Full opinion text
MEMORANDUM OPINION AND ORDER STORY, District Judge. This death penalty case is before the Court on a petition for writ of habeas corpus. The Court has jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254. I. PROCEDURAL HISTORY On November 8, 1984, Petitioner was convicted of first-degree murder and rape in the Superior Court of Douglas County, Georgia. On the following day, Petitioner was sentenced to life imprisonment for rape and death for murder. Subsequently, Petitioner appealed his conviction and sentence and Petitioner’s rape conviction was overturned; however, the remaining conviction and sentence were affirmed. See Parker v. State, 256 Ga. 543, 350 S.E.2d 570 (1986). On July 24, 1987, Petitioner filed a petition for writ of habeas corpus in the Superior Court of Butts County Georgia and a motion for stay of execution. That court granted a stay. On May 2, 1995 the Superior Court of Butts County denied the petition for writ of habeas corpus. Petitioner requested a certifícate of probable cause to appeal the denial; however this request was also denied. On August 22, 1996, Petitioner filed a petition for writ of certiorari to the United States Supreme Court. That petition was denied December 16, 1996. See Parker v. Zant, 519 U.S. 1043, 117 S.Ct. 613, 136 L.Ed.2d 538 (1996). This case is before the Court on Petitioner’s request for federal habeas relief. The parties waived any right to an evidentiary hearing and consented to the Court’s review on the record and briefs. II. FACTUAL BACKGROUND On June 6, 1984, agents of the Georgia Bureau of Investigations and the Federal Bureau of Investigations visited Petitioner’s trailer home to obtain Petitioner’s consent to search his home and automobile and question him regarding the disappearance of an eleven-year-old girl who lived in Petitioner’s trailer park and had been missing since June 1, 1984. Petitioner signed the consent forms. Petitioner’s car was towed and upon completion of the search of Petitioner’s home, Petitioner and his wife were asked to come to the Sheriffs Department for further questioning. Both agreed and Petitioner maintained his innocence. On June 7, 1984, the authorities obtained arrest warrants for Petitioner for possession of marijuana and failure to report. Later that day, Petitioner was arrested at his place of employment. The authorities wanted Petitioner to take a polygraph test at the FBI offices. Petitioner’s attorney instructed him that he was not required to take the test. Petitioner took the polygraph test in the absence of his attorney. Petitioner was then returned to the jail at which time Petitioner unsuccessfully attempted to contact his counsel. Petitioner then talked to investigators again. During this time, the authorities attempted to contact Petitioner’s counsel. During the early morning hours of the following day, Petitioner told authorities he had killed the missing child and drew a map identifying the location of the body. Petitioner’s original counsel withdrew immediately thereafter, temporary counsel was appointed and later permanent counsel. On July 17,1984, Petitioner was indicted for murder, rape and kidnapping. At the preliminary hearing on July 25, 1984, Petitioner pleaded not guilty to the charges of murder and rape. A nolle prosequi was later entered on the kidnapping charge. Petitioner filed a motion to suppress his prior inculpatory statement, and the motion was denied. At the guilt and innocence phase of the trial, defense counsel offered no evidence. The jury convicted Petitioner on both charges. During the sentencing phase, defense counsel offered the expert testimony of a psychiatrist who never met or interviewed Petitioner but who had evaluated Petitioner based on a written multiple-choice examination. The jury found three aggravating circumstances: (1) that the murder of the victim was outrageously and wantonly vile, horrible and inhuman in that it involved torture to the victim, depravity of mind and aggravated battery to the victim; (2) that the murder of the victim was committed while the defendant was engaged in the commission of the capital felony of kidnapping with bodily injury; and (3) that the murder was committed during the commission of another capital felony: rape. The jury found that Petitioner should be sentenced to death. On direct appeal, Petitioner’s rape conviction was set aside for the failure of the trial court to instruct the jury on the charge of child molestation as a lesser included offense of rape. The aggravating circumstance associated with the commission of rape was also set aside. Petitioner’s murder conviction and sentence were affirmed. Petitioner filed a state habeas petition which was denied. Petitioner now argues he was convicted and sentenced in violation of his Fifth, Sixth, Eight, and Fourteenth Amendment rights. III. LEGAL ANALYSIS A. Standard of Review Under 28 U.S.C. § 2254(d), An application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (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. Generally, “Section 2254 forbids federal courts from granting habeas relief for claims previously adjudicated by state courts, unless the state court adjudication was contrary to or represented an unreasonable application of ‘clearly established Federal law, as determined by the Supreme Court of the United States.’ Thus the first step in resolving a petitioner’s claim is to determine the ‘clearly established’ law at the relevant time.” Neelley v. Nagle, 138 F.3d 917, 922 (11th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 811, 142 L.Ed.2d 671 (1999). The district court determines the clearly established law at the relevant time by surveying the legal landscape to ascertain the federal law applicable to the petitioner’s claim that is clearly established by the Supreme Court at the time of the state court’s adjudication. Id. at 924. A rule is clearly established and not “ ‘nev/ if a state court considering a habeas petitioner’s claim would have felt ‘compelled by existing precedent’ to conclude that the rule the petitioner seeks was required by the Constitution.” (citations omitted) Id. at 923. The second step in the analysis is to “determine whether the state court adjudication was contrary to the clearly established Supreme Court case law, either because the state court failed to apply the proper Supreme Court precedent, or because the state court reached a different conclusion on substantially similar facts.” Id. Third, “If the state court’s decision is not contrary to law, the reviewing court must then determine whether the state court unreasonably applied the relevant Supreme Court authority.” Id. If the state court decision was not contrary to clearly established Supreme Court law, or was based on an unreasonable application of the law or an unreasonable determination of the facts, the state court decision must stand. Id. In reviewing Petitioner’s request for habeas relief, the Court is required to apply a presumption of correctness to determinations of factual issues made by the state court. 28 U.S.C. § 2254(e)(1). Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The statutory presumption of correctness applies only to findings of fact made by the state court, not to mixed determinations of law and fact. McBride v. Sharpe, 25 F.3d 962, 971 (11th Cir.1994). Under the procedural default doctrine, where a state prisoner has defaulted his federal claim in state court by failing to present such claim at trial, on direct appeal or in the state habeas proceeding, federal habeas review of the claim is barred if pursuant to an independent and adequate state procedural rule. However, a procedural default is excused if the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). Because a procedural default may be excused if it results from constitutionally ineffective assistance of counsel, the Court will first consider Petitioner’s ineffective assistance of counsel claims. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). B. Sixth Amendment — Ineffective Assistance of Counsel Claims Petitioner argues federal habeas relief on his claims is not precluded because he has a valid ineffective assistance of counsel claim which constitutes sufficient cause to excuse any possible procedural default. Petitioner contends he was denied the right to effective assistance of counsel. Counsel repeatedly admitted that Petitioner was guilty of murder although Petitioner had entered a plea of not guilty. Petitioner contends this admission resulted in prejudice to Petitioner. Petitioner also contends his counsel failed to investigate the facts and develop or present competent expert testimony on Defendant’s mental state; counsel improperly injected the issue of parole into the sentencing phase of the jury’s deliberations; counsel failed to obtain an expert pathologist; counsel failed to object to erroneous and misleading jury instructions given during the sentencing phase; counsel failed to object to instructions defining kidnapping with bodily injury; and counsel failed to object to the prosecutor’s improper arguments made during closings. Petitioner also contends counsel was ineffective as a result of his failure to call Petitioner as a witness. To succeed on an ineffective assistance of counsel claim, the petitioner must first show that counsel’s performance was deficient. Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir.1998) (quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The defendant must also show that the deficient performance prejudiced the defense to the extent that the defendant was deprived of a fair trial. Id. Counsel’s performance is deficient if “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2065. The defendant must show counsel’s representation fell below an objective standard of reasonableness. Id. at 688, 104 S.Ct. 2062. The defendant may demonstrate prejudice by “showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, [i.e.] a trial whose result is reliable.” Id. at 687, 104 S.Ct. 2052. Specifically, “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Petitioner was first represented by Kenneth Krontz who was present with Petitioner at the June 18, 1984 hearing on the issue of appointment of counsel. Krontz was appointed as temporary counsel. On June 14, 1984, Alden Snead was appointed as permanent counsel. Subsequently, Krontz and his associate, Jennifer McLeod were appointed to assist Snead. Snead represented Petitioner at the June 26, 1984 preliminary hearing. Petitioner was indicted on July 17, 1984. The first Unified Appeal Procedure was held on September 20, 1984. A Jackson-Denno hearing was held October 18-19, 1984. 1. Admission of guilt Petitioner argues trial counsel admitted to the jury during opening and closing arguments that Petitioner was in fact guilty of murder as charged in the indictment. The state habeas court concluded that counsel’s performance in this regard was not professionally unreasonable. (Respondent’s Ex. 2E, p.2065). Petitioner contends the state court’s findings on the ineffective assistance of counsel claims involve mixed questions of law and fact and are not entitled to the presumption of correctness provided under 28 U.S.C. § 2254(e)(1). Petitioner’s assertion ,is not entirely correct. When a district court considers a habeas petition, the state court’s findings of historical facts in the course of evaluating an ineffectiveness claim are subject to the presumption of correctness, while the performance and prejudice components are mixed questions of law and fact. Collier v. Turpin, 177 F.3d 1184, 1197 (11th Cir.1999), Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. Petitioner argues that under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) counsel’s performance was deficient. In Cronic, the United States Supreme Court stated in a footnote, “[E]ven when no theory of defense is available, if the decision to stand trial has been made, counsel must hold the prosecution to its heavy burden of proof beyond reasonable doubt.” 466 U.S. at 656, n. 19, 104 S.Ct. at 2045. This statement does not prohibit counsel from admitting on behalf of the defendant to any facts charged in the indictment. The statement which immediately precedes the aforementioned comment is equally as important. As in the case at bar, the Supreme Court stated, “If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade.” Id. Petitioner must concede that it is difficult to find a balance between maintaining the adversarial process and admitting any fact which provides an element of the offense charged. The Court finds it equally as difficult to determine what other course of action counsel could have taken in light of the trial court’s admission of Petitioner’s inculpatory statements. Petitioner argues counsel did more than admit to facts but also unequivocally admitted “legal guilt.” Counsel did not unequivocally admit Petitioner’s legal guilt. Furthermore, there is no per se rule prohibiting counsel from admitting to facts related to one or all of the crimes charged in spite of entering a plea of not guilty. Counsel’s statements made in argument do not amount to a stipulation of guilt or the entry of a guilty plea. Compare, Palfy v. Cardwell, 448 F.2d 328 (6th Cir.1971) (where counsel stipulated to certain facts damaging to defendant, court held trial proceedings were not a farce and mockery of justice which would demonstrate the defendant was denied effective assistance of counsel). The Court must reconcile Strickland and Cronic. The Court in Cronic used a strict standard to determine whether counsel’s overall performance resulted in a denial of the defendant’s Sixth Amendment right to counsel. The Tenth Circuit Court of Appeals held counsel was ineffective based on the circumstances surrounding counsel’s appointment and counsel’s background. In that case, the trial court appointed a young real estate lawyer to represent' the defendant in a mail fraud trial. Counsel was given only 25 days to prepare for trial although the Government had investigated the case for over four years and had reviewed thousands of documents pri- or to trial. The Tenth Circuit merely inferred that counsel’s performance was deficient without identifying any particular errors; however, the United