JACKSON, Ga. — It’s a simple snapshot. The kind people post on the Web all the time to try to find dates or just friends.

The middle-aged man, who calls himself Earl, looks relatively innocuous — like a next-door neighbor or someone you’d see in the grocery store checkout line. What Earl is looking for is a pen pal and the description that he gives of himself reads almost lyrical.

“My passions are simple. I love the outdoors and nature and long rides through the country and mountains and a summer day on the beach. To me, this is art in its purest form.”

Contrast this portrait of William Earl Lynd with the photograph the Georgia Department of Corrections has on its sex offenders Web site of the same man. Then maybe potential pen pals will understand why in writing Earl Lynd, they will have to add No. 437139, his inmate number, on the envelope because since 1990 home to Earl has been Geor-gia’s death row.

Today, Lynd waits for the U.S. Supreme Court to rule on whether lethal injection — the method of execution in Georgia — is cruel and unusual punishment. All his major grounds for appeals are exhausted.

Many states have stopped all executions until the high court’s decision. Georgia, however, had not. The state of Georgia had planned to schedule Lynd’s execution about a month ago after warrants for two older death penalty cases had been issued. Ten days are required between executions.

“Ours was the third one,” Berrien County District Attorney Catherine Helms explained in a phone interview on Thursday. “Before our date came up to get the warrant, Georgia Supreme Court issued a stay pending the ruling of the U.S. Supreme Court on lethal injection. A ruling could come anytime, but I would not anticipate anything before spring.”

As victims’ families and death penalty opponents wait, this is a look at the two cases that put Lynd where he is today, as told mainly in newspaper accounts and facts given by the Georgia Supreme Court.

A request by The Ironton Tribune to interview Lynd was denied. It is the policy of the Georgia Department of Corrections to prohibit death row inmates from giving interviews.

Phone calls to Tom Dunn, the attorney listed for Lynd in a news story in the Atlanta Journal-Constitution published on Oct. 4, were not returned.

Many in Lawrence County still remember the story of William Earl Lynd, a South Point native who committed a Christmas day murder in 1988.

Detroit teacher Leslie JoAnn Starkey, 42 and a native of Huntington, W.Va., was driving home early Christmas morning to spend the holidays with her family in the area. A home economics teacher at a middle school, Starkey was described at the time of her death by her colleagues as a dedicated educator who wanted her students to focus on the positives in life.

As Starkey was driving down U.S. 52, Lynd, also in a car, pulled in behind her, flashing his headlights. Concerned something was wrong, she drove into the well-lighted parking lot of the Kmart in Chesapeake. Both got out and Lynd told her there were sparks coming out of the back of her car.

He offered to drive to the nearest phone and call Starkey’s parents in Huntington. She agreed. He then returned, claiming he had gotten in touch with her father.

Starkey got back in her car and got as far as the West 17th Street bridge at Huntington when she got out of the car again and was attacked by Lynd, who had been following her.

Starkey, who had been smoking a cigarette, jabbed the lighted end into Lynd’s face. He retaliated, shooting the young woman three times — in the neck, right shoulder and left hand. Bleeding profusely, she got back into her car, driving as far as the Chesapeake bypass on Ohio 7 where she stopped and somehow got the attention of a motorist.

Then taken to St. Mary’s Medical Center, Starkey died a day later just before she was to undergo surgery. However, she was able to give law enforcement officers a relatively complete account of her ordeal.

With that statement the manhunt for the 33-year-old Lynd began.

Tragically, as the case unfolded, it would prove not to be Lynd’s only murder.

Days before the Starkey attack, Lynd, living in Georgia, got into a fight with his girlfriend, Virginia “Ginger” Moore at the home they shared. Angry, he shot the woman in the face and then went outside to smoke.

Moore struggled to get outside where Lynd shot her a second time, according to an account by the Georgia Supreme Court.

Next he put the unconscious woman into the trunk of his car and drove off. But Moore was not dead.

As he heard “thumping around” in the trunk, Lynd stopped the car and opened the trunk, shooting her a third time. This time the bullet did its job.

On Feb. 19, 1990, Lynd was brought to trial in Georgia and nine days later convicted of kidnapping with bodily injury and murder and sentenced to death.

A year to the date of his Georgia trial Lynd was back in Ohio to face aggravated murder charges — a capital crime — in the death of Starkey, pleaded guilty to an amended charge of murder. He was sentenced to 15 years to life with his term to run concurrently with his sentence in Georgia.

Now Lynd waits.

As horrific as his wanton actions were, the story is not a new one. Kidnapping, sex offenses, assault. Lynd knew life behind bars well. And yet until these two murders, his time there was apparently short-term.

In Sept. 28, 1975, he pleaded guilty to the unlawful imprisonment of an Ashland woman abducted from a parking lot on Feb. 25, 1975.

In June 29, 1979, he was convicted of sexually abusing a Texas woman at knifepoint and sentenced to 25 years. He was released after the woman recanted the accusation.

Almost three years later, he pleaded guilty to forcing a Huntington minor to engage in oral sex in an encounter that occurred the fall before he was sentenced in Texas.

If Lynd is alive in two years, he will have spent 20 years on death row. Seemingly a long time, but not an aberration in the criminal justice system.

“It’s totally normal,” Helms said. “That is the way the death penalty appeals go.”

Defendant was convicted of kidnapping with bodily injury and murder, and sentenced to death, following jury trial in the Superior Court, Berrien County, W.D. Knight, J., and defendant appealed. The Supreme Court, Hunt, J., held that: (1) trial court properly excused for cause juror opposed to death penalty; (2) trial court properly refused to disqualify juror with pro-death penalty bias; (3) enumerations of error not timely raised are waived, except plain error; (4) trial court properly appointed counsel, even though defendant had retained counsel; (5) evidence of subsequent murder was admissible; and (6) sentence of death was not excessive. Affirmed. Benham, J., filed concurring opinion.

