Full opinion text
TJOFLAT, Circuit Judge: Twenty-two years ago, in the Superior Court of Muscogee County, Georgia, twelve jurors unanimously found Carlton Gary guilty of three counts of murder, rape, and burglary. As a result of the murder convictions, Gary was sentenced to death. Since then, he has pursued every possible legal avenue available to him to obtain a new trial. In all, his convictions and death sentences have been reviewed on at least ten separate occasions. In each instance, he has been denied relief. The review here is of the United States District Court for the Middle District of Georgia’s denial of his petition for a writ of habeas corpus. We find no merit in the issues presented and therefore affirm. I. A. In its order denying habeas corpus relief, the district court painstakingly parsed the transcript of Gary’s trial and provided a detailed summary of the facts giving rise to Gary’s arrest and convictions. Gary v. Schofield, 336 F.Supp.2d 1337 (M.D.Ga.2004). We excerpt the relevant factual portion of the court’s order: Between the fall of 1977 and spring of 1978, terror gripped the historic Wynn-ton neighborhood in Columbus, Georgia. Targeting elderly white women, an assailant sexually assaulted nine women, killing seven of them and leaving stockings around their necks as his calling card. Labeled the “stocking strangler” by the local news media, the assailant suddenly ceased his activities in the Wynnton area in 1978 and eluded authorities for six years. These crimes remained unsolved until 1984 when a pistol that was stolen from a home in the Wynnton area in October 1977 was linked to [Gary]. [Gary] was arrested on May 3, 1984 for this burglary. After acknowledging his Miranda rights, [Gary] confessed that he was present at the burglary and that he was either present at, or had knowledge of, eight of the nine 1977-78 Wynnton area rapes and murders. [Gary] stated that he burglarized these women’s homes while an individual named Malvin A. Crittenden committed the rapes and murders. The authorities found no corroborating evidence linking Crittenden to the crimes. [Gary]’s fingerprints were ultimately found to match the latent prints found at four of the crime scenes. Blood evidence and hair samples taken from the crime scenes were inconclusive — they did not establish [Gary] as the perpetrator, nor did they exclude [Gary], An investigation into [Gary]’s background revealed his connection to similar crimes in the past. Specifically, on April 14, 1970, the body of eighty-five year old Nellie Farmer was found in her residence in Albany, New York. She had been raped, strangled, and her body was covered. A fingerprint taken at the scene matched [Gary’s]. When arrested and confronted with this evidence, [Gary] claimed that he was at the crime scene, but an individual by the name of John Lee Mitchell actually raped and killed Mrs. Farmer. Mr. Mitchell was acquitted of these charges. On January 2, 1977, fifty-five year old Jean Frost was attacked and raped during a burglary of her home in Syracuse, New York. One of the items taken during the burglary was her watch. When [Gary] was taken into custody two days later, he had the watch in his pocket. [Gary] confessed to being the “lookout” for the Frost burglary. He claimed that an individual named Dudley Harris committed the attack and rape. Mr. Harris was not convicted for the crimes. Regarding the Columbus “stocking strangler” crimes, [Gary] was indicted for raping, murdering, and burglarizing the homes of three of the nine victims— Ruth Schieble, Martha Thurmond, and Kathleen Woodruff. At trial, the Prosecution introduced evidence of the attacks on the other “stocking strangler” victims, claiming that they showed a similar pattern and were also committed by [Gary]. The evidence presented by the Prosecution to show a similar pattern included the following. All of the victims were elderly white women between the ages of 55 and 89. Each of the victims lived alone. In each crime, the assailant broke into the woman’s home and burglarized her residence. With the exception of one, all of the crimes happened at night. All of the elderly women were sexually assaulted. All of the attacks involved ligature strangulation, usually with the victim’s stockings or pantyhose. With the exception of only one attack, all of the attacks occurred in the Wynnton area of Columbus, Georgia. Every deceased victim had been either partially or totally covered after the attack. The evidence at trial showed that Mrs. Schieble was raped, beaten, and strangled to death with a stocking on October 21, 1977. She was eighty-nine years old at the time, legally blind, and could walk only with the aid of a walker. Mrs. Schieble’s son and his wife discovered her lifeless, covered body on October 21, 1977. Martha Thurmond’s body was discovered on October 25, 1977. Her body was covered by a pillow, blankets, and sheets. The evidence showed that Mrs. Thurmond was sexually assaulted, beaten, and strangled with a stocking. On December 28, 1977, the body of seventy-four year old Kathleen Woodruff was discovered, partially covered, and lying on her bed. Mrs. Woodruff had been raped and strangled with a scarf. The similar crimes evidence showed that Gertrude Miller was attacked on September 11, 1977. She was raped and severely beaten. Knotted stockings, similar to the ones used to strangle the other victims, were found at the scene. Mrs. Miller survived the attack and identified [Gary] as her assailant. The body of fifty-eight year old Mary “Fern” Jackson was discovered on September 16, 1977. Her body was covered and she had been beaten and raped. Mrs. Jackson was strangled to death with a stocking and a sash from a dressing gown. Seventy-one year old Jean Dimenstein was raped and strangled to death with a stocking in her home on September 24, 1977. Her body was covered with sheets and a pillow. On February 11, 1978, police responded to a call and found Mrs. Ruth Schwob sitting on the edge of her bed with a stocking tied around her neck. Mrs. Schwob never identified [Gary] as her assailant. Although she survived the February 11, 1978 assault, she died before [Gary] was charged and tried. On February 12, 1978, the body of seventy-eight year old Mildred Borom was found lying in a hallway of her home. She was lying on her back with her face covered. Mrs. Borom had been strangled with a Venetian blind cord. She also had been raped. On April 19, 1978, sixty-one year old Janet Cofer’s body was found lying in her bed covered with linen and with a pillow over her face. Mrs. Cofer had been raped and strangled with a stocking. Although Mrs. Cofer did not reside in the Wynnton area of Columbus (as all of the other victims did), she had attended choir practice at the Wynnton Methodist Church on the evening of her murder. Id. at 1341-43 (internal citations and footnotes omitted). B. Gary was indicted in Muscogee County on May 4, 1984 and charged with three counts of malice murder, three counts of rape, and three counts of burglary. The alleged victims were Ruth Schieble, Martha Thurmond, and Kathleen Woodruff. On May 9, Judge John Land of the Musco-gee County Superior Court found Gary to be indigent and appointed two lawyers, William Kirby and Stephen Hyles, to represent him. On June 20, defense counsel filed several motions. They requested funds to hire an investigator and to travel to interview potential witnesses; they asked the court to have