States Supreme Court reversed and remanded holding that the factors noted by the Court of Appeals in determining that counsel was presumptively deficient did not provide a basis for concluding that the defendant had been denied effective assistance of counsel. The Tenth Circuit’s criteria did “not demonstrate that counsel failed to function in any meaningful sense as the Government’s adversary.” Cronic, 466 U.S. at 667, 104 S.Ct. at 2051. Furthermore, the Supreme Court limited the applicability of Cronic to cases where the habeas petitioner challenges the overall performance of counsel as opposed to cases governed by Strickland in which the petitioner “pursue[s] claims based on specified errors made by counsel.” Cronic, 466 U.S. at 667, n. 41, 104 S.Ct. at 2051, n. 41; see also Perry v. Leeke, 488 U.S. 272, 280, 109 S.Ct. 594, 600, 102 L.Ed.2d 624 (1989) (“actual or constructive denial of the assistance of counsel altogether is not subject to the kind of prejudice analysis that is appropriate in determining whether the quality of a lawyer’s performance itself has been constitutionally ineffective.” (citations omitted)). Since the decision in Cronic, the Eleventh Circuit has limited its applicability to cases in which “circumstances leading to counsel’s ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all.” Vines v. U.S., 28 F.3d 1123, 1128 n. 8 (11th Cir.1994) (quoting Chadwick v. Green, 740 F.2d 897, 901 (11th Cir.1984).) Essentially, Cronic identifies three exceptions to Strickland in which the presumption of ineffectiveness may arise: (1) when counsel is completely denied, (2) when counsel is denied at a critical stage of trial, and (3) when counsel fails to subject the prosecution’s case to meaningful adversarial testing. Id. at 1127. Furthermore, the analysis of an ineffective assistance of counsel claim comes with “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (internal quotations and citations omitted). Consequently, Cronic does not support the conclusion that the error identified by Petitioner was so egregious that the defendant was denied any meaningful assistance or that counsel’s overall performance rendered the adversarial process totally meaningless. Cronic does not demonstrate that counsel’s admission constitutes a deficient performance. The record clearly establishes that counsel admitted to causing the death of the victim in order to maintain credibility with the jury for the purpose of avoiding the death sentence. Employing such a legal tactic does not constitute representation which falls below an objective standard of reasonableness. Petitioner also contends Francis v. Spraggins, 720 F.2d 1190, 1194 (11th Cir.1983), supports his claim. In Francis, the Eleventh Circuit held, “Where a capital defendant, by his testimony as well as his plea, seeks a verdict of not guilty, counsel though faced with strong evidence against his client, may not concede the issue of guilt merely to avoid a somewhat hypocritical presentation during the sentencing phase and thereby maintain his credibility before the jury.” As the state habeas court pointed out, Francis, also a capital case, is distinguishable from Petitioner’s case. Francis did not involve the admission of a confession. Also, in Francis the defendant took the stand and denied any knowledge of participating in the crimes; in this case Petitioner did not take the stand. Furthermore, the Court in Francis pointed out that counsel went as far as to express his personal opinion that the defendant was guilty. The confines of Francis are further delineated by Lobosco v. Thomas, 928 F.2d 1054 (11th Cir.1991). In Lobosco, the defendant was arrested for murder and armed robbery and gave a confession which was not challenged on admissibility grounds. The defendant received two life sentences. In his habeas petition before the district court, the defendant argued the prosecution’s case was not subjected to meaningful adversarial testing because defense counsel used the guilt/innocence phase to show defendant’s remorse. Closing arguments were not recorded and defense counsel contended his admission was made with the defendant’s consent although defendant’s consent was not made a part of the record. However, because the habeas record clearly demonstrated, through counsel’s testimony, that the defendant consented to counsel’s tactic and the defendant had confessed to the crime, the Eleventh Circuit affirmed the district court’s denial of relief. Similarly, there is no evidence Petitioner had any objections to counsel’s tactics here and there was a confession by Petitioner. In the case at bar, defense counsel’s performance was not professionally unreasonable. With regard to the prejudice prong, Petitioner argues counsel’s admission was inherently prejudicial. The Court is not persuaded by cases cited by Petitioner that have held defense counsel’s concession of a defendant’s guilt creates a presumption of prejudice which amounts to per se ineffective assistance under the standard espoused in Cronic. Petitioner cites the Eleventh Circuit case of Magill v. Dugger, 824 F.2d 879, 887-89 (11th Cir.1987). The Court in Magill did not hold that an admission of guilt during the guilt phase is inherently prejudicial or results in per se ineffectiveness. In Magill, the defendant was arrested and confessed to murder. The defendant entered a plea of not guilty to the charges of armed robbery, involuntary sexual battery, and first degree murder. At trial, the defendant took the stand and again confessed to killing the victim. On cross-examination the defendant admitted that the crime was committed with aforethought. Consequently, the jury found the defendant guilty of premeditated murder. The jury also sentenced the defendant to death. The defendant’s attorney in Magill decided on the first day of trial to act as lead counsel although he and had not prepared himself adequately. The record in Magill clearly established that counsel admitted the defendant’s guilt with respect to killing the victim; however, the Court identified defense counsel’s error as the failure to explain that although the defendant had killed the victim he lacked the premeditation required to convict for first degree murder. The Court focused on counsel’s “lack of clarity regarding the defense theory” rather than establishing a bright-line rule that an admission of guilt amounts to per se ineffectiveness and inherent prejudice. In light of the overwhelming evidence against Petitioner including his confession, Petitioner cannot show that there is a reasonable probability that, but for counsel’s admission, the outcome of the proceeding would have been different. Petitioner contends counsel’s admission prejudiced Petitioner during the guilt/innocence phase by making it impossible for the jury to return any verdict on the murder charge other than guilty. Petitioner argues the jury could have returned a verdict of guilty but mentally ill but for the admission by counsel and the absence of evidence that Petitioner’s mental state fell within statutory requirements. Petitioner must concede that, rather than the admission, it was the lack of evidence which made a verdict of guilty but mentally ill impossible. Petitioner also contends the admission undermined the mitigating circumstances counsel sought to prove. Again, Petitioner relies on Magill. In that case, the court identified the defendant’s testimony during the guilt phase as causing a “devastating blow to the persuasiveness of the mitigating factors.” Magill, 824 F.2d at 889. In that case, the defendant admitted twice on the stand that the murder was planned. Here, there is no such evidence which could have, even in culmination, affected the outcome of the penalty phase. Petitioner failed to make a showing of prejudice during the guilt/innocence phase or during the sentencing phase. Consequently, Petitioner was not deprived of a fair trial or the counsel guaranteed by the Sixth Amendment. 