Jones v. Warden (815 F.3d 689, 2016)

MARCUS, Circuit Judge:

Over thirty-six years after he robbed and murdered Roger Tackett, petitioner Brandon Jones is scheduled to be executed by the Georgia Department of Corrections on February 2, 2016. On January 21, 2016, he moved this Court to recall its 2014 mandate denying his petition for habeas corpus relief and to reconsider his original habeas petition after the full Court issues an en banc decision in a different, although currently pending case, Wilson v. Warden, Georgia Diagnostic Prison. Jones has also filed a motion with this Court to stay his execution pending reevaluation of his original habeas petition in light of the forthcoming Wilson decision. The state opposes both motions.

After carefully reviewing the record before us and the party’s submissions, we conclude that we are foreclosed by the Antiterrorism and Effective Death Penalty Act and Supreme Court precedent from recalling the mandate denying habeas relief. Furthermore, even if we were not foreclosed and examined the merits of his motion, we would still deny it because, regardless of how Wilson is decided, Jones’s claim is without merit. Finally, even if we could recall the mandate, our respect for the State of Georgia’s interest in the finality of its criminal judgments would strongly counsel against doing so. We also deny Jones’s motion to stay his execution because, regardless of how Wilson is decided, Jones has not shown a substantial likelihood that he will prevail on the merits of his underlying claim.

I.

A.

Jones was originally convicted and sentenced to death by the Superior Court of Cobb County in 1979 for the robbery and murder of Roger Tackett, a convenience store manager. As the state court detailed, Jones and his co-defendant, Van Roosevelt Solomon, were found at the scene of the murder by a police officer. Jones v. State, 249 Ga. 605, 293 S.E.2d 708, 709-10 (1982) (“Jones /”). The officer approached the convenience store after hours, saw Jones stick his head out of the storeroom door before closing it again, and then heard three gunshots, a pause, and one more shot. Id. The officer found Solomon and Jones in the storeroom, where he later discovered Mr. Tackett’s body and two .38 caliber revolvers. Id. at 710. The medical examiner who performed Mr. Tackett’s autopsy testified at trial that Mr. Tackett had been shot twice in the hip area, once in the jaw, once in the thumb, and once behind the left ear. Id. Jones and Solomon underwent neutron activation tests and both were found to have recently fired guns. Id. at 710-11.

The Georgia Supreme Court affirmed Jones’s conviction and death sentence in 1982. Id. at 715. Jones filed a state habeas corpus petition, which the Superior Court of Butts County denied in 1982; the Georgia Supreme Court affirmed that denial in 1984. Jones v. Francis, 252 Ga. 60, 312 S.E.2d 300, 306 (1984). The United States Supreme Court denied Jones’s petition for a writ of certiorari. Jones v. Francis, 469 U.S. 873, 105 S.Ct. 228, 83 L.Ed.2d 157 (1984). Jones then petitioned for habeas relief in federal district court, and a district court judge in the Northern District of Georgia granted the petition in -part and ordered a new sentencing proceeding because the state trial court had improperly allowed the jury to bring a Bible into the deliberation room. See Jones v. Kemp, 706 F.Supp. 1534, 1560 (N.D.Ga.1989).

In 1997, the Superior Court of Cobb County sentenced Jones to death a second time. See Jones v. State, 273 Ga. 231, 539 S.E.2d 154, 157 (2000) (“Jones II”), reh’g den. Dec. 14, 2000, cert. den. 534 U.S. 839, 122 S.Ct. 94, 151 L.Ed.2d 54 (2001). The Georgia Supreme Court again affirmed Mr. Jones’s death sentence. Id. Jones filed a pro se petition for a writ of habeas corpus in Butts County Superior Court, which was later amended by counsel. The superior court denied all claims for relief. Jones v. Terry, Case No.2002-V-79 (unpublished order of March 17, 2006). The Georgia Supreme Court summarily denied his Application for Certificate of Probable Cause to Appeal on September 3, 2008. Jones v. Terry, No. S06E1736 (Ga. September 3, 2008).

On May 8, 2009, he commenced federal habeas corpus review pursuant to 28 U.S.C. § 2254, raising eleven grounds for relief. On August 10, 2011, the district court in the Northern District of Georgia denied his petition in its entirety in an unpublished order, but granted Jones a certificate of appealability on two claims: (1) that Jones’s trial counsel provided ineffective assistance of counsel in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by failing to investigate certain sources of potential mitigation evidence, and (2) that the prosecution’s comments made during closing argument at Jones’s sentencing violated his privilege against self-incrimination. See Order, Jones v. Half, No. 09-cv-01228-CAP (N.D. Ga. August 10, 2011) (Docket No. 45).

On March 20, 2014, our Court affirmed the district court’s denial of relief on both of those claims. See March 20, 20Í4 Opinion (appended hereto as Attachment A). In that decision, we reviewed “the Superi- or Court’s denial of habeas relief’ as the final state-court determination of Jones’s claim, “[sjince the Georgia Supreme Court declined to review the merits of the case.” See id. at 21 n. 4. On April 24, 2014, we withdrew our March opinion and issued an amended decision, again affirming the district court. Jones v. GDCP Warden, 753 F.3d 1171 (11th Cir.2014) (“Jones III”). In the amended decision, however, we recognized that “[t]he Georgia Supreme Court’s denial of the application for a certificate of probable cause to appeal was the final state-court determination” of Jones’s claim. Id. at 1182. Jones filed a petition for rehearing en banc, which our Court denied on December 1, 2014. Our mandate issued on December 10, 2014. Jones then petitioned the Supreme Court of the United States for a writ of certiorari, which was denied on October 5, 2015. Jones v. Chatman, — U.S. -, 136 S.Ct. 43, 193 L.Ed.2d 27 (2015). And on November 30, 2015, the Supreme Court denied his Petition for Rehearing from the denial of certiorari. Jones v. Chatman, — U.S. -, 136 S.Ct. 570, 193 L.Ed.2d 452 (2015).