Gary evaluated by psychiatric and psychological experts for the purpose of determining mental competence; and they sought the production of all physical evidence in the State’s possession, including fingerprints, hair, blood, and bodily fluids obtained from the scene of some of the murders. They also sought the reports of experts employed by the State to examine such evidence and requested funds to hire independent experts to examine the evidence. In addition, they sought complete access to the State’s investigative files, including statements Gary made to the police, a list of the witnesses who appeared before the grand jury, and any exculpatory Brady material. They also moved for a change of venue and the severance of the indictment counts, so that the murder and rape counts would be tried separately from the burglary counts. Lastly, counsel requested a preliminary hearing for the purpose of narrowing the issues for trial. On July 17, Judge Land convened a hearing on defense counsel’s motions. After hearing from the parties, the court granted all of the motions except the motion for funds to hire independent experts to examine the State’s physical evidence and the motion for a psychiatric and psychological evaluation. As to those two motions, the court deferred its ruling. At the end of the hearing, the court scheduled the trial for December 3, 1984 in Columbus. On August 28, August F. Siemon, an Atlanta lawyer, filed a notice of appearance, representing that Gary had retained him as defense counsel. He attached a statement from Gary indicating that he was Gary’s counsel of choice, with the authority to retain additional counsel as necessary. Siemon withdrew Kirby and Hyles’s requests for a severance and for a change of venue and requested that the court withhold ruling on the motions for a psychiatric and psychological evaluation and for funds to hire experts. On August 29, after determining that Siemon would be representing Gary as independently retained counsel, Judge Land entered an order discharging Kirby and Hyles as defense counsel. The order instructed Kirby and Hyles to make their investigative files and work product available to Siemon and gave Siemon thirty days to review the pending motions. By mid-September, Siemon decided that he needed the services of co-counsel and an investigator. He moved the court to authorize him to hire an investigator and to reappoint Kirby to act as co-counsel. At a hearing on the motion, Siemon informed the court that he had handled between 50 and 60 capital cases in the past four or five years, as lead or associate counsel, and that he had handled 400 cases during his first two years as a public defender from 1977 to 1978. Despite this experience, he said that he would be unable to handle Gary’s case alone. Siemon told the court that he was representing Gary pro bono and lacked funds to associate another lawyer or pay an investigator. In the next breath, however, he represented that he had the resources to provide Gary full representation, stating, “[tjhere’s no question in my mind that I have the personal resources to provide representation to [the defendant].” Transcript of Proceedings, September 25, 1984, at 44. At this point, Judge Land explained Gary’s options to Gary and Siemon: It’s recognized by all the parties here I’m sure that there are three alternatives that this defendant has been faced with. One is to represent himself. Obviously he has not chosen that route. Two, to plead indigency and have counsel appointed. He did plead indigency, the Court found that he was indigent, and appointed counsel to represent him. Thirdly, which is superior to the other two, is to procure counsel of his choice ... And so I take the position in this instance at this time that Mr. Gary has exercised the third alternative of procuring counsel of his choice and certainly the Federal Courts, the United States Supreme Court, says he has that right. He has exercised it. Now the court originally named Mr. Kirby as lead counsel in this case because of his impressive qualifications and experience ... Mr. Siemon, on behalf of Mr. Gary, you asked that he be relieved as lead counsel and that you be appointed lead counsel. And the Court has allowed that.... You have pointed out to the Court in your initial urging of this matter, Mr. Siemon, that the defendant has no right — an indigent defendant has no right to an attorney of his choosing.... I cannot at this time allow [Gary] to name indigent appointed counsel of his choice and I decline to reappoint Mr. Kirby in this case. Id. at 64-66. Siemon then inquired again about funding for an investigator. Judge Land denied his request without prejudice. See id. at 67. Siemon continued to seek co-counsel, and on October 11, Bruce S. Harvey, an Atlanta attorney, filed a notice of appearance. On December 10, Siemon moved the court to appoint Gary Parker, a Columbus attorney, as co-counsel. Judge Land denied the motion, and Parker filed a notice of appearance as co-counsel. Once assembled, this defense team of three lawyers filed scores of pretrial motions, some of which dealt with the disclosures the State had made pursuant to the court orders Kirby and Hyles had obtained. Included in counsel’s motions were requests for funds to hire experts, including a forensic serologist; to pay for Siemon’s trips out of state to interview witnesses; and to employ an investigator. As to each request for funds, Judge Land asked Siemon to identify the experts he wished to employ and the purpose of their employment, and, on each occasion, Siemon said he would not disclose the information unless the court permitted him to do so ex parte and in camera. The court denied his request to proceed ex parte and in camera; Siemon did not disclose the information; and the court denied his requests for funds. As they were preparing the case for trial, Siemon, Harvey, and Parker made an appointment to visit the Georgia Bureau of Investigation (“GBI”) Crime Lab for the purpose of interviewing the Crime Lab serologist and other experts who had examined the physical evidence the police had uncovered at the crime scenes: sero-logical fluid (blood and semen), fingerprints, and hair. The prosecution had provided the defense with the official Crime Lab reports of these examinations, signed by the Crime Lab’s Director, but not with the notes the experts had made while performing the examinations. The notes would have been available to defense counsel, but counsel did not request them. For reasons not revealed by the record, defense counsel canceled their appointment with the GBI Crime Lab. On February 8, 1985, Siemon filed a motion to recuse Judge Land. The motion stated that Judge Land should be removed because of “extra judicial knowledge and bias,” including his knowledge of certain facts and circumstances expected to be introduced as evidence. Judge Land voluntarily recused, and on May 13, Judge Bell assigned Judge E. Mullins Whisnant to preside over the case. Nine days later, on May 22, Siemon filed a motion to recuse Judge Whisnant, arguing that the judge had served as the Muscogee County District Attorney in the Chattahoochee Judicial Circuit while the “Stocking Strangler” case was being investigated. Judge Whis-nant voluntarily recused on May 30, and the same day, Judge Bell appointed Judge Kenneth Followill of the Muscogee County Superior Court to preside over the case. At some point during the first five