2. Expert pathologist Petitioner argues he received ineffective assistance of counsel when his trial attorneys failed to consult with him or obtain the testimony of an expert pathologist to rebut the State’s expert testimony concerning the rape charge. Defense counsel Snead filed a motion to employ additional experts early on the case. However, counsel later withdrew this motion and instead requested the appointment of additional counsel to assist in Petitioner’s defense. Petitioner argues the testimony of an independent pathologist was crucial at trial because Warren Tillman, a criminalist and witness for the State, testified there was a “probability” that rape occurred. (Respondent’s Exhibit No. II, p. 807). At the state habeas hearing, Snead testified that he did not see a need to obtain an expert pathologist because when counsel interviewed Tillman, Tillman indicated that he could not state that a rape had “definitely” occurred. (Respondent’s Exhibit 2G, p. 30). Also, Petitioner had made statements that a rape did occur and statements that a rape did not occur. In contrast, at the state habeas hearing Petitioner proffered evidence from an expert pathologist, Joseph Burton, which indicated there was no reliable physical evidence of a rape. Burton also testified that at the time of Petitioner’s trial there were at least five or six qualified pathologists, including himself, who were available to testify. With respect to this claim, the state habeas court found no attorney error and no prejudice to the defense. The state court concluded that because Petitioner’s rape conviction was overturned, Petitioner could not have possibly been prejudiced by counsel’s failure to present rebuttal testimony from a pathologist. Petitioner correctly asserts that under Strickland “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” 466 U.S. at 691, 104 S.Ct. at 2066. Elledge v. Dugger, 823 F.2d 1439 (11th Cir.1987), withdrawn in part on other grounds, 833 F.2d 250 (11th Cir.1987), cert. denied, 485 U.S. 1014, 108 S.Ct. 1487, 99 L.Ed.2d 715 (1988), is the controlling case on this issue. The petitioner in Elledge was charged with murder. After the insanity defense could not be supported and the petitioner’s confession was not suppressed, the petitioner entered a plea of guilty and the jury determined his sentence. In Elledge the petitioner contended that with respect to the sentencing phase counsel made no effort to locate an expert psychiatric witness or to put on background character testimony from family members in mitigation. Defense counsel in Elledge believed the petitioner was “crazy” and discovered that the petitioner was taking medication for psychiatric and physiological disorders. However, defense counsel proffered only the petitioner’s testimony during the sentencing phase. The Eleventh Circuit agreed with the district court’s conclusion that counsel’s failure to at least question the petitioner’s relatives and to seek an expert witness was outside the range of competent assistance. “[Cjounsel’s total failure to investigate possible witnesses, both expert and lay, when he was aware of [the petitioner’s] past and knew that mitigation was his client’s sole defense, was unprofessional performance.” Elledge, 823 F.2d at 1445. Consequently, the test announced in Elledge for evaluating the first prong of Strickland is whether it is reasonably likely that a reasonable attorney, operating under the circumstances of the case and acting in a reasonably professional manner, would have located such a witness. With respect to prejudice, the district court in Elledge found that counsel conceded that a psychiatrist could have testified during the sentencing hearing but concluded that even if such a witness had testified, the death sentence still would have been imposed. The Eleventh Circuit ' affirmed and held that a petitioner demonstrates prejudice from such an attorney error by showing there is “a reasonable likelihood that an ordinarily competent attorney conducting a reasonable investigation would have found an expert similar to the one eventually produced.” Id. at 1446. Under the circumstances of the case and in light of the evidence presented, the petitioner in Elledge failed to demonstrate prejudice. In summary, with respect to both prongs of Strickland, the Eleventh Circuit held a habeas petitioner must show (a) that it was professionally unreasonable for counsel not to investigate; (b) what kind of, and how much, investigation an ordinary, reasonable lawyer would have undertaken; (c) that it is reasonably probable that a reasonable investigation would have turned up an expert who would have presented testimony similar to that which was eventually adduced; and (d) that it is reasonably probable that this testimony would have affected the sentence eventually imposed. Id. at 1446, n. 16. See also Daugherty v. Dugger, 889 F.2d 1426, 1432 (11th Cir.1988) (court found no prejudice because severity of aggravating circumstances outweighed effect of proposed psychiatric testimony in light of conflicting evidence regarding mitigating circumstances); Horsley v. State of Alabama, 45 F.3d 1486, 1495, n. 20 (11th Cir.1995), cert. denied, 516 U.S. 960, 116 S.Ct. 410, 133 L.Ed.2d 328 (1995) (where court noted that petitioner could not establish a reasonable probability that having heard the proposed expert testimony “the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” (citations omitted)). In the case at bar, it was not professionally unreasonable for counsel not to investigate the possibility of rebuttal testimony from an expert pathologist. As Petitioner contends, counsel acknowledged that the rape charge was crucial to Petitioner’s avoiding the death sentence. And in opening statement, counsel informed the jury that no evidence of rape would be presented. However, Tillman testified that there was a probability that rape had occurred and Tillman made similar statements in counsel’s interview prior to trial. In the state habeas proceeding, Petitioner submitted expert testimony which would indicate such a failure to investigate was professionally unreasonable. See Respondent’s Ex. No. 2H, Affidavit of Peter Tague, ¶ ¶ 14 and 15. Petitioner further provided evidence of what kind and how much investigation an ordinary, reasonable lawyer would have