Soon thereafter, on December 22, 2015, Jones filed a complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the Northern District of Georgia, challenging the constitutionality of Georgia’s method of execution. On January 13, 2016, pursuant to the state’s motion, the Cobb County Superior Court issued an order authorizing an execution window for Jones, and the Georgia Department of Corrections scheduled his execution for February 2,2016 at 7:00 p.m. EST.

The district court dismissed Jones’s civil rights complaint on January 21, 2016. It first held that Jones’s challenge to Georgia’s method of execution is time-barred, since the statute of limitations on his claim ran on October 4, 2003, and there was no “significant change” to the lethal injection protocol that would reset the time clock. The district court also rejected his challenge on the merits. Based on binding prior precedent from this Court, the district court held that Jones had failed to state a claim under either the Eighth Amendment or the Due Process Clause of the Fourteenth Amendment. See Terrell v. Bryson, 807 F.3d 1276 (11th Cir.2015); Gissendaner v. Comm’r. Ga. Dep’t of Corr., 803 F.3d 565 (11th Cir.2015); Gissendaner v. Comm’n Ga. Dep’t of Corr., 779 F.3d 1275, 1283 (11th Cir.2015); Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1267 (11th Cir.2014). On January 25, 2016, Jones appealed from the decision of the district court dismissing his § 1983 complaint.

B.

After we had issued our decision affirming the denial of Jones’s habeas petition (,Jones III), another panel of this Court decided Wilson v. Warden, Georgia Diagnostic Prison, 774 F.3d 671 (2014). In that case, the Wilson panel relied on our amended decision in Jones III to observe that “the one-line decision of the Supreme Court of Georgia denying Wilson’s certificate of probable cause is the relevant state-court decision for our review because it is the final decision ‘on the merits.’ ” Id. at 678. On July 30, 2015, our Court granted rehearing en banc in Wilson, vacated the panel opinion, and directed the parties to address en banc:

[Whether] a federal habeas court [is] required to look through a state appellate court’s summary decision that is an adjudication on the merits to the reasoning in a lower court decision when deciding whether the state appellate court’s decision is entitled to deference under 28 U.S.C. § 2254(d)[.]

Oral argument was held by our Court en banc on October 20, 2015. Soon thereafter, we directed counsel to file supplemental briefs addressing a subsidiary question:

[W]hether the denial of an application for a certificate of probable cause by the Georgia Supreme Court is an adjudication on the merits for .purposes of § 2254(d).

An en banc decision in the Wilson case is still pending in the Court.

Just last week, ■ on January 21, 2016, Jones moved this Court to stay his execution pending the resolution of Wilson by our en banc Court. That same day, he also moved this Court to recall the mandate in Jones III so that we could reevaluate his original habeas petition after Wilson is decided. The essence of his argument in both motions is that the Wilson decision is “likely to [] reverse the case law governing federal habeas review” that we applied in Jones III and that, under the “look through” approach that Jones anticipates we will adopt in Wilson, we would likely have found the ineffective-assistance-of-counsel claim in his original habeas petition meritorious.

We address these two motions today.

II.

A.

The Supreme Court has recognized that the federal courts of appeals “have an inherent power to recall their mandates, subject to review for an abuse of discretion.” Calderon v. Thompson, 523 U.S. 538, 549, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). However, “[i]n light of the profound interests in repose attaching'to the mandate of a court of appeals,” the Court has cautioned that “the power can be exercised only in extraordinary circumstances.” Id. at 550, 118 S.Ct. 1489 (quotation omitted). Indeed, recall of a mandate is a “last resort” that should be used only in the face of “grave, unforeseen contingencies.” Id.

Our limited discretion to recall a mandate is further circumscribed in this case because Jones is ultimately seeking relief from a state court criminal judgment. Consequently, we are required to measure his motion “not only against standards of general application, but also against the statutory and jurisprudential limits applicable in habeas corpus cases.” Id. at 553, 118 S.Ct. 1489. The habeas petition that we denied in Jones III was filed after April 24, 1996, and thus is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Title 28 U.S.C. § 2244(b), as amended by AEDPA, provides:

(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus application under section 2254 that Was not presented in a prior application shall be dismissed unless—

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

The Supreme Court has explained that a motion to recall a mandate denying habeas relief generally must be regarded as a second or successive habeas petition:

In a § 2254 case, a prisoner’s motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of § 2244(b). Otherwise, petitioners could evade the bar against relitigation of claims presented in a prior application, § 2244(b)(1), or the bar against litigation of claims not presented in a prior application, § 2244(b)(2). If the court grants such a motion, its action is subject to AEDPA irrespective of whether the motion is based on old claims (in which case § 2244(b)(1) would apply) or new ones (in which case § 2244(b)(2) would apply).

Calderon, 523 U.S. at 553, 118 S.Ct. 1489.

“Under § 2244(b), the first step of analysis is to determine whether a ‘claim presented in a second or successive habeas corpus application’ was also ‘presented in a prior application.’ If so, the claim must be dismissed: if not, the analysis proceeds to whether the claim satisfies one of two narrow exceptions.” Gonzalez v. Crosby, 545 U.S. 524, 530, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (emphasis added). Jones’s motion to recall is based on precisely the same claims we decided when we denied his original § 2254 petition; it does not raise any new claims not presented or fully adjudicated in his first habeas application. The Strickland claim that he asserted in his original habeas petition alleged that “the Georgia state courts unreasonably applied Strickland when they concluded that his trial counsel’s investigation of mitigating evidence was not deficient and, second, that there was no reasonable probability that the additional mitigating evidence discovered by Jones’s habeas counsel would have altered the outcome of his trial.” Jones III, 753 F.3d at 1183-84. In his motion to recall the mandate, Jones asks us to reconsider that Strickland claim by measuring it against the decision of the Georgia state superior court, instead of the Georgia Supreme Court’s determination. Quite simply, the claim is the same and is therefore barred by 28 U.S.C. § 2244(b)(1).

But even if Jones’s ineffective assistance claim had not been presented in a previous application and this motion was governed by § 2244(b)(2) rather than § 2244(b)(1), we would still be compelled to dismiss it because it does not fall within either of that provision’s narrow exceptions to dismissal for claims that: (i) rely on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,” or (ii) rely on a “factual predicate [that] could not have been discovered previously through the exercise of due diligence.” 28 U.S.C. § 2244(b)(2). His claim relies on the same Supreme Court case law governing ineffective assistance of counsel—Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and its progeny — and not on any new rule of constitutional law. And he does not rely on any new evidence that was not presented and considered in his original habeas petition.

