of the United States Constitution relative to capital cases. Lockett and Eddings impose a severe limitation upon the trial court's authority to exclude evidence offered by defendants in the sentencing phase of a death penalty case.

When the sentencing phase of a death penalty case is retried by a jury other than the one which determined guilt, evidence presented by the defense, as well as evidence presented by the state, may not be excluded on the ground that it would only “go to the guilt or innocence of the defendant.” In essence, although the resentencing trial will have no effect on any previous convictions, the parties are entitled to offer evidence relating to circumstances of the crime.

In view of our disposition of the case, we need not address the defendant's remaining enumerations of error. This case is remanded to the trial court for further proceedings not inconsistent with this opinion.

Judgment reversed. All the Justices concur.

Blankenship v. State, 258 Ga. 43, 365 S.E.2d 265 (Ga. 1988). (Direct Appeal - Affirmed)

Defendant was convicted in the Superior Court, Chatham County, Dunbar Harrison, Senior Judge, of burglary, murder and rape. Defendant appealed. The Supreme Court, Clarke J., 247 Ga. 590, 277 S.E.2d 505, affirmed in part, reversed in part and remanded. Thereafter the Supreme Court, Clarke, J., 247 Ga. 590, 280 S.E.2d 623, denied motion for reconsideration. On retrial, defendant was again sentenced to death by the Superior Court, and appeal was taken. The Supreme Court, Clarke, J., 251 Ga. 621, 308 S.E.2d 369, reversed. The Superior Court convicted defendant and sentenced him to die. Defendant appealed. The Supreme Court, Weltner, J., held that: (1) trial court was not required to consider defendant's challenge to array of grand jury; (2) it was not permissible to ask jury to describe kind of case that, in juror's opinion, would warrant death sentence; and (3) evidence supported aggravating circumstances warranting death penalty. Affirmed.

WELTNER, Justice.

This is the third appearance of this death penalty case. In Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505 (1981), we affirmed the defendant's convictions for the offenses of felony murder and rape, but vacated the death sentence and remanded the case for resentencing. In Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369 (1983), we vacated the death sentence imposed at the resentencing trial. Blankenship once again has been sentenced to die. Finding no error in the latest proceedings, we now affirm. FN1. The defendant was sentenced to death on June 12, 1986. He filed a motion for new trial on July 11, and amendment thereto on September 22, 1986. The motion was denied on March 26, 1987. The case was docketed in this court on July 23, 1987, and the case was argued orally September 22, 1987.

1. “Death-qualification” of prospective jurors is not unconstitutional. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Jefferson v. State, 256 Ga. 821(4), 353 S.E.2d 468 (1987); Hicks v. State, 256 Ga. 715(10), 352 S.E.2d 762 (1987).

2. Blankenship contends that even if such practice is constitutionally acceptable, the trial court nonetheless erred in its excusal of two jurors whose voir dire answers failed to meet the test for excusal. See Alderman v. State, 254 Ga. 206(4), 327 S.E.2d 168 (1985). We need not consider this contention. Rule 10.1 of the Georgia Uniform Rules for the Superior Courts plainly states: “Failure to object to the court's ruling on whether or not a juror is qualified shall be a waiver of any such objection.” 253 Ga. at 824. Blankenship did not object to the court's ruling on either of the two jurors he now claims were excused improperly.

3. Blankenship also complains of the court's excusal of three prospective jurors under the provisions of OCGA § 15-12-1(a), which provides: “Any person who shows that he will be engaged during his term of jury duty in work necessary to the public health, safety, or good order or who shows other good cause why he should be exempt from jury duty may be excused by the ... court....” The defendant did not object to the court's ruling excusing two of these three prospective jurors. The remaining juror was excused at her request on the ground that she was scheduled to attend a legal assistance workshop offered “this one and only time” for a non-profit organization of which she was the president. We find no abuse of discretion. Compare Ingram v. State, 253 Ga. 622(1e), 323 S.E.2d 801 (1984).

4. Blankenship complains that notwithstanding his previous requests for exculpatory information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), he was not informed that the autopsist had expressed an opinion that this case appeared to be similar to a case involving Gary Nelson, see Nelson v. State, 247 Ga. 172, 274 S.E.2d 317 (1981), and that a detective's notes of the autopsy referred to the autopsist's observations. Noting that he has long contended that another person was present in the victim's apartment, Blankenship contends the state's delay in providing exculpatory information about the autopsist's observations requires the reversal of his death sentence. We disagree.

The defendant testified at this sentencing trial that he knew Gary Nelson and that Gary Nelson was not the person in the victim's apartment. In these circumstances, the mere fact that the autopsist noticed some similarities between the two cases could not be exculpatory of Blankenship's guilt. See Castell v. State, 250 Ga. 776, 782, 301 S.E.2d 234 (1983). Moreover, his claim for relief relates only to the sentence, and he learned of this evidence prior to the re-sentencing trial. Inasmuch as it was available to him prior to trial, it could not have been “suppressed.” Blankenship has failed to show that the disclosure came so late as to deny him a fair trial. See Parks v. State, 254 Ga. 403, 407(3), 330 S.E.2d 686 (1985).

5. Blankenship complains of the court's refusal to hear his challenge to the array of the grand jury, and of the court's failure to complete a grand jury certificate pursuant to Rule II(A)(6) of the Unified Appeal Procedure. See 252 Ga. at A-17. (a) Rule II(A)(6) was promulgated several years after Blankenship's conviction was affirmed. It is therefore inapplicable to the grand jury list in this case. Parks v. State, supra at 408 (fn. 4), 330 S.E.2d 686. The trial court did not err by failing to complete a grand jury certificate. (b) Nor did the trial court err by refusing to consider Blankenship's challenge to the array of the grand jury, as there was no challenge to the grand jury array prior to the original trial. Because his conviction long since has been affirmed, this challenge comes too late. Alderman v. State, 254 Ga. 206(1), 327 S.E.2d 168 (1985). Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986), on which Blankenship relies, is inapposite. Unlike Blankenship, Hillery made timely challenges to the array of his grand jury.

6. Blankenship was not allowed to ask on voir dire if a prospective juror had “any preconceived notion as to what sort of case the death penalty should be imposed in.” He contends that the court improperly limited his voir dire examination. A defendant has the right to a voir dire examination that is “broad enough to allow the parties to ascertain the fairness and impartiality of the prospective jurors.” Curry v. State, 255 Ga. 215, 218, 336 S.E.2d 762 (1985). He is “entitled to probe for bias in favor of the death penalty as well as for bias against it.” Skipper v. State, 257 Ga. 802, 806, 364 S.E.2d 835 (1988). But neither the defendant nor the state has the right simply to outline the evidence and then ask a prospective juror his opinion of that evidence. Nor is it permissible to ask a juror to describe the kind of case that, in the juror's opinion, would warrant a death sentence. We find no abuse of discretion. Curry v. State, supra; Spivey v. State, 253 Ga. 187, 193, 319 S.E.2d 420 (1984).

7. Photographs of the crime scene and of the victim were properly admitted in evidence at this resentencing trial. Conklin v. State, 254 Ga. 558(12), 331 S.E.2d 532 (1985).

8. Blankenship contends that his pre-trial statement to law enforcement officers should not have been admitted in its entirety because it contained a reference to sodomy, an offense for which he was acquitted. Compare Fugitt v. State, 256 Ga. 292(1d), 348 S.E.2d 451 (1986). The only possible reference to sodomy occurred in the following portion of his statement: “When I put her on the bed and took her clothes off I was drunk I guess. I said I may as well go ahead and get some pleasure. That's when I had the relationship with her. As far as I know I thought I [had entered her vagina].” Rape was one of the statutory aggravating circumstances in the case. See OCGA § 17-10-30(b)(2). Blankenship's statement was an admission that he raped the victim and a denial that he committed sodomy. Nothing in the statement was offered to prove the commission of a crime for which the defendant had been acquitted (as he contends), and the trial court did not err by admitting the entire statement in evidence.

9. The trial court is not required to enforce the rule of sequestration until the presentation of evidence has begun. OCGA § 24-9-61; Hughes v. State, 128 Ga. 19(1), 57 S.E. 236 (1907). We find no abuse of discretion in the trial court's enforcement of the rule in this case.

10. The defendant was represented throughout the trial by two appointed attorneys who twice before have succeeded in obtaining reversals of Blankenship's death sentences on appeal. Nonetheless, he contends that the trial court should have appointed an additional attorney, whose sole function would have been to assist him in responding to the court's inquiry (under the Unified Appeal Procedure) concerning his satisfaction with his trial attorneys. The Unified Appeal Procedure affords a death-penalty defendant “numerous opportunities to raise questions or objections concerning his counsel's assistance....” Sliger v. State, 248 Ga. 316, 319, 282 S.E.2d 291 (1981). We find no error in the proceedings under the Unified Appeal Procedure.

11. There is no merit to Blankenship's general constitutional attacks on Georgia death penalty procedures. His contention that the Witherspoon error that infected the first trial should have resulted in the reversal of his conviction as well as his sentence has been answered contrary to his position in the first appeal of this case. Blankenship v. State, supra, 247 Ga. at 596, 277 S.E.2d 505.

