Full opinion text
ORDER STORY, District Judge. This cause is before the Court on Petitioner Ted Anthony Prevatte’s Petition for Habeas Corpus filed pursuant to 28 U.S.C. § 2254[1]; Respondent’s Answer-Response to the Petition [8-2] and Brief in Support thereof [8-3]; and Petitioner’s Memorandum in Support of Petition for Writ of Habeas Corpus and in Opposition to Respondent’s Answer-Response [11]. It comes to this Court on consideration of the Report and Recommendation of United States Magistrate Judge Joel M. Feldman [30], and Petitioner’s Objections thereto [33]. After considering the entire record, including the oral argument of counsel, the Court enters the following Order. Background I. Procedural History A. Petitioner’s Convictions On March 12, 1974, the grand jury in Gwinnett County, Georgia jointly indicted Petitioner and William Jordan for the March 6, 1974 murder and armed robbery of James Rouse, Jr. (Respondent’s Ex. (“R.Ex.”) 7 at 755; R. Ex. 8 at 890.) On May 23, 1974, while incarcerated in North Carolina where Petitioner was apprehended, Petitioner filed a pro se demand for speedy trial. The trial court then appointed Mr. E.L. Owens on May 28, 1974 to represent both Petitioner and his co-defendant. On May 31, 1974, Mr. Fred Bishop was appointed to represent Petitioner and to assist Mr. Owens. From June 10, 1974 through June 14, 1974, Petitioner’s case was tried individually to a jury. Petitioner was found guilty of malice murder and armed robbery and sentenced to death on both convictions. On direct appeal, the Georgia Supreme Court consolidated Petitioner’s appeal with that of his co-defendant, and summarized the evidence presented at Petitioner’s trial as follows: Appellants were charged in two counts with the March 6, 1974, armed robbery and murder of James Addison Rouse, Jr. At separate trials, both were convicted and sentenced to death on each count. The victim, Rouse, was an assistant principal of East Atlanta High School. On the day of the murder, Wednesday, March 6, he drove to work in his 1973 blue Toyota station wagon, wearing a wristwatch and carrying a grey briefcase. Though he telephoned his wife at about 8:00 p.m. that evening, he was last seen alive at about 7:30 p.m. at the Holiday Inn Motel located at the Suwanee exit from interstate highway 1-85. He was identified by the bar manager of the Inn, who testified that Rouse left the bar near the time appellants entered. Appellants were also identified by the bar manager, who recognized Jordan by his ‘teased hair’ and Prevatte by the mole on his face. Appellants were arrested together on Thursday afternoon, March 7, by sheriffs deputies in Anson County, North Carolina, after a high speed chase during which appellants fired upon the deputies and threw a sawed-off shotgun from their vehicle. They were driving Rouse’s blue Toyota and in the car was Rouse’s briefcase, a polaroid camera, two polaroid pictures (one of each appellant holding the sawed-off shotgun and a pistol in front of Rouse’s automobile), two black bags and other shotgun shells. Jordan was wearing Rouse’s watch. Appellants explained the photographs as ‘just clowning around’ and as a ‘souvenir.’ Rouse’s body was discovered on the following Saturday afternoon, March 9, 1974, at a lake in Gwinnett County, Georgia, about one and one-half miles from the Holiday Inn. An autopsy revealed ‘a close range shotgun wound to the back of the head which completely disintegrated the head,’ causing his death at a time approximately between 9:00 and 10:00 p.m., March 6th. A shotgun shell, found 14 feet from the body, was identified as having been fired from the sawed-off shotgun earlier found in the possession of Prevatte and Jordan. Each testified for the other at his trial, both testifying that they knew nothing of the killing and had merely found Rouse’s automobile abandoned in Atlanta, stolen it, and driven to North Carolina where they were apprehended. Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365, 365-66 (1975). The Georgia Supreme Court affirmed Petitioner’s convictions for murder and armed robbery, but reversed his death sentence based upon certain prejudicial statements made by the prosecution during the sentencing phase, and remanded Petitioner’s case for re-sentencing. See id. at 367-68. On December 6, 1979, Petitioner was re-sentenced on the murder count to life in prison. On December 19, 1983, Petitioner was re-sentenced on the armed robbery count to life in prison to run concurrently with the life sentence imposed on the murder conviction. Petitioner served his sentence and did not seek state habeas corpus relief, or otherwise challenge his 1974 Gwinnett County convictions for murder and armed robbery. On October 18, 1991, Petitioner was paroled by the State of Georgia. Shortly thereafter, and while he was still on parole, Petitioner was arrested, tried, and convicted in the State of North Carolina on charges of kidnapping and murder. After having his initial convictions reversed on appeal, see State v. Prevatte, 346 N.C. 162, 484 S.E.2d 377, 379 (1997), Petitioner was re-tried and the jury again found Petitioner guilty of first-degree murder and two counts of second-degree kidnapping. The jury recommended, and the trial judge imposed, a sentence of death for the murder conviction and consecutive terms of imprisonment of thirty years each for the two kidnapping convictions. State v. Prevatte, 356 N.C. 178, 570 S.E.2d 440, 448-49 (2002). Petitioner’s Georgia conviction for murder was presented as a “prior violent felony” statutory aggravating circumstance, and was one of four found by the jury to support its recommendation that Petitioner be sentenced to death. Id. at 483, 494. Petitioner’s conviction and death sentence were affirmed by the North Carolina Supreme Court, and he remains incarcerated in North Carolina awaiting execution. B. Petitioner’s Collateral Proceedings In February 1996, apparently while his first North Carolina conviction was pending on appeal, Petitioner filed a pro se petition for writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254, seeking to set aside his 1974 Gwinnett County convictions. (See Prevatte v. French, et al., Civil Action No. 1:96-CV-518-FMH (N.D. Ga. filed Feb. 28, 1996).) That petition was dismissed without prejudice on July 15, 1996 for failure to exhaust state remedies. (See Order of July 15, 1996[7], Prevatte v. French, et al., Civil Action No. 1:96-CV-518-FMH (N.D.Ga.1996).) On July 19, 1996, Petitioner filed a pro se habeas corpus petition pursuant to O.C.G.A. § 9-14-41 et seq. in the Superior Court of Gwinnett County, Georgia. That petition was initially dismissed on venue grounds, as Petitioner was then incarcerated in North Carolina. However, the Georgia Supreme Court later reinstated the petition and remanded the case for further proceedings. (R. Ex. 2 at 3.) Petitioner, through counsel, then filed two amendments to his initial petition. In that petition, as amended, Petitioner