HUNT, Justice.

William Earl Lynd was convicted in Berrien County of kidnapping with bodily injury and murder and sentenced to death. He appeals. We affirm. FN1

FN1. The crime occurred December 22 or 23, 1988. The defendant was arrested on December 31, 1988. He filed a special plea of incompetence, which was tried before a jury on October 23 through 25, 1989. Having been found competent to stand trial, the trial of the case-in-chief began on February 19, 1990 and concluded on February 27, 1990. A motion for new trial was filed the next month and denied after hearing on March 5, 1991. The case was docketed in this court on May 16, 1991, and argued orally on September 11, 1991.

1. Lynd and the victim lived together in her home in Berrien County. Following an argument three days before Christmas of 1988, Lynd shot the victim in the face and went outside to smoke a cigarette. The victim regained consciousness and followed him outside. Lynd shot her a second time, put her into the trunk of her car and drove away. Hearing the victim “thumping around” in the trunk, Lynd got out, opened the trunk and shot the victim a third time, killing her.

Lynd returned home, cleaned up the blood, and drove to Tift County, where he buried the victim in a shallow grave. He then drove to Ohio. Lynd shot and killed another woman in Ohio and then sold the gun he used to kill her and the victim in this case. Eventually, Lynd returned to Georgia to surrender to Berrien County authorities. The murder weapon was recovered and identified by ballistics examination, and the victim's body was located based on information provided by Lynd. The evidence supports the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The denial of sequestered voir dire was not an abuse of discretion. Sanborn v. State, 251 Ga. 169(3), 304 S.E.2d 377 (1983). There was no denial of individual voir dire. State v. Hutter, 251 Ga. 615, 307 S.E.2d 910 (1983).

3. The record supports the trial court's conclusion that the defendant could receive a fair trial in Berrien County and that a fair and impartial jury was selected in this case. There was no error in the denial of the defendant's motion for change of venue. Isaacs v. State, 259 Ga. 717(15), 386 S.E.2d 316 (1989).

4. “A trial court retains the discretion to determine how late to hold court before recessing for the evening.” Spencer v. State, 260 Ga. 640, 647(9), 398 S.E.2d 179 (1990). Lynd has not shown that the trial court maintained an “oppressive” trial schedule which left defense counsel insufficient time to review each day's proceedings or to prepare for the next.

5. The trial court did not err by excusing for cause a prospective juror who testified he was opposed to the death penalty and could not vote for a death sentence in any case regardless of the evidence. Alderman v. State, 254 Ga. 206(4), 327 S.E.2d 168 (1985).

6. Nor did the court err by refusing to disqualify another prospective juror for pro-death penalty bias. Although the juror was somewhat confused by the initial questions about the death sentence, the juror ultimately testified that he could consider and possibly vote for a life sentence after hearing all the evidence, and that he would “not just automatically” vote for a death sentence in the event the defendant was convicted. The trial court was authorized to conclude that the juror's views would not “ ‘ “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ [Cits.]” Alderman v. State, supra. Compare Pope v. State, 256 Ga. 195(7e), 345 S.E.2d 831 (1986).

7. In the final enumeration of error of his original brief, Lynd contends the evidence fails to support the jury's findings of statutory aggravating circumstances. The jury found: (1) The offense of murder was committed while the offender was engaged in the commission of another capital felony, to wit: kidnapping with bodily injury [see OCGA § 17-10-30(b) (2) ]. (2) The offense of murder was committed while the offender was engaged in the commission of an aggravated battery. [See ibid.].

Lynd argues he did not commit the offense of kidnapping with bodily injury because the victim was unconscious after the second shot. However, even if we were to accept the untenable assumption the victim could not have been taken “against her will,” see OCGA § 16-5-40(a) (defining kidnapping), if she were unconscious the entire time, see Taylor v. State, 194 Ga.App. 871(2), 392 S.E.2d 57 (1990), the evidence is persuasive that she regained consciousness and vigorously protested her confinement in the trunk of her car before Lynd shot her a third time and killed her.

As to the aggravated battery finding, the evidence shows that Lynd seriously disfigured the victim with his first shot beneath her left eye. See OCGA § 16-5-24 (defining aggravated battery). The evidence supports the jury's findings of statutory aggravated circumstances. OCGA § 17-10-35(c)(2).

8. Over two months after this case was argued orally to this court, Lynd filed a “supplemental brief” raising and arguing eight additional enumerations of error not raised or argued previously. The Attorney General has moved to exclude these supplemental enumerations as untimely, relying on Cohran v. Carlin, 254 Ga. 580(1a), 331 S.E.2d 523 (1985), which holds that “[a]rguments asserted for the first time in a post-oral argument brief are untimely, and will not be considered.” Id. at 584, 331 S.E.2d 523.

Our Georgia Unified Appeal Procedure states: “The Supreme Court shall review each of the assertions of error timely raised by the defendant during the proceedings in the trial court regardless of whether or not an assertion of error was presented to the trial court by motion for new trial, and regardless of whether error is enumerated in the Supreme Court. However, except in cases of plain error, assertions of error not raised on appeal shall be waived.” [UAP, § IV(B)(2).]

If assertions of error “not raised” are waived, it follows that assertions of error not timely raised are also waived. Because there may have been some reasonable question about the applicability of the Cohran v. Carlin rule to death penalty cases, we will not apply it to this case, and we therefore deny the Attorney General's motion to exclude. See Ford v. State, 257 Ga. 661, 665, 362 S.E.2d 764 (1987) (Gregory, J., dissenting). In the future, however, except in cases of “plain error,” FN2 enumerations of error not timely raised and/or argued shall be waived.