Jones’s motion to recall the mandate is effectively a second or successive habeas corpus petition; it does not satisfy any of the statutory exceptions to dismissal; and therefore it must be denied.

B.

The Supreme Court, however, has provided one other possible avenue by which a court of appeals can recall a mandate denying habeas relief. In cases “where a motion to recall the mandate is pending,” a court may in very limited circumstances “recall[] the mandate by its own initiative.” Calderon, 523 U.S. at 554, 118 S.Ct. 1489. Accordingly, we still retain authority to recall the mandate sua sponte. “on the exclusive basis of [Jones’s] first federal habeas petition.” Id. However, we can only do so in very limited circumstances. “[W]here a federal court of appeals sua sponte recalls its mandate to revisit the merits of an earlier decision denying habeas corpus relief to a state prisoner, the court abuses its discretion unless it acts to avoid a miscarriage of justice as defined by [the Supreme Court’s] habeas corpus jurisprudence.” Id. at 558, 118 S.Ct. 1489.

Jones faces two insurmountable obstacles. First, were we to recall the mandate, we would not be acting sua sponte. Rather, we would be considering whether to recall our mandate denying Jones’s ha-beas relief only because he filed a motion asking us to do so. Second, Jones has not demonstrated that a failure to recall the mandate in his case would result in a miscarriage of justice. Because the ineffective assistance claim that Jones seeks to relitigate challenged his death sentence and not his underlying murder conviction, the “miscarriage of justice” exception requires him to show that .he is “actually innocent of the death penalty to which he has been sentenced.” Sawyer v. Whitley, 505 U.S. 333, 349, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992); see also Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1275 (11th Cir.2004) (en banc) (“If ... a court of appeals is considering recalling the mandate on its own motion, the literal terms of § 2244(b) do not apply, but the mandate cannot be recalled unless necessary to prevent a miscarriage of justice; that means the petitioner must be factually innocent of the crime, or of the sentence, as defined in the pre-AEDPA federal ha-beas jurisprudence.”). This narrow exception requires him to “show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found [him] eligible for the death penalty under the applicable state law.” Sawyer, 505 U.S. at 336, 112 S.Ct. 2514 (emphasis added). In deciding whether he has made that showing, we “must focus on those elements that render a defendant eligible for the death penalty [under the relevant state’s law], and not on additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error.” Id. at 347, 112 S.Ct. 2514.

Under Georgia’s death penalty statute at the time of Jones’s trial, which remains in effect today, a defendant who committed murder was not eligible for the death penalty unless the jury found at least one statutory aggravating factor proven beyond a reasonable doubt. See Ga.Code Ann. § 17-10-30(c) (1997). In Jones’s second sentencing trial, the jury found two statutory aggravating factors: “Jones committed the offense of murder while engaged in the commission of armed robbery and burglary” and “the murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture to the victim before death.” Jones II, 539 S.E.2d at 157 (citing Ga.Code Ann. § 17-10-30(b)(2) and (7)). The Georgia Supreme Court found that these- aggravating circumstances were adequately supported by the evidence relating to the manner in which the crime was committed. See id. at 158. The ineffective assistance claim in Jones’s original petition alleged that his counsel “fail[ed] to discover mitigating background and mental health evidence.” Jones III, 753 F.3d at 1173. This evidence “could have been helpful to his arguments at sentencing,” as “evidence of Jones’s psychiatric problems may have bolstered the argument that Solomon, not Jones, was the driving force behind the decision to rob the store” and “details regarding Jones’s childhood with his abusive uncle and sexually abusive cousin and [placement] at a deplorable juvenile detention center may have supported the argument that Jones was not fully culpable for his actions, and may have cast him in a more sympathetic light.” Id. at 1185. This evidence, if credited, could have diminished Jones’s moral culpability in the eyes, of the jury. But it would have been irrelevant to the two aggravating circumstances found by the jury, which depended solely on the manner in which the murder was committed and were the “elements that rendered Jones] eligible for the death penalty.” Sawyer, 505 U.S. at 347, 112 S.Ct. 2514.

Because Jones’s claim involves only “additional mitigating evidence that was prevented from being introduced as a result of a claimed constitutional error,” id., he has not shown that a miscarriage of justice will result if we do not recall the mandate denying his habeas petition. To recall our mandate in these circumstances sua sponte would constitute a clear abuse of discretion. Calderon, 523 U.S. at 566, 118 S.Ct. 1489.

Accordingly, we hold today that Jones cannot recall the mandate of this Court because he cannot satisfy the requirements found in 28 U.S.C. § 2244(b)(1) or (2), and, in any event, because he has not and cannot establish on this record any required by controlling Supreme Court precedent.

C.

Jones makes almost no mention of AEDPA or Calderon, instead arguing that the controlling standard for recalling the mandate in his case comes from our local rules. Eleventh Circuit Rule 41-1 is the general rule governing the recall of a mandate in civil and criminal cases alike, and provides that “[a] mandate once issued shall not be recalled except to prevent injustice.” 11th Cir. R. 41-l(b). In Scott v. Singletary, 38 F.3d 1547, 1551 (11th Cir.1994) — which we decided prior to the enactment of AEDPA and the Supreme Court’s decision in Calderon — we held that we could recall a mandate to prevent injustice in a habeas case “if there has been a supervening change in the law” that ‘-‘seriously undermine[d] the correctness of [our] prior judgment.” Judge Anderson, joined in relevant part by Judge Dubina, specially concurred in Scott, explaining that Rule 41-l(b) imposes a “high standard” that must be met to recall a mandate, requiring the petitioner to show a “clear constitutional error” that prejudiced him. Id. at 1557-59 (Anderson, J., concurring specially).