undertaken. Id. The Burton Affidavit demonstrates that it was reasonably probable that a reasonable investigation would have turned up an expert who would have presented testimony similar to that which was eventually adduced. Dr. Burton himself indicated that due to his geographic proximity he would have been available to testify and so would several other physicians or pathologists. Although Tillman’s testimony could have been rebutted, counsel did effectively cross-examine Tillman with regard to his conclusion that a rape had probably occurred. Counsel made Tillman concede that maggot activity in the vaginal area did not prove rape “one way or another.” (Respondent’s Ex. No. 1I-p. 819). Compare Card v. Dugger, 911 F.2d 1494 (11th Cir.1990) (failure to present independent expert testimony not unreasonable performance by counsel where counsel effectively cross-examined state’s expert witness); Riley v. Wainwright, 778 F.2d 1544 (11th Cir.1985) (where defense counsel was able to elicit testimony from the state’s medical expert regarding points favorable to the defense, counsel’s decision not to present additional testimony from an independent expert was not outside the range of professional competence). As Respondent contends, Petitioner failed to demonstrate a reasonable probability that the suggested testimony would have affected the verdict. Petitioner also failed to demonstrate the existence of a reasonable probability that the suggested testimony would have affected the sentence imposed. The affidavits of members of the jury cannot be considered by this court as they were similarly not considered by the state habeas court. Under Federal Rule of Evidence 606(b), [A] juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict ... or concerning the juror’s mental processes in connection therewith[.] Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. See also United States v. Ayarza-Garcia, 819 F.2d 1043, 1051 (11th Cir.1987), cert. denied, 484 U.S. 969, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987) (“[Enquiries that seek to probe the mental processes of jurors are impermissible.”); compare, O.C.G.A. § 17-9-41 (1997); Spencer v. State, 260 Ga. 640, 643, 398 S.E.2d 179, 184 (1990), cert. denied, 500 U.S. 960, 111 S.Ct. 2276, 114 L.Ed.2d 727 (1991) (general rule that affidavits of jurors may not be taken to impeach their verdict does not apply when “extrajudicial and prejudicial information has been brought to the jury’s attention improperly or where non-jurors have interfered with the jury’s deliberations.”). Petitioner failed to demonstrate that the mere introduction of rebuttal testimony on the evidence of rape would have created the probability of a different verdict on the rape charge, especially in light of the Petitioner’s statement that he had indeed raped the victim. Even in the absence of the rape conviction, Petitioner would have been sentenced to death. The jury found three individual aggravating circumstances, two of which survived appeal. Under Georgia law one aggravating circumstance is sufficient for a recommendation of death. See O.C.G.A. § 17-10-31 (1997). Consequently, because of Petitioner’s failure to show prejudice at either stage of the trial, Petitioner is not entitled to relief. 3. Expert Psychiatric or Psychological Testimony Petitioner contends he received ineffective assistance of counsel when his trial counsel failed to obtain or present competent expert psychiatric or psychological testimony. The state habeas court concluded there was no error in counsel’s failure to secure an additional independent mental health expert because “there was no compelling evidence of mental instability to require petitioner to investigate.” Respondent’s Ex. 2E No., p.2084. Petitioner first asserts that counsel failed to use reasonable diligence in pursuing the motion for an award of funds for the retention of a psychiatric expert and neglected to object to the “meager” award of $300.00 until after trial. With respect to this claim, the state habeas court declined to relitigate the issue. Under Ake v. Oklahoma, 470 U.S. 68, 74, 105 S.Ct. 1087, 1091-1092, 84 L.Ed.2d 53 (1985), “when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on the issue if the defendant cannot otherwise afford one.” The defendant must have “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. at 1096. There is no per se rule regarding the time at which defense counsel should seek psychiatric assistance or a rule regarding the amount of funds necessary for an adequate award. Petitioner contends counsel failed to promptly identify an expert, failed to determine the amount of funds necessary to retain the services of an expert, and failed to object to the award made by the trial court. Petitioner argues the facts surrounding the killing should have put counsel on notice to promptly evaluate Petitioner’s mental condition. However, the facts surrounding the killing, although they may suggest aberrant behavior, fall short of demanding the conclusion that Petitioner operated under a delusional compulsion or was otherwise insane. The Court cannot accept the generalization made by Petitioner that any crime involving similar facts and circumstances is necessarily committed by a person who is insane. See Ake, 470 U.S. at 90, 105 S.Ct. at 1100 (Rehnquist, J., dissenting). The state habeas record also does not support the conclusion that the $300 award by the trial court was “patently inadequate” or that Petitioner’s counsel should have objected to its alleged inadequacy. Petitioner’s expert testimony regarding the inadequacy of the fee is deficient. While there is evidence of the cost of an allegedly more “thorough” evaluation, there is no evidence of the cost typically charged for the evaluation of an indigent defendant in such a case or the availability of such an expert. Neither the attorney expert, Peter W. Tague, nor the psychiatric experts, Dr. Ellen Garb McDaniel and Dr. Joanne Yanowitz Max, proffered such testimony. Consequently, Petitioner’s counsel did not err in failing to object to the $300 award, and there was no prejudice. Petitioner compares the case at bar to Loyd v. Whitley, 977 F.2d 149 (5th Cir.1992). In that case the petitioner was convicted of murder and sentenced to death. In the federal habeas action, the petitioner contended counsel was ineffective in the penalty phase by failing to pursue an independent psychological analysis. Counsel did not present any psychiatric evidence at. sentencing. On appeal, the Fifth Circuit held, “The state court’s factual findings make clear that the decision of defense counsel not to pursue an independent psychological analysis of [the defendant] was neither a strategic choice made after investigation nor a strategic choice made in light of limits on investigation.” Loyd, 977 F.2d at 158. The court concluded counsel wrongly assumed funds were not available and abandoned a valid and important mitigating circumstance; counsel was also unaware of the law and had not made a thorough investigation of the law to make a strategic decision not to provide psychiatric testimony at the sentencing phase. The Court