FN2. “Plain error” is that which is “so clearly erroneous as to result in a likelihood of a grave miscarriage of justice” or which “seriously affects the fairness, integrity or public reputation of a judicial proceeding.” U.S. v. Fuentes-Coba, 738 F.2d 1191, 1196 (11th Cir.1984).

9. Initially, an attorney was appointed for the defendant. Soon thereafter, the defendant retained an attorney to represent him. At a hearing on March 24, 1989, the trial court questioned the two attorneys about their experience and qualifications. The retained attorney testified that he had graduated from law school in 1986 and had been admitted to the Georgia bar in September of 1987. He had maintained a law office and a full-time practice in the year and a half since being admitted to the bar. He testified that although he had handled “probably” 25 criminal cases, he had actually tried only one felony case before a jury. This was his first death-penalty case.

The appointed attorney had been admitted to the bar for a little longer than 6 months and had not tried any cases before a jury.

After questioning these two attorneys, the trial court told Lynd it was troubled by his attorneys' lack of experience. As a consequence, notwithstanding that Lynd had expressed his satisfaction with his two attorneys, the court was going to require Lynd either to retain a more experienced attorney (in addition to or in lieu of his present retained attorney) or-if he could not afford to do that-to accept the appointment of a more experienced attorney to act as lead counsel in the case.

At the next hearing, on May 19, 1989, the court announced for the record that Lynd's original appointed attorney had been “relieved of any further responsibility in this case” and that another, more experienced attorney had been appointed by the court to represent the defendant and to act as lead counsel. Although he had been satisfied with his previous court-appointed attorney, Lynd now objected to the appointment of a “government-paid” attorney to represent him. According to his retained attorney, Lynd had been in “trouble in a lot of states, had a lot of trouble with the government, and he just does not trust a court-appointed attorney.”

Late in July, the defendant told the court he was financially “capable now of hiring my own attorney,” and asked the court to relieve his appointed attorney. However, when the court asked Lynd whom he intended to retain, Lynd stated he had only become “aware” of his new resources the previous evening and had not yet contacted any attorneys. The court declined to relieve Lynd's appointed attorney at that time, stating Lynd could not “just take lawyers on and off” and “drag” the case on for years. Later (hearing of August 25, 1989 at p. 5), when the defendant again claimed he could retain an additional attorney,FN3 the court ruled that the appointed attorney

FN3. The defendant had earlier filed an “affidavit of poverty” claiming he had no assets and no income. is going to stay on the team until such time as I see who this attorney is. And if such attorney that's employed is [sufficiently capable and experienced] ... then at such time, I will remove [the appointed attorney].

The defendant, however, never retained any additional attorneys, and was represented at trial by the appointed attorney as lead counsel and by his retained attorney as associate counsel.

(a) Lynd contends he was denied his 6th Amendment right to retain and be represented by the attorney of his own choosing.

A criminal defendant who is financially able to retain the services of an attorney has a constitutional right under the Sixth Amendment to “secure counsel of his own choice.” U.S. v. Friedman, 849 F.2d 1488, 1490 (D.C.Cir.1988). However, “[t]his does not mean that a defendant may retain any counsel at any time he wishes; there are limits to a defendant's right to counsel of choice.” U.S. v. Campbell, 874 F.2d 838, 848 (1st Cir.1989). A defendant's right to counsel may not “be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.” U.S. v. Burton, 584 F.2d 485, 489 (D.C.Cir.1978).

Moreover, while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to insure that a defendant will inexorably be represented by the lawyer whom he prefers. [ Wheat v. U.S., 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988).]

A trial court therefore has the responsibility to balance a defendant's constitutional right to retain counsel of his choice against the need to maintain the highest standards of professional responsibility, the public's confidence in the integrity of the judicial process and the orderly administration of justice. [ U.S. v. Collins, 920 F.2d 619, 626 (10th Cir.1990).]

The trial court in this case fulfilled this responsibility. While the defendant's retained attorney was not presumptively incompetent to represent a defendant in a death-penalty jury trial, see U.S. v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), his inexperience was justifiably a matter of concern in a case sufficiently more complicated than the run-of-the-mill criminal trial to give pause even to far more experienced attorneys. Claims of ineffectiveness are routine in death-penalty cases, and not the less so in cases in which trial counsel was retained rather than appointed. See, e.g., Black v. State, 261 Ga. 791(19), 410 S.E.2d 740 (1991); Hammond v. State, 260 Ga. 591(10), 398 S.E.2d 168 (1990); Ross v. Kemp, 260 Ga. 312, 393 S.E.2d 244 (1990); Cook v. State, 255 Ga. 565(17), 340 S.E.2d 843 (1986). Given the serious potential for a post-trial claim of ineffectiveness resulting from retained counsel's almost total lack of criminal trial experience, the trial court acted within its discretion to require the defendant either to retain a more experienced attorney or accept the appointment of one.

(b) The defendant argues that he was not “allowed” to retain an additional attorney “although he was willing to go that far.” We disagree. Although Lynd stated to the court that he was willing and able to retain an additional attorney, he never did so. The trial court did not err by insisting that the appointed attorney remain on the case until such time as Lynd retained an additional attorney and presented him to the court.

(c) Lynd also argues that the attorney appointed by the court was laboring under a conflict of interest. Years previously, the appointed attorney had represented the victim's ex-husband in “a bankruptcy or something.” The attorney testified that he likely had represented the victim also, but he could not remember her. The victim's husband presently resides in Melbourne, Florida, according to the record, and did not testify in this case. The appointed attorney stated to the court that he was merely bringing the matter to the court's attention. Neither he nor the retained attorney suggested to the court how there was either an actual or serious potential for a conflict of interest. See Mitchell v. State, 261 Ga. 347, 405 S.E.2d 38 (1991).