The Rule 41-l(b) “injustice” standard that we explicated in Scott no longer provides an independent basis to recall the mandate in habeas cases. The Supreme Court has instructed us that a distinct standard governs the decision to recall a mandate denying habeas relief. See Calderon, 523 U.S. at 553, 118 S.Ct. 1489 (“Thompson’s is not an ordinary case, however, because he seeks relief from a criminal judgment entered in state court. To decide whether the Court of Appeals’ order recalling the mandate was proper in these circumstances, we measure it not only against standards of general application, but also against the statutory and jurisprudential limits applicable in habeas corpus cases.” (emphasis added)). Such a motion must fall within an exception to dismissal contained in 28 U.S.C. § 2244(b). In addition, we may recall the mandate on our own initiative to prevent “a miscarriage of justice as defined by [the Supreme Court’s] habeas corpus jurisprudence.” Calderon, 523 U.S. at 558, 118 S.Ct. 1489. Unlike the “injustice” standard we described in Scott and on which Jones exclusively relies, a “miscarriage of justice” in the habeas context depends not on a subsequent change in the law, but rather on the discovery of “new evidence of innocence.” Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). The general “injustice” standard embodied in our local rule is different from and less demanding than the standard subsequently adopted by the Supreme Court, and, therefore, no longer provides an independent ground to recall a mandate in a habe-as case.

But even if Rule 41-l(b)’s “injustice” standard governed our decision in this case, we would still decline to recall the mandate because no “injustice” will result if our original denial of habeas relief stands. There has been no supervening change in the law in this case. Jones predicts that this Court will change the rules governing federal habeas review in Wilson and adopt the rule he favors, but he is only guessing. Without an actual change in the law, no injustice results from leaving a prior decision undisturbed.

Furthermore, and tellingly, whether or not this Court rules in Wilson that we look through the Georgia Supreme Court’s summary denial of a Certificate of Probable Cause (“CPC”) and evaluate the Georgia state superior, court’s habeas denial as the state’s final “adjudication on the merits” under § 2254(d), the result will be exactly the same in this case. The procedural anomaly here is that we have already fully evaluated Jones’s Strickland claim both ways, the first time actually by “looking through” to the state trial court’s habe-as determination, see March 20, 2014 Opinion at 21 n.4, and then a second time in an amended opinion measuring his claim against the determination of the Georgia Supreme Court, Jones III, 753 F.3d at 1182. In each instance, we determined that Jones had not met his burden under AEDPA. Neither the state trial court’s habeas determination, nor the Georgia Supreme Court’s denial of a CPC were contrary to or amounted to an unreasonable application of Strickland. In short, this Court has already performed precisely the same analysis Jones now asks for by seeking a recall of the mandate — a review of his Strickland claim when measured against the state trial court’s determination. ■

This Court in both its March 2014 opinion and in the amended April 2014 decision engaged in an extensive and identical analysis of the facts adduced at the state habe-as evidentiary hearing relating to the mitigating evidence Jones claimed his trial counsel should have presented to the jury at his sentencing hearing. The only change was the state court opinion that we considered as the “final adjudication on the merits” under 28 U.S.C. § 2254(d).

This Court specifically weighed the totality of the aggravating evidence against the totality of the mitigating evidence, the new and the old, the good and the bad, and we concluded that Jones had failed to establish that he was entitled to habeas relief. In our March 2014 opinion, we ultimately concluded that the “state [trial] court’s determination that Jones did not raise a reasonable probability of a different result is not contrary to or an unreasonable application of Strickland.” March 20, 2014 Opinion at 29. We reached precisely the same conclusion on precisely the same evidential foundation when we measured the evidence and the commands of AEDPA against the Georgia Supreme Court’s determination. See Jones III, 753 F.3d at 1185.

Nevertheless, Jones insists that, if we analyze the state habeas court’s decision under the “look through” approach, we would find his ineffective assistance claim meritorious. He offers two reasons why, in his view, the Georgia superior court contravened federal law when it found that, had counsel presented mitigating evidence based on the leads that the defense investigator collected in the Stapert file, the state would have introduced additional aggravating evidence culled from the same file. But in both the March and April opinions, we rejected each of those arguments, as well as others in the same vein. See March 20, 2014 Opinion at 43 (“Jones advances several reasons why some of the aggravating evidence developed in the ha-beas proceeding would not be admissible at a new sentencing trial. We remain unpersuaded.”): see also Jones III, 753 F.3d at 1190-91 (same).

First, he argues that any information drawn from the Stapert file would have been privileged and undiscoverable by the State. We squarely rejected this claim in both opinions, explaining that it presented a question of state law and “state courts are the ultimate expositors of state law.” March 20, 2014 Opinion at 43; see also Jones III, 753 F.3d at 1191 (same). Furthermore, we found that in a sentencing retrial the Stapert file would be available for use by the state because, “by bringing this habeas action first in state court, and then again in federal district court, Jones has waived any current or future privilege or work-product protection over the Sta-pert file.” March 20, 2014 Opinion at 43-44; see also Jones III, 753 F.3d at 1191 (same). Second, Jones contends that much of the aggravating evidence relied on by the state habeas court was “rank and inadmissible hearsay.” But we also directly confronted and rejected this argument in both the March and April opinions, explaining that “we cannot find unreasonable the state court’s determination that the contents of the Stapert file w[ere] admissible hearsay.” March 20, 2014 Opinion at 45; Jones III, 753 F.3d at 1192 (same)

The “injustice” standard that generally governs our decision whether to recall a mandate does not apply to habeas review of state criminal convictions. But, even if it did, we have already considered Jones’s ineffective assistance claim by “looking through” the Georgia Supreme Court’s CPC denial to the state superior court’s reasoned opinion and have found it unmeritorious. Thus, regardless of how Wilson is decided, Jones cannot show that any injustice could result if we do not reevaluate his ineffective assistance claim after Wilson is decided.

D.

Finally, even if Jones could surmount these huge hurdles, on this record we would still be loath to now recall our 2014 mandate denying habeas relief because to do so would unjustifiably subvert Georgia’s interest in the finality of its criminal judgments. Jones insists that the pending en banc decision in Wilson provides a sufficient justification to reopen his case. But we are aware of no case — and Jones has cited none — where we recalled a mandate because we subsequently granted en banc consideration of a different matter in a different case.

