from the United States District Court for the Northern
District of Georgia D.C. Docket No. 1:13-cv-04279-WBH
ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit
CARNES, CHIEF JUDGE
Wade Nance, a convicted murderer under sentence of death in
Georgia, appeals the district court's denial of his 28
U.S.C. § 2254 petition. There are two claims before us.
One involves the use of a stun belt security device at his
resentencing trial. The other is a sentence stage ineffective
assistance claim involving mitigating circumstances, which is
a type of claim common in federal habeas challenges to death
sentences. What is uncommon about this claim is that the
petitioner does not contend that his trial counsel were
deficient in any way in uncovering mitigating circumstances.
Nor could petitioner credibly do so, given the effort that
went into that part of the defense by the time of the
resentencing trial. Instead, the claim is one of those rare
ones that concedes enough was done to discover mitigating
circumstances and questions only the strategic decisions
trial counsel made about which circumstances to present and
FACTS AND PROCEDURAL HISTORY
facts of this case have already been thoroughly set out by
the Georgia Supreme Court in Nance v. State, 526
S.E.2d 560 (Ga. 2000), Nance v. State, 623 S.E.2d
470 (Ga. 2005), and Humphrey v. Nance, 744 S.E.2d
706 (Ga. 2013). There is no point in our repeating all, or
even most, of those facts. It is enough to note here that
Nance robbed a bank, and in the process threatened to kill
some of the tellers. Nance, 526 S.E.2d at 563. They
were not killed, but Gabor Balogh, an innocent driver who was
backing his car out of a parking spot at a nearby store, was
not as fortunate. Id. at 563-64. In order to steal
Balogh's car Nance shot him to death as he was pleading
"No, no." Id. at 564.
three-week trial in 1997, the jury returned a verdict finding
Nance guilty of malice murder and five other crimes and
sentenced him to death for the murder. Id. at 562
n.1. The trial court entered a judgment pronouncing him
guilty of the crimes and imposing a death sentence.
Id. On direct appeal, the Georgia Supreme Court
affirmed Nance's convictions but reversed his death
sentence "due to a prospective juror being improperly
qualified to serve on the jury." Nance, 623
S.E.2d at 472. A new sentencing trial in 2002 resulted in a
new death sentence, which the Georgia Supreme Court affirmed
on direct appeal. Id.
then filed a petition for collateral relief in the state
trial court. That court granted him relief from the death
sentence after concluding that Nance had received ineffective
assistance of counsel at the resentencing trial. The State
appealed, and in 2013 the Georgia Supreme Court reversed.
Nance, 744 S.E.2d at 709. At the end of 2013, Nance
filed a 28 U.S.C. § 2254 petition in federal district
court. In 2017 the district court denied relief but granted a
certificate of appealability on two of Nance's claims:
"(1) his claim that his trial counsel [were] ineffective
in presenting his case in mitigation and (2) his claim that
the trial court erred in requiring [him] to wear a stun belt
during the [resentencing] trial."
Georgia Supreme Court rejected Nance's ineffective
assistance claim when it reversed the state trial court's
grant of collateral relief, and it rejected his stun belt
claim when it affirmed the sentence on direct appeal from the
resentencing trial. Nance, 744 S.E.2d at 720-31;
Nance, 623 S.E.2d at 473. Because both rejections
were on the merits, federal habeas relief is barred unless
the rejection of one or both claims (1) "was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States," or (2) "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).
meant to be, and is, difficult for a petitioner to prevail
under that stringent standard. Harrington v.
Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 786 (2011);
see also Burt v. Titlow, 571 U.S. 12, 19, 134 S.Ct.
10, 16 (2013) ("AEDPA erects a formidable barrier to
federal habeas relief for prisoners whose claims have been
adjudicated in state court."). Section 2254(d) reflects
Congress' decision to restrict federal courts'
authority to grant habeas relief to cases in which the state
court's decision unquestionably conflicts with Supreme
Court precedent. Harrington, 562 U.S. at 102, 131
S.Ct. at 786. To justify federal habeas relief, the state
court's decision must be "so lacking in
justification that there was an error . . . beyond any
possibility for fairminded disagreement." Burt,
571 U.S. at 19-20, 134 S.Ct. at 16 (quotation marks omitted).
"[I]f some fairminded jurists could agree with the state
court's decision, although others might disagree, federal
habeas relief must be denied." Meders v.
Warden, 911 F.3d 1335, 1349 (11th Cir. 2019) (quoting
Holsey v. Warden, 694 F.3d 1230, 1257 (11th Cir.
2012)) (quotation marks omitted).
The Ineffective Assistance of Counsel Claim
have mentioned, Nance does not contend that his trial counsel
should have, or profitably could have, done more to
investigate and discover mitigating circumstances evidence
for use at his resentencing trial. And it is no wonder that
first trial, in addition to consulting with the attorneys who
had represented Nance on the related federal bank robbery
charges, and reviewing all of their files, Nance's two
counsel hired multiple investigators and mitigation
specialists to help them conduct their investigation. As part
of their investigation, counsel traveled to Nance's
hometown in Kansas to interview witnesses about his
childhood, mental development, history of drug and alcohol
abuse, and the abuse that he suffered at the hands of his
adoptive father. They also consulted with two mental health
professionals who evaluated Nance before his federal bank
robbery trial, retained a toxicologist to calculate the
concentration of tear gas in Nance's car after dye packs
that had been hidden in the stolen currency exploded,
interviewed at least four individuals with expertise in dye
packs, subpoenaed information from the dye pack manufacturer,
interviewed the state microanalyst who tested Nance's
clothing, inspected the physical evidence in the case,
visited the crime scene, examined the material the State
provided during discovery, and interviewed the State's
experts. Not only that, but Nance's counsel also obtained
the state's forensic report, emergency medical technician
records, the murder victim's autopsy ...