(d) Finally, Lynd argues that the court's appointment interfered with retained counsel's independent decisions about how to conduct the defense. Of course, it is to be expected that the appointment of a lead counsel would diminish to some extent the right of retained counsel to make “independent” decisions about how to conduct the defense. But all Lynd can demonstrate is that the trial court refused to allow his retained attorney “to object anytime I want to.” A trial court acts well within its discretion when it requires that only one of two or more co-counsel conduct the examination of each witness, including interposing objections during the opposing party's examination of the witness. Cf. Isaacs v. State, 259 Ga. 717, 731(24), 386 S.E.2d 316 (1989).

“[T]he sheriff is an officer of the court, and may be excused from the rule [of sequestration of witnesses] on the court's own initiative. [Cits.]” Childs v. State, 257 Ga. 243, 251(11), 357 S.E.2d 48 (1987). The record does not show that any of the jury bailiffs were trial witnesses. Compare Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).

11. The trial court did not err by excluding testimony of the defendant's mental health experts where the defendant refused to submit to an examination by mental health experts chosen by the state. Motes v. State, 256 Ga. 831, 832, 353 S.E.2d 348 (1987); Strickland v. State, 257 Ga. 230, 233, 357 S.E.2d 85 (1987). Such an exclusion is justified “by the State's overwhelming difficulty in responding to the defense psychiatric testimony without its own psychiatric examination of the accused and by the need to prevent fraudulent mental defenses.” Battie v. Estelle, 655 F.2d 692, 702 (5th Cir.1981). A criminal defendant can no more present psychiatric testimony without submitting to an examination by a state-selected psychiatrist than he may testify at trial without submitting to a cross-examination. FN4

FN4. We note that, according to the defendant's evaluation by his own experts (sealed by order of the trial court and included in the record on appeal), the defendant was competent to stand trial and was not insane at the time of the crime. Cf. Lindsey v. State, 252 Ga. 493(II), 314 S.E.2d 881 (1984).

12. Less than two days after Lynd killed the victim in this case, he was in southern Ohio, still driving the victim's car. Using the same gun he used to kill the victim in this case, he shot and killed a woman in Ohio. He pawned the murder weapon in nearby Huntington, West Virginia, and drove to Texas, where he abandoned the victim's car. Lynd contends the extrinsic homicide should not have been admitted in evidence. See OCGA § 24-2-2. We disagree. The Ohio homicide and the instant homicide “were part of a continuous course of conduct, closely connected in time ... and manner of commission.” Putman v. State, 251 Ga. 605, 608(2), 308 S.E.2d 145 (1983). It was as a consequence of the Ohio homicide investigation that the murder weapon was recovered.

Moreover, evidence concerning this crime was strong evidence of the defendant's state of mind at a relevant time, and tended to rebut his contention that the homicide on trial was the result of the defendant's sudden heat of passion resulting from serious provocation. OCGA § 16-5-2 (defining voluntary manslaughter). This evidence was properly admitted. Ingram v. State, 253 Ga. 622, 632-34(6), 323 S.E.2d 801 (1984); Todd v. State, 261 Ga. 766(7), 410 S.E.2d 725 (1991).

The relevance of a previous incident in Tifton in which the defendant kidnapped and sexually assaulted another woman is less obvious; however, we conclude that any error in the admission of this testimony at the guilt phase of the trial was harmless in view of the overall strength of the evidence.

13. Extrinsic-offense evidence was not inadmissible simply because the defendant had not at the time of this trial been convicted of the extrinsic offenses. Hammond v. State, 260 Ga. 591(6), 398 S.E.2d 168 (1990). All of the extrinsic-offense evidence was properly considered at the sentencing phase of the trial. OCGA § 17-10-2. Hicks v. State, 256 Ga. 715(19), 352 S.E.2d 762 (1987).

14. The prosecutor's proffered explanations for peremptorily striking three black prospective jurors at the competency trial were sufficient to rebut any reasonable inference of racial discrimination. Hall v. State, 261 Ga. 778(2), 415 S.E.2d 778 (1991).FN5

FN5. The prosecutor struck one juror because he had information that the juror was a drug dealer, another because he had prosecuted the juror's son, and the third because her husband was the target of an ongoing criminal investigation. 15. The trial court's instructions on “reasonable doubt” were not erroneous. Potts v. State, 261 Ga. 716(14), 410 S.E.2d 89 (1991).

16. We find that the sentence of death was not imposed as the result of passion, prejudice or other arbitrary factor. OCGA § 17-10-35(c)(1). The sentence of death is not excessive or disproportionate to sentences imposed in similar cases, considering both the crime and the defendant. OCGA § 17-10-35(c)(3). The similar cases listed in the Appendix support the imposition of a death sentence in this case.

Judgment affirmed. CLARKE, C.J., WELTNER, P.J., and BELL and FLETCHER, JJ., concur. BENHAM, J., concurs specially.

*****

BENHAM, Justice, concurring specially.

Though I agree with the majority opinion's affirmance of appellant's murder conviction and death sentence, I write separately to shed more light on the issue of challenges to venirepersons under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Appellant contends the trial court erred in excusing one juror who had reservations as to his ability to impose the death penalty and in retaining another juror who expressed support for the death penalty. The majority opinion correctly states the rule as to how Witherspoon and “reverse- Witherspoon ” issues are to be handled. Majority opinion, Divisions 5 and 6. However, I write separately to focus attention on the need for trial courts to give as much attention to “reverse- Witherspoon ” challenges as that given to Witherspoon challenges.

In the case in chief, appellant contends there are some structural imbalances in the present approach which allow the trial court to weed-out jurors with qualms about the death penalty and weed-in jurors who were prone to impose the death penalty. While the majority opinion, with which I agree, finds that the trial court's treatment of the matter was even-handed, we must continue to bring to the attention of trial courts the need to expend an equal amount of effort in rehabilitating jurors with qualms about imposing the death penalty as is expended in rehabilitating jurors who are death-prone.