12. The jury found that the offense of murder involved the contemporaneous commission of the offense of rape and that the offense of murder was “horrible and inhuman in that it involved aggravated battery and depravity of mind.” See OCGA § 17-10-30(b)(2) and (b)(7). (a) The evidence supports the jury's § b(2) finding. As for the § b(7) aggravating circumstance, we have observed that it “consists of two major components, the second of which has three sub-parts, as follows: (I) The offense of murder was outrageously or wantonly vile, horrible or inhuman (II) in that it involved (A) aggravated battery to the victim, (B) torture to the victim, or (C) depravity of mind of the defendant.” Hance v. State, 245 Ga. 856, 860, 268 S.E.2d 339 (1980). “[T]he evidence must be sufficient to satisfy the first major component of the statutory aggravating circumstance and at least one sub-part of the second component....” Id., at 861, 268 S.E.2d 339. (b) In this case, the jury's verdict did not contain all of the language of the first component of § b(7). However, the defendant voiced no objections to the form of the verdict, and, as we have noted, all the various words of the first component “have essentially the same meaning....” Hance v. State, supra at 861, 268 S.E.2d 339. Therefore, absent any objection as to the form of the verdict, we find no error. Romine v. State, 251 Ga. 208(7), 305 S.E.2d 93 (1983). (c) The evidence supports the jury's § b(7) finding. Allen v. State, 253 Ga. 390(6), 321 S.E.2d 710 (1984); Patrick v. State, 247 Ga. 168, 170, 274 S.E.2d 570 (1981). 13. Blankenship's death sentence is not excessive or disproportionate, simply because he was convicted of felony murder rather than malice murder. Jefferson v. State, 256 Ga. 821, 829, 353 S.E.2d 468 (1987). The evidence shows that Blankenship killed the victim. Compare Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

Reviewing similar cases and the crime, we do not find that the sentence of death is excessive or disproportionate. OCGA § 17-10-35(c)(3). Nor do we find the sentence to have been imposed as the result of passion, prejudice or other arbitrary factor. OCGA § 17-10-35(c)(1).

Judgment affirmed.

Blankenship v. Hall, 542 F.3d 1253 (11th Cir. 2008). (Habeas)

Background: Following affirmance of his state court convictions for felony murder and rape, 247 Ga. 590, 277 S.E.2d 505, and affirmance, upon re-sentencing, of death sentence, 258 Ga. 43, 365 S.E.2d 265, petitioner sought federal habeas relief. The United States District Court for the Southern District of Georgia, No. 05-00194-CV-BAE-GRS, B. Avant Edenfield, J., 2007 WL 4404972, denied petition. Petitioner appealed.

Holdings: The Court of Appeals, Black, Circuit Judge, held that: (1) state habeas court's summary rejection of petitioner's claim of ineffective assistance of counsel was entitled to deference; (2) counsel's investigation of defendant's life history prior to resentencing trial was reasonable; and (3) counsel's pursuit of residual doubt defense at resentencing trial was reasonable trial strategy. Affirmed.

BLACK, Circuit Judge:

Thirty years ago, Sarah Mims Bowen was found dead in her apartment. She had been raped and brutalized. Today, Roy Willard Blankenship, having been tried, convicted, and thrice sentenced to die for the killing, seeks from this Court a writ of habeas corpus. Arguing his counsel at his third and final sentencing trial was ineffective, he believes he is entitled to relief. We hold that he is not.

I.

A. 1978: The Crime

At around 4:15 p.m. on March 2, 1978, officers from the Savannah Police Department responded to a call at 404 West 44th Street. They were directed to the second-floor apartment of Sarah Mims Bowen. Several members of Bowen's family already had arrived, having been contacted by her downstairs neighbor. Inside the apartment, police found a blood-stained paper towel in the living room. In the bedroom, the body of 78-year-old Bowen lay dead and naked on her bed. She had bruises on her arms and hands, and her face was beaten and bloodied. A plastic bottle of hand lotion had been forced into her vagina.

There were footprints found on the porch outside Bowen's apartment. Police found similar prints inside the apartment. Outside the house, they traced the prints from the bannister supporting the porch southwest along the ground towards the street, in the general direction of the apartment of Roy Willard Blankenship.

Dr. Rodrick Guerry performed an autopsy. He determined Bowen had been severely beaten, suffering repeated blows to her face. Bowen had preexisting chronic pericarditis and arterioscleorosis, and the autopsist attributed Bowen's death to heart failure precipitated by a severe assault. The autopsy also revealed she had been vaginally raped. Semen was found in her vagina, which tests demonstrated came from a blood type-O individual. Both Blankenship and Bowen were type-O. In addition, Dr. Guerry stated the inside of Bowen's mouth and throat were red and bloodied, injuries consistent with oral rape. However, tests did not reveal the presence of semen. Scrapings beneath the nails on Bowen's right hand also tested positive for type-O. Based on the condition of the body, the coroner concluded Bowen had been raped while alive, was beaten, and suffered heart failure as a result.

A fingerprint lifted from glass broken in from the balcony and found inside the apartment matched Blankenship. On March 11, an arrest warrant for Blankenship was prepared, as well as search warrants for his apartment. Inside the apartment, police found shoes belonging to Blankenship whose tracks matched those found in and around Bowen's apartment.

Police arrested Blankenship and he waived his right to remain silent. Blankenship spoke with police and described his presence in Bowen's apartment in the early morning of March 2, 1978. His oral statement was transcribed, and he signed the transcription. In it, he confessed to the following:

I went up on the iron rail on the side of the porch and climbed over the banister. I stood up there for a few minutes thinking, what the hell, I really didn't know what to think. I had to be drunk. Stoned. And I kicked the window in and I waited. When I kicked the window in to see if anybody heard it, I could've got shot or something. I guess I should have. It would have been better. I went in through the window, I think. I scraped my arm on the window. I don't think it cut it. I went into the next room, I saw no one. Just the bedroom. I looked around there and the door was opened into the next room. I went up to the door and started to go through when I saw a mirror straight ahead in the next room where the lady was. I seen her reflection through the mirror sitting in a chair so I stood beside the door for awhile watching her pray or something. Moaning. I don't know. Then I grabbed her. I think her mouth so she did not scream. [sic] I covered her mouth and her nose and then she slid down in the chair. She fell on the floor and I fell on top of her. After I fell over on top of her I didn't have to hold her mouth or anything. She was not screaming or kicking or anything. So this blood was coming out of her head, I think, on the right side. I think. I pushed this little stool back and I picked her up and I carried her and laid her on the bed. All right. I put her on the bed. She had some pajamas on, I think. I took them off. It's crazy. When I put her on the bed and took her clothes off, I was drunk, I guess. I said I may as well go ahead and get some pleasure. That's when I had the relationship with her. As far as I know, I thought I was in the right hole. After that I got up and was afraid that I might have hurt her. I thought I'd better get out of there. I left as soon as I did that shit. I left. I went the same way I came. I was wearing the same shoes that the police confiscated from my house today. I watched her about 10 minutes. After I grabbed her she fell to the floor and I put her on the bed. Right after that I shot off or got my pleasure or whatever you want to call it. I put back on my clothes and left. It probably was not long. I was in the house maybe 45 minutes or an hour all together. I don't know why I did it. I was drunk. I know I had to be drunk. That time in the morning I had to be just coming back from the Orential [sic] Lounge. I came by myself. I had been at the bar with Joe and Alex. They left the bar about 1:30 or 2:00. I know I stayed until closing, 3:00. I walked from the bar to the house. The Orential [sic] Lounge on Abercorn Street. I shoot pool all the time. It takes me about five to seven minutes to get to my house walking. I never did make it home. I stopped at her house and went upstairs before I went home. I know the witnesses in the bar-waitresses, sorry. I know the waitresses in the bar. I don't dance. I just shoot pool and get high and get drunk. I was drinking that night. I was drinking burbon and coke. I don't remember anything about the plastic bottle. FN1. Blankenship did not simply give a narrative account of the evening. His statement was a mixture of his narrative and responses to questions and comments from the interrogating officers. Only his statements were recorded, typed and signed as a confession.

Based on the confession and physical evidence, Blankenship was charged with burglary, rape, and felony murder.

B. 1980: The First Trial and Sentencing

On March 22, 1978, Bart Shea was appointed as Blankenship's counsel. Shea passed away, however, and so his partner, John Hendrix, was appointed to represent Blankenship on July 17, 1978. Hendrix and his co-counsel, Penny Haas, would represent Blankenship through all three of his sentencing trials and direct appeals. Hendrix was an experienced attorney. He had been admitted to the bar in 1958 and had clerked on the federal court in Atlanta before moving to Savannah to practice law. When he was appointed counsel in Blankenship's case, he previously had represented defendants in six to eight death penalty cases. Haas was a recent law school graduate, having earned her degree in 1978. She was working as an associate in Hendrix's office when she was appointed to the case.

Hendrix filed several motions as Blankenship's attorney, including a request that an expert be appointed to examine the defendant's mental condition, a request that a pathologist be appointed to assist the defense, and a petition to have an investigator to assist in the defense. The court ordered two investigators be appointed, William Friday and Richard Moesch, to assist Hendrix and Haas. Trial commenced on April 21, 1980. The state of Georgia put forth as evidence of Blankenship's guilt the shoes whose prints were found in and around Bowen's apartment, the fingerprint found on the glass inside the apartment, the blood and semen samples taken from Bowen's corpse, and Blankenship's signed confession.

Defense strategy focused around demonstrating the investigation into Bowen's death was incomplete. Hendrix elicited testimony from the state of Georgia's witnesses that a hair segment belonging (at least according to the state's expert) to an African-American individual was found in the combings of Bowen's pubic hairs. Bowen and Blankenship were both white. In addition, a state's expert found evidence of a B-antigen in some of the fingernail scrapings taken from Bowen's left hand, even though both Blankenship and Bowen were blood type-O. (The expert, however, could not repeat the results and so could not conclusively say there was type-B blood underneath Bowen's fingernails.) Hendrix used the scientific evidence to suggest someone else was present in the apartment that evening and was responsible for Bowen's rape and death.

Blankenship testified in his own defense. During the time of his arrest, he worked at the Guerry Lumber Company. He said he was an alcoholic and also took Qualudes, a tranquilizer. Blankenship knew Bowen; in fact, he had been inside her apartment prior to the night of her death, performing odd jobs such as replacing blown light bulbs. He would frequently talk with her on weekends when he would pass by her apartment and she was sitting on her porch.