months of 1985, Siemon petitioned the Muscogee County Superior Court for a writ of habeas corpus challenging Gary’s conditions of confinement pending trial. The petition, directed to the Muscogee County Sheriff, Gene Hodge, alleged that Gary’s conditions of confinement were cruel and unusual and asked the court to order the Sheriff to provide Gary with more humane accommodations or to release him from custody. At a one day hearing on the petition, the Sheriff took the position that the writ of habeas corpus was not the appropriate remedy for the relief Gary was seeking. The record does not indicate the court’s disposition of the petition, but we assume that the court denied the writ because Gary remained in the Muscogee County Jail for the duration of his prosecution. On July 3, Judge Followill heard Gary’s motion for funding for an investigator. At the hearing, the court learned that defense counsel had only interviewed “approximately 10 to 15 witnesses” in the previous ten months. Respondent’s Exhibit No. 26 at 64. In light of this information, Judge Followill expressed skepticism that defense counsel would make good use of public funds. He stated to Siemon, Harvey, and Parker: “[ejvidence that you have only talked to 10 or 15 witnesses in this case in 10 months doesn’t go a long way towards impressing me with how you expend your time, and I’m wondering how you are going to expend this money.” He continued, I presume that with the experience that you lawyers have and have described to me that you normally don’t place a witness on the stand to testify until you’ve talked to him yourself ... you are going to have to talk to these people anyway and why in the world have you not talked to more than 15 of them up until now? That really takes me back. Id. at 68, 78. On October 7, 1985, at another hearing on defense motions, Judge Followill revisited defense counsel’s request for funds for an investigator, once again asking Siemon, Harvey, and Parker how many witnesses they had interviewed. Siemon responded that in the three months that had elapsed since the July 3 hearing, they had interviewed no witnesses. Respondent’s Exhibit No. 27, at 133-34. In response, the judge said [Y]ou have taken on the duty to represent your client and you haven’t interviewed but 10 or 15 witnesses when you’ve been supplied all the names all this time. How are you going to discover the facts of this case? What does it take in the way of funding while you are in Columbus, Georgia, to call a few witnesses, go by to see them and talk to them? You’ve got four lawyers involved in this case. Three of you have made it to Court even if it’s been just for the purpose of presenting these motions ... and here you are sitting in this courtroom telling me that you haven’t done the most basic thing that any lawyer would do.... I know Mr. Parker has a law practice to carry on and I know that you all have other things you’ve got to do too; but as far as this Court is concerned, you don’t have a more important case right now than protecting this man’s life and liberty- id at 137-38, 141. Judge Followill then turned to Gary over Harvey’s objection: “Mr. Gary, you’ve heard this team of lawyers representing you say that they have not interviewed anymore [sic] witnesses than they had back in August.... [A]re you satisfied that you are receiving the proper advice and representation in this case?” Id. at 143. Gary did not respond. The judge put the question to him two more times, with no response. At this point, after conferring privately with Gary and his co-counsel, Parker moved the court for permission to withdraw, citing the court’s refusal to provide funding as the basis for his motion. The court denied the motion on the ground that it was improperly presented. On December 18, Parker moved the court to withdraw with his client’s consent, and the court granted the motion. On February 6,1986, Judge Followill set March 10, 1986, as Gary’s trial date. On February 18, he granted Siemon’s motion for disclosure of Brady material, ordering an in camera inspection of the prosecution’s file, consisting of some 12,000 pages. The court reviewed the file and ordered the disclosure of any potentially exculpatory material. C. The case was called for trial on March 10, as scheduled. Three hundred venire-persons had been summoned to the Musco-gee County Courthouse in Columbus for jury duty, and the prosecution had subpoenaed 150 witnesses. Before Judge Follo-will assumed the bench, he was informed that Gary, who was being detained in the Muscogee County Jail, refused to get dressed and come to court. Judge Follo-will informed Siemon and Harvey, and they went to the jail. They returned to court and filed a “Notice of Intention to Raise Issue of Mental Incompetency” and a “Special Plea of Incompetency.” Accompanying the special plea was an affidavit by Harvey stating that he had been observing Gary’s physical and mental condition in a “steady decline and debilitation.” Judge Followill and counsel immediately retired to chambers to consider these filings. At that time, Harvey supplemented what he had stated in the affidavit. In light of Harvey’s statements, the court declared a two-day recess. On March 12, the court and counsel reassembled in chambers. Siemon moved the court to have Gary examined by an independent psychiatric expert who would “assist the defense.” Judge Followill, concluding that it was the court’s responsibility to determine whether Gary was competent to stand trial, denied Siemon’s motion and instead ordered that the Georgia Department of Human Resources “conduct a complete physical, psychological, neurological, and psychiatric examination of the defendant” with respect to his competency to stand trial and his mental competency at the time of the alleged crimes. Gary was evaluated by the Forensic Services Division of Central State Hospital in Milledgeville on March 28. On admission to the hospital, Gary met with the Director of Admissions and asserted his right to consult with his lawyer. The Director provided Gary with a telephone, and Gary called Siemon. They spoke for fifteen minutes. After that, Gary was taken to the Forensic Services Division’s psychiatrist and psychologist assigned to the case. During the five days he spent at the hospital, Gary refused to speak to them or otherwise cooperate in the evaluation they had been ordered to perform. But he did mingle with some of the patients at the hospital, especially during the recreation periods, and talk to members of the hospital staff. Judge Followill scheduled the trial on Gary’s special plea of mental incompetency for April 21, in Columbus. On April 11, Siemon filed a motion in limine to prevent the Forensic Services Division’s psychiatrist and psychologist from testifying as to Gary’s competency to stand trial. Siemon argued that unless the court provided for an “independent” evaluation, rather than one performed by the State, they should be barred from testifying. The court denied his motion. The competency trial commenced on schedule with jury selection, which took one day to complete. The trial, itself, consumed the following four days. Five witnesses testified: the Director of Admissions of the Central State Hospital, the psychiatrist and psychologist who undertook to evaluate Gary, Sheriff Hodge, and Gary Parker. Siemon called Parker and Hodge to the stand to establish Gary’s incompetency. Parker testified that Gary’s ability to