Background: Following affirmance of his capital murder and kidnapping with bodily harm convictions and sentences, 414 S.E.2d 5, and denial of his state court habeas application, petitioner sought federal writ of habeas corpus. The United States District Court for the Middle District of Georgia, No. 01-00095-CV-HL, Hugh Lawson, J., 2005 WL 2877690, denied petition and granted certificate of appealability (COA) on two claims.

Holdings: The Court of Appeals, held that:
(1) petitioner could not obtain federal review of his Ake claim that had been state procedurally barred;
(2) state habeas court's conclusion that trial court properly excluded testimony of petitioner's mental health expert was not contrary to or an unreasonable application of clearly established federal law;
(3) state court's rejection of petitioner's claim that counsel was ineffective in advising him to refuse to submit to state mental health evaluation was not an objectively unreasonable application of Strickland or an unreasonable factual finding;
(4) state court's rejection of petitioner's claim that counsel was ineffective in failing to investigate mitigation evidence of petitioner's background, mental health, and substance abuse problems, was not an objectively unreasonable application of Strickland or an unreasonable factual finding;
(5) state court's rejection of petitioner's claim that he was prejudiced by counsel's failure to investigate whether victim could have regained consciousness after being shot twice in the head, precluding his conviction on kidnapping charge, was not an objectively unreasonable application of Strickland or an unreasonable factual finding; and
(6) state court's rejection of petitioner's claim that counsel was ineffective due to a conflict of interest based on his previous representation of victim and her ex-husband in a bankruptcy proceeding, was not an objectively unreasonable application of Strickland or an unreasonable factual finding. Petition denied.

PER CURIAM:

William Earl Lynd appeals from the denial of his petition, under 28 U.S.C. § 2254, for habeas corpus relief. Pursuant to 28 U.S.C. § 2253(c)(1)(A), we review on appeal the two issues specified in the Certificate of Appealability (“COA”). First, we review whether Lynd was deprived of his right to assistance from necessary and competent experts at his competency trial and at both phases of his capital trial. Second, we review whether Lynd was denied effective assistance of counsel because: (1) his retained counsel unreasonably advised him not to cooperate with a state mental health evaluation; (2) his counsel failed to conduct an investigation into Lynd's background, including his mental health and substance abuse problems; (3) his counsel failed to investigate adequately the State's case; and (4) his court-appointed counsel had a conflict of interest.

I. Background

The facts of the crime are described by the Georgia Supreme Court as follows:

Lynd and the victim [Virginia “Ginger” Moore] lived together in her home in Berrien County. Following an argument three days before Christmas of 1988, Lynd shot the victim in the face and went outside to smoke a cigarette. The victim regained consciousness and followed him outside. Lynd shot her a second time, put her into the trunk of her car and drove away. Hearing the victim “thumping around” in the trunk, Lynd got out, opened the trunk and shot the victim a third time, killing her.

Lynd returned home, cleaned up the blood, and drove to Tift County, where he buried the victim in a shallow grave. He then drove to Ohio. Lynd shot and killed another woman in Ohio and then sold the gun he used to kill her and the victim in this case. Eventually, Lynd returned to Georgia to surrender to Berrien County authorities. The murder weapon was recovered and identified by ballistics examination, and the victim's body was located based on information provided by Lynd. Lynd v. State, 262 Ga. 58, 414 S.E.2d 5, 7 (1992).

Lynd was convicted of murder, in violation of O.C.G.A. § 16-5-1, and kidnapping with bodily injury, in violation of O.C.G.A. § 16-5-40(b). He was sentenced to death for the murder, and given a life sentence for the kidnapping. His conviction and sentences were affirmed on direct appeal. Lynd, 414 S.E.2d at 5. The Supreme Court of the United States denied certiorari. Lynd v. Georgia, 506 U.S. 958, 113 S.Ct. 420, 121 L.Ed.2d 342 (1992).

Lynd then filed a state petition for a writ of habeas corpus pursuant to O.C.G.A. §§ 9-14-40 et seq. , which was denied after an evidentiary hearing. The Supreme Court of Georgia denied Lynd's application for appeal and his motion for reconsideration and the Supreme Court of the United States denied certiorari and his petition for rehearing. Lynd v. Turpin, 533 U.S. 921, 121 S.Ct. 2533, 150 L.Ed.2d 703 (2001); Lynd v. Turpin, 533 U.S. 971, 122 S.Ct. 16, 150 L.Ed.2d 798 (2001).

Lynd next filed the instant federal habeas petition, raising twenty-three grounds for relief.FN1 The district court denied each of Lynd's claims, finding some to be procedurally barred and others to be meritless.FN2 Lynd v. Terry, No. Civ.A.7:01CV95 (HL), 2005 WL 2877690 (M.D.Ga. Oct. 31, 2005). We address only the two claims for which the district court issued a COA.

FN1. Lynd also filed a “Motion for Leave to Conduct Discovery and Authorization and Payment of Necessary Expert and Investigative Services,” in which he requested funds for an expert investigator, a pathologist, a crime scene reconstruction expert, a mental health expert, a media content analyst, and a social psychologist. In separate motions, Lynd requested an evidentiary hearing and oral argument. Although the district court denied these motions, it noted that the COA should include the ancillary issues of the denial of Lynd's requests for discovery and an evidentiary hearing, and to hold the proceedings in abeyance. FN2.

The district court found that sixteen of Lynd's claims were defaulted because Lynd failed to brief them, and that two other claims were defaulted for other reasons. In addition to the two claims that were certified on appeal, the district court rejected three more claims on the merits:1. The trial court's refusal to allow Petitioner to retain and be represented by counsel of his own choosing, and the trial court's continual interference with counsels' division of responsibility, violated Petitioner's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.2.