raised the following grounds for relief: 1. Petitioner was effectively denied the right to counsel due to counsel being appointed on May 28 and 31, 1974, and Petitioner’s death penalty trial starting on June 10,1974; 2. Petitioner’s attorneys had a conflict of interest as a result of representing Jordan and failed to advocate vigorously; 3. Petitioner was denied his right to remain silent as a result of extensive testimony and argument concerning his request for a lawyer and refusal to make a statement to police; 4. Petitioner was denied his right to a fair trial as a result of several instances of prosecutorial misconduct; 5. Petitioner was denied his right to a fair and impartial jury drawn from a fair cross-section of the community as African-Americans were excluded from the venire from which the jury was chosen; 6. Petitioner was denied a fair trial as a result of the trial court admitting certain State exhibits for which a proper chain of custody was not established; 7. Petitioner was denied a fair trial as result of highly prejudicial and inflammatory photographs being introduced at trial; 8. Petitioner was denied a fair trial as a result of the trial court permitting a witness to speculate as to the value of the victim’s car and by failing to first qualify the witness as an expert on motor vehicle valuations; 9. Petitioner was denied a fair trial as a result of jury instructions that im-permissibly shifted the burden of proof to the defense; 10. Petitioner was denied the right to effective assistance of trial and appellate counsel as a result of; a. trial counsel’s failure to seek a continuance; b. trial counsel’s continued representation despite a conflict of interest created by the joint representation of both Petitioner and Jordan; c. trial counsel’s failure to conduct a sufficient and useful factual investigation of Petitioner’s case; d. trial counsel’s failure to consult with Petitioner; e. trial counsel’s failure to make an opening statement and failure to consult with Petitioner prior to waiving his opening statement; f. trial counsel’s failure to investigate the case adequately and failure to investigate alternate defenses; g. trial counsel’s failure to object to improper jury charges; h. trial counsel’s failure to object to the unconstitutional jury venire; i. trial counsel’s failure to object to the prosecution’s continued reference to Petitioner’s post-arrest assertion of his right to remain silent and his request for counsel; j. appellate counsel’s failure to challenge on direct appeal the trial court’s unconstitutional jury charge; k. appellate counsel’s failure to challenge on direct appeal the unconstitutional jury venire; l. appellate counsel’s failure to challenge on direct appeal the district attorney’s unconstitutional closing argument; m. appellate counsel’s failure to challenge on direct appeal the prosecution’s continued reference to Petitioner’s post-arrest assertion of his right to remain silent and his request for counsel; n. trial counsel’s cross-examination of state’s witness Linda Hamrick during which she stated for the first time that she saw Petitioner at the Holiday Inn near the time she saw the victim; 11. Petitioner was denied a fair trial as a result of the prosecution’s failure to disclose exculpatory evidence prior to trial, a note threatening to kill the victim written by someone connected to the school, discovered by his secretary the day before the victim was murdered; and 12. Petitioner was denied effective assistance of trial and appellate counsel: by trial counsel’s failure to investigate, discover, and present at trial exculpatory evidence; and appellate counsel by said counsel failing to raise on appeal the prosecution’s failure to disclose exculpatory evidence. (R. Ex. 2 at 4-17; R. Ex. 4 at 4-5). On November 23, 1999, the state habeas court held an evidentiary hearing during which it heard testimony and received various affidavits into evidence. In August 2000, the state habeas court denied relief. On October 2, 2001, the Georgia Supreme Court denied Petitioner a certificate of probable cause to appeal the denial of his state habeas petition. Petitioner then sought certiorari review in the Supreme Court of the United States, but on February 25, 2002, the Supreme Court declined to review Petitioner’s case. II. The Instant Petition Petitioner here contends that he was convicted in violation of his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and urges this Court to set aside his Gwinnett County, Georgia conviction. In this regard, Petitioner asserts the following grounds for relief: (1) the alleged systematic exclusion of women and African-Americans from the jury; (2) denial of counsel; (3) ineffective assistance of both trial and appellate counsel; (4) prose-cutorial misconduct including Brady violations and improper statements by the prosecutor; and (5) impermissible jury instructions which shifted the burden of proof to the defendant. In particular, the grounds raised in the instant Petition are as follows: 1. The Systematic exclusion of women and African-Americans from the jury pool deprived Petitioner of a jury drawn from a fair cross-section of the community; 2. Petitioner was denied the right to counsel based upon: (a) a conflict of interest based on the joint representation of Petitioner and co-defendant Jordan on the same capital murder charge; (b) an inadequate time to prepare for the trial of Petitioner’s case; 3. Petitioner received ineffective assistance of counsel based upon: (a) the unreasonable pretrial investigation conducted by Petitioner’s trial counsel; (b) trial counsel’s professionally unreasonable and prejudicial performance at trial; (c) appellate counsel’s professionally unreasonable and prejudicial performance, which included the failure to raise challenges to: i) certain jury instructions which Petitioner contends impermissi-bly shifted the burden of proof; ii) the systematic exclusion of women and minorities from the master jury list and jury venire; and iii) repeated references by the prosecution to Petitioner’s post-arrest silence and request for counsel; 4. Petitioner was denied his right to a fair trial based upon prosecutorial misconduct, including Brady violations, references to Petitioner’s right to remain silent, as well as other prejudicial comments. The Court addresses each ground for relief in turn. Discussion I. Standard of Review Under 28 U.S.C. § 2254 Section 2254 grants the federal courts power to issue a writ of habeas corpus on behalf of a person being held in custody pursuant to a judgment of a state court where that person is held in custody in violation of his rights under federal law. 28 U.S.C. § 2254(a). But, with respect to those grounds for relief presented to the state courts and adjudicated on the merits, Congress has substantially limited the power of federal courts to grant habeas relief to an individual in custody pursuant to a state court judgment by “ ‘establishing] a highly deferential standard for reviewing state court judgments.’ ” LeCroy v. Sec’y, Fla. Dept. of Corr., 421 F.3d 1237, 1259 (11th Cir.2005) (quoting Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 768 (11th Cir.2003)). Specifically, § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (the “AED-PA”), provides that a federal court may not grant habeas relief with respect to any claim that was “adjudicated on the merits in State court proceedings” unless that adjudication: (1) resulted in a decision that 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) 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). Moreover, “a state court’s factual findings are presumed correct, unless rebutted by the petitioner with clear and convincing evidence.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.2001); see 28 U.S.C. § 2254(e)(1). “The ‘contrary to’ and ‘unreasonable application’ clauses of § 2254(d)(1) are separate bases for reviewing a state court’s decisions.” Putman, 268 F.3d at 1241. A state court decision is “contrary to” clearly established federal law where either “the state court applied a rule that contradicts the governing law set forth by Supreme Court case law,” or “when faced with materially indistinguishable facts, the state court arrived at a result different from that reached in a Supreme Court case.” Putman, 268 F.3d at 1241; see also Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our eases.... A state-court decision will also be contrary to this Court’s clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.”). Under the “unreasonable application” prong of § 2254(d)(1), a federal court may grant a writ of habeas corpus “if the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts” of the petitioner’s case. Williams, 529 U.S. at 413, 120 S.Ct. 1495. Additionally, “[a]n unreasonable application may also occur if a state court unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context.” Put-man, 268 F.3d at 1241. Whether the state court’s application of clearly established federal law was unreasonable is to be evaluated under an objective standard. See Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (“In order for a federal court to find a state court’s application of our precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or erroneous. [cit] The state court’s application must have been ‘objectively unreasonable.’ ”); Williams, 529 U.S. at 409, 120 S.Ct. 1495 (“[A] federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.”). Finally, the statutory phrase “clearly established Federal law, as determined by the Supreme Court of the United States” “refers to the holdings, as opposed to the dicta, of [Supreme Court] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412, 120 S.Ct. 1495 (O’Connor, J. for the Court); see also Putman, 268 F.3d at 1241 (“Clearly established federal law is not the case law of the lower federal courts, including this Court. Instead, in the habeas context, clearly established federal law refers to the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant state court decision.” (internal quotations omitted)). II. Petitioner’s Asserted Grounds for Relief A. Systematic Exclusion of Women and Minorities Deprived Petitioner of a Jury Drawn from a Pool Representing a Fair Cross-section of the Community Petitioner, in his first and second grounds for relief, asserts that the systematic exclusion of women and minorities from the jury pool deprived him of his right to a trial by a jury drawn from a pool comprising a fair cross-section of the community. Petitioner contends that, under the rule established in Taylor v. Louisiana, 419 U.S. 522, 528-30, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975) (per curiam), this systematic exclusion violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. These claims were raised before the state habeas court which denied relief, concluding that Petitioner’s Taylor fair cross-section claims were procedurally defaulted. {See Order on Petitioner’s Application for Habeas Corpus, Prevatte v. French, No. 96-A-04483-1 (Super. Ct., Gwinnett Co., Aug. 25, 2000), R. Ex. 13 at 18-19.) Before this Court, Respondent presents three arguments in response to Petitioner’s fair cross-section claims. First, Respondent contends that Petitioner’s claim, insofar as it relies on the systematic exclusion of women from the jury pool, is barred from retroactive application to Petitioner’s 1974 jury trial by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975). (See Ans.-Resp. ¶ 7(a); Br. in Supp. of Ans.-Resp. [8-3] at 6.) Second, Respondent argues that Petitioner failed to make a sufficient evidentiary showing vis-a-vis his claim that African Americans were excluded from the jury pool. (See Br. in Supp. of Ans.-Resp. at 6-7.) Third, Respondent contends that Teague also bars any claim by Petitioner directed at the racial and/or gender composition of the actual jury venire from which Petitioner’s jury was selected, or that the under-representation of women violated equal protection. Respondent expressly does not address the whether the state habeas court’s conclusion that Petitioner’s fair cross-section claims were procedurally defaulted is correct. (See id. at 6.) 1. Petitioner’s jury composition claims are not procedurally defaulted The Supreme Court has held that the “independent and adequate state ground” doctrine, while not jurisdictional in the ha-beas corpus context, “applies to bar consideration on federal habeas of federal claims that have been defaulted under state law.” Lambrix v. Singletary, 520 U.S. 518, 523, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (citing Coleman v. Thompson, 501 U.S. 722, 729-730, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). As the Supreme Court has explained, application of the “independent and adequate state ground” doctrine to federal habeas review “ ‘ensures that the States’ interest in correcting their own mistakes is respected in all federal habeas cases.’ ” Lambrix, 520 U.S. at 523, 117 S.Ct. 1517 (quoting Coleman, 501 U.S. at 732, 111 S.Ct. 2546). “ ‘[A] habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.’ ” Id. (quoting Coleman, 501 U.S. at 730-31, 111 S.Ct. 2546.) Moreover, out of a recognition that state procedural rules “are of vital importance to the orderly administration of its criminal courts,” and their evasion “undermines the criminal justice system,” the Supreme Court has instructed the lower courts that procedural bar issues should ordinarily be resolved first. Id. at 525, 117 S.Ct. 1517. Accordingly, the Court addresses first the state habeas court’s conclusion that Petitioner’s fair cross-section claims were procedurally defaulted. In this case, it is undisputed that Petitioner failed to object to the jury selection procedures or the composition of the jury venire at the time of his trial in 1974. It is similarly undisputed that Petitioner did not present his fair cross-section claims on direct appeal. Petitioner did, however, raise his fair cross-section claim before the state habeas court, which summarily rejected this claim for relief on procedural grounds. In concluding that Petitioner’s fair cross-section claims were procedurally defaulted, the state habeas court stated: No challenge was raised by the defense at the trial and prior to jury selection. This appears to be part of the defendant’s personal strategy — that he wanted a speedy trial, that he wanted it immediately, that he did not want a continuance for any reason, and that his attorney should not ask for a continuance or take any action other than to proceed to jury trial. Failure to timely raise the issue of jury composition results in a forfeiture of this claim. The Georgia statute governing habeas corpus proceedings provides in O.C.G.A. § 9-14-42 as follows: “(b) The right to object to the composition of the grand or trial jury will be deemed waived under this code section unless the person challenging the sentence shows in the petition and satisfies the court that cause exists for his being allowed to pursue the objection after the conviction and sentence have otherwise become final.” This same provision was in effect in 1974 at the time of this trial codified as [Ga.Code. Ann.] § 50-127. Under the facts and circumstances of this case and the insistence by this defendant on a speedy trial at virtually all costs, contrary to the recommendation of his counsel, this Court finds no sufficient cause has been shown and that petitioner’s claim at this time is proee-durally barred, whether it might have had merit or not. (R. Ex. 13 at 18-19.) Under Georgia law, a party that fails to raise a challenge to the jury array at or before the time the jury array is seated and voir dire commences is precluded from raising that challenge on direct appeal. See, e.g., Guest v. State, 186 Ga.App. 318, 367 S.E.2d 105 (1988) (“Under Georgia law, a criminal defendant must raise a challenge to the jury array at or before the time the jury panel is first ‘put upon’ him (unless he has been prevented from doing so); if he does not object at that time, he waives his right to raise such a claim later at trial or on direct appeal.”); Spencer v. Kemp, 781 F.2d 1458, 1463 (11th Cir.1986) (examining Georgia law of waiver and concluding that “in order to avoid waiving any right to challenge the composition of a traverse jury on appeal, a defendant must raise such a challenge pri- or to the commencement of voir dire.”); cf. Cobb v. State, 218 Ga. 10, 126 S.E.2d 231, 239 (1962) (holding that objection to traverse jury “put upon” accused in criminal case must be raised by challenge to array at earliest opportunity defendant has to avail himself of that right). Whether that party may raise a challenge to the jury array during state habeas corpus review, however, is governed by the state’s habeas corpus statute. At the time of Petitioner’s trial, the vei~sion of Ga.Code. Ann. § 50-127 (now codified at O.C.G.A. § 9-14-42) then in effect provided: Rights conferred or secured by the Constitution of the United States shall not be deemed waived unless it is shown that there was an intentional relinquishment or abandonment of a known right or privilege which relinquishment or abandonment was participated in by the party and was done voluntarily, knowingly, and intelligently. 1967 Ga. L. 836, 836, codified at Ga.Code. Ann. § 50-127 (1967). In 1975, after Petitioner’s trial was concluded, that section was amended to provide: Except for objections relating to the composition of a grand or traverse jury, rights conferred or secured by the Constitution of the United States shall not be deemed to have been waived unless it is shown that there was an intentional relinquishment or abandonment of a known right or privilege which relinquishment or abandonment was participated in by the party and was done voluntarily, knowingly and intelligently. The right to object to the composition of the grand or traverse jury will be deemed waived under this section, unless the person challenging the sentence shows in the petition and satisfies the court that cause exists for his being allowed to pursue the objection after the conviction and sentence has [sic] otherwise become final. 1975 Ga. L. 1143, 1143-44, codified at O.C.G.A. § 9-14-42. In Spencer v. Kemp, 781 F.2d 1458 (11th Cir.1986) (en banc), the Eleventh Circuit was presented with facts virtually indistinguishable from the instant case. In that case, the petitioner, who was tried prior to the 1975 amendment to the Georgia habe-as corpus statute, failed to object to the composition of the jury at trial. The state habeas court rejected the petitioner’s challenge, retroactively applying the 1975 amendment to the Georgia habeas corpus statute. On federal habeas review, the district court denied relief on the ground that the state habeas court’s decision was an independent and adequate state law ground sufficient to preclude federal habe-as corpus review. The Eleventh Circuit reversed, holding that [t]he element of unfair surprise that renders novel or sporadically applied state procedural grounds inadequate to preclude federal review of federal constitutional claims is present in this case as well. The 1975 amendment, as applied in this case, operated retroactively to render Spencer’s failure to raise a timely challenge to the composition of the jury array a waiver after the fact of his right to do so, affording him no opportunity to attempt to comply with the new provision before suffering the deprivation it imposed. We cannot find such an interpretation of Georgia procedural law to be an independent and adequate state ground sufficient to preclude federal court consideration of the merits of Spencer’s claim. Id. at 1470-71. In this case, the state habeas court incorrectly concluded that the 1975 amendment was in effect at the time of Petitioner’s trial. As Spencer makes clear, that amendment may not be applied retroactively to Petitioner. Therefore, the 1967 Georgia habeas corpus statute governs Petitioner’s case, and the state habeas court’s conclusion that Petitioner’s jury composition claims were procedurally defaulted under the new version of that statute does not constitute an independent and adequate state law ground which will preclude federal habeas corpus relief. Under the 1967 Georgia habeas corpus statute, Petitioner’s jury composition claims could only be waived if Petitioner participated in the decision to waive the right to raise those claims in his state habeas proceeding, and Petitioner’s decision to waive those claims was made “voluntarily, knowingly, and intelligently.” Having reviewed the record in this case, the Court finds nothing that clearly indicates that Petitioner knowingly, voluntarily, and intelligently waived his right to challenge the jury’s composition. As such, the Court concludes that Petitioner’s jury composition claims are not procedurally defaulted, and these claims may, if established, serve as the basis for federal habeas corpus relief. 