Discussing the events of March 1 and 2, Blankenship noted he began drinking soon after he returned home from work. After some time, he went to the Oriental Bar. From 7:30 that evening until the bar closed at 3:00 a.m., Blankenship continued to shoot pool, drink, and ingest Qualudes. After the bar closed, Blankenship headed home alone.

Instead of returning home, however, Blankenship scaled the balcony of Bowen's apartment. Once on the balcony, he knocked on Bowen's door. There was no answer. He kicked in a window and crawled into the apartment. As he made his way through the apartment, Blankenship saw Bowen in a mirror sitting in her chair. Bowen was speaking to someone near the area of her kitchen. Blankenship said he reached out to grab Bowen and she jumped, tripped over a foot stool, and fell to the floor.

Bowen was now bleeding from her head and was unconscious. Blankenship picked her up and moved her into the bedroom. Once he placed her on the bed, he pulled her pajama bottoms partially off her body. He did not remove her pajama top, which Blankenship said already was unbuttoned. He tried to have sex with her, but could not achieve an erection. At this time, Bowen appeared to be regaining consciousness, so Blankenship left the apartment the same way he entered.

Hendrix asked Blankenship whether the pictures of the crime scene matched his recollection of how he left it. He insisted they did not; he testified that, when he left her, her pajamas where still partially on, whereas in the photos she was completely naked. The plastic bottle was also not there when he said he left. In addition, he said her face was not in the same condition it was when he left it, and that she had not been beaten up.

Blankenship also testified as to his confession. He had been drinking before being arrested by the police in his apartment. He said he did speak with the police, and he did sign the statement. He said, however, that he had pointed out several errors in the typed statement to the interrogating officers, who told him to go ahead and sign it despite the errors. The errors he pointed out-including, for example, that instead of “slid[ing] down in the chair” she actually jumped up from the chair-essentially coincided with the story he had told the jury. In general, his testimony was that the story he told the detectives was the same as what he told the jury, and the typed confession was riddled with errors. He denied having intercourse with Bowen or ever hitting her.

The jury found Blankenship guilty of burglary, rape and felony murder. The sentencing phase at the first trial was brief, and consisted of one witness, Victoria Ray, who knew Bowen. The jury recommended the penalty of death after finding the aggravating circumstance that the offense of murder was outrageously or wantonly vile, horrible, or inhuman, in that it involved torture, depravity of mind, or an aggravated battery to the victim, or engaged in the commission of burglary. The judge sentenced Blankenship to death.

On appeal, the Supreme Court of Georgia reversed the burglary conviction because the burglary charge was a lesser included offense of the felony murder charge. Blankenship v. State, 247 Ga. 590, 591, 277 S.E.2d 505, 507-08 (Ga.1981) ( Blankenship I). In addition, the court reversed the sentence of death, finding the statements of one juror, who was excused due to conscientious opposition to the death penalty, were ambiguous. The dismissal of the juror was found to be a violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and the case was remanded for resentencing. Blankenship I, 247 Ga. at 594, 277 S.E.2d at 509.

C. 1982: The Second Sentencing

The second sentencing trial took place in 1982. Prosecutors offered into evidence photographs of the crime scene and the autopsy photographs. The photos graphically depicted the apartment, including the blood on the floor and table where Bowen had been sitting. The photos also showed Bowen's nude body lying on the bed with the plastic bottle inserted into her vagina. Blankenship's confession also was introduced. The autopsist was again called, and he testified Bowen had been severely beaten and her vaginal and mouth areas were red and raw. He again testified the beating and trauma caused her heart failure.

Several times Hendrix's questions were curtailed by state objections and judicial admonishments not to raise issues of guilt during the sentencing phase. Hendrix questioned the officer who first arrived at Bowen's apartment on the day of the murder. When the questions turned to the fingerprint lifted from the broken glass and the footprints found in and around the apartment, the state objected and the judge intervened: Mr. Kirkland [state attorney]: Your Honor, I would like to object to this line of questioning,- The Court: I've been trying to figure out what he was trying to show with all that. Mr. Kirkland:-I'm trying to limit this hearing-I will continue to limit this hearing to the sentencing phase of the trial- The Court: That's all I'm concerned with. That's all this jury is concerned with. The man has already been convicted of murder and rape. Now, let's don't retry that case again. Mr. Hendrix: Your Honor please, the defense does not care to retry the case insofar as guilt or innocence is concerned. But this jury is entitled to all of the evidence to select from it any matters that they may find to be of- The Court: I'll disagree with you. Now, we are not going into the question of guilt or innocence of this defendant to the crime with which he has already been convicted. Mr. Hendrix: We understand that, Your Honor. The Court: Well, let's confine our testimony to that. Mr. Hendrix: At the same time, Your Honor, we have to present any matter that can be of mitigation. ... Mr. Hendrix: Your Honor please, as I understand the word mitigation, any matter that this jury wishes to use as a mitigating fact. Not to lift the burden of guilt from him- The Court: I've already expressed myself on that subject. I don't see any mitigating circumstances in what you are trying to do. I'll be perfectly frank with you. ... Mr. Hendrix: Judge Harrison, I fully understand your reasoning in wanting to shorten this case. I have to present everything I can in mitigation for this boy's life. (Sentencing Tr. 405-08, Sept. 20, 1982.) The state's objection was sustained. Several more times Hendrix's attempts to probe questions of guilt and innocence were short-circuited. He questioned one of the investigating officers regarding who removed evidence from the body and moved the body, in order to lay a foundation to discuss the fingernail scrapings and pubic hair combings. The Court: [W]hat are you trying to prove? Mr. Hendrix: I am trying to prove, sir, that there is physical evidence which shows that- Mr. Kirkland: Your Honor, I'm going to object to the statement that counsel is about to make. I think it's intended to prejudice the jury. The Court: Is he trying to show that somebody else did it, I'm not going to listen to it. ... Mr. Hendrix: Your Honor please, for the record, the defense strenuously objects to being denied the opportunity to go into any matter- The Court: To show that somebody else might have done it? Mr. Hendrix: No, sir, to show that there could have been someone else there who could have been a party to it. The Court: Well, why would that exonerate him? Mr. Hendrix: If Your Honor please, it could mitigate in the minds of the jury the totality of the involvement of the defendant. ( Id. at 426-27.) Six times Hendrix attempted to question witnesses or introduce evidence relevant to whether someone else was responsible for the crime, but the court continually blocked his efforts.

In addition to attempting to elicit evidence relating to Blankenship's responsibility for the crime and the possible role of others, Blankenship's relatives testified in his defense. Nellie Fleming, his mother, said Blankenship was an “excellent teenager” and she “couldn't ask for a better child.” She said he cared for his disabled grandparents for a year while they were sick. She said he never got into trouble and was churchgoing. Roy's sister, Pearl Marie Blankenship, also testified. She said she was very close with her brother, and that he was a very good brother to her growing up. She also said Blankenship was not the sort of person to get in trouble.

Blankenship again testified in his own defense. His testimony about the events of the evening before Bowen's murder-including his consumption of alcohol and drugs-mirrored his testimony in the previous trial, FN2 at least up until the point where he approached Bowen's apartment. Unlike in the first trial, he said he did have a purpose for breaking into the apartment: he intended to steal her car and turn it over to some acquaintances for profit. Once he entered her apartment, he said he heard a conversation taking place. The voices grew louder, so Blankenship hid behind a dresser. After a few moments, he heard silence and crept out from beside the dresser. He saw Bowen lying unconscious on the floor. She was bleeding from her head, so he picked her up and put her on her bed. Other than the head wound, Blankenship said there were no other injuries.

FN2. Blankenship did go into more detail about his drinking. He said a supervisor at the lumber yard where he worked advised him his drinking was excessive and that his friends would get him in trouble. Blankenship said he used paper towels from a nearby dresser to stop the bleeding, but while he was applying them to Bowen's head, she regained consciousness, began struggling, and started screaming for help. He informed her he intended to help her, but she continued struggling. He became scared, and while he thought about calling the police, he realized he would have to explain his presence in the room. He left immediately.

Acknowledging his testimony was inconsistent with his statement to the police, Blankenship denied beating Bowen or having sex with her. He said he gave the police his statements because he was trying to protect a third party, although he refused to identify the person. He said he entered the apartment alone, but that someone else spoke with Bowen while he was there.

On cross-examination, the state of Georgia pressed Blankenship on the confession he gave the police and his statements in the prior trial. As to some statements in the confession, he admitted to making them but said they were not accurate. As to others, he denied making them. Others he could not recall.

The jury fixed Blankenship's punishment as death. They found the murder was committed during the commission of another capital felony (rape), and that the murder was wantonly vile, horrible, and inhuman, in that it involved torture or depravity of mind.

The Supreme Court of Georgia once again reversed the death sentence. Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369 (Ga.1983) ( Blankenship II). The Court held that when the sentencing phase of a death penalty case is retried by a jury other than the jury which determined guilt, evidence cannot be excluded simply because is speaks to the guilt or innocence of the crime, since the parties may offer any evidence relating to the circumstances of the crime. Id. at 624, 308 S.E.2d at 371. The judge overseeing the resentencing had excluded just such evidence. Blankenship's death sentence was vacated and the case remanded for another sentencing proceeding.

D. 1986: The Third Sentencing

And so Blankenship, Hendrix, Haas and the state of Georgia once again found themselves in trial proceedings in Chatham County Superior Court to argue before a new jury whether or not Blankenship should receive the death penalty for Bowen's death. The third and final sentencing trial took place in June 1986. The prosecution's evidence was similar to the previous two trials: they introduced the photographs of the crime scene, testimony regarding the shoe prints in the room and on the balcony, testimony regarding the glass found in the apartment and the signs of a struggle, the autopsist's-Dr. Guerry's-testimony regarding Bowen having been severely beaten and raped, Blankenship's original confession to the police, and the blood scrapings and seminal fluid that were type-O.