communicate with defense counsel had been steadily declining, such that it was extremely difficult to prepare a defense. The Sheriff testified that Gary had been confined alone for two years, without exercise, and had refused to eat for prolonged periods of time. The Director of Admissions and the psychiatrist and psychologist testified as court witnesses. The two experts acknowledged that Gary had refused to cooperate with them. The psychologist said that it was difficult to determine whether Gary was malingering or whether he was manifesting symptoms of mental illness; he therefore rendered no opinion as to Gary’s competence to stand trial. The psychiatrist opined, based on forty years of experience, that Gary was not manifesting a mental illness and thus was competent to stand trial. The Director of Admissions said that he saw nothing abnormal in Gary’s behavior, and that Gary was fully cognizant of his rights. On April 28, at the conclusion of the competency trial, the jury found against Gary on his special plea of mental incompetency. On June 9, the .trial commenced in Columbus with jury selection. One day later, Siemon filed a motion for the recusal of Judge Followill because he had submitted to an interview by a reporter with the Columbus Ledger & Enquirer in which he stated that “there is no provision in law” requiring that public funds be provided to privately retained attorneys in a criminal case. While this motion was pending, Siemon moved the court for a change of venue. On July 2, the court granted the venue motion in part and ordered that the jury would be selected in Griffin, Georgia, from a Spalding County venire, but the trial would take place in Columbus. The jury would be transported from Griffin to Columbus and sequestered in a Columbus hotel for the duration of the trial. On July 7, three weeks before the trial was to begin, Harvey moved the court to permit him to withdraw or, alternatively, to appoint him to represent Gary. The same day, Siemon filed a second motion for the recusal of Judge Followill, alleging that Judge Followill, by “intentionally selecting] Spalding County so as to minimize black participation in the trial of the accused,” had purposefully “injected racism into the jury selection procedures in this case.” Judge Bell, the administrative judge, ordered that Siemon’s two recusal motions be heard on July 21 before Judge C. Cloud Morgan of the Superior Court of the Macon Judicial Circuit. On July 24, after hearing three hours of argument, Judge Morgan, having found no merit in Siemon’s motions, denied them. Meanwhile, Judge Followill granted Harvey’s motion to withdraw; this left Siemon as sole defense counsel. On August 11, the trial began, and the State opened its case in chief. The state presented a plethora of circumstantial evidence that identified Gary as the perpetrator of the charged crimes, including: (a) Gary’s confession to the police that he was present at, or had knowledge of, eight of the nine rape/murder scenes; (b) Gary’s latent fingerprints at four of these locations; (c) blood evidence and hair samples found at the victims’ locations that included Gary in the class of potential perpetrators; (d) eye-witness testimony of Gertrude Miller, who identified Gary as the man who had attacked her; (e) pervasive modus operandi and identification-type evidence; (f) the lack of evidence supporting Gary’s claimed alibi — that although Gary was present when the murders occurred, Malvin Crittenden, a childhood friend, actually committed them; (g) compelling evidence that only one person committed each rape/murder; and (h) uncontroverted evidence that the rape/murders were committed by the same person. The guilt phase of the trial ended on August 26, 1986, and the jury found Gary guilty as charged. The penalty phase of the trial began and ended the next day, August 27. The prosecution presented documentary evidence that Gary had been convicted of a felony on three occasions in 1979 and rested its case. Siemon rested Gary’s case without calling any witnesses or putting on any evidence. After three hours of deliberation, the jury found that, with respect to each of the three murder counts alleged in the indictment, there were two “aggravating circumstances.” The jury returned verdicts calling for the death sentence, and the court, bound by the jury’s verdicts, imposed three death sentences. D. On September 25, 1986, Gary moved the court for a new trial. The court, after hearing argument of counsel, denied his motion on October 18, 1986. Gary, represented by Siemon, appealed the court’s judgment, and the denial of his motion for a new trial, to the Supreme Court of Georgia. In his brief to the court, Siemon asserted eighteen enumerations of error. In the second enumeration, Siemon argued that the trial court refused to give him an ex parte hearing on the necessity of funds, contrary to the Supreme Court’s holding in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Siemon continued, Although Appellant was allowed to make a proffer on why he needed funds and indeed made such a proffer ... Ake recognizes that it violates due process and equal protection to require an indigent to reveal his defenses and strategies to the State in order to gain the tools of an adequate defense. Appellant was not prepared to make a showing of necessity ex parte and so the record in this case is incomplete on the necessity of funds. Respondent’s Exhibit No. 65, at 13 (citations omitted). In the third enumeration, Siemon made the related claim that by failing to grant funds, the trial court denied Gary his rights to due process, compulsory process, confrontation, and a reliable sentencing hearing. He stated, [a]ppellant’s proffer on the funds issue, although ... incomplete, show[ed] the necessity for funding.... As Appellant argued to the trial court, it is a logical proposition that without funds he would be unable to travel to different states to interview witnesses to satisfy the requirements of confrontation or the out of state witness subpoena rules. Id. at 14-15. On June 26, 1987, the Georgia Supreme Court remanded the case in part, directing the trial court to “appoint competent counsel to represent defendant for the purpose of a hearing which shall be conducted to determine if for any reason, including the lack of funds, the defendant failed to receive effective assistance of counsel.” Gary, 336 F.Supp.2d at 1345. On July 13, Siemon, whose performance would be the focus of the remand proceeding, again moved to have Judge Followill recused from the case. His motion was denied. On August 14, the court appointed two attorneys to represent Gary in the remand proceeding, H. Haywood Turner, III, and Peter B. Hoffman, both of Columbus. On October 5, Siemon appeared as Gary’s counsel and filed motions asserting Gary’s right to have counsel of his choice and challenging Turner’s legal competence. The motions also complained of “the racially biased use of peremptory challenges prior to his competency trial,” claimed that Gary had a “right to funds on remand,” and alleged that the State had infringed “his right to have his guilt and sentence determined free from racial considerations.” Respondent’s Exhibit No. 80, at 1-2. On October 6, Frank L. Derrickson also filed a notice of appearance in behalf of Gary. The remand proceeding was held before Judge Followill on three separate days, November 4, 12, and 16, 1987. At the November 4 