2. Petitioner is not entitled to the benefit of Taylor As explained above, Petitioner was tried and convicted of malice murder and armed robbery in June of 1974. Petitioner directly appealed those convictions, and the Georgia Supreme Court rendered its decision on Petitioner’s direct appeal on February 25, 1975. After Petitioner’s trial, but while his direct appeal was still pending, the Supreme Court issued its decision in Taylor v. Louisiana. In that case, the Supreme Court held that the systematic exclusion of women from jury service violated the principle, which it found implicit in the right to jury trial guaranteed by the Sixth Amendment, “that petit juries must be drawn from a source fairly representative of the community.” Taylor, 419 U.S. at 538, 95 S.Ct. 692. In Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), decided one week later, the Supreme Court held “that Taylor is not to be applied retroactively, as a matter of federal law, to convictions obtained by juries empaneled prior to the date of that decision.” Id. at 32, 95 S.Ct. 704. Applying the three-factor test for retroactivity initially adopted in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Daniel Court considered “ ‘(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards,’ ” Daniel, 420 U.S. at 32, 95 S.Ct. 704 (quoting Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967)), and concluded that each factor weighed in favor of giving Taylor only prospective effect. Id. at 32-33, 95 S.Ct. 704. Twelve years after Daniel was decided, the Supreme Court, in the case of Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), significantly altered the legal landscape of retroactivity. In that case, the Court soundly rejected the particularized, case-by-case approach to retroactivity adopted in Linkletter and applied in Daniel. Reasoning that such an approach “violates basic norms of constitutional adjudication,” id. at 322, 107 S.Ct. 708, the Court held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all eases, state or federal, pending on direct review or not yet final.” Id. at 328, 107 S.Ct. 708. The Court provided two principal reasons for its decision. First, the Court explained that, because it could only establish new rules in specific cases, and because, as a practical matter, the Court cannot hear each case pending on direct review when it establishes a new rule, the Court “fulfill[s][its] judicial responsibility by instructing the lower courts to apply the new rule retroactively to cases not yet final.” Id. at 323, 107 S.Ct. 708. Second, the Court explained that the “selective application of new rules violates the principle of treating similarly situated defendants the same,” emphasizing “ ‘the actual inequity that results when the Court chooses which of many similarly situated defendants should be the chance beneficiary’ of a new rule.” Id. (quoting United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)). Petitioner contends that he should receive the benefit of the fair cross-section requirement of Taylor because the decision was announced before his conviction became final. In support of his position, Petitioner raises two primary arguments. First, Petitioner contends that Griffith effectively overruled Daniel, and as such, Daniel is no longer good law. Thus, Petitioner argues that under the retroactivity principle adopted in Griffith, he is entitled to the benefit of the Taylor decision because that decision was rendered during the pendency of his direct appeal. Second, Petitioner contends that the Supreme Court, as well as the Eleventh Circuit, have applied Griffith’s rule of retroactivity to convictions which became final prior to the date Griffith was decided. Or, stated another way, the retroactivity principle of Griffith itself is applied retroactively. For the reasons that follow, however, the Court concludes that Petitioner is not entitled to relief on this ground. (a) Griffith did not overrule Daniel Petitioner contends that this Court should not apply the Supreme Court’s decision in Daniel because it was overruled by Griffith. From even a cursory review of Griffith, there can be little doubt that the Supreme Court in that case disapproved of the three factor Linkletter retro-activity test which was applied in Daniel to find the fair cross section requirement of Taylor inapplicable to cases in which the jury was empaneled prior to the date Taylor was decided. Indeed, Griffith cites Daniel as an example of a case applying the Linkletter approach with the result that a new rule of criminal procedure was held not to apply to cases either on direct appeal or on collateral review. See Griffith, 479 U.S. at 321, 107 S.Ct. 708. But, as the Fifth Circuit explained in Wilkerson v. Whitley, 28 F.3d 498 (5th Cir.1994) (en banc), a case addressing an identical claim to that raised by Petitioner here, “ ‘absent clear indications from the Supreme Court itself, lower courts should not lightly assume that a prior decision has been overruled sub silentio merely because its reasoning and result appear inconsistent with later cases.’” Id. at 504 (quoting Williams v. Whitley, 994 F.2d 226, 235 (5th Cir.1993) (Higginbotham, J.)). Indeed, as the Supreme Court has repeatedly admonished the lower courts: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 483-84, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); see also Tenet v. Doe, 544 U.S. 1, 11, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005) (same); Hohn v. United States, 524 U.S. 236, 252-53, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”); Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (“We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent.”); Brisentine v. Stone & Webster Eng’g Corp., 117 F.3d 519, 525 (11th Cir.1997) (“It may be that the Supreme Court has cut [a prior decision] back so far that it will not survive. Perhaps, but we are not convinced we are authorized to sing the dirge of [that prior decision]. We will leave that to the Supreme Court....”); Fla. League of Prof'l Lobbyists v. Meggs, 87 F.3d 457, 462 (11th Cir.1996) (explaining that lower courts “are not at liberty to disregard binding case law that is so closely on point and has been only weakened, rather than directly overruled, by the Supreme Court.”). Applying this well-established principle, the Wilkerson Court reasoned: Griffith overruled Linkletter’s retroac-tivity test (as clarified by Johnson v. New Jersey, Stovall, and Desist [v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) ]) by creating a bright-line rule that applies new rules to all cases not yet final. This line of cases had established the test for how to apply new constitutional decisions. On the other hand, cases such as Daniel merely applied the test to particular new constitutional rules. Thus, while Griffith changed the methodology for determining retroactivity, it