Hendrix's opening statement laid out the defense strategy: he expected to introduce evidence (including Blankenship's own testimony) showing that someone other than Blankenship was involved in the crime. He said the scientific evidence would show the existence of hair and blood found on Bowen's corpse that did not belong to Blankenship. The defense also planned to show the police department's investigation was inadequate, in that a similar rape and murder had occurred near Bowen's apartment in the two weeks prior to Bowen's death with a different culprit. In addition, the defense planned to present evidence suggesting the injuries suffered by Bowen were not as severe as the state suggested.

To these ends, Hendrix questioned prosecution witnesses on the physical evidence and the rape and murder. He asked Detective William McGuire, one of the investigating officers, if he had ever investigated whether the culprit in the rape and murder of Valerie Armstrong, which took place two weeks before Bowen's death, was responsible for Bowen's murder. Pointing out that Dr. Guerry noted the similarities between the crimes when he conducted the autopsy, Detective McGuire conceded he did not investigate the connection further.

Hendrix also cross-examined Dr. Guerry. He elicited testimony that Bowen did not suffer internal injuries. He also questioned Dr. Guerry on the Valerie Armstrong case, and the Doctor admitted there were similarities between the cases-both victims had been raped and murdered. The state's redirect, however, revealed differences between the crimes: Armstrong was a six-year-old black child, whereas Bowen was a 78-year-old white woman. In addition, Armstrong had been stabbed, whereas Bowen had died of heart failure brought on by severe trauma.

The forensic serologist, Linda Tillman, also testified. She conceded that the type-O seminal fluid found in Bowen could have come from a non-type-O, non-secreting individual; since Bowen was a type-O secretor, her secretions could have infected the sample. In addition, she testified that Gary Nelson, the man responsible for the Armstrong murder, was a type-O secretor, like Blankenship and Bowen. Her findings would have been as consistent with Nelson being the culprit as Blankenship. Tillman also said she found evidence of a B-antigen in one set of fingernail scrapings, but there was not sufficient material to repeat the results and say with any confidence there was type-B blood. She also said the evidence would be consistent with the culprit being a type-B non-secretor.

The defense also questioned Roger Parien, the director of the Savannah branch of the state crime lab who performed analysis on the hair samples. He confirmed one hair segment taken from Bowen's pubic combings appeared to come from an African-American. He also said he was never asked to compare the hair with any of the hairs from the Nelson case (Nelson was an African-American). On cross-examination, Parien admitted to the state prosecutor the hair segment could have come from anywhere.

Hendrix called Dr. Joseph Burton, chief medical examiner for Dekalb and Cobb Counties, as an expert witness. He reviewed the reports from the state crime lab and Dr. Guerry's autopsy report. Like Tillman, he said that the seminal fluid extracted from Bowen's vagina could hypothetically come from a person who was a non-secretor, since Bowen herself was a type-O secretor and could account for the result of the test. He also said that the existence of B-antigen material beneath the fingernails, if it did exist, would not be consistent with their Bowen's or Blankenship's blood type.

Burton also provided extensive testimony regarding Bowen's bruises and scratches. Specifically, Burton said some of the bruising on her arm and elbow could have a number of explanations that were not violent in nature. Although Burton said some of the facial wounds could result from a beating, there was no evidence below the neck of a beating. Burton also testified as to the effect of heavy alcohol and drug use on a person's ability to perform sexually. He could not say whether a person could have an erection under such circumstances, although it was hypothetically possible they could not. On cross-examination, Burton explained the wounds on the arms and legs could have come from a struggle.

Blankenship again testified in his own defense. Haas examined him, and he provided some information on his family background. He explained his family had a significant problem with “nerves,” and that his biological father, along with his aunt and uncle, were killed in a motel room by a carbon monoxide leak when he was eight years old. After his death, his mother went into a nerve coma and he stayed with his grandparents. His mother recovered, and he returned to her care; she had married an alcoholic with whom she “had a lot of trouble.” He would “com[e] home and see[ ] the house torn up” and his mother and stepfather fighting.

Blankenship then described his time in the armed forces. He was in the service for less than two years. After being AWOL for visiting his sick grandfather, he was dropped in rank and the service ultimately agreed to discharge him. He soon moved to Savannah and began work at the lumber company.

Blankenship recounted his drinking and drug habits, and then discussed the events of the evening and early morning of Bowen's death. His testimony was similar to that in his 1982 resentencing trial. He recounted that he entered her apartment to steal her car and heard her speaking to someone. Although he heard the voice, he did not see who the person was. There was a commotion, and he found her lying on the floor, bleeding. He picked her up and placed her on the bed. He also said his statement to the police was what they wanted to know and what they asked him to say; he said he was drunk during the police's questioning and simply wanted to be left alone.

Haas also asked Blankenship whether his statement in the first trial, that he attempted to rape Bowen but was unable to do so, was true. He first responded that if he did attempt to rape her he was not able to do it, but then said he did not think he attempted to rape Bowen. Haas asked why he testified as he did in his first trial and he responded “[m]aybe for protection,” but refused to elaborate. On cross-examination, the state asked Blankenship specific details about his signed confession. Blankenship was also asked questions about the alleged third person present in the apartment. When asked about his contradicting testimony in the first trial, Blankenship said he had lied for a reason, but he refused to tell the reason in court. He said he had made a vow to God and he could not say because it involved someone else.

During closing argument, Hendrix asked the jury to spare Blankenship's life due to residual doubt over his guilt: I would like to take a moment and review with you items that the defense thinks you can consider that create doubt, that create sufficient doubt to determine in favor of life imprisonment as opposed to killing Roy Blankenship. As opposed to taking his life. There's doubt. (Sentencing Trans. 498, June 1986.) After recounting reasons for doubt, including the blood and hair evidence, and criticizing the lack of a thorough investigation into Bowen's murder, Hendrix did reference Blankenship's upbringing:

Roy Blankenship is different in one regard. He is the product of mountains. Mountain people are different. He was born up in one of those valleys up in West Virginia. Now, I don't know exactly where it is but I will tell you how far back up in there it is. When I get letters from his mother and from his sister the post office still uses a hand stampled [sic] canceled stamp. They don't have a fancy machine up there yet. So I know that he's different because I was born up in one of those valleys up in the mountains up in North Georgia and I know just how far back up in there folks live. He came down here to work. And he got himself a job. It was the only job he had. Apparantly [sic] he worked pretty hard. He says so. ( Id. at 502-03.) After again emphasizing the existence of doubt and faulting the police for their investigation, the defense finished its summation, stating “If you impose the life sentence then you create the possibility of this matter being further investigated.” ( Id. at 503.)

The jury recommended the death sentence be imposed, finding the offense was horrible and inhumane in that it involved aggravated battery and depravity of mind. This time, the Supreme Court of Georgia affirmed Blankenship's sentence on appeal. Blankenship v. State, 258 Ga. 43, 365 S.E.2d 265 (Ga.1988) ( Blankenship III). A petition for certiorari was denied by the Supreme Court, and Blankenship's direct appeals came to an end.

E. 1990: The State Habeas Petition & Evidentiary Hearing

Blankenship next began pursuing his state habeas relief. His state petition raised a litany of issues, among them the assertion that his trial counsel were ineffective. A hearing was held in February 1990 where Haas and Hendrix testified as to their representation of Blankenship.

1. Haas' testimony.

Haas testified first. Blankenship's state habeas counsel began his questioning by asking Haas why she and Hendrix made several motions during the 1986 resentencing. In response to a question regarding their motion for an investigator, Haas responded: [T]he third trial was more geared toward the idea of there possibly having been someone else there the night that this happened and the fact of this unexplained Negroid hair and the unexplained B antigen blood that was found and that sort of thing, so we were looking for an investigator to help us especially in that line. (State Habeas Trans. 23, Feb. 28, 1990.) Counsel also asked Haas why they requested a psychiatrist at the third trial, and Haas responded that the motion had been denied. In addition, Haas explained that a motion for a forensic serologist and lab technician was filed during the third sentencing trial because they hoped to discuss the existence of the B-antigen on Bowen's body and the suggestion that another person was present. Counsel next asked Haas if she recalled speaking with Blankenship's sisters or mother. Haas said Hendrix was the person who communicated with the family, and her own contact had been only intermittent.

On cross-examination, Haas explained in greater detail her duties during the first trial. Her role in the 1980 trial, as a recent law school graduate, was minor. She in large part took notes during the trial and prepared the appeal. But she became more experienced as time wore on. By the 1986 trial, she was a more seasoned attorney (having been practicing for six years) and took a more active role: although the main function was to prepare an appeal, by then she had been examining witnesses in court. In fact, she had examined Blankenship himself when he testified at the 1986 resentencing. She also handled the drafting of most pretrial motions.

The state's counsel questioned Haas about the psychiatric examination performed on Blankenship prior to the first trial. Two examinations were performed-one by the state, and one by an expert, Dr. Wolfe, selected by the defense. Haas said the state examination was normal, and Dr. Wolfe's examination did not “give us anything that we felt could help us and so we sort of let that die on the vine.” ( Id. at 51.) As for examinations after the first trial, Haas and Hendrix asked for funds, but were denied.