session, Siemon addressed the apparent conflict in his representing Gary on the question of his own ineffectiveness: “Anticipating that perhaps there would be an order at some point removing me as counsel ... I consulted Mr. Gary ... and Mr. Gary has requested the services of an independent attorney, one that’s not tied to Columbus, one that’s not appointed by the Court, to represent him on remand if in fact I am disqualified from further representation of him.” Respondent’s Exhibit No. 72 at 7. Siemon then admitted that he had refused to share the trial and pretrial transcripts with Turner, one of the court appointed attorneys on remand, stating that “[t]he attorney [i.e., Derrickson] that’s going to be representing Mr. Gary, should I be removed by order of the Court ... has acquired the services of a New York law firm to assist him in Mr. Gary’s representation and that the transcripts are now in New York being reviewed by this law firm.” Id. at 8. He argued, “[o]ur position is that the transcripts contain margin notes written by me during the course of the proceedings, mostly during the pretrial proceedings, but also margin notes written by me during the course of the appeal, and those margin notes are protected by the attorney-client privilege and by the work-product doctrine.” Id. at 8-9. Siemon added that he couldn’t “waive ... the attorney-client privilege and the work-product doctrine ... rights [because they are Gary’s], and [Gary] refuses to waive those rights.” Id. at 9. The court then ordered Siemon to retrieve the transcripts and turn them over to Turner. At the November 12 session, both Der-rickson and Siemon appeared on behalf of Gary. Siemon argued that he could appear because Gary never contended that his representation was ineffective. Rather, “[w]hat Mr. Gary is alleging in this Court is that it was the trial Court’s rulings that denied him the effective assistance of counsel.” Respondent’s Exhibit No. 73 at 7. “[T]herefore, there is no conflict between me and Mr. Gary. Mr. Gary is not alleging that I didn’t represent him properly. Mr. Gary is and always has alleged that I was not allowed to represent him properly because of the Court’s denial of funds.” Id. After confirming that Gary wanted Derrickson to represent him, id. at 27, the court ruled that Derrickson would represent Gary and that Siemon would not. Derrickson then moved the court for funds for investigative and expert assistance, and the court denied his motion. The State issued subpoenas for Siemon, Harvey, and Parker for the November 16 session, asserting that the effective assistance of trial counsel issue could not be resolved without defense counsel’s testimony. Derrickson moved the court, on behalf of Gary, to quash the subpoenas, arguing that the subpoenas were an attempt [by] the State ... to interfere with and to destroy Mr. Gary’s attorney-client privilege and his ... work product.... The whole strategy of the State has been to drive a wedge between Mr. Gary and the lawyer of his choice, Bud Siemon. We think it’s a naked power play to try and get these lawyers up and cross-examine them about their innermost secrets and conversations with Carlton Gary in an effort to gain some discovery in this matter. We think that that’s all it is and that this Court should recognize it as that. Respondent’s Exhibit No. 74 at 101-02. At the hearing, Derrickson asked Gary if he wished to waive his “attorney-client privilege or [his] work product privilege,” and Gary said no. Id. at 104. Judge Followill then asked Derrickson whether Gary understood that by asserting the attorney-client privilege, he was effectively waiving the one issue before the court on remand — whether there was ineffective assistance of counsel at trial. Id. at 109. He called a recess so that Derrickson could explain the consequences of asserting the attorney-client privilege to Gary. After the recess, Gary informed the court that he could not know whether to invoke the attorney-client privilege until he heard State’s examination of Siemon. Id. at 125. Derrickson’s sole witness at the hearing was William J. Smith, the District Attorney. Derrickson questioned Smith about how much the State had spent in investigating and prosecuting the case. The purpose of this line of questioning was to imply that defense should have been given the funds it requested. The State called Siemon to the stand to question him about the handling of Gary’s defense. Derrickson, invoking Gary’s attorney-client and work product privileges, objected to this line of inquiry — except in a few instances where the pretrial or trial transcripts provided a clear answer. Since Gary had previously indicated that he could not be sure about invoking these privileges until he heard each question, the court asked Gary individually whether he was sure he wanted to invoke the privilege after each time Derrickson objected. The State began its questioning by inquiring into Siemon’s experience in capital cases, the circumstances under which Siemon had taken the case, and the support he received from lawyers and others experienced in defending the accused in capital cases. Siemon testified that he had been lead or associate defense counsel in “[a]pproximately thirteen” capital cases, id. at 195, one of the reasons he took Gary’s case was because it was “such a good funds case,” id. at 203, that he was well acquainted with many of the lawyers who had represented defendants subject to the death penalty, and that while he was representing Gary, he received advice and assistance from several of these lawyers, id. at 203-05, whom he referred to as the “Team Defense.” Id. at 206. Derrickson did not object to this line of questioning. The State then inquired into Siemon’s performance in representing Gary at the pretrial and trial stages of the prosecution. Derrickson repeatedly invoked the attorney-client privilege or the work product doctrine on Gary’s behalf. On each occasion, Gary confirmed to the court that he agreed with Derrickson’s objections. As a result, the State was unable to put forth evidence as to whether Siemon had effectively represented Gary at trial and during the pretrial proceedings. After Siemon stepped down from the witness stand, Der-rickson stated that he would interpose the same objections if the State questioned Harvey or Parker. Gary told the court that he agreed with Derrickson’s strategy. The State therefore declined to call Harvey or Parker, and the remand hearing concluded. On June 12, 1989, Judge Followill entered an order finding that Gary had waived his ineffective assistance of counsel claim and, in the alternative, that Gary failed to show that he had received ineffective assistance of counsel for any reason, including lack of funds. In holding that lack of funds did not render counsel’s performance ineffective, the court addressed each time the court had denied a request for funds. In addressing the denial of funds for a serologist, the court noted that “[djefense counsel made a request for funds to employ a forensic serologist to mount an ‘attack on the reliability of electrophoresis, a form of testing of bodily fluid samples.’ ” Order at 7. However, had counsel kept an appointment they had scheduled with the GBI Crime Lab, “they would have discovered that electrophoresis was not used in [Gary’s] case ... This court is at a loss to see the relevance of an attack on a test that was not conducted.” Id. The court further noted that the defense did not need an expert serologist because the prosecution’s only blood evidence was that this defendant could not be eliminated as the donor of the serological samples. It is uncontested by either party that the defendant was included as a possible donor with literally millions of other persons.... Any evidence that only includes any defendant in a class with literally millions of people is certainly not critical.... [F]ailure to grant funding in this matter did not render counsel’s performance deficient nor did failure to grant funding undermine confidence in the result of the trial. Id. at 6-9. The court similarly held that the denial of funds for fingerprint and hair experts did not render defense counsel ineffective. The court then concluded that Gary had waived his argument that the lack of funds had rendered trial counsel constitutionally ineffective: In this case ample opportunity was given to this defendant through a hearing [to challenge the competence of trial counsel] with counsel of his choosing (and additional counsel, if he chose so to avail himself) to urge any and all possible errors affecting the trial or prejudicing the defendant whether or not the conduct, assistance and aptitude of his trial counsel sank to the constitutional level of ineffectiveness. This defendant refused to accept the opportunities provided him. For reasons probably known only to itself the State elected to go further than even the defendant in the course of the hearing and attempted to elicit from defense counsel August F. Siemon reasons for various avenues of conduct. To each and every material question the defendant asserted his privilege not to have his counsel testify. This is true even though the defendant was made inescapably aware by this court that this was his opportunity to have these possible issues litigated. It is therefore the finding of this court that as to those issues addressed during the hearing on remand that the defendant knowingly, intelligently and voluntarily waived those issues after having been repeatedly advised by the court that his conduct would amount to such a waiver. Id. at 26-27. The court concluded its review of the transcripts of pretrial, trial, and remand proceeding with these comments: In an additional effort to secure for this defendant that which he would not secure for himself this court has reviewed the whole and entire record of the course of litigation in this case. In retrospect this court recognizes that some questioned activity and conduct on the part of counsel was clearly a matter of pretrial strategy and trial tactics. Such conduct delayed the trial of the case and inured automatically to the benefit of the criminal defendant. This is especially true when a case is almost nine years old when it goes to trial. It is now apparent that the course of conduct of defendant’s trial counsel throughout as carefully observed by this court was a deliberately planned attempt to create an impression of ineffective assistance, laying the blame solely upon the court’s failure to provide funding, and to pave the way for that issue to be raised by way of appeal and habeas corpus. There is no[] doubt that such course received Carlton Gary’s full acquiescence. Order at 27-28. The Georgia Supreme Court reviewed the record of the remand proceeding together with Gary’s appeal of his convictions and death sentences. It affirmed Judge Followill’s ruling and, finding no merit in any of the pretrial and trial errors asserted in Gary’s briefs, affirmed Gary’s convictions and death sentences and denied reconsideration. Gary, 389 S.E.2d at 222. As for Gary’s claim that the denial of funds caused defense counsel to render ineffective assistance, the court said this: [In the remanding proceeding, Gary] refused to waive his attorney-client privilege as to any of his three trial attorneys, and none of them testified on behalf of the defendant. Lead trial attorney Siemon was called as a witness by the state; however, the defendant invoked his attorney-client privilege to prevent his attorney from answering any questions about tactical decisions he made while representing the defendant. Id. at 220 (emphasis in original). In his post-remand brief, the defendant continues to claim, as he did in his original appellate brief, that the trial court’s refusal (prior to the original trial) ... to provide funds for forensic and investigative assistance was an abuse of discretion, see Isaacs v. State, 259 Ga. 717(13)(a), 386 S.E.2d 316 (1989).... The defendant was given the opportunity to prove that the denial of funds for legal, investigative, and forensic assistance prejudiced his defense; i.e., that because of the trial court’s denial of funds, attorney Siemon could not effectively represent his client. The defendant waived that opportunity, and we need not further address his contentions in this regard. Id. at 220-21. Gary sought review of the supreme court’s decision in the United States Supreme Court. The Court denied his petition for a writ of certiorari, Gary v. Georgia, 498 U.S. 881, 111 S.Ct. 226, 112 L.Ed.2d 181 (1990) (Mem.), and his petition for reconsideration, 498 U.S. 1043, 111 S.Ct. 720, 112 L.Ed.2d 708 (1991) (Mem.). E. Between 1991 and 1994, Gary filed an initial petition and two amended petitions for a writ of habeas corpus in the Superior Court of Butts County, Georgia. The combined petitions contained thirty-two claims for relief, twenty-nine of which asserted trial court errors that were cognizable on direct appeal but not on collateral attack in a habeas corpus proceeding. One of these twenty-nine claims was that the denial of funds to employ a forensic serologist violated the constitutional right recognized in Ake v. Oklahoma. The three claims not cognizable on direct appeal, and thus subject to habeas corpus review, were (1) that Judge Followill denied Gary his counsel of choice, i.e, Der-rickson, during the remand proceeding by appointing two lawyers, Turner and Hoffman, to represent him, (2) that Gary was denied effective assistance of counsel at trial, on appeal, and during the remand proceeding, and (3) that the prosecution withheld exculpatory evidence — police reports, inconsistent statements of a rape victim who identified Gary as her assailant, and a bite mark exemplar — in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The ineffective assistance and Brady claims were subjected to evidentiary hearings in the superior court. The ineffectiveness claim alleged that defense counsel rendered ineffective assistance of counsel throughout the prosecution of the case and on direct appeal. The petition cited eighty-nine instances of ineffective assistance of trial counsel in conducting Gary’s defense — specifically, in presenting pretrial motions, in handling Gary’s special plea of mental ineompetency, in dealing with the State’s evidence, and in failing to conduct an adequate pretrial investigation into Gary’s life and background, resulting in the jury receiving no evidence of mitigating circumstances in the penalty phrase of the trial. The petition cited numerous trial court errors that appellate counsel failed to raise on appeal. It challenged the effectiveness of remand counsel on two theories: first, a conflict of counsel existed due to the relationship between Derrick-son and Siemon; second, Derrickson failed to establish the eighty-nine instances of ineffectiveness of trial counsel at the remand