did not abrogate the results of the prior retroactivity test. In the absence of explicit language overruling cases such as Daniel, we must assume that these results are still valid as to those new rules for which retroactive application was rejected. Wilkerson, 28 F.3d at 505. This Court agrees with the Fifth Circuit’s reasoning in Wilkerson. Daniel clearly and unequivocally holds that Taylor is not to be applied retroactively to cases in which the jury was empaneled pi'ior to the date Taylor was decided, and no Supreme Court case has expressly overruled that decision. Therefore, Daniel controls the issue of whether Petitioner is entitled to the benefit of Taylor. Because Petitioner’s jury was empaneled pri- or to the date Taylor was decided, the Court holds that under Daniel, Petitioner is not entitled to the benefit of that decision. (b) Teague bars application of Griffith to Petitioner’s fair cross-section claims Even assuming that Petitioner were correct in his assertion that “Griffith effectively overruled Daniel and Daniel is no longer good law,” (Br. in Supp. of Pet. at 20), the Court would find habeas relief under Taylor inappropriate. Petitioner’s case is before this Court on collateral review. “Under Teague, a new rule of criminal procedure generally may not be applied in a federal habeas proceeding where the judgment in question became final before the rule was announced.” Schwab v. Crosby, 451 F.3d 1308, 1323 (11th Cir.2006). Therefore, the Court must assess at the outset whether the relief he seeks would require the application of a new rule. See Teague, 489 U.S. at 300, 109 S.Ct. 1060 (“Retroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated.”); accord O’Dell v. Netherland, 521 U.S. 151, 156, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) (“Before a state prisoner may upset his state conviction or sentence on federal collateral review, he must demonstrate as a threshold matter that the court-made rule of which he seeks the benefit is not ‘new.’ ”). “A holding constitutes a ‘new rule’ within the meaning of Teague if it ‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal Government,’ or was not ‘dictated by precedent existing at the time the defendant’s conviction became final.’ ” Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060). Without question, the explicit overruling of a prior Supreme Court case creates a new rule. Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); Graham, 506 U.S. at 467, 113 S.Ct. 892. When a decision of the Supreme Court extends the reasoning of prior cases, however, determining whether a new rule has been announced becomes more difficult. Saffle, 494 U.S. at 488, 110 S.Ct. 1257. Where that is the ease, the Court must apply a “functional view of what constitutes a new rule” and resolve the question “by reference to the underlying purposes of the habeas writ. Foremost among these is ensuring that state courts conduct criminal proceedings in accordance with the Constitution as interpreted at the time of the proceedings.” Id.; see also Teague, 489 U.S. at 306, 109 S.Ct. 1060 (“ ‘[T]he threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards. In order to perform this deterrence function, ... the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place.’ ” (quoting Desist, 394 U.S. at 262-263, 89 S.Ct. 1030 (Harlan, J., dissenting))). Thus, the Teague inquiry proceeds in three steps. First, the date on which the defendant’s conviction became final is determined, [cit.] Next, the habeas court considers whether a state court considering the defendant’s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution, [cits.] If not, then the rule is new. If the rule is determined to be new, the final step in the Teague analysis requires the court to determine whether the rule nonetheless falls within one of the two narrow exceptions to the Teague doctrine, [cit.] The first, limited exception is for new rules forbidding criminal punishment of certain primary conduct and rules prohibiting a certain category of punishment for a class of defendants because of their status or offense, [cit.] The second, even more circumscribed, exception permits retroactive application of watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding, [cits.] Whatever the precise scope of this second exception, it is clearly meant to apply only to a small core of rules requiring observance of those procedures that ... are implicit in the concept of ordered liberty. [cit.] O’Dell, 521 U.S. at 156-57, 117 S.Ct. 1969 (internal quotations and citations omitted). Petitioner’s conviction became final on February 25, 1975. The governing law at the time his conviction became final was comprised of Taylor and Daniel, which squarely held that Taylor was not to be applied in cases where the jury was empaneled prior to the date Taylor was decided. Petitioner urges that Griffith, a case decided some twelve years after Petitioner’s conviction became final, impliedly overruled Daniel and requires that Taylor be retroactively applied to all convictions not yet final when Taylor was decided. If “there can be no dispute that a decision announces a new rule if it expressly overrules a prior decision,” Graham, 506 U.S. at 467, 113 S.Ct. 892; Saffle, 494 U.S. at 488, 110 S.Ct. 1257 (same), the Court sees no reason that a decision which impliedly overruled a prior decision should not establish a new rule within the meaning of Teague as well. Thus, reading Griffith as impliedly overruling Daniel to require the retroactive application of Taylor to Petitioner’s claim constitutes a new rule under Teague. Having concluded that Petitioner seeks habeas relief in this Court based upon the application of a new rule, the Court must consider whether that rule falls within one of the two narrow exceptions to Teague’s general rule of non-retroactivity. The Court concludes that it does not. First, reading Griffith as Petitioner requests certainly does not forbid criminal punishment of certain primary conduct or prohibit a certain category of punishment for a class of defendants because of their status or offense. Rather, Petitioner merely seeks to obtain a new trial based upon the application of the fair cross section requirement announced in Taylor. Compare Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (granting habeas relief under new rule that Eighth and Fourteenth Amendments forbid imposition of death penalty on offenders who were under age of 18 when their crimes were committed). Nothing about Petitioner’s claim indicates that application of the first Teague exception would be appropriate. Second, the Court finds a rule requiring that Griffith be retroactively applied to allow Petitioner the benefit of Taylor does not fall within the second Teague exception. In light of the Supreme Court’s reasoning in Taylor, Daniel and Teague that the fair cross-section requirement did not render any particular trial unfair, certainly a rule which requires the