Haas also discussed conversations she had with Blankenship prior to the first trial. She said he gave them the names of certain family members, who provided information on Blankenship's background: I really don't recall the specifics of it now, like just that he came from sort of a hard background, and we hoped to be able to use some of that. And certainly his mother we hoped to use as someone who could give us some insight into him, and to what had happened here, and to what kind of a person he was. ( Id. at 52.) When asked whether she recalled if Blankenship's mother testified at the second sentencing trial, she responded that she remembered the mother at one of the trials, but at the third one she did not come. “As I recall, Mr. Blankenship didn't want us to contact her, I think.” ( Id. at 54.) Later, state's counsel returned to the question about Blankenship's background: Q. Did you ever discuss Petitioner's background with him? A. With him, and again, Mr. Hendrix had discussed it with his family. Q. Did he ever tell you about any psychological disorders that some of the family members may have had? A. I don't recall it. ... Q. And again, Dr. Wolfe gave you no information from his psychological examination that you thought would be helpful? A. That's correct. ( Id. at 72-73.) State counsel asked Haas if any additional investigation took place prior to the third sentencing trial, and Haas responded: A. Again, we were centering in-especially in the third trial, we were centering in on that hair and the blood type, so that would have been the nature of whatever other investigation we did. We were severely limited because we weren't able to get the funds for any other assistance, but that was where we were headed. Q. So would it be a fair statement to say that your strategy at this third sentencing trial was to show that someone else was present and committed the murders and plant some sort of reasonable doubt to avoid a death sentence? A. Yes. That there was someone else there, yes. ( Id. at 54-55.) This was reiterated when counsel asked if the strategy changed between the first, second and third trials: Q. [D]id you alter your strategy at the second sentencing trial based upon the outcome of the first sentencing trial or was your strategy essentially the same? A. ... [I]n the second trial, as I say, our main strategy had been to try to really hone in on this information and really get the information tied down about this blood and this hair and so forth, and we weren't able to do that, and of course, that made it very difficult to try the case and it was reversed. Q. And what about the third trial? A. We were trying to come at it from the same direction again. ( Id. at 58-59.) Haas also mentioned that Blankenship relied on them to guide the proper strategy. Finally, counsel for Georgia asked Haas about the allegation in Blankenship's state habeas petition that she and Hendrix were ineffective for presenting no witnesses at sentencing other than those going to guilt and innocence: Q. Again, what was the theory at the third sentencing trial? A. I think at that point we were, as I said before, really honing in on the blood and the hair in that part of the case. Again, I believe there was some family members that couldn't make it .... Our theory mainly had to do with those hairs and that blood type and that part of it. That's really where we were coming from. ( Id. at 67.) The point was reiterated on redirect by Blankenship's habeas counsel: Q. Is it fair to say that throughout the course of these proceedings the theory of defense focused on this Negroid hair to some extent? A. The hair, the blood sample and the fact that there was a possibility that there might have been someone else there that night, yes. Q. So the hair would have been a crucial piece of evidence? A. Correct. Q. And the small amount of blood sample which indicated B antigen would have been crucial? A. Correct. Q. And the possibility that a third person may in fact have been present would have been crucial? A. Yes. ( Id. at 74.) 2. Hendrix's testimony. Next Hendrix testified. Blankenship's habeas counsel asked if he had used Dr. Wolfe in the third sentencing trial. Hendrix replied they did not use Dr. Wolfe, because the judge denied their motion. Hendrix also testified as to the theory of defense at the trials: Q. Would it ... be fair to say that one of the themes of the defense at trial and actually at the various trials focused on the presence of [the hair evidence]? A. Yes, indeed. Q. Would it be fair to say that this hair would be a crucial piece of evidence? A. Not as much as Roy's testimony. Q. But it was the subject at least of one of the theories of defense; is that fair? A. Yes. ( Id. at 92.) Later, the questioning returned to this subject: Q. Now, is it fair to say that your defense theory, or a large part of your defense theory throughout these trials was the involvement of another unidentified person in this particular event? A. Yes, sir. ( Id. at 153.) Hendrix further explained that the hair segment and the B-antigen were vital to defense strategy.

Hendrix was asked whether he spoke with Blankenship's mother and sisters prior to the third sentencing trial. He did not speak with the mother, and recalled speaking with his sisters “[u]p to a point.” ( Id. at 108.) He said Blankenship's sister Pearl's inquiries involved when her brother was set for trial and whether Hendrix thought he would prevail. Later, Hendrix mentioned Blankenship's resistance to involving his family: “[W]hat you have to understand is that most all of these people [other people in Blankenship's background] Roy did not want involved in his case just as he directed us to not communicate with his family. He wanted to protect his family from his case.” ( Id. at 117.) He further elaborated about the introduction of mitigating evidence:

Q. In terms of potential mitigating evidence, did you have discussions with Mr. Blankenship about what mitigating evidence was? A. Yes. Q. And did you ever discuss his background with him? A. I think so. I think that you could say that we knew a great deal about Roy and his childhood in West Virginia, both through him and from talking with members of his family, and then from just reading their letters. ... Q. Do you recall Mr. Blankenship ever telling you that he did not want to involve his family? A. Oh, absolutely. Absolutely. Q. At what point in your representation did this occur? A. Well, I think it happened in more than one fashion and on more than one occasion. I think that the words “involve my family” probably came about at about the second trial and then at a later point, he admonished me not to write or correspond with or talk on the telephone with his family. I think he wanted them protected. ( Id. at 135-37.) Hendrix was also asked about Blankenship's state habeas petition complaining they only used witnesses addressing guilt and innocence during the sentencing phase: Q. Did you have any [information] from Petitioner regarding his background that you thought would have been beneficial to present in his behalf? A. No, I'm not aware of any specific information that he had given us concerning his background that we felt mandatory to introduce. Q. What about that that you did have about Mr. Blankenship, would you characterize it as lukewarm, or having potential for more harm than good ultimately, or could you characterize it at all? A. Well, I felt certain today that my feeling was, we won't be helped by any of this. And there again, that's a decision you have to make at that time and at that place. ( Id. at 143-44.) At no time did Hendrix elaborate on the extent of his knowledge of Blankenship's background and upbringing.

3. The affidavits.

Blankenship's state habeas counsel obtained affidavits from Blankenship's sisters, Debbie Blankenship and Pearl Dalton, his mother, Nellie Fleming, and a clinical psychologist, Harry Krop. Hendrix and Haas were not aware of the affidavits when they testified, nor were they cross-examined on their contents. In fact, the affidavits were not even filed in the state habeas proceedings until May 1990, two months after the hearing in which Hendrix and Haas testified. These affidavits provided specific details on Blankenship's background. They describe his difficult upbringing, alcohol abuse, and family history of mental illness. His family's affidavits describe a disturbing childhood, where he was subjected to a series of alcoholic, abusive and sadistic father figures (including his biological father, who died in a motel of carbon monoxide poisoning), and an unstable mother. He was also once raped by a neighbor when he was a child. The details included incidents where his mother was abused and severely beaten by jealous husbands, who also abused (psychologically and physically) and threaten to kill the children.

The affidavits also describe how Blankenship was a sickly child and was repeatedly hospitalized for fevers and other illnesses. When he grew up and joined the service, his family said he would experience blackouts and tell them he thought people were after him. They worried about his mental health. Krop's affidavit attributed Blankenship's drug and alcohol abuse to his traumatic upbringing. Speaking specifically about the night in question, Krop said Blankenship's thought processes would have been highly disordered due to his alcohol and drug intake and, as a result, his capacity to form intent was diminished. Krop's evaluation revealed that Blankenship was not sociopathic and has good insight into his behavior. According to Dr. Krop, the lack of sociopathy and Blankenship's near normal intelligence makes the chance of rehabilitation more likely. Overall, Krop found no specific signs of neuropsychological disease.

Both Pearl and Debbie stated in their affidavits that, if Blankenship's counsel had asked them about his background they would have told them and would have been willing to testify regarding the background to a jury. His mother's affidavit stated the same. In addition, Nellie said she phoned Hendrix prior to the 1986 sentencing trial and explained Blankenship's sisters' history of schizophrenia and the mental illness of her father's brother. An affidavit from Hendrix confirms he knew about the history of mental illness in the family and informed Dr. Wolfe of the history-including the two sisters' history of schizophrenia-in September 1982.

Amidst this backdrop, the state habeas court rejected Blankenship's ineffective assistance claim in a summary fashion. In an order dated March 6, 1991, the state habeas court stated:

Petitioner has also raised ineffective assistance of counsel as a ground for relief in his petition. He alleges numberous [sic] areas in which he contends his attorneys were ineffective. Petitioner's claim is without merit. Petitioner was represented by two competent attorneys who hotly and ably contested the state's case at every phase of Petitioner's trials. In fact, the Petitioner seeks to have two attorneys declared ineffective notwithstanding the fact that they secured reversals of two prior sentences of death entered against Petitioner.

The Court finds on review of the record and consideration of the evidence presented in this Habeas proceeding that Petitioner was afforded effective assistance of counsel. Petitioner seeks to hold his attorneys to a standard of perfection which is impossible to attain for any man or woman. He was entitled to and received effective assistance of counsel as mandated by the Constitution. After the Georgia Supreme Court rejected his application for a certificate to appeal, this avenue of state habeas relief was exhausted.

F. 2005: The Federal Habeas Petition

In October 2005, Blankenship filed his federal habeas petition, the resolution of which is the subject of this appeal.FN3 Among the claims argued was that Blankenship's state trial counsel provided constitutionally deficient performance by failing to investigate and present evidence of Blankenship's background at his 1986 resentencing. The district court did not defer to the state habeas court's resolution of the claim but still denied the petition, finding this Circuit's case law defeated Blankenship's ineffective assistance claim. The district court also denied all other grounds for relief. Blankenship appeals only his ineffective assistance claim; he argues counsel were ineffective for failing to investigate and introduce evidence of his traumatic childhood during the third sentencing trial.

FN3. The gap between the conclusion of the state habeas proceedings and the commencement of this federal habeas petition is explained by a procedural history not relevant to this appeal. Suffice it to say in 1993 Blankenship filed a federal habeas petition. Due to a change in Georgia case law, the petition was dismissed without prejudice under certain exhaustion rules. His subsequent Georgia state habeas petition languished in Georgia state courts through 2004, where he was ultimately unsuccessful. None of those proceedings involved the ineffective assistance claim, and the state of Georgia does not raise an argument implicating the procedural timeline.