hearing. At the evidentiary hearing held on Gary’s ineffective assistance claims, Gary’s attorneys called no witnesses to show that counsel were ineffective at trial, on appeal, or in the remand proceeding. We can only infer that they rested their case on the record of the trial proceedings, the briefs on appeal, and the record of the remand proceeding. The only evidence bearing on the ineffectiveness issues came from the State. Assistant Attorney General Susan Boleyn called Derrickson to the stand and asked him why, in the remand proceeding, he did not call Gary’s trial counsel to testify on the question of ineffectiveness. Der-rickson explained his decision not to call Gary’s trial counsel, stating, “I thought the Georgia Supreme Court had remanded the case for the purpose of determining — of examining the fund issue from the Sixth Amendment context.... I didn’t think that there was any purpose in putting on those witnesses.” Boleyn then asked him whether he “presented any evidence on the so-called straight forward [sic] ineffectiveness claims, as opposed to funds claims.” Derrickson responded that he “didn’t think that is what the hearing was about.” He conceded, however, “I may have been wrong about that. I certainly — you know, I mean, I certainly have made errors in my life as an attorney.” Respondent’s Exhibit No. 146 at 467-69. At the hearing on the Brady claim, ha-beas counsel introduced forty-one exhibits, but no testimony. Habeas counsel argued that under Brady the prosecution should have turned over as exculpatory: (1) police reports of men the police investigated as possible perpetrators of the crimes alleged in Gary’s indictment; (2) inconsistent statements by Gertrude Miller, who identified Gary as the man who raped her after tying her up with a stocking and whose testimony was introduced to establish the defendant’s modus operandi; and (3) a plaster exemplar of bite marks left on one of the victims, Janet Cofer, whose rape/murder had been presented at trial as a collateral crime. The State explained that it had not produced the exemplar because it had been misplaced. In orders entered on January 27 and November 13, 1995, the superior court denied habeas relief. In doing so, it adhered to the Georgia Supreme Court’s determination that Gary had waived his ineffective assistance of trial counsel claim by invoking the attorney-client privilege and preventing Siemon, Harvey, and Parker from testifying at the remand proceeding. On the claim that Derrickson had rendered ineffective assistance in the remand proceeding by not calling trial counsel to testify, the court found that Derrickson’s decision amounted to a reasonable strategy — it was reasonable for Derrickson to limit his presentation to the “funds issue.” The court rejected each of the Brady allegations. First, it held that the police reports at issue were not exculpatory, as none of the other men investigated could have committed the rape/murders alleged in the indictment. Second, it held that the inconsistent statements were merely cumulative of statements Siemon used to impeach Gertrude Miller. Finally, third, it held that the prosecutor’s failure to produce the bite mark exemplar was excusable because the exemplar could not be located, and in the alternative, because the non-disclosure was immaterial. The court concluded that, “the combined effect of these [materials] does not undermine confidence in the verdict, and there is no reasonable probability that the result of the trial would have been different if these documents were given to the defense at trial.” Respondent’s Exhibit No. 161 at 4-5. Gary applied to Georgia Supreme Court for a certificate of probable cause to appeal. The court denied his application, and the United States Supreme Court denied certiorari review. Gary v. Turpin, 520 U.S. 1244, 117 S.Ct. 1852, 137 L.Ed.2d 1054 (1997) (Mem.), reh’g denied, 521 U.S. 1137, 118 S.Ct. 7, 138 L.Ed.2d 1040 (1997) (Mem.). F. On November 18, 1997, Gary petitioned the United States District Court for the Middle District of Georgia for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He presented 29 claims that, for the most part, mirrored the claims Gary presented in his state habeas petitions. Four of the claims — those set out in the certificate of appealability — are relevant in this appeal. The first of these claims alleged that the trial court denied defense counsel funds for a forensic serologist in violation of Ake v. Oklahoma. The second alleged the same three Brady claims presented to the state habeas court and further alleged that the prosecution should have turned over the notes and work papers of the GBI Crime Lab experts, which habeas counsel obtained after filing Gary’s initial petition in the district court. The third claim alleged that Siemon and Derrickson deprived Gary of his right to the effective assistance of counsel on direct appeal to the Georgia Supreme Court, and the fourth alleged that Derrickson deprived Gary of effective assistance of counsel during the remand proceeding. The district court held several hearings on Gary’s petition, some of which involved the serological evidence — semen and blood — the police had found at four of the murder scenes. The evidence had been introduced at trial through the testimony of a GBI Crime Lab serologist, John Weg-el, who testified that Gary may or may not have been the secretor. At one of the hearings, the district court considered the significance of Wegel’s notes and work papers. Habeas counsel insisted that they could prove that Gary was not the secretor if the court provided them with funds to employ a forensic serologist to analyze Wegel’s notes and work papers. The court provided counsel with $2,000 for that purpose. After counsel obtained the services of a serologist, Roger Morrison, they requested an evidentiary hearing. The court granted their request and held a hearing in which Wegel and Morrison explained and commented on the adequacy of the tests Wegel conducted in analyzing the semen. Wegel testified that the donor of the semen was a weak or non-secretor; Morrison testified that he had examined Gary’s saliva and concluded that Gary was a normal se-cretor, implying that he could not have been the source of the semen. Wegel countered Morrison’s conclusion by stating (1) that secretion levels vary over time and that eighteen years had passed between the dates the donor deposited the semen and the date of Morrison’s examination, and (2) that secretion levels of semen and saliva may differ and that, while Wegel examined semen, Morrison examined saliva. At the conclusion of the hearing, ha-beas counsel moved the district court for funds to have Gary’s semen tested by Morrison and the results of the test introduced into evidence. The court denied the motion. The district court held two hearings on habeas counsel’s allegation that, notwithstanding its representation to the Butts County Superior Court, the State intentionally withheld the bite mark exemplar. Counsel suspected that the exemplar was in the Muscogee County Coroner’s Office. The coroner, Dr. Don Kilgore, had died in 2000, so the court issued a subpoena duces tecum to the coroner’s widow, Karen Kil-gore, and to his two step-daughters, Jeannie Kilgore Hackaday and Joannie Kilgore Warden. The subpoena commanded the family members to appear in court with the exemplar. None of the family members, however, produced the exemplar when they