is not persuaded by Loyd because the facts of the case at bar are in no way similar to the facts of Loyd. In the case sub judice, Petitioner’s trial counsel obtained funds for Petitioner’s mental evaluation, counsel retained an independent expert, and the expert testified during the sentencing phase of Petitioner’s trial. Petitioner argues counsel was ineffective by failing to present any psychiatric evidence during the guilt/innocence phase. The state habeas court concluded that because there was no compelling evidence of mental instability, Petitioner’s counsel was not ineffective in failing to present psychiatric evidence during the guilt/innocenee phase. The state habeas court relied on Bertolotti v. Dugger, 883 F.2d 1503 (11th Cir.1989). In that case, the Eleventh Circuit concluded that counsel’s performance did not fall below the standard of reasonableness because counsel made inquiries concerning the defendant’s mental state and competence to stand trial, and there was evidence that the defendant appreciated the wrongfulness of his conduct. Bertolotti, 883 F.2d at 1515. Petitioner argues during voir dire and opening arguments defense counsel planted the seed that Petitioner was mentally ill but never followed up by presenting evidence of mental illness; consequently, the trial court could not give jury instructions authorizing a finding of a guilty but mentally ill. Although counsel did make statements regarding Petitioner’s mental condition during opening statements, during voir dire counsel indicated that such evidence would be proffered during the sentencing phase and counsel’s questions to the panel regarding mental illness were pertinent only to sentencing. (Petitioner’s Opening Brief, p. 177, n. 116). However, in light of counsel’s admission, mental illness appears to have been Petitioner’s only defense. Therefore, it may have been professionally unreasonable for counsel not to present any expert testimony on Petitioner’s mental state during the guilt/innocence phase. Although defense counsel may have committed error, there is no evidence in the record that counsel could have obtained favorable expert testimony for trial. There is no evidence that through reasonable diligence counsel could have obtained an expert to testify favorably on the mental illness defense; therefore, Petitioner was not prejudiced by any alleged error of counsel in failing to present psychiatric evidence during the culpability stage. Petitioner also contends counsel was defective in retaining Dr. Herbert Eber for expert psychiatric testimony and permitting Dr. Eber to provide testimony harmful to Petitioner’s efforts to avoid the death penalty. First, Petitioner argues Dr. Eber’s examination of Petitioner was inadequate and unprofessional. Dr. Eber failed to personally examine Petitioner and merely ordered his assistant to administer a multiple-choice examination which produced computer-generated results. Petitioner’s assertion that Dr. Eber’s method of evaluation was not thorough is supported by the Affidavit of Dr. McDaniel. Petitioner also contends competent counsel would not have permitted Dr. Eber to make the following statements on the stand: (1) that Petitioner was only “marginally crazy,” (2) that he was “more likely to lose control,” (3) that he is not a “person who should have been committed to the hospital” and (4) that Petitioner was “likely to do something that is pretty nasty.” Tague, Petitioner’s attorney expert, testified that counsel was defective in not securing an expert to determine whether further inquiry into Petitioner’s mental status was warranted and counsel was defective in permitting Dr. Eber to give harmful testimony. Tague also testified that the conclusions drawn by Dr. McDaniel, if provided at sentencing, would have caused the jury to have been more likely to sentence Petitioner to life. However, the Tague affidavit is deficient in that he failed to testify as to defense counsel’s ability to retain an expert such as Dr. McDaniel. Even if counsel had retained such an expert to give similar testimony, the testimony would not have affected Petitioner’s sentence; a verdict of guilty but mentally ill would not have saved Petitioner from the death penalty. See Logan v. State, 256 Ga. 664, 665, 352 S.E.2d 567, 568 (1987). Consequently, Petitioner failed to demonstrate that he was prejudiced by counsel’s selection of experts. Compare Elledge, 823 F.2d at 1446 (petitioner made no showing that it was reasonably probable that an ordinary, reasonable lawyer, operating under the time and monetary constraints of which petitioner’s counsel faced and using reasonable diligence, would have discovered a psychiatrist who would have testified as did the expert proffered at the state habeas proceeding). Petitioner also argues if the jury were informed of Petitioner’s mental state it would have sentenced him to life rather than death. However, the State’s psychiatric expert testified, as did Dr. McDaniel, that Petitioner had an alcohol abuse problem and a narcissistic personality disorder. (Respondent’s Ex. No. 1J, p. 1098). The trial court charged the jury to consider mitigating circumstances not identified by the court but introduced as evidence on the defendant’s behalf. This Court must presume that the jury followed the law as instructed, and in spite of Petitioner’s mental condition found him guilty of murder and sentenced him to death. Additionally, the jury was instructed and authorized under the law to recommend a life sentence even if it found no mitigating circumstances. Moreover, for the same reasons stated above, Petitioner cannot show that he was prejudiced by the failure to present more favorable testimony at that time. 4. Injection of issue of parole during sentencing Petitioner contends counsel was ineffective by knowingly injecting into the jury’s sentencing deliberations the issue of Petitioner’s possible eligibility for parole if given a life sentence rather than the death penalty. Petitioner also contends counsel was ineffective by failing to correct misleading statements concerning Georgia’s parole eligibility rules. The following colloquy between defense counsel and Dr. Eber took place during the sentencing phase: Snead: Should he be placed in the Georgia prison systems and you’ll test him again, and same results you have will be placed in his records, is that correct? Eber: That’s very much so. There’s usually very little change. There will probably be less anxiety so the report will be less concerned about that. Snead: And it’s your opinion that he will not be out on parole for 40 years; is that correct? Eber: That’s essentially correct. Snead: And you are familiar with the Parole Board’s classification and parole policies; are you not? Eber: Yes. Snead: And your opinion is based upon that; is it not? Eber: Yes, sir. A person is given, I would assume, perhaps a life sentence, a person is given a life sentence, they are eligible for parole in seven years in Georgia. But what that means is they are eligible in seven years to tell the Parole Board they would like to be able to get out. There is nothing to compel the Parole