retroactive application of Taylor cannot be said to be a “ ‘watershed rule[ ] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceedings,’ ” O’Dell, 521 U.S. at 157, 117 S.Ct. 1969 (quoting Graham, 506 U.S. at 478, 113 S.Ct. 892); see also Teague, 489 U.S. at 314, 109 S.Ct. 1060 (refusing to extend fair cross section requirement to petit jury based upon rationale of Taylor and Daniel that fair cross section requirement does not rest on premise that every criminal trial, or any particular trial, is necessarily unfair because it was not conducted in accordance with that requirement). Accordingly, the Court concludes that the application of Griffith, which was decided after his conviction became final, to require Petitioner to be able to assert a claim under Taylor in this habeas proceeding is barred by Teague. (c) Neither Penry nor Pitts require a different result Petitioner contends that the Supreme Court in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the Eleventh Circuit in Pitts v. Cook, 923 F.2d 1568 (11th Cir.1991), as well as other circuit courts have applied Griffith retroactively to decisions which became final before Griffith itself was announced. As an initial matter, this Court is bound to follow only the decisions of the United States Supreme Court and the Court of Appeals for the Eleventh Circuit. Insofar as other circuit courts may appear to have applied Griffith retroactively, none has supplied any reasoning for that decision, and as such, this Court finds those decisions unpersuasive. That said, the Court now considers whether Penry or Pitts require a different result. The Court concludes that they do not. First, with respect to Penry, the Court recognizes that the Supreme Court, at first blush, appeared to apply Griffith retroactively. In that case, a habeas petitioner whose trial occurred in 1980 sought to attack his death sentence, in part, on the ground that the special jury questions utilized by the Texas courts precluded the jury from considering certain mitigating evidence. The Supreme Court stated: “This Court’s decisions in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) were rendered before Ms conviction became final. Under the retroactivity principles adopted in Griffith ..., Penry is entitled to the benefit of those decisions.” Penry, 492 U.S. at 314-15, 109 S.Ct. 2934. But, the Supreme Court in Penry did not hold that Griffith should be applied retroactively. Indeed, a careful reading of Penry reveals that Griffith’s retroactivity was not at issue. First, whether the petitioner could claim the benefit of Lockett and Eddings was not at issue because the Court’s decision in that case was dictated by its decision in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). See Penry, 492 U.S. at 315, 109 S.Ct. 2934 (“In our view, the relief Penry seeks does not ‘imposte] a new obligation’ on the State of Texas. Rather, Penry simply asks the State to fulfill the assurance upon which Jurek was based: namely, that the special issues would be interpreted broadly enough to permit the sentencer to consider all of the relevant mitigating evidence a defendant might present in imposing sentence.”); Saffle, 494 U.S. at 491, 110 S.Ct. 1257 (“Penry’s claim ... did not ask us to apply the reasoning of Lockett and Ed-dings so much as it required us to apply our decision in Jurek.”)-, id. at 492, 110 S.Ct. 1257 (“The Penry Court’s conclusion that Lockett and Eddings dictated the rule sought by Penry must be understood in terms of the Court’s ruling in Jurek, and its application in later cases. We did not view Lockett and Eddings as creating a rule different from that relied upon in Jurek; rather, we indicated that Lockett and Eddings reaffirmed the reasoning in Jurek and confirmed the necessity of its application to Penry’s claim.” (citations omitted)). As Jurek was decided prior to the petitioner’s trial, there could be no doubt that he was entitled to its benefit, as well as any decisions dictated by it, both on direct review, as well as in collateral proceedings. Therefore, the Court’s statement in Penry that under Griffith the petitioner was entitled to the benefit of Lockett and Eddings was not necessary to its decision. Second, and more importantly, no Supreme Court case had held that either Lockett or Eddings should not be applied retroactively. Thus, the Court in Penry was not faced with a Supreme Court decision directly controlling their retroactivity, and as such, the Court was not faced with the task of determining first, whether Griffith effectively overruled those decisions, and second, whether that “new rule” should be applied to cases on collateral review. Thus, the Penry Court’s citation of Griffith for the proposition that the petitioner there was entitled to the benefit of Lockett and Eddings does not indicate that Griffith should be applied retroactively in the face of prior Supreme Court precedent expressly limiting the retroactive application of a previously adopted rule. As such, that citation does not mandate that this Court apply Griffith to allow Petitioner the benefit of Taylor while avoiding the direct holding of Daniel. Having concluded that Penry does not require the result Petitioner seeks, the Court now turns to consider whether the Eleventh Circuit’s decision in Pitts requires relief. In Pitts, a habeas petitioner whose conviction became final after the Supreme Court’s decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), but prior to the Court’s decision in Griffith, sought relief under Batson in his collateral proceeding. The panel, without explanation, stated: Pitts had been convicted when Batson was decided, but his direct appeal was still pending. Although Batson is not generally retroactively applied to habeas petitions, Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), it does apply retroactively to cases — such as Pitts’' — pending on direct review when the Batson judgment was rendered, [Griffith ]. Pitts, 923 F.2d at 1571 n. 3. Petitioner contends that this footnote, which relies on Griffith to apply Batson retroactively to a conviction which was not yet final when Batson was announced, requires that this Court grant him relief. Again, the Court disagrees. The Supreme Court in Allen held that “Batson should not be applied retroactively on collateral review of convictions that became final before our opinion was announced.” 