Recalling a mandate based on speculation about how we might resolve a subsequent en banc case is especially inappropriate in the habeas context, where federal courts must respect the state’s interest in “the finality of convictions that have survived direct review within the state court system.” Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). These interests are particularly “compelling when a federal court of appeals issues a mandate denying federal habeas relief.” Calderon, 523 U.S. at 556, 118 S.Ct. 1489. The Supreme Court has explained the rationale this way:

When lengthy federal proceedings have run their course and a mandate denying relief has issued, finality acquires an added moral dimension. Only with an assurance of real finality can the State execute its moral judgment in a case. Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out. To unsettle these expectations is to inflict a profound injury to the powerful and legitimate interest in punishing the guilty, an interest shared by the State and the victims of crime alike.

Id. (citations and quotations omitted).

Indeed, “[n]o one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing that a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation.” Teague v. Lane, 489 U.S. 288, 309, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality op.) (quoting Mackey v. United States, 401 U.S. 667, 691, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgments in part and dissenting in part)). In a case such as this one, where a court of appeals is asked to “recall[ ] its mandate to revisit the merits of its earlier decision denying habeas relief,” “the State’s interests in finality are all but paramount.” Calderon, 523 U.S. at 557, 118 S.Ct. 1489. If our decision to rehear a different case involving a related question en banc provided a basis to recall our mandate denying habeas relief, our decisions would amount to interlocutory orders subject to constant reconsideration.

Moreover, the legal change that Jones anticipates we will adopt in Wilson is simply not the type of new legal rule that would entitle him to relitigate his original habeas petition. The questions being considered in Wilson involve which state court decisions federal habeas courts ought to review under 28 U.S.C. § 2254(d), and have no bearing on the legal standards that state courts must apply in examining a Strickland claim. The purpose of federal habeas review is to encourage state “trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards.” Teague, 489 U.S. at 306, 109 S.Ct. 1060 (plurality op.) (quoting Desist v. United States, 394 U.S. 244, 262-63, 89 S.Ct. 1048, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting)). In light of this purpose, the Supreme Court has held that, within very narrow exceptions, “the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place” in order “to force the trial and appellate courts to toe the constitutional mark.” Id. at 306-07, 109 S.Ct. 1060 (quotations and alterations omitted). Justice O’Connor, writing for a plurality in Teague v. Lane, concluded that habeas review does not exist just to serve some “perceived need to assure that an individual accused of a crime is afforded a trial free of constitutional error,” id. at 308, 109 S.Ct. 1060 (quoting Kuhlmann v. Wilson, 477 U.S. 436, 447, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (plurality op.)); instead, weighty “interests of comity and finality” persuaded the Court that new rules governing criminal prosecutions generally should not be applied retroactively on collateral review to eases that are already final, id.

The same interests of federalism, comity, and finality that guided the Supreme Court’s decision in Teague apply here but with even more compelling force. To undo and reconsider our settled decisions denying habeas relief based on a new rule •governing which state court decision federal habeas courts review would do nothing to further the goals of habeas review, and would eviscerate “the principle of finality which is essential to the operation of our criminal justice system.” Id. at 309, 109 S.Ct. 1060.

In short, recalling our mandate denying habeas relief at this late stage-thirty-six years after the murder and first death sentence was imposed, nineteen years after the second death sentence was imposed and fifteen years after it became final, seven years after Jones filed his current federal habeas petition, and thirteen months after we declined to rehear his case and issued our mandate denying ha-beas relief — would “inflict a profound inju- . ry to the powerful and legitimate interest in punishing the guilty, an interest shared by the State and the victims of crime alike.” Calderon, 523 U.S. at 556, 118 S.Ct. 1489 (internal citation and quotation omitted). These interests too counsel against recalling our mandate.

III.

Jones has also moved this Court to stay his execution so that we may reconsider our denial of the ineffective-assistance-of-counsel claim asserted in his original habeas petition after Wilson is decided. It is by now clear that we may grant a stay of execution only if Jones establishes that: “(1) he has a substantial likelihood of success on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay would not substantially harm the other litigant; and (4) if issued, the injunction would not be adverse to the public interest.” See Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir.2011) (emphasis added). Because Jones cannot show a substantial likelihood of success on the merits, we deny his motion for stay.

For the reasons we have explained at some length, we cannot, on this record and in this procedural posture, recall our earlier mandate denying Jones’s habeas petition. And without recalling our mandate, there is no procedural vehicle by which we could reevaluate Jones’s previously denied habeas claims. Were he to file a new habeas petition under 28 U.S.C. § 2254, again seeking to raise the ineffective-assistance-of-counsel claim that we have already denied, it would have to be dismissed. See 28 U.S.C. § 2244(b)(1). For that reason alone, Jones has not shown a substantial likelihood that he will succeed on the merits of his ineffective assistance claim.

But even if we could lawfully recall the mandate, await the resolution of Wilson en banc, and Wilson were to require the “look through” approach under 28 U.S.C. § 2254(d), Jones still could not succeed on the merits of his claim. We repeat: in the unique circumstances of this case, we have already seen the flip side of the Wilson coin. In our now-withdrawn March 20, 2014 opinion, we employed precisely the mode of analysis that Jones argues we should use and we rejected his ineffective assistance claim. He has offered no new arguments to reconsider the soundness of that decision even if we were able to examine it still again. Quite simply, because we have already rejected his ineffective assistance claim whether measured against the trial court’s ruling or based only on an analysis of the Georgia Supreme Court’s Certificate of Probable Cause determination, Jones cannot show a substantial likelihood of success on the merits.

IV.

In sum, we conclude that to recall our mandate denying Jones’s habeas petition would amount to an abuse of discretion; that, even if we could recall the mandate we would not because no “injustice,” let alone a “miscarriage of justice,” will result from allowing our prior decision to rest undisturbed; and that disturbing the finality of our decision denying habeas relief in this case would be inappropriate in light of Georgia’s powerful interest in the finality of its criminal judgments. For the same reasons, we also conclude that Jones has failed to establish a substantial likelihood that he will succeed on the merits of his ineffective-assistance-of-counsel claim. Accordingly, we deny both his motion to recall the mandate and his corollary application to stay execution.