II.

“An ineffective assistance of counsel claim is a mixed question of law and fact that the court reviews de novo.” Williams v. Allen, 458 F.3d 1233, 1238 (11th Cir.2006). It is the petitioner's burden to establish his right to habeas relief and he must prove all facts necessary to show a constitutional violation. Jones v. Walker, No. 04-13562, slip op. at 34-35, 2008 WL 3853313, at *13-14, 540 F.3d 1277, 1291-93 (11th Cir. August 20, 2008) (en banc); Romine v. Head, 253 F.3d 1349, 1357 (11th Cir.2001). In other words, Blankenship has the burden of demonstrating counsel's performance was ineffective and must elicit the facts necessary to prove the claim.

A question presented by the circumstances of this appeal is whether the strictures of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No 104-132, 110 Stat. 1214 (1996), 28 U.S.C. § 2241, et seq. apply to federal review of the state court's rejection of the ineffectiveness claim. The deference afforded to state courts by federal courts sitting in review prohibits the federal court from granting a petition unless the state court's adjudication on the merits of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d).

Key to this case is whether the state court “adjudicated on the merits” the ineffective assistance claim when it summarily rejected Blankenship's arguments in its 1991 order. While both parties and the district court seem to think no deference is owed to such summary adjudications, our case law is clear: We have repeatedly held “a state court's summary rejection of a claim qualifies as an adjudication on the merits under § 2254(d) so as to warrant deference.” Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.2008); Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1347 (11th Cir.2005); see also Wright v. Moore, 278 F.3d 1245, 1255 (11th Cir.2002) (“The [AEDPA] language focuses on the result, not on the reasoning that led to the result, and nothing in that language requires the state court adjudication that has resulted in a decision to be accompanied by an opinion that explains the state court's rationale.”). Therefore, the Georgia state habeas court's summary rejection of Blankenship's claims is entitled to AEDPA deference.

As to what constitutes clearly established Supreme Court law at the time of the state habeas decision, the question of AEDPA deference makes little difference: Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was clearly established by 1991, and it remains the standard for evaluating ineffective assistance claims. Williams, 458 F.3d at 1238. Therefore, Blankenship must show the state court's application of Strickland was unreasonable.FN4 This is no easy task. Blankenship “must do more than satisfy the Strickland standard. He must also show that in rejecting his ineffective assistance of counsel claim the state court applied Strickland to the facts of his case in an objectively unreasonable manner.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.2004) (emphasis added) (quotation omitted).

FN4. That the state court did not specifically mention Strickland is of no moment. “The state court's failure to cite the relevant Supreme Court precedents does not mean that AEDPA deference does not apply.” Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 776 (11th Cir.2003). A decision “that does not rest on procedural grounds alone is an adjudication on the merits, regardless of the form in which it is expressed.” Wright, 278 F.3d at 1254-56. It is clear from the state court's resolution of the issue that it recognized Blankenship had raised a constitutional claim of ineffective assistance of counsel, and rejected the claim on non-procedural grounds.

As the second aspect of § 2254(d) makes clear, we also defer to the state court's reasonable factual determinations. Summary adjudications, as a rule, do not have explicit factual findings to which a court can easily defer. Our body of case law discussing implied findings of fact are instructive as to the appropriate deference afforded to factual determinations in summary rulings. We have previously recognized a state court's “dispositive ruling may contain implicit findings, which, though unstated, are necessary to that ruling.” Hightower v. Terry, 459 F.3d 1067, 1072 n. 9 (11th Cir.2006) (post-AEDPA habeas case) (citing United States v. $242,484.00, 389 F.3d 1149 (11th Cir.2004) (en banc)). State court findings of fact can be inferred from its opinion and the record. Freund v. Butterworth, 165 F.3d 839, 859 n. 30 (11th Cir.1999) (citing Cave v. Singletary, 971 F.2d 1513, 1516 (11th Cir.1992)).FN5 Moreover, implicit findings of fact are entitled to deference under § 2254(d) to the same extent as explicit findings of fact. See Mathis v. Zant, 975 F.2d 1493, 1495 (11th Cir.1992); Cunningham v. Zant, 928 F.2d 1006, 1011 (11th Cir.1991).

FN5. We recognize this Circuit's caution in Cave that, while state court findings of fact can be implied, “they cannot be imagined from thin air.” Cave, 971 F.2d at 1516. We do not disagree. In this case, however, we can easily discern the evidence available before the district court on the question whether Blankenship's counsel were ineffective at the 1986 resentencing. Based on this evidence, we can comfortably decide whether the state court's application of Strickland was reasonable.

Thus, we can “make the common sense judgment that material factual issues were resolved by the trial court in favor of the judgment when it was reasonable for that court to have done so in light of the evidence.” Hightower, 459 F.3d at 1072 n. 9 (quotations and alterations omitted). In other words, since we apply AEDPA deference to summary adjudications, we may uphold the state court's decision that counsel was not constitutionally deficient if our review of the record reveals that a reasonable view of the facts before the state court supports such a conclusion.

In this case, the district court erroneously afforded no AEDPA deference to the state court's adjudication of Blankenship's ineffective assistance of counsel claim. With the proper principles of deference in mind, we turn to the merits of Blankenship's habeas challenge.

III.

A. The Law of Ineffective Assistance of Counsel

As stated above, Strickland is the touchstone for all ineffective assistance of counsel claims. The Sixth Amendment right to counsel includes the right to effective assistance of counsel, since the purpose of the right to counsel more generally is to ensure a fair trial. Strickland, 466 U.S. at 686, 104 S.Ct. at 2063-64. In order to prevail on an ineffective assistance of counsel claim, a petitioner must satisfy two prongs: first, the petitioner must show that counsel's performance was deficient in that he “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. at 2064. Second, the petitioner must show the deficient performance prejudiced the defense. Id.

All that a defendant at trial is entitled to is reasonably effective assistance; therefore, the petitioner must show his counsel's representation fell below some objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064. Stated generally, the standard is “reasonableness under prevailing professional norms.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.2000) (en banc). The range of reasonable behavior permitted by this standard is broad. Id. Petitioner must show the course of action taken by counsel would not have been taken by any competent counsel. Id. at 1315; Alderman v. Terry, 468 F.3d 775, 792 (11th Cir.2006).

Thus, “[j]udicial scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Chandler, 218 F.3d at 1313. “Courts must indulge the strong presumption that counsel's performance was reasonable and that counsel made all significant decisions in the exercise of reasonable professional judgment.” Chandler, 218 F.3d at 1314 (quotations and alterations omitted) (citing Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66). We are to avoid the “distorting effects of hindsight” and judge the reasonableness of counsel's action from the reference point of the time of counsel's conduct. Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66.

Among the duties owed by minimally competent counsel is the duty to make reasonable investigations or to make a reasonable decision that makes said investigations unnecessary. Id. at 690-91, 104 S.Ct. at 2066. “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. “[I]n evaluating the reasonableness of the investigation, ‘a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.’ ” Alderman, 468 F.3d at 792 ( quoting Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 2538, 156 L.Ed.2d 471 (2003)). In addition to the duty to reasonably investigate avenues of defense (or make a reasonable decision to not do so), counsel's choice of strategy is subject to review, but “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable....” Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066 (emphasis added).

In order to assess Blankenship's claim of ineffective assistance, then, we are faced with two questions. First, was Hendrix and Haas' investigation of Blankenship's background reasonable? Second, was the strategy selected reasonable? Each question has a factual and legal dimension to it. In the former, we must determine the actual scope of Hendrix and Haas' investigation before we can determine whether the investigation was reasonable. In the latter, we must determine the strategy actually pursued by counsel at the 1986 resentencing before we can assess its reasonableness. We will address each question in turn.

B. Was Counsel's Investigation Reasonable?

1. What did counsel know?

At the heart of Blankenship's challenge lies the question of Hendrix and Haas' investigation into his background. Blankenship argues the pair failed to investigate his background, and that said investigation-e.g., interviews with members of the family-would have revealed his troubling background, alcohol use, and the existence of a family history of schizophrenia. Our task is to determine what counsel knew and when they knew it.

We reiterate that in habeas proceedings, unlike direct appeals, the petitioner bears the burden of establishing his right to relief; Blankenship must prove the facts necessary to demonstrate his counsel's performance was constitutionally defective. See Jones v. Walker, No. 04-13562, slip op. at 34-35, 2008 WL 3853313, at **13-14, 540 F.3d 1277, 1291-93; Romine, 253 F.3d at 1357. Because of this burden, when the evidence is unclear or counsel cannot recall specifics about his actions due to the passage of time and faded memory, we presume counsel performed reasonably and exercised reasonable professional judgment. Romine, 253 F.3d at 1357-58; Williams v. Head, 185 F.3d 1223, 1227 (11th Cir.1999).

In this case, our task is complicated in two ways. First, Blankenship's state habeas counsel failed to elicit from either Hendrix or Haas details as to the extent of their knowledge of Blankenship's background. Instead, both attorneys made general statements about their investigation and they were not asked to explain in detail what parts of Blankenship's background they had learned about. Although both Haas and Hendrix testified in the state habeas proceedings and Blankenship's counsel had ample opportunity to question them, the record remains incomplete.