appeared. Karen Kilgore said that she had seen the exemplar at one of her husband’s offices but that she could not recall which one. Jack Warden, Joannie’s husband who appeared voluntarily, testified that he might have seen the exemplar and, in any event, he had a good mental picture of it because Dr. Kilgore had described it “in great detail.” Joannie Warden testified that she had not seen the exemplar but that she had heard about it from her father. She also said that Henry, her son, told her that Dr. Kilgore had shown him the exemplar before he died. The court then directed that a subpoena duces tecum issue for Joannie’s son, Henry, but Henry also failed to produce the exemplar when he appeared. He testified that eight to ten years earlier he had seen the exemplar at his grandfather’s house in a box but that he did not know what came of it. On September 28, 2004, the district court denied Gary’s petition on the merits. Gary filed a timely notice of appeal and simultaneously moved the district court for a certificate of appealability. The district court issued the certificate of appealability as to Gary’s Ake claim, his Brady claims, his ineffective assistance of counsel claims, and his claim that the ha-beas court erred in denying him funds to hire a serologist to examine his semen. In their briefs to this court, habeas counsel did not address the ineffective assistance of counsel claims. Accordingly, we deem them abandoned. See Tanner Advertising Group, L.L.C. v. Fayette County, Ga., 451 F.3d 777, 785 (11th Cir.2006) (“Under the established law of this Circuit, ‘issues that clearly are not designated in the initial brief ordinarily are considered abandoned.’ ”) (citing Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir.1995)). As this appeal was proceeding through the briefing stage, Dr. Kilgore’s successor as Muscogee County Coroner, Dr. James L. Dunnavant, found the missing exemplar in the bottom drawer of a cabinet in his office. An earlier search of the Coroner’s Office had been unsuccessful. Accordingly, on November 23, 2005, we remanded the case to the district court so that the court could consider the significance of this evidence to Gary’s defense. On February 14, 2007, the district court held a hearing at which the exemplar was introduced. The court concluded that the evidence would have played no role in the presentation of Gary’s defense. Accordingly, the court adhered to its earlier decision denying Gary habeas corpus relief. We now address the issues Gary has not abandoned: first, the Ake claim that the superior court, during the prosecution of the case, erred by denying Gary’s request for funds to hire a forensic serologist; second, the claim that the district court, in considering his habeas petition, abused its discretion in denying him funds to have his semen tested; and, third, the Brady claims that the prosecution denied Gary a fair trial by withholding evidence favorable to the defense. II. The district court’s disposition of a federal constitutional claim under 28 U.S.C. § 2254 is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1218-19 (Apr. 24, 1996), which establishes a “general framework of substantial deference” for reviewing “every [federal constitutional claim] that the state courts have decided.” Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1141 (11th Cir.2005). Unless the Georgia courts’ resolution of a constitutional claim is “contrary to, or involved an unreasonable application of, clearly established federal law,” as determined by the Supreme Court of the United States, or “based on an unreasonable determination of the facts in light of the evidence presented,” the district court is bound not to disturb it on habeas review. Crowe v. Hall, 490 F.3d 840, 844 (11th Cir.2007) (quoting 28 U.S.C. § 2254(d)). On occasion, the state courts reject a constitutional claim not on the merits but, instead, on an independent state law ground. Under that circumstance, the district court does not reach the merits of the constitutional claim. See Hansbrough v. Latta, 11 F.3d 143, 145 (11th Cir.1994). Here, AEDPA mandates that we affirm the district court’s denial of Gary’s habeas petition as to the first and third issues before us. First, the district court need not have reached the merits of Gary’s claim that the trial court denied his request for funds for a forensic serologist in violation of his rights under Ake because the Georgia Supreme Court resolved the denial on the independent state law ground of waiver. Second, the district court acted within its discretion to deny Gary funds to have his semen tested. Third, the district court correctly held that the state habeas court did not misapply clearly established federal law when it rejected Gary’s Brady claims. III. A. Gary presented his claim that the trial court violated the constitutional mandate set out in Ake v. Oklahoma by denying him funds to employ a serologist to the Georgia Supreme Court on direct appeal. The Georgia Supreme Court assumed, albeit sub silentio, that Gary was entitled to the funds and remanded the case to the trial court with the instruction that the court determine whether the denial of funds caused him prejudice. Gary contended that he was prejudiced because the lack of funds rendered his lawyers, chiefly Siemon, incapable of providing him with constitutionally effective representation. That is, Gary argued that but for the denial of funds, the outcome of the trial would have been different. The supreme court therefore instructed the trial court to determine whether trial counsel was ineffective for any reason, including the denial of funds. If the trial court found that counsel were ineffective and that such ineffectiveness materially affected the outcome of the trial, Gary would receive a new trial. On remand, Judge Followill informed Gary that the court could not determine whether the denial of funds had rendered his lawyers ineffective unless the court heard from his lawyers under oath. Gary, however, refused to waive the attorney-client privilege so that the lawyers could testify. Gary’s invocation of the privilege applied to all three of his main trial lawyers, Siemon, Harvey and Parker. Judge Followill took extra steps to ensure that Gary agreed with and understood the consequences of invoking the attorney-client privilege. He stated explicitly that by invoking the privilege Gary would waive his claim to ineffective assistance of counsel. He instructed Derrick-son to explain these consequences to Gary and declared a recess so that Derrickson and Gary could confer. After the recess, Derrickson reiterated that Gary would not waive the privilege, and the court confirmed this by speaking directly to Gary and asking him whether he agreed. Gary said that he agreed, but that he could not decide whether to invoke the attorney-client privilege until he heard the specific questions put to Siemon. During Siemon’s testimony, the court went so far as to ask Gary, upon each of Derrickson’s objections, whether he was sure he wanted to invoke the privilege. He affirmed Der-rickson’s decisions each time. At the end of the day, the court found that Gary had voluntarily waived his right to claim ineffective assistance of counsel. Even in the absence of waiver, the court held that the denial of funds for a forensic serologist — the matter we are immediately considering — had no effect on the quality of counsel’s performance. Early in the case, the pro