The trial court's instructions to the jury in the guilt/innocence phase of Petitioner's trial violated Petitioner's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.3. The State withheld material exculpatory evidence and presented false and misleading testimony in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and the analogous provisions of the Georgia Constitution. See Lynd v. Terry, No. Civ.A.7:01CV95 (HL), 2005 WL 2877690 (M.D.Ga. Oct. 31, 2005).

II. Denial of the Use of Expert Mental Health Testimony

Lynd argues that he was deprived of his right to the assistance of necessary and competent mental health experts, and that the trial court's exclusion of available mental health testimony from his competency trial and from both phases of his capital trial violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights under the United States Constitution. The district court treated this claim as asserting two separate grounds for relief. We address each ground in turn.

First, Lynd argues that he was deprived of his right to the assistance of necessary and competent experts in violation of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the Supreme Court held that “when a defendant demonstrates ... that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at 83, 105 S.Ct. 1087; see also Conklin v. Schofield, 366 F.3d 1191, 1206 (11th Cir.2004) (setting forth elements of an Ake claim).

Lynd's counsel requested and received the appointment of an expert witness. Ultimately, for reasons discussed below, the trial court excluded the expert's testimony. Lynd argues that this exclusion constituted a de facto denial of his request for expert assistance, and that such denial rendered the trial fundamentally unfair.

[1] We may not consider the merits of this argument here because Lynd failed to raise it on direct appeal in the state courts. The first time Lynd raised his Ake claim was in his state habeas petition. Under Georgia law, a petitioner's “failure to ... pursue [an issue] on appeal ordinarily will preclude review by writ of habeas corpus,” unless the petitioner can show either “adequate cause” for his failure to pursue the issue and “actual prejudice,” or that a miscarriage of justice, caused by a substantial denial of constitutional rights, will occur. Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754, 755 (1985). Because Lynd failed to raise his Ake claim on direct appeal, the state habeas court found that Blackprecluded review. The state habeas court also found that Lynd failed to establish that he qualified for an exception to the procedural bar.FN3

Accordingly, the state habeas court dismissed the claim as procedurally barred by a rule of state law. See Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir.1999) (Procedural default arises when “the state court correctly applies a procedural default principle of state law to arrive at the conclusion that the petitioner's federal claims are barred.”).

FN3. Specifically, the state habeas court found that Lynd failed to make the requisite showing of adequate cause and actual prejudice to justify his failure to pursue the claim on direct appeal, and failed to establish that a miscarriage of justice would occur if the habeas court did not review the claim. [2] [3] A procedural bar precludes federal review when it provides an adequate and independent state ground for denial of a claim.FN4 See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir.1995). Because the state habeas court found that these claims are procedurally barred, this Court cannot review the merits of Lynd's Ake claim unless he qualifies for at least one exception to the procedural bar.

FN4. To determine whether a state procedural bar constitutes an independent and adequate state rule of decision, the last state court rendering judgment must clearly and expressly state that it is relying on a state procedural rule to resolve the federal claim, must not decide the claim on the merits, and must base its decision entirely on an “adequate” state procedural rule. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001). An adequate rule is one that is firmly established and regularly followed-that is, not applied in an arbitrary or unprecedented fashion. Id. Lynd has presented no evidence, nor made any argument, that the state habeas court applied Black's procedural rule in an inconsistent or unfair manner.

In his brief, Lynd simply states that the Ake issue was “both factually and legally raised” on direct appeal, without any citation or argument to support the statement. [4] [5] A federal habeas petitioner may still obtain federal review of a claim that has been procedurally barred if he can demonstrate either (1) “cause for the [procedural] default and actual prejudice as a result of the alleged violation of federal law,” or (2) that the court's “failure to consider the [federal] claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Lynd fails to address either of these possibilities. He has not shown cause for his failure to raise the Ake claim on direct appeal; nor has he shown any actual prejudice. Further, he has not established that this Court's failure to consider the Ake claim will result in a fundamental miscarriage of justice. Therefore, this Court is precluded from reviewing Lynd's Ake claim on the merits.

Lynd's second ground for relief within Claim One is that the state trial court violated his constitutional right to present witnesses in his own defense when, due to Lynd's refusal to submit to a state mental health evaluation, the court excluded his mental health expert testimony from his competency trial and both phases of his capital trial. Lynd argues that this exclusion was improper because it could have provided mitigating information relevant to both his state of mind at the time of the crime and his ultimate sentence.

[6] [7] When a state trial court's evidentiary rulings violate a habeas petitioner's fundamental constitutional right to present witnesses in his own defense, a federal court must grant the petition. Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (identifying “the calling and interrogation of favorable witnesses” as a constitutional right “basic to our adversary system of justice”); United States v. Hurn, 368 F.3d 1359, 1363-66 (11th Cir.2004); Boykins v. Wainwright, 737 F.2d 1539, 1544 (11th Cir.1984).

However, a defendant's right to present witnesses is not unlimited. A state trial court has wide discretion in determining whether to admit evidence at trial, and may exclude material evidence when there is a compelling reason to do so. Boykins, 737 F.2d at 1543-44.

A defendant's refusal to submit to an evaluation by a state expert, based on his own choice and not on the advice of ineffective counsel, may provide a compelling reason to exclude the defendant's expert testimony, even when the testimony is material. See, e.g., Estelle v. Smith, 451 U.S. 454, 465, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (stating in dicta that “[w]hen a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case.”).FN5

FN5. We use the word “may” because there is no clearly established federal law on this issue. When there is only Supreme Court dicta addressing a particular question, a state court's conclusion cannot be contrary to clearly established federal law. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding that dicta in a United States Supreme Court opinion does not constitute clearly established federal law); Henderson v. Campbell, 353 F.3d 880, 890 n. 15 (11th Cir.2003) (internal citations omitted).