MOTION TO RECALL MANDATE AND MOTION FOR STAY OF EXECUTION DENIED.

. Jones’s appeal from the district court’s rejection of his § 1983 complaint asks our full Court to review initially the matter en banc. He has also filed an Emergency Motion to Stay Execution until the Court rules on his en banc petition. We will address these motions by separate order.

. The habeas petition that we addressed in Jones III contained a second claim relating to the prosecutor's alleged comments about Jones's failure to testify during closing arguments. See Jones III, 753 F.3d at 1194. However, that claim was denied on the merits in a written decision by the Georgia Supreme Court on direct appeal. See Jones II, 539 S.E.2d at 159-60. Jones does not argue that our review of that claim implicated the issues to be decided in Wilson.

. Our concurring colleague suggests that this discussion about AEDPA and the controlling law found in Calderon is dicta. We view the application of AEDPA and this Supreme Court precedent as being essential to our holding in this case. Indeed, we do not believe we could address the merits of his petition without first deciding whether it fit within any of the exceptions to 28 U.S.C. § 2244(b). See 28 U.S.C. § 2244(b)(3)(C) ("The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of [§ 2244(b)].” (emphasis added)).

WILSON, Circuit Judge,

concurring:

As stated by the Majority, “[t]he essence” of Jones’s argument in both of his motions is that our pending en banc decision in Wilson v. Warden, Georgia Diagnostic Prison will “reverse the case law governing federal habeas review that we applied” to his Strickland claim and that, “under the ‘look through’ approach that Jones anticipates we will adopt in Wilson, we would likely have found” his Strickland claim meritorious. Maj. Op. at 694-95 (internal quotation marks omitted). In other words, Jones’s requests for relief are based solely on his contention that his Strickland claim would prevail under the “look through” approach. Accordingly, as the Majority itself acknowledges, its finding that Jones’s Strickland claim would clearly fail under that approach is disposi-tive. See Maj. Op. at 700, 702-03. I agree with the Majority on this point — we must deny Jones’s motions because, even if we applied the “look through” approach, his Strickland claim would not succeed. Since this issue is dispositive, the Majority’s discussion beyond its “look through” determination is “not necessary to decid[e]” Jones’s case, making it dicta. See United States v. Eggersdorf, 126 F.3d 1318, 1322 n. 4 (11th Cir.1997). Although such discussion is extraneous, I do not agree with the reasoning therein and, therefore, concur only in the result.

ATTACHMENT “A”

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 11-14774

D.C. Docket No. l:09-cv-01228-CAP

BRANDON ASTOR JONES, Petitioner-Appellant,

versus

GDCP WARDEN, Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Georgia

(March 20, 2014)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

In 1979, Petitioner Brandon Astor Jones was convicted of malice murder in Georgia state court. Jones and his co-defendant, Van Roosevelt Solomon, killed Roger Tackett, the manager of a Tenneco convenience store, in the course of an armed robbery and burglary. Jones was sentenced to death, but the United States District Court for the Northern District of Georgia later granted Jones’s petition for a writ of habeas corpus in part and vacated his sentence only. This appeal concerns two errors that, Jones claims, infected his second penalty-phase trial, which also resulted in a sentence of death. The Georgia state courts, both on direct appeal and during collateral habeas proceedings, rejected all of Jones’s attacks on his sentence, and the federal district court denied Jones’s second petition for a writ of habeas corpus in its entirety.

After thorough review, we affirm. We conclude that the state habeas court’s rejection of Jones’s ineffective-assistance claims was not an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The state habeas court did not unreasonably determine that Jones suffered no prejudice from his counsel’s failure to discover mitigating background and mental health evidence, especially in light of the substantial aggravating circumstances that would also have been revealed in the investigation and presentation of this “new” mitigating evidence. Jones raises a Fifth Amendment claim regarding the prosecutor’s comments during his closing argument too, but that claim is also unavailing. Therefore, we affirm the district court’s denial of habeas relief.

I.

A.

The Georgia Supreme Court’s denial of Jones’s direct appeal, which followed his second penalty-phase trial, summarized the essential facts of this case:

[T]he evidence showed that the victim, Roger Tackett, was the manager of a Tenneco convenience store. On June 16, 1979, he arrived at the store at 11:20 p.m. to close it for the night. After the other employees left, Tackett remained at the store to complete some paperwork. At approximately 1:45 a.m., Officer Kendall of the Cobb County police department drove a stranded motorist to the Tenneco parking lot so she could use a pay phone. Officer Kendall observed a car (Tackett’s) parked in front of the store with the driver’s-side door open; the lights were also still on inside the store. Since the Tenneco store was in his regular patrol area, Officer Kendall knew that it usually closed at midnight. Suspicious, he walked to the store and saw through the front window Brandon Jones stick his head out of the storeroom door at the back of the store, look around (apparently without seeing the officer), and then close the storeroom door. Officer Kendall entered through the unlocked front door and heard three shots, a pause, and then a fourth shot. He drew his weapon and after shouting “police, come on out” without a response, approached the storeroom door and opened it. Jones and his co-defendant, Van Roosevelt Solomon, were standing just inside the door. Officer Kendall ordered them into the main store area, where he searched them and handcuffed Jones. He placed Solomon in his patrol car since he only had one set of handcuffs, and called for assistance on the radio. He also informed both defendants of their rights under Miranda v. Arizona [384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)].