478 U.S. at 258, 106 S.Ct. 2878. Unlike the situation here, however, the Allen Court “expressed] no view on the question whether our decision in Batson should be applied to cases that were pending on direct appeal at the time our decision was announced,” and instead cited Griffith which was currently pending before it. Id. at 258 n. 1, 106 S.Ct. 2878. Thus, while the Pitts Court granted the petitioner the benefit of Batson under the retroactivity principle announced in Griffith, it did so in a situation where no Supreme Court case had expressly limited the retroactivity of the Batson decision. It did not, however, face the situation presented here — specifically, where application of Griffith’s retro-activity rule would be directly contrary to prior Supreme Court precedent. As such, nothing in the Pitts decision requires this Court to read Griffith as overruling sub silentio the Supreme Court’s decision in Daniel — a practice long condemned by the Supreme Court and the Eleventh Circuit itself. In view of this critical distinction, the Court concludes that Pitts does not require this Court to apply Griffith retroactively in this case. Accordingly, Daniel, and not Griffith, controls the retroactivity of Taylor. Under Daniel, Petitioner is not entitled to the benefit of that decision. (d) Allowing Petitioner to benefit from Taylor would be contrary to rationale of Griffith itself Finally, the Court notes that the result Petitioner seeks here — the ability to collaterally attack his 1974 conviction under Taylor — would be directly contrary to the rationale of Griffith itself. There, the Court concluded that selectively applying new rules runs contrary to the principle of treating like defendants alike, explaining that it would no longer “tolerate” the “actual inequity” resulting from the Court’s selective application of new rules to certain “chance beneficiaries,” while other similarly situated defendants are denied the benefit of those decisions. Griffith, 479 U.S. at 323, 107 S.Ct. 708. Here, Petitioner seeks the result that Griffith sought to avoid. The simple fact is that defendants similarly situated to Petitioner who sought to attack their convictions on fair cross-section grounds but whose juries were empaneled prior to Taylor were invariably denied relief based upon Daniel. For this Court to conclude that Petitioner is entitled to relief, merely by virtue of the jurisprudential evolution occurring in the approximately twenty-two years between his conviction and collateral proceedings — when virtually every other defendant who promptly sought relief after Taylor was denied the same based upon Daniel — surely “violates the principle of treating similarly situated defendants the same.” Id. In essence, Petitioner asks this Court to “fish [his] case from the stream” of cases seeking the benefit of Taylor, notwithstanding the fact that all other such cases have previously “flowfed] by unaffected by that new rule.” Id. at 323, 107 S.Ct. 708 (quoting Mackey v. United States, 401 U.S. 667, 679, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgment)). This the Court declines to do. In sum, as the Supreme Court recognized in Teague, the “[application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.” 489 U.S. at 308-09, 109 S.Ct. 1060. A state court applying the constitutional rules existing at the time Petitioner’s conviction became final would have rightly denied him the benefit of Taylor. Allowing him that benefit now, on habeas review, both runs contrary to the interests of comity and finality that are critical in determining the proper scope of habeas review, and imposes significant costs on the states by “continually forcing] the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then existing constitutional standards.” Id. at 309, 109 S.Ct. 1060 (emphasis in original). Accordingly, Petitioner is not entitled to relief on this claim under Teag-ue. B. Ineffective Assistance of Counsel 1. General standard applicable to ineffective assistance claims The Sixth Amendment provides that a criminal defendant shall have the right to “the Assistance of Counsel for his de-fence.” U.S. Const, amend. VI. “The right to counsel prevents states from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance.” Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). “This right has been accorded, ... ‘not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial’ ” Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (quoting United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). Where the assistance of counsel is inadequate to preserve the fairness of the proceedings, the Sixth Amendment’s mandate has not been satisfied. Id.; Sullivan, 446 U.S. at 344, 100 S.Ct. 1708 (“Our decisions make clear that inadequate assistance does not satisfy the Sixth Amendment right to counsel....”). The Court examines claims of ineffective assistance of counsel under the Sixth Amendment by applying the two-part analysis set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Under this test, the petitioner must first show that ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed ... by the Sixth Amendment.’ ” Brownlee v. Haley, 306 F.3d 1043, 1059 (11th Cir.2002) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). “If this substantial showing is made, the petitioner must then demonstrate that ‘the deficient performance prejudiced the defense,’ which ‘requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ ” Id. (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). “The petitioner bears the burden of proof on the ‘performance’ prong as well as the ‘prejudice’ prong of a Strickland claim, and both prongs must be proved to prevail.” Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir.2001); see also Strickland, 466 U.S. at 687, 104 S.Ct. 2052 (“Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.”). To establish ineffective performance, a “petitioner must show that ‘counsel’s representation fell below an objective standard of reasonableness.’ ” Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Strickland, 466 U.S. at 668, 104 S.Ct. 2052). In this respect, “[cjourts 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 v. United States, 218 F.3d 1305, 1314 (11th Cir.2000) (en banc) (quoting Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052). In light of this “strong presumption in favor of competence,” the Eleventh Circuit has held that in order to prove deficient performance, “a petitioner must establish that no competent counsel would have taken the action that his counsel did take.” Id. at 1315. In order to meet the prejudice prong of the Strickland test, “[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052. Instead, the defendant must show that there is a reasonable probability that the outcome of the proceeding would have been different. See id. at 694, 104 S.Ct. 2052. This does not mean that the defendant must show “ ‘that counsel’s deficient conduct more likely than not altered the outcome in the case.’ ” Brownlee, 306 F.3d at 1060 (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052). Rather, he must show only “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. 2. Conflict of interest claim As stated above, Petitioner and co-defendant Jordan were jointly represented at their respective trials by two attorneys, Mr. E.L. Owens and Mr. Fred Bishop. Petitioner contends that a conflict of interest prevented his trial counsel from providing adequate legal assistance as required by the Sixth Amendment. Specifically, Petitioner alleges t