In denying this claim on direct appeal, the Georgia Supreme Court held that “the trial court did not err by excluding testimony of the defendant's mental health experts where the defendant refused to submit to an examination by mental health experts chosen by the state.” Lynd, 414 S.E.2d at 11. The state trial record indicates that Lynd refused to be interviewed by the state's expert on four separate occasions. Lynd testified in a pretrial hearing on October 5, 1989 that he would not speak with the state expert because he believed the expert had lied to him.

On May 5, 1997, the state habeas court conducted an evidentiary hearing, at which Lynd's trial counsel testified, and found that “it was the Petitioner's refusal to be examined by the State's mental health professionals [and not his counsel's advice] that led to the exclusion of any mental health evidence regarding Petitioner's mental state and culpability.”

Because the Georgia Supreme Court denied this claim on the merits, and the state habeas court made factual findings concerning this claim, we must evaluate whether those rulings were either “contrary to, or involved an unreasonable application of, clearly established Federal law,” as determined by the United States Supreme Court, or were “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).

An independent review of the record indicates that there were sufficient facts to support the state habeas court's findings that Lynd refused a state evaluation for reasons unrelated to his counsel's advice. We cannot say that those findings were unreasonable. Nor can we say that the Georgia Supreme Court's ruling was contrary to federal law or an unreasonable determination of the facts. Accordingly, we deny this claim.

III. Ineffective Assistance of Counsel

Lynd's second claim is that he was denied effective assistance of counsel. Specifically, he argues that: (1) his retained counsel unreasonably advised him to refuse examination by a state mental health expert, resulting in the exclusion of defense expert testimony; (2) his trial counsel failed to investigate reasonably Lynd's background, mental health, and substance abuse problems, which could have revealed evidence providing support for a lesser conviction and sentence; (3) his trial counsel failed to investigate sufficiently the State's case, particularly medical testimony concerning the timing of the victim's death and the victim's ability to regain consciousness after being shot; and (4) his court-appointed counsel had a conflict of interest because he had previously represented the victim and her ex-husband in an unrelated bankruptcy proceeding.

For a petitioner to establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), he must show (1) that counsel's performance was deficient and (2) that the deficiency prejudiced him. Id. at 687, 104 S.Ct. 2052. Counsel's conduct is deficient when it falls “below an objective standard of reasonableness,” Chandler v. United States, 218 F.3d 1305, 1312 (11th Cir.2000), in that it is “outside the wide range of professionally competent assistance,” Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

To establish prejudice, there must be a reasonable probability that, but for counsel's deficient performance, the result of the proceedings would have been different. Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

The state habeas court held an evidentiary hearing on these issues on May 5, 1997, and ruled against Lynd on the merits. In reviewing this holding, we must determine whether the state court applied Strickland to the facts of the case in an objectively unreasonable manner or whether clear and convincing evidence compels the conclusion that its factual findings were unreasonable. Crawford v. Head, 311 F.3d 1288, 1311 (11th Cir.2002).

A. Counsel's Advice Concerning Lynd's Submission to State Evaluation

Lynd claims that his retained counsel was ineffective because he advised Lynd to refuse to submit to a state mental health evaluation. He argues that this conduct was unreasonable because Lynd's mental health was at issue during the trial and sentencing and his failure to submit to the evaluation resulted in the prejudicial exclusion of his expert testimony. See Scott v. Wainwright, 698 F.2d 427, 429 (11th Cir.1983) (holding that defense counsel “must be familiar with the facts and the law in order to advise the defendant of the options available” such that the advice is “within the realm of competence demanded of attorneys representing criminal defendants”) (citations omitted).

As discussed above, at a pretrial hearing on October 5, 1989, Lynd testified that he would not submit to a state evaluation because he did not want to speak with the state expert. He believed the expert lied about what he said during a previous interview and did not want the expert to distort anything else he said. At the May 5, 1997 evidentiary hearing, Lynd's retained counsel stated, for the first time in the course of the proceedings, that he advised Lynd not to submit to a state expert evaluation because he believed the state trial court incorrectly denied Lynd a defense expert and “until [Lynd] got one there was no sense in giving [the State] the evaluation.”

Based on the foregoing testimony, the state habeas court found that Lynd did not want to speak with the state expert because he did not trust him and that Lynd decided, of his own accord and apart from any advice given by counsel, to refuse to submit to an evaluation.

Therefore the reasonableness of counsel's advice was immaterial. A review of the record indicates that the evidence supports the state habeas court's finding that Lynd did “not [make] the requisite showing that trial counsel's performance was inadequate.” Therefore, we cannot find that the state court applied Strickland to this case in an objectively unreasonable manner or made an unreasonable factual finding in light of the evidence presented in the state court proceedings.

B. Counsel's Failure to Investigate Lynd's Background

Lynd also claims that his trial counsel was ineffective for failing to conduct a reasonable investigation into Lynd's background, mental health, and substance abuse problems. Such an investigation, Lynd argues, would have yielded mitigating evidence relevant to both the guilt and sentencing phases of the trial.

A counsel's decision not to investigate and develop favorable evidence must be reasonable and fall within the range of professionally competent assistance. Strategic choices to forego further investigation into an issue are not deficient when a reasonable professional judgment based on a sufficient initial inquiry supports the decision to terminate the investigation. Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052.

When counsel “totally fails to inquire into the defendant's past or present behavior or life history” in a capital case, his conduct is deficient. Housel v. Head, 238 F.3d 1289, 1294 (11th Cir.2001); Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir.1995) (holding that representation is beneath standards of professional competence where counsel does not conduct sufficient investigation to formulate an adequate life profile of a defendant).