A private security officer, Alex Wool-yard, heard Officer Kendall’s request for assistance on a police scanner and arrived first. He loaned Officer Kendall a set of handcuffs to restrain Solomon and watched the defendants while Officer Kendall investigated a van parked nearby. During this time, Woolyard spoke with Jones and determined that the car parked in front of the store did not belong to them; they had arrived in the van. Upon continued questioning by Woolyard, Jones stated that they had come to burglarize the store and found a man who was “bad hurt” in the back of the store. After handcuffing Jones to a metal pole, Woolyard and Officer Kendall entered the store and discovered that the storeroom door had locked when it shut as the defendants exited. They used a crowbar to break open the door and they found Tackett’s body lying face-down at one end of the narrow storeroom (Officer Kendall had not seen the victim when he first encountered the defendants in the storeroom since he did not enter the storeroom at that time). Tackett had been shot five times from behind, once in the jaw, once behind the left ear, once in the thumb, and twice in the right hip. The medical examiner determined that the fatal shot was the “loose contact” shot behind the left ear since that bullet penetrated the brain; this shot was probably the final shot and was fired while the victim was lying on the ground. Two .38 caliber revolvers were found in an open box next to where Officer Kendall had first encountered the defendants. A large Smith and Wesson contained two spent shells; a smaller Colt contained four spent shells. Four .38 caliber bullets were recovered at the scene or in the victim’s body; the ballistics expert determined that ail were probably fired by the Colt. Crime scene photographs also show a possible bullet hole in a shelf on the wall, indicating a fifth shot may have been fired in the storeroom. An atomic absorption test conducted on swabs of the defendants’ hands indicated that both men had recently fired a gun or handled a recently fired gun. The store’s cash drawer was found moved from its original place inside the store and wrapped in a plastic bag. Inside the van, which belonged to Solomon, the police discovered burglary tools, holsters that fit the revolvers and .38 caliber bullets.

Jones v. State, 273 Ga. 231, 539 S.E.2d 154, 157-58 (2000) (“Jones II”). '

B.

In 1979, both Jones and his co-defendant Solomon were indicted for malice murder, convicted in separate jury trials, and sentenced to death. The Georgia Supreme Court affirmed Jones’s conviction and death sentence in 1982. Jones v. State, 249 Ga. 605, 293 S.E.2d 708 (1982) (“Jones I”). Jones filed a state habeas corpus petition, which the Superior Court of Butts County denied in 1982; the Georgia Supreme Court affirmed that denial in 1984. The United States Supreme Court denied Jones’s petition for a writ of certiorari. Jones v. Francis, 469 U.S. 873, 105 S.Ct. 228, 83 L.Ed.2d 157 (1984). Jones then petitioned for habeas relief in federal court. The United States District Court for the Northern District of Georgia granted the petition in part and ordered a new sentencing proceeding, on the ground that the state trial court had improperly allowed the jury to bring a Bible into the deliberation room. See Jones v. Kemp, 706 F.Supp. 1534, 1560 (N.D.Ga.1989).

Jones’s second penalty-phase trial took place in the Superior Court of Cobb County in September 1997. During closing argument, the prosecutor commented:

The thing that bothers me most about this case, and I hope it bothers you, is the complete lack of remorse. Have you seen any remorse in this case? I hope I’m wrong about it. I hope you saw some, because I didn’t. None of the defense witnesses who testified told you anything about Jones being remorseful. Again, I hope I’m wrong. No one has claimed through Jones’s lawyers or his writings that he has apologized to the Tackett family or sought their forgiveness. No one has claimed through Jones’s web site on the Internet that he’s apologized to the Tackett family or sought their forgiveness. Now, who has the power of forgiveness on this earth? Well, that belongs to Mr. Tackett, and in his ■ absence, to Mrs. Tackett and her daughter, and there’s no evidence that they have been asked. I find that ... unusual for eighteen years he’s had that opportunity. He’s got all kinds of pen pals who apparently would do anything for him. I’m sure if asked, they would have been dispatched to Florida. But there’s no indication or evidence that they were asked. So where is the remorse?

Is not that the kind of conduct that deserves the death penalty?

The defense objected and requested a mistrial, arguing that the prosecutor’s closing statement impermissibly commented on the defendant’s refusal to testify. The state trial court denied the motion.

During deliberations, the jury informed the trial court that it had reached an “impasse,” apparently because one juror was “opposed to the death penalty under any circumstances.” See Jones II, 539 S.E.2d at 160. The judge then chose to give a so-called Romine charge. A Romine charge is the Georgia state-law equivalent of a federal Allen charge, see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); Romine v. State, 256 Ga. 521, 525-26, 350 S.E.2d 446 (1986), where a trial judge urges a hung jury to continue deliberating and to attempt to reach a verdict. Three hours later, the jury returned a verdict: it found two statutory aggravating circumstances — that Jones committed the murder while engaged in the commission of armed robbery and burglary, see Ga.Code Ann. § 17 — 10—30(b)(2), and that the murder was “outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim,” see id. § 17 — 10—30(b)(7)—and sentenced Jones to death. See Jones II, 539 S.E.2d at 157.

Jones appealed to the Georgia Supreme Court. Among other points of error, Jones raised his Fifth Amendment challenge to the State’s closing argument. The Georgia Supreme Court rejected this argument because “it is not improper to argue the defendant’s lack of remorse in the penalty phase, nor do such comments amount to an improper reference to a defendant’s failure to testify.” Id. at 159. According to the state’s high court, the prosecutor was not pointing at Jones’s failure to testify but rather the fact that “[sjeveral of Jones’s mitigation witnesses testified about his numerous articles ... and their frequent correspondence with him, but ... none had mentioned any expression of remorse by Jones.” Id.

C.

Jones then collaterally attacked his death sentence by filing a habeas petition in the Superior Court for Butts County in 2003. In 2004, the state habeas court held an extensive evidentiary hearing on Jones’s claims of ineffective assistance of trial counsel, and developed an elaborate record of what Jones’s trial counsel had and had not done in preparation for the penalty phase.

Through this record, we learned that Jones’s trial counsel, Clive Stafford Smith, had hired an investigator, Bart Stapert, who started compiling evidence of Jones’s childhood and background for potential use at sentencing. Stapert made two trips to Chicago in 1993 and found witnesses who could testify about Jones; in the same year, however, Smith relocated and ended his representation of Jones, which also ended Stapert’s involvement in the case.

The case did not move forward for several years, until the state court appointed two new lawyers, .Ray Gary, Jr., and J. Michael Treadaway, to represent Jones in March 1996. A third lawyer, Tony Axam, joined the team shortly before the penalty .phase retrial and was the one who actually conducted the retrial.