Board to tell them they may. And, in fact, the Parole Board are reasonable people and they look at the records, and what they look at is the nature of the crime, and then they try to make some judgment as to whether the person will commit another crime. In this case, the nature of the crime is enough so that in most cases they would never turn a person loose until he’s quite old, perhaps infirm. But then, also, as long as he maintains the kind of structured personality he has now that would be further reason to, not turn him loose, and the Parole Board will have copies of that. They will have copies of that. So the nature of what goes to a Parole Board for decision is now very heavily emphasized as to the nature of the crime and character of the person, and so we are not seeing very early paroles of violent, serious offenses. We are seeing, as you know, very little paroles of people who have had committed what’s comparatively a violent crime. Respondent’s Ex. No. 1J, pp. 1061-1063. The trial court then permitted the State, on cross-examination of Dr. Eber, to elicit testimony indicating that in some cases prisoners are released within a short period of time. The state habeas court declined to relitigate this claim because it was decided adversely to Petitioner on appeal. See Elrod v. Ault, 231 Ga. 750, 204 S.E.2d 176 (1974) (after an appellate review the same issues will not be reviewed on habeas corpus). Petitioner argues the statutory ban on testimony concerning parole was violated and this violation, by itself,’ constitutes deficient representation under Strickland. Petitioner is mistaken in his assertion that a violation of state statute is per se defective representation. Under O.C.G.A. § 17-8-76(a) (1997): No attorney at law in a criminal case shall argue to or in the presence of the jury that a defendant, if convicted, may not be required to suffer the full penalty imposed by the court or jury because pardon, parole, or clemency of any nature may be granted by the Governor, the State Board of Pardons and Paroles, or other proper authority vested with the right to grant clemency. Although this provision may demonstrate that defense counsel did indeed violate a state statute, the Court cannot conclude that a violation of this Georgia statute constitutes a violation of any right secured by the United States Constitution. According to Ingram v. Zant, 26 F.3d 1047, 1052 (11th Cir.1994), cert. denied. 513 U.S. 1167, 115 S.Ct. 1137, 130 L.Ed.2d 1097 (1995), “[Djefendants maintain no cognizable federal right to prevent the jury, during the sentencing phase of a capital trial, from considering the possibility of parole if sentenced to life imprisonment.” Therefore, violation of the above identified statute does not constitute per se attorney error and prejudice. Respondent contends that under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 2200, 129 L.Ed.2d 133 (1994) (plurality opinion), defense counsel was entitled to present evidence on the availability of parole. In Simmons the Supreme Court addressed the defendant’s limited right under the Due Process Clause to respond to the prosecution’s evidence regarding the defendant’s future dangerousness. Here, the defendant/Petitioner raised the issue of parole eligibility. Consequently, the Court’s analysis of the parole issue is inapplicable. However, the Court must determine whether counsel erred in submitting evidence on the issue of parole and in failing to correct information which Petitioner contends was erroneous. The state habeas court concluded there was no attorney error because the information provided by Dr. Eber was correct. The Tague Affidavit indicates that counsel was professionally unreasonable in permitting Dr. Eber to testify about when Petitioner would be eligible for parole. On re-cross-examination, Dr. Eber conceded that Petitioner could be considered for parole in as little as seven years. On the contrary, Tague’s affidavit states that counsel was ineffective in failing to elicit testimony from Dr. Eber about another parole provision which prohibits consideration for parole until the expiration of at least 20 years where the defendant has been sentenced to consecutive life sentences. While there may be some discrepancies in the effect of the parole provisions with respect to Petitioner, this Court is not required or authorized to resolve issues of state law. In the case sub judice, the Court must determine whether counsel’s failure to refer Dr. Eber to a statutory provision authorizing a longer period for parole consideration was, under an objective standard, professionally unreasonable. This Court concludes it was not. Dr. Eber testified as to the process for granting of parole. Although on re-cross-examination, Dr. Eber conceded that the Parole Board had the right to consider Petitioner for parole in as little as seven years, counsel, on re-direct, estimated Petitioner’s time served prior to any possibility of parole at 40 to 50 years. Furthermore, because the Court had not yet sentenced Petitioner on the rape charge, the applicability of any such statute or regulation postponing Petitioner’s parole eligibility for 20 years was uncertain. Counsel was not ineffective by knowingly raising the issue of Petitioner’s possible eligibility for parole if given a life sentence rather than the death penalty. Members of the jury, as most citizens, are well aware of the possibility of parole. Petitioner urges the Court to conclude the jury’s recommended sentence of death was based solely on the deterrence factor rather than retributive factors. Considering the nature of the crime, it is highly likely the jury saw fit to impose the most severe punishment regardless of the possibility or impossibility of parole. By addressing the issue directly, counsel was able to answer questions which, in all probability, inevitably arise during the jury’s deliberations of a death case. Because the Court finds no attorney error, the Court will not address the issue of prejudice. 5. Sentencing Phase Instructions Petitioner contends he received ineffective assistance of counsel when his attorneys failed to object to erroneous and misleading jury instructions given during the sentencing phase. The trial court gave the jury the following instructions with respect to kidnapping with bodily injury: Now, I charge you that the statutory aggravating circumstances which you are allowed to consider in this case are that .... the murder of Christie Ann Griffith was committed while the offender was engaged in another capital felony; to wit: kidnapping with bodily injury.... [Section] 16-5-40 kidnapping with bodily injury: A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will. It is not required that the defendant be found guilty of kidnapping before you find kidnapping as an aggravating circumstance to support the death penalty[.] (Respondent’s Ex. No. IK, p. 1385-86). As stated above, the jury found three statutory aggravating circumstances, including kidnapping with bodily injury. The state habeas court, without explanation, found this claim to be without merit. Petitioner points out that the charge above does not define or clarify the meaning of “bodily injury.” Petitioner argues this error was compounded by the trial court’s repeated reference to the aggravating circumstance as “kidnapping.” Petitioner urges this Court to conclude that strangulation of the victim which resulted in her death could not support the “bodily injury” required for a finding of kidnapping with bodily injury because the strangulation effectively merged into the charge and conviction for murder and the jury did in fact recommend the death penalty based on mere “simple” kidnapping. Petitioner contends counsel’s failure to object to this instruction resulted in a violation of his due process rights and the right to a reliable jury verdict. The Court must reject Petitioner’s argument. Under the Due Process Clause of the Fourteenth Amendment, a defendant can only be convicted upon proof of every essential fact beyond a reasonable doubt. Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344 (1985). In Potts v. Zant, 734 F.2d 526 (11th Cir.1984), vacated and remanded on other grounds, 478 U.S. 1017, 106 S.Ct. 3328, 92 L.Ed.2d 734 (1986), the Eleventh Circuit held the failure of the trial court to instruct the jury on an element of a crime that is essential to support a death sentence for that offense deprives the defendant of due process of law. In that case, the defendant was charged with armed robbery, aggravated assault, and kidnapping with bodily injury. The trial court gave instructions on kidnapping and never used the phrase “with bodily injury” in the instruction. The jury’s verdict indicated that the defendant was found guilty of only “kidnapping.” With regard to aggravating circumstances, the jury identified the aggravating circumstance of kidnapping committed during the course of an armed robbery. Consequently, the Eleventh Circuit concluded the trial court’s instruction at both the culpability phase and the sentencing phase deprived the defendant of due process of law. This case is easily distinguished from Potts. In the ease at bar, the jury did not have to render a verdict on the crime of kidnapping with bodily injury. Furthermore, the trial court identified in its instruction the aggravating circumstance of kidnapping with bodily injury. Simple kidnapping was never an issue in the case at bar. Furthermore, the instruction given in this case is more similar to that in Messer v. Kemp, 760 F.2d 1080 (11th Cir.1985). In Messer, the defendant was charged with kidnapping with bodily injury. In describing the charges of which the defendant was accused, the trial court stated “the said accused did then and there inflict serious and grievous bodily injuries upon the said Rhonda Tanner, said injuries resulting in her death.” 760 F.2d at 1092. In that case, as in the case at bar, the trial court mentioned the phrase “with bodily injury” and, arguably, noted that the bodily injury inflicted upon the victim caused her death. Without any additional description or definition, the district court found this instruction sufficient on the charge of kidnapping with bodily injury. The Eleventh Circuit affirmed. Similarly, this Court finds the charge sufficient with regard to the aggravating circumstance of kidnapping with bodily injury and the jury was not misled in any way. In spite of Tague’s testimony that reasonably competent counsel would have objected to the trial court’s failure to define “bodily injury,” the Court finds no attorney error. First, as stated by the Georgia Supreme Court, Petitioner’s confession supports the jury’s finding of kidnapping with bodily injury. The term “bodily injury” requires no definition. Green v. State, 193 Ga.App. 894, 896, 389 S.E.2d 358, 360 (1989). Any physical injury to the victim suffices to support this aggravating circumstance. Id. Petitioner strangled the victim with his bare hands and then found and used an extension cord to strangle the victim until her death. Essentially, “the kidnapping with bodily injury and the [murder] occurred sequentially, and the former was completed when the latter was perpetrated.” Robinson v. State, 210 Ga.App. 175, 176, 435 S.E.2d 466, 468 (1993). Defense counsel’s failure to object to the trial court’s. instruction did not deprive Petitioner of a fair sentencing hearing nor did the instruction jeopardize the reliability of the sentencing recommendation. Consequently, the Court finds this claim is without merit. 6. Sentencing instruction on unanimity Petitioner argues his trial counsel also failed to object to the trial court’s instruction concerning the necessity for unanimity in sentencing. Petitioner contends the error violated Petitioner’s right to a fair trial and right to a reliable sentencing verdict. Although Petitioner found error in the trial court’s instruction, the state habeas court concluded that it was Petitioner who had a misunderstanding of the law and found no attorney error and no prejudice. The trial court gave the following instruction regarding unanimity of sentencing: I charge you that it shall be your responsibility to return one of two verdicts in this phase of the trial as to Count One. It shall be either the sentence of life imprisonment, or, the death penalty.... Now, I charge you that the verdict you return in this case must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. The verdict must be unanimous. It is your duty as a juror to consult with one another and to deliberate with the view to reach an agreement, if you can do so without surrendering honest convictions or opinions .... In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced that it is erroneous; but do not surrender your honest conviction as to the weight or the effect of evidence or as to what your verdict should be, solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Respondent’s Ex. IK, pp. 1388-89. Petitioner correctly asserts that under O.C.G.A. § 17-10-31 (1997) if the jury does not recommend a sentence of death the trial court shall sentence the defendant to imprisonment. However, Petitioner argues that the trial court stated that a verdict of death or life imprisonment must be unanimous and this incorrect statement suggested to the jury that Petitioner would be sentenced to life imprisonment only if all of the jurors agreed. Petitioner’s interpretation of the charge is far beyond what any reasonable juror would have concluded. In spite of Petitioner’s affidavits to the contrary, the plain language of the charge does not suggest that Petitioner would be sentenced to life only if the jury unanimously recommended life. Taking the charge as a whole, the trial court instructed the jury on the law as provided under O.C.G.A. § 17-10-31 and stated, “When a sentence of death is not recommended by the jury, the Court shall sentence the defendant to life imprisonment.” (Respondent’s Ex. IK, p. 1384). Consequently, the state habeas court, citing Romine v. State, 256 Ga. 521, 527, 350 S.E.2d 446, 452 (1986), concluded that the charge did not mistakenly imply that if the jury deadlocked a retrial would result. Defense counsel’s failure to object to the charge on unanimity did not violate Petition