In fact, the key affidavits Blankenship points to in this appeal-his family's affidavits and Dr. Krop's affidavit-were not filed until months after the state habeas hearing in which Haas and Hendrix testified. Thus, the state of Georgia was never afforded the opportunity to cross-examine Hendrix and Haas on the contents of the family's affidavits, and counsel were never able to explain what they knew about Blankenship's personal background. Nor was the state able to cross-examine the family members themselves on the veracity of their claims. FN6

FN6. Indeed, there is at least some vagueness in Fleming's affidavit as it relates to Hendrix's account. Her affidavit states she realized the importance of the family history of mental illness before the 1982 resentencing, but she spoke with Hendrix about the family history of mental illness prior to the 1986 third sentencing trial. The evidence supplied by Hendrix in his supplemental affidavit demonstrates he informed Dr. Wolfe of this exact history in September 1982, prior to the second sentencing hearing. This is the type of vagueness which could have been clarified and explained by Hendrix and Haas had Blankenship's state habeas counsel provided the affidavits before the hearing in which counsel testified. Cf. Waters v. Thomas, 46 F.3d 1506, 1513-14 (11th Cir.1995) (“It is common practice for petitioners attacking their death sentences to submit affidavits from witnesses who say they could have supplied additional mitigating circumstance evidence .... But the existence of such affidavits, artfully drafted though they may be, usually proves little of significance.”).

Second, Blankenship's trial counsel testified they had difficulty remembering aspects of the case. The state habeas hearing in which they testified took place twelve years after their representation of Blankenship began, and four years had passed between the 1986 resentencing trial and the hearing. Memories were understandably clouded. For example, Haas testified she could not “recall the specifics” of what she knew of Blankenship's background, and she could only say she knew he had come from a hard background. Blankenship's failure to exact detailed testimony from trial counsel and gaps created by faded memory make his attempts to satisfy his already heavy burden even more difficult.

Although we are without the benefit of clear statements from Blankenship's trial counsel, we can discern from the record that they knew generally about the three key elements of Blankenship's background discussed in the affidavits of his family members and in Dr. Krop's analysis: his alcohol and drug abuse, the family history of psychological problems, and his difficult childhood.

The record reveals Hendrix and Haas knew Blankenship struggled with drugs and alcohol; indeed, it was a substantial aspect of their defense throughout trial. Blankenship himself discussed his use of drugs and alcohol during his several trials. In his confession to police, he admitted to being drunk the night of the death. His testimony at his first trial revealed he had been drinking and ingesting tranquilizers much of the evening and early morning of Bowen's death. In the second trial, he testified that his lumber yard supervisor told him his drinking was excessive. In the third trial, he again recounted his systemic drinking and drug use. Moreover, Hendrix sought to elicit from Dr. Burton-both at the first trial and the third trial-testimony about the effects of such alcohol and drug use on an individual's ability to commit the acts for which Blankenship was on trial. Therefore, there can be no doubt Hendrix and Haas knew about Blankenship's issues with drugs and alcohol, given the repeated references to it throughout all of the proceedings.

Equally plain in the record is counsel's knowledge about the family history of schizophrenia. Nellie's affidavit states she discussed the family history of mental illness with Hendrix. Hendrix's supplemental affidavit and documentary evidence provided in the state habeas proceedings confirms he knew about the history of mental illness. A memorandum demonstrates in 1982 Hendrix informed Dr. Wolfe, the defendant's expert who examined Blankenship prior to the first trial, of the history of family illness-including the ongoing paranoid schizophrenia of Blankenship's sisters and the institutionalization of Nellie's father's brother. Blankenship himself told the jury in the 1986 resentencing his family had a problem with “nerves.” Moreover, Hendrix testified Dr. Wolfe's report-which is not in the record-did not give them anything they felt was helpful, and both Haas and Hendrix testified the court denied them the funds necessary to have an expert examine Blankenship for the third trial. (Indeed, Dr. Krop's affidavit says he found no evidence of neuropsychological disease and that Blankenship lacked sociopathy and had near normal intelligence.) State trial counsel had ample knowledge of the family's history of mental illness but did not have evidence Blankenship himself suffered from mental illness.

The record also demonstrates Blankenship's trial counsel knew he came from a difficult background. At the state habeas hearing, Haas testified she knew Blankenship came from a hard background, and Hendrix stated he knew a “great deal about [Blankenship] and his childhood in West Virginia, both through him and from talking with members of his family, and then from just reading their letters.” Blankenship's mother and one sister testified at his second sentencing in 1982, although other than expressing positive opinions about Blankenship they did not discuss his background. Blankenship himself did discuss some of his familial background in his testimony in the 1986 sentencing. He said his biological father and his aunt and uncle died of carbon monoxide poisoning in a motel. He also said after the death, his mother was incapacitated with “nerves” and he briefly lived with his grandparents. Blankenship also told the jury that when he returned to live with his mother, she married an alcoholic with whom she consistently fought. Blankenship also provided details about his brief stint in the armed forces.

Thus, it is clear state trial counsel did know about Blankenship's alcohol abuse, the history of mental illness, and the existence of a difficult background. What the family's affidavits provide are details of these areas of Blankenship's life. There is no doubt these details are horrifying and disturbing, describing a severely fractured home life with incidents of physical abuse, psychological abuse, and rape. But they are details of a hard background about which Haas and Hendrix testified they were aware. Haas said she knew Blankenship had a “hard background” and Hendrix said he knew a “great deal” about Blankenship's background, but no one ever asked either counsel the extent of their knowledge about the background. We are left to speculate as to the exact scope of their knowledge about the details of Blankenship's upbringing.

It is true the family's affidavits state that if Hendrix or Haas had asked about Blankenship's background, they would have been willing to recount the detailed history of abuse and neglect. However, this is not particularly helpful in determining the extent of trial counsel's actual knowledge of his background or the full nature of their investigation. If believed, the affidavit testimony of Blankenship's mother and sisters would only tell us that the family members themselves never discussed Blankenship's background with Hendrix or Haas.

In his testimony, Hendrix stated his knowledge of Blankenship's background came from the family and from Blankenship himself. Indeed, the petitioner is often in the best position to inform his counsel of salient facts relevant to his defense, such as his background. Newland v. Hall, 527 F.3d 1162, 1202 (11th Cir.2008). Blankenship was fully capable of appraising Hendrix and Haas of his background and we do not know what, if anything, Blankenship himself did or did not tell counsel. Blankenship's voice is noticeably absent from the state habeas record, and at no time has he provided testimony or an affidavit suggesting he did not tell his counsel about his personal background.

In order to show his trial counsel unreasonably failed to investigate his background, Blankenship would have to show that they did not in fact know about the facts he claims they failed to discover. In this case, the evidence simply does not exist to show Hendrix and Haas did not know about the details of Blankenship's background. The evidence demonstrates they knew about his alcohol difficulties, his family history of mental illness, and his hard background. We cannot simply assume Blankenship failed to inform them of the details. In light of what the record does (and does not) contain, a reasonable view of the record could find trial counsel were fully aware of petitioner's life history.

2. Was the investigation reasonable?

In light of the above holding, we cannot say the investigation was unreasonable because we cannot say they did not know about the details of Blankenship's life history. Even if the record demonstrated Hendrix and Haas did not know about Blankenship's background, however, another fact could make their failure to investigate reasonable: Blankenship himself instructed them not to contact his family. The record certainly does demonstrate Hendrix and Haas spoke to Blankenship's family-Hendrix would speak with the family to update them on the trial, and Nellie's affidavit says she spoke with Hendrix. Hendrix, however, testified Blankenship asked them not to involve his family. In fact, Hendrix said “at about the second trial and then at a later point, he admonished me not to write or correspond with or talk on the telephone with his family. I think he wanted them protected.” Hendrix also said Blankenship “directed” them not to speak with family members.

“We have ... emphasized the importance of a mentally competent client's instructions in our analysis of defense counsel's investigative performance under the Sixth Amendment.” Newland, 527 F.3d at 1202. Significant deference is owed to failures to investigate made under a client's specific instructions not to involve his family. Id. at 1203. Assuming Hendrix did not know the details of his client's background, Blankenship's admonishment to him not to contact his family cannot be ignored. We cannot say it would be unreasonable for Hendrix not to discuss Blankenship's background with his sisters and mother if Blankenship indeed instructed him not to contact them out of a sense of protection.FN7

FN7. Blankenship argues the failure to investigate would be similar to that found to be deficient in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). In Rompilla, the attorneys for the petitioner found their client to be unhelpful and uninterested in providing them with mitigation evidence. Id. at 381, 125 S.Ct. at 2462. Counsel also interviewed several family members in a detailed manner, and they told petitioner's attorney they did not know him well and could not provide much insight into his background. Id. at 381-82, 125 S.Ct. at 2463. Finally, counsel marshaled the opinions of three mental health experts who did not reveal anything useful about petitioner's background. Id. Since the Supreme Court found counsel's performance deficient in Rompilla, Blankenship reasons Hendrix and Haas' performance should similarly be found deficient, since their efforts did not rise to the level of the counsel in Rompilla.

But this argument is easily dismissed because the Court in Rompilla did not pass judgment on whether counsel's interviews with family, the petitioner himself, and mental health experts were sufficient. Rather, Rompilla found counsel constitutionally deficient because they failed to examine the record in petitioner's prior felony cases, which would have revealed life history mitigation evidence. Id. at 383, 125 S.Ct. at 2463. Their obligation to review the prior felony case stemmed from their knowledge the prosecutor would use petitioner's history of felony convictions and violence to seek the death penalty. Id. Because the file would be used to establish aggravating circumstances, counsel had a duty to investigate it. Thus, Rompilla stands for the proposition that a reasonably competent counsel will investigate a prior felony conviction it knows the prosecution will rely upon in seeking the death penalty. This holding has no bearing on this case, since Blankenship cannot point to any evidence the prosecution relied on in prosecuting Blankenship that his counsel ignored but would have led to the discovery of the details of his life history. Putting aside Blankenship's instruction to his counsel, however, we hold Blankenship failed to satisfy his burden of proving his state trial counsel did not uncover the evidence of his background. As such, state counsel's investigation of his life history was neither unreasonable nor inadequate.