After Gary and Treadaway first met Jones, Jones sent his new attorneys a letter, along with twenty-seven attachments (mostly Jones’s own publications or writings). These writings described how an older female cousin had sexually abused Jones when he was five years old, and how Jones had suffered “extremely violent beatings” from his uncle. The writings also detailed that when Jones fled home, he became a member of a gang, which led to his incarceration at Sheridan, a juvenile detention center where he was beaten. Both defense counsel Gary and Treadaway testified that they had read Jones’s letter and remembered parts of the personal history contained in the attached articles. They also testified, however, that when they asked Jones about the writings, Jones said something to the effect that, “I tell them what I think they want to hear.” Gary took this to mean that the writings were “fiction” and “[not] true,” and Tread-away took it to mean that the writings were “not to be relied upon.” In addition, both attorneys testified that they would have inquired about abuse when asking general background questions, but they could not remember Jones telling them, in person, that he had ever been abused as a child.

In December 1996, the defense team received a letter from Stapert, the investigator hired by Jones’s previous attorney. Stapert’s letter said that he had “spent a lot of time with [Jones] and developed a close relationship with him,” and had “built good contacts with several of [Jones’s] friends and family members in the Chicago area.” Stapert claimed to have “created a fairly detailed picture of what evidence could and should be presented at trial,” and offered “to assist you in your efforts or, at the least, share any insights and information I might have.” However, it appears that none of Jones’s three lawyers contacted Stapert during their investigation in preparation for Jones’s retrial.

Instead, Gary and Treadaway testified that they reviewed the boxes containing Jones’s previous attorneys’ files, though Axam, who officially joined the team shortly before the retrial, did not have time to review all of the material. Included in the records was a 1963 report by U.S. Army psychiatrist Dr. Levon D. Tashjian, which recommended, and ultimately led to Jones’s discharge from the army for psychological reasons. Dr. Tashjian observed that Jones “was markedly depressed,” and he initially placed Jones on anti-depressant medications. Tashjian concluded that there was no evidence “of a major thinking disorder such as specific psychosis or psychoneurosis,” but that Jones suffered from “a severe character disorder, characterized by extreme emotional instability and liability, by immaturity in handling the demands of his environment, ... and by his passive way of running away from the stresses of his environment.” Tashjian believed that Jones’s poor adjustment to the military was the consequence of his character disorder and merely “a repetition of a demonstrable life-long pattern of defective adjustment.” The doctor ultimately concluded that attempts at rehabilitation would have been unavailing. He did note, however, that Jones “was and is mentally responsible, both to distinguish right from wrong and to adhere to the right.”

While defense counsel Treadaway did not remember Tashjian’s report, Gary testified that the report contained “90 percent aggravation and 10 percent mitigation” and was “certainly not anything [he] would want to bring in front of a Cobb County jury.” Gary admitted that the defense team never followed up or investigated the report.

Treadaway also testified that he subpoenaed Jones’s prison records but that he did not recall whether any mental health evaluations were included. In fact, Jones’s prison medical records contained three mental health evaluations by prison psychiatrists. The first, dated July 13, 1982, concluded that “this patient has no evidence of psychiatric illness.” The second, dated February 16, 1987, by psychiatrist Dr. Marcelo de la Serna, likewise concluded that Jones “was not suffering from any severe clinical symptomatology,” but also opined that Jones “presented a picture of a deeply ingrained and pervasive personality disorder.” Dr. de la Serna thus determined that while Jones was not suffering from an Axis I clinical disorder (such as bipolar disorder or PTSD), he did suffer from an Axis II personality disorder — to wit, mixed personality disorder with “prominent histrionic, paranoid, and passive-aggressive features.” The final report, dated December 1, 1987, concerned Jones’s reports of difficulty sleeping. The report stated that Jones was given Bena-dryl and would continue to be monitored.

Both Gary and Treadaway testified that they could have secured the funds for an investigator or a mental health expert from the state court. They did not petition the court for such funds, however, because they believed that hiring a mental health expert potentially would have hurt the defense. According to Gary, the law at the time of Jones’s retrial would have permitted the State to interview the mental health expert and even to call that expert as a State’s witness. Nor did they hire an investigator to look into Jones’s childhood.

Instead, Gary and Treadaway focused on three other avenues of mitigation, which they investigated and which Axam eventually presented to the jury. First, counsel believed that the evidence of the crime itself left open the possibility that Solomon, Jones’s co-defendant, had killed the victim, and that Jones was not the shooter. The attorneys hired a forensic expert, Dr. Norton, to examine the facts and testify at the retrial that based on the angles of the bullet holes, Jones could not have been the shooter. Second, Gary and Treadaway attempted to blunt the State’s introduction of the petitioner’s prior Illinois assault conviction as an aggravating circumstance. To that end, they hired an investigator to go to Chicago and find a witness who would testify that the assault victim was actually the aggressor, and the witness testified at trial. Finally, Gary and Treadaway sought to demonstrate that Jones had forged valuable relationships with pen pals while he was in prison, and that Jones’s death would hurt his family. Thus, they interviewed several family members and Jones’s pen pals, some of whom eventually testified on Jones’s behalf.

At some point during the second trial, either Jones himself or his supporters apparently told Axam about the abuse and neglect that Jones suffered as a child. Axam therefore prepared a proposed jury instruction that listed three specific mitigating factors that the jury could find about Jones’s difficult childhood. Axam had no witnesses or evidence to attest to these mitigating circumstances, however, so the trial court declined to give the proposed instruction.

Beyond this account by Jones’s trial attorneys of the circumstances surrounding the sentencing retrial, the record from the state habeas hearing contains three other broad categories of relevant evidence: (1) additional background mitigation evidence regarding Jones’s childhood; (2) background aggravating evidence regarding Jones’s mistreatment of his family and other misconduct; and (3) mental health mitigation evidence. In particular, Jones offered eight affidavits from friends and family members who knew Jones while he was growing up, as well as affidavits and depositions from four mental health experts. For its part, the State offered the contents of the file compiled by the investigator, Bart Stapert, for Jones’s prior counsel, Clive Stafford Smith (the “Stapert file”). The State also introduced Jones’s prison record, military record, and ar