The state habeas court concluded that Lynd did not establish that his attorneys' conduct was deficient because his counsel adequately investigated his life history. In reaching this conclusion, the state habeas court found that Lynd had “not shown what further investigation could have been done by trial counsel which would have uncovered ‘important evidence.’ ”

A review of the record indicates that counsel asked for, and ultimately received, a mental health expert witness who interviewed Lynd several times and prepared reports detailing his mental health issues, substance abuse problems, and background. Lynd's counsel also interviewed many lay witnesses to testify on Lynd's behalf at trial and sentencing on such topics as his relationship with the victim, his drug abuse, and his qualities as a person. Counsel also hired a private investigator and sent letters to schools, hospitals, the military, and other institutions with which Lynd had contact.

We find that the state habeas court applied Strickland in a manner consistent with federal law when it found that Lynd's trial counsel's conduct was not deficient. Further, the state habeas court's finding that counsel adequately investigated Lynd's background, mental health, and substance abuse is supported by evidence in the record. We therefore find this claim to be without merit.

C. Counsel's Failure to Investigate State's Case and Possible Defenses

Lynd's third argument is that his counsel was ineffective when he failed to investigate whether the victim could have regained consciousness after being shot twice in the head.FN6 Lynd argues that his counsel's failure to investigate such evidence prejudiced him because if the victim could not have regained consciousness after the second shot-and before he placed her into his trunk-he could not have been convicted of kidnapping.FN7

FN6. Lynd also argued that his counsel failed to adequately investigate the bad character evidence offered by the state. With respect to this issue, the record indicates that Lynd's trial counsel moved to have the evidence excluded. The trial court admitted the evidence over objection, and the admission was upheld by the Georgia Supreme Court. The state habeas court denied this claim on the merits, stating that the “Georgia Supreme Court ruled on the admissibility of the similar transactions and bad character evidence and found adversely to Petitioner. Petitioner has not made the requisite showing that trial counsel's performance was deficient.” We find no error in this regard.

FN7. On direct appeal, Lynd made the related argument that there was insufficient evidence to support the jury verdict that he murdered the victim while engaging in the commission of another capital felony, to wit, kidnapping with bodily injury. Because the victim could not have regained consciousness, he argues that he could not have been guilty of kidnapping her.

The Georgia Supreme Court denied this claim, holding:Lynd argues he did not commit the offense of kidnapping with bodily injury because the victim was unconscious after the second shot. However, even if we were to accept the untenable assumption the victim could not have been taken “against her will,” see O.C.G.A. § 16-5-40(a) (defining kidnapping), if she were unconscious the entire time, see Taylor v. State, 194 Ga.App. 871(2), 392 S.E.2d 57 (1990), the evidence is persuasive that she regained consciousness and vigorously protested her confinement in the trunk of her car before Lynd shot her a third time and killed her. Lynd, 414 S.E.2d at 8.

The state habeas court denied this claim on the merits, holding that Lynd's “attorneys asked for and received monies to hire an investigator, who subsequently performed an investigation and testified at trial .... Petitioner has not made the requisite showing that trial counsel's performance was deficient.” An independent review of the record reveals that Lynd's counsel adequately investigated the state's case and possible defenses, prepared and argued this defense in particular, and elicited favorable trial testimony on this issue from the state's expert witness.

During cross examination, Lynd's counsel obtained the following concessions from the state expert witness: (1) although the victim could have regained consciousness, the majority of victims would not regain consciousness after receiving the second shot; (2) it was possible that the victim in this case did not regain consciousness; and (3) nothing in the autopsy report indicated that the victim regained consciousness. Lynd has not pointed to any other information that his counsel could have discovered through additional investigation of this defense.

Accordingly, we cannot hold that the state habeas court's denial of this claim was contrary to federal law or was based on an unreasonable factual determination.

D. Court-Appointed Counsel's Conflict of Interest

Lynd's final argument is that he was denied effective assistance of counsel because his court-appointed counsel had a conflict of interest resulting from his previous representation of the victim and her ex-husband in a bankruptcy proceeding. Lynd argues that, by appointing the attorney, the trial court compelled him to waive the conflict of interest in violation of the Sixth Amendment.FN8 FN8.

Lynd makes a related argument that he was denied his constitutional right to counsel of his own choice by the trial court's appointment of the same attorney. This claim was raised separately in Lynd's habeas petition, as Claim Four, and was not certified for appeal by the district court. Therefore, we decline to review this claim.

The Sixth Amendment right to effective assistance of counsel encompasses the right to counsel untainted by conflicts of interest. See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). This right is violated when the defendant's attorney has an actual conflict of interest that adversely affects the lawyer's performance. Cuyler, 446 U.S. at 350, 100 S.Ct. 1708; United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir.1993).

This issue likewise was addressed and rejected by the Georgia Supreme Court: Lynd also argues that the attorney appointed by the court was laboring under a conflict of interest. Years previously, the appointed attorney had represented the victim's ex-husband in “a bankruptcy or something.” The attorney testified that he likely had represented the victim also, but he could not remember her. The victim's husband presently resides in Melbourne, Florida, according to the record, and did not testify in this case. The appointed attorney stated to the court that he was merely bringing the matter to the court's attention. Neither he nor the retained attorney suggested to the court how there was either an actual or serious potential for a conflict of interest. See Mitchell v. State, 261 Ga. 347, 405 S.E.2d 38 (1991). Lynd, 414 S.E.2d at 10.

In denying this claim on the merits, the Georgia Supreme Court did not find the existence of an actual or even potential conflict. Lynd has presented no argument demonstrating that the Georgia Supreme Court unreasonably applied clearly established federal law nor any evidence to rebut the court's factual finding that no conflict existed. After reviewing the record, we find no misapplication of federal law and no evidentiary support for the existence of an actual conflict of interest. Accordingly, this Court cannot find that the Georgia Supreme Court erred when it denied this claim.