C. Was Counsel's Choice of Strategy Reasonable?

The federal district court found Hendrix and Haas opted for a “mixed” strategy at the 1986 resentencing, presenting both residual doubt evidence and mitigation evidence. At trial, however, counsel elicited only a few statements from Blankenship about his background and only briefly mentioned his upbringing in closing argument. Since they decided to pursue life history mitigation as part of their trial strategy, Blankenship argues they were ineffective for presenting life history mitigation evidence in such a cursory manner. We disagree.

1. What strategy did counsel select?

The district court's and Blankenship's belief that trial counsel sought a “mixed” defense of residual doubt and mitigation is belied by ample record evidence. On several occasions, Hendrix and Haas were asked about their strategy at the 1986 resentencing. Haas explained that “especially in the third trial, we were centering in on that hair and blood type ....” When asked whether it was fair to describe the strategy at the third sentencing trial as demonstrating someone else was present at the scene, she responded affirmatively. She again confirmed that by the third resentencing trial, their “theory mainly had to do with those hairs and that blood type and that part of it. That's really where we were coming from.” She also said the hair and blood type were crucial pieces of evidence.

Hendrix's testimony dovetails with Haas' account. He was asked twice if his strategy at trial was focused on the hair and blood evidence and demonstrating the existence of a third person; he responded both times affirmatively. His testimony was that the evidence suggesting another person was present was vital to their strategy. These statements make plain counsel's strategy: the physical evidence, including hair and possible blood evidence not belonging to Blankenship, could suggest someone else was present at Bowen's death.

Hendrix had won reversal on the 1982 resentencing based on his inability to pursue the strategy that counsel in 1986 ultimately employed. Hendrix doggedly pursued a residual doubt strategy during the 1982 resentencing, only to be thwarted at every turn. The trial court repeatedly blocked his attempts to pursue lines of questioning and introduce witnesses and evidence which would raise questions as to the involvement of another individual in the crime. For example, Hendrix's questioning of one of the officers at the scene of Bowen's death was prematurely halted by the prosecutor and the trial court judge because he was seeking information regarding the presence of Blankenship's fingerprint found on broken glass in the apartment. As Hendrix then saw it, attacking the police investigation and suggesting another person was involved “could mitigate in the minds of the jury the totality of the involvement of the defendant.”

As Hendrix himself told the court in the 1982 hearing, he “ha[d] to present everything [he could] in mitigation for [Blankenship]'s life.” Having had his attempts to raise questions of guilt during the hearing undercut, state trial counsel prevailed on appeal on this very point, securing a reversal based on the inability to discuss Blankenship's guilt during the sentencing phase. In the 1986 sentencing trial, counsel was free to pursue the strategy they thought best appropriate. They did so.

At no point did either attorney testify they intentionally sought out mitigation evidence based on Blankenship's life history. There is no evidence in the record that Blankenship's counsel anticipated presenting to the 1986 resentencing jury a strategy of mitigation based on compelling life history testimony. In fact, Hendrix testified Blankenship's background was not helpful to them. Specifically, he said he “was not aware of any specific information that [Blankenship] had given us concerning his background that we felt mandatory to introduce.” Again he said: “I feel certain today that my feeling was, we won't be helped by any of this. And there again, that's a decision you have to make at that time and at that place.”FN8 State trial counsel's testimony at the hearing makes clear only one strategy was pursued at the 1986 resentencing: residual doubt.

FN8. To reiterate: we do not know what is meant by “this” and “background” because Hendrix was never asked to explain the extent of his knowledge.

Blankenship's brief discussion of his background in the 1986 resentencing and Hendrix's minor reference to his home town during closing arguments are not sufficient to suggest counsel were pursuing a “mixed” strategy and purposely introduced life history evidence to persuade the jury to spare Blankenship's life out of mercy. This was not a situation where counsel sought a particular strategy and only introduced cursory evidence in support. Counsel's opening and closing statements, in addition to the bulk of the evidence introduced in the 1986 resentencing and the testimony of Hendrix and Haas, make clear they pursued only a residual doubt strategy. It would be unreasonable to describe the strategy as “mixed.”FN9

FN9. In his reply brief, Blankenship argues his trial counsel's conduct is similar to conduct the Supreme Court found to be constitutionally deficient in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). We think Wiggins is distinguishable. In Wiggins, counsel sought a bifurcated sentencing proceeding to allow them to first present evidence of residual doubt and then, if necessary, present mitigation. Id. at 515, 123 S.Ct. at 2532. This was denied, and counsel presented a residual doubt case. Counsel mentioned Wiggins' hard life in the opening statement, but did not present any evidence of his life history. Id. In his state post-conviction proceedings, counsel presented evidence of a life history of childhood abuse and neglect, including severe sexual and physical abuse, his trial counsel, a public defender, failed to uncover. Id. at 516-17, 123 S.Ct. at 2532-33. He argued counsel's failure to uncover this evidence in his sentencing proceedings amounted to constitutionally deficient performance.

In agreeing counsel was ineffective, the Supreme Court first noted counsel failed to compile a social history report, even though it was standard practice in Maryland at the time and one for which the public defender's office provided funds. Id. at 523-24, 123 S.Ct. at 2536-37. Second, the Court said petitioner's Department of Social Service records-which were in the possession of counsel-indicated he had been shuttled from foster home to foster home, had a mother who was an alcoholic, and was on one occasion left home with his siblings without food. Id. at 525, 123 S.Ct. at 2537. In fact, Wiggins himself had described his childhood as “disgusting.” Id. at 523, 123 S.Ct. at 2536. A reasonably competent attorney would have further investigated these hints at a troubling history. Id. Third, counsel's decision to pursue residual doubt over mitigation was not the result of reasonable judgment because counsel-up to the day of sentencing-sought leave to bifurcate the proceedings to first introduce residual doubt and then introduce mitigating evidence. Counsel intended to present mitigating evidence if the bifurcation motion was successful, which suggested the failure to investigate was not the result of a reasoned, strategic choice. Finally, counsel put forth a “halfhearted” mitigation case at the sentencing trial. Id.

Blankenship's situation is factually distinguishable. We have found Blankenship failed to show Hendrix and Haas were not aware of his background. Unlike counsel in Wiggins, Blankenship's counsel did not fail to investigate in light of records or social history reports suggesting a troubling history. Moreover, unlike Wiggins, they did not pursue a mixed strategy at the 1986 resentencing hearing, and therefore did not engage in a “halfhearted” mitigation case. In addition, absent from Wiggins is any suggestion the petitioner instructed counsel not to investigate his background. In this case, Blankenship “admonished” his counsel not to involve his family in his case, so any failure on their part not to investigate is reasonable in light of Blankenship's own actions.

2. Was the strategy reasonable?

Because we are not dealing with an instance where counsel sought to present a “mixed” strategy at trial, we are left with a situation where we presume counsel was informed of Blankenship's background but opted to pursue a residual doubt strategy in lieu of discussion of petitioner's life history. This strategy was eminently reasonable. “Creating lingering or residual doubt over a defendant's guilt is not only a reasonable strategy, but is perhaps the most effective strategy to employ at sentencing.” Parker, 331 F.3d at 787-88.

In this case, counsel was faced with a brutal rape and murder of an elderly woman. In light of the gruesome facts, including the foreign object left in the victim's body, reasonably competent counsel could have decided the best chance for sparing Blankenship's life was to convince the jury some residual doubt existed. Counsel could have concluded the inclusion of extensive mitigating evidence addressing Blankenship's life history might cloud the jury from focusing on the question of residual doubt, or would simply have been unpersuasive in light of the gruesome nature of the crime.FN10

FN10. We are struck by the similarities between this case and Stewart v. Dugger, 877 F.2d 851 (11th Cir.1989). In that case, the defendant was invited into the home of an elderly, slight woman. Once inside, he attacked the woman and brutally raped her. He then killed her by strangling her with the cord extending from an iron. Id. at 853. In his habeas appeal, the defendant argued his counsel was ineffective for focusing on residual doubt to the exclusion of other possible mitigating evidence. Id. at 856. “Trial counsel made a strategic decision that in light of the atrocious nature of the offense, [the defendant]'s only chance of avoiding the death penalty was if some seed of doubt, even if insufficient to constitute reasonable doubt, could be placed in the minds of the jury .... Trial counsel cannot be faulted for attempting to make the best of a bad situation.” Id. Blankenship's counsel found themselves in a similar situation: they were faced with the heinous facts of a brutal death, and opted to seek a life sentence by planting a seed of doubt with the jury. This was reasonable.

Moreover, Hendrix and Haas' strategy was far from baseless. There was evidence to suggest the presence of a third person at Bowen's death. The B-antigen sample, although inconclusive as to whether type-B blood actually existed, arguably suggested the presence of someone other than Blankenship, who was type-O. Similarly suggesting residual doubt was the hair segment found in Bowen's pubic combings, which did not appear to belong to either her or Blankenship. Finally, counsel presented evidence that another man was responsible for a murder-rape which took place two weeks prior to Bowen's death and within a few miles of her apartment. Counsel made a reasonable strategic choice to pursue a lingering doubt strategy, and we do not second-guess that decision. Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066.

Indeed, Hendrix and Haas had good reason to believe a residual doubt strategy was the best option: since the 1986 trial was a resentencing trial, they were facing a jury who had not passed judgment on Blankenship's guilt. When counsel has an opportunity to convince a new jury to spare a defendant's life, the selection of residual doubt as a trial strategy is particularly sensible. In contrast to asking a jury who just convicted a defendant to spare his life due to residual doubt, a new jury might be more willing to entertain arguments on guilt and innocence. Blankenship's counsel fervently argued for the opportunity to introduce residual doubt evidence during appeal from the second sentencing, and they followed through by pursuing the strategy at the final resentencing trial. There was nothing unreasonable about counsel's actions.

IV.