Alan Eugene Miller v. Commissioner, Alabama Department of Corrections

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11630
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D.C. Docket No. 2:13-cv-00154-KOB

ALAN EUGENE MILLER,
Petitioner - Appellant,
versus
COMMISSIONER, ALABAMA
DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(August 27, 2020)
Before JORDAN, ROSENBAUM, and LUCK, Circuit Judges.
PER CURIAM:
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An Alabama jury found Alan Miller guilty of murdering three men and,
following a sentencing hearing, recommended by a vote of 10-2 that he be sentenced
to death. The trial court agreed with the jury’s recommendation and sentenced Mr.
Miller to death. The Alabama Court of Criminal Appeals, after a remand to the trial
court, affirmed his conviction and sentence on direct appeal, and later affirmed the
trial court’s denial of his motion for post-conviction relief. See Miller v. State, 913
So. 2d 1148 (Ala. Crim. App. 2004) (Miller I); Miller v. State, 99 So. 3d 349 (Ala.
Crim. App. 2011) (Miller II).
Mr. Miller then filed a federal habeas corpus petition. The district court
denied relief, and we granted a certificate of appealability on a number of claims.
With the benefit of oral argument, and following a review of the record, we affirm
the district court’s denial of habeas relief.
I
The facts set out below are taken from the opinion of the Alabama Court of
Criminal Appeals in Miller I, 913 So. 2d at 1154–56.
1
Mr. Miller worked as a delivery truck driver at Ferguson Enterprises in
Pelham, Alabama. Around 7:00 a.m. on August 5, 1999, Johnny Cobb, Ferguson’s
vice president of operations, was about to enter the company building when he heard

1
We provide more details later in our discussion of Mr. Miller’s ineffective assistance of
counsel claim.
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some loud noises and what sounded like someone screaming. As he opened the
door, Mr. Cobb saw Mr. Miller—armed with a pistol—walk towards him and say,
“I’m tired of people starting rumors on me.” Mr. Cobb tried to get Mr. Miller to put
the pistol down, but Mr. Miller told him to get out of the way. Mr. Cobb ran out the
front door and around the side of the building. Mr. Miller then left the building, got
into his personal truck, and drove away.
When Mr. Cobb went back into the building, he found Christopher Yancy
underneath a desk in the sales office and Lee Holdbrooks on the floor in the hallway.
Both men were dead; they had been shot several times and were covered in blood.
Mr. Holdbrooks had crawled 20-25 feet in an attempt to escape his assailant, as
evidenced by the trail of blood he had left behind. Evidence technicians recovered
nine .40-caliber shell casings from the scene. Mr. Cobb, who had called the police,
gave officers a description of Mr. Miller’s clothing and truck.
While officers conducted their investigation at Ferguson Enterprises, Andy
Adderhold and Terry Jarvis were beginning their day at work at Post Airgas in
Pelham. Mr. Adderhold noticed Mr. Miller, a former Post Airgas employee, enter
the building. Mr. Miller walked toward the sales counter and called out to Mr. Jarvis:
“Hey, I hear you’ve been spreading rumors about me.” Mr. Jarvis walked out to the
sales counter and replied, “I have not.”
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Mr. Miller then shot Mr. Jarvis a number of times, and pointed the pistol at
Mr. Adderhold, who had crouched behind the counter. Mr. Adderhold begged for
his life, and Mr. Miller paused, pointed at a door, and told him to get out. As Mr.
Adderhold was leaving, he heard a sound from Mr. Jarvis and looked back. Mr.
Miller, however, repeated his order to Mr. Adderhold and told him to “get out—right
now.” When exiting the building, Mr. Adderhold heard another gunshot. He
climbed a fence to a neighboring building and called the police. When the authorities
arrived, Mr. Adderhold told them what had happened and provided a description of
Mr. Miller.
Officers later stopped Mr. Miller on the highway. In his truck they found a
Glock pistol with one round in the chamber and 11 rounds in the ammunition
magazine. They also located an empty ammunition magazine on the passenger seat.
At trial, a medical examiner testified that Mr. Holdbrooks was shot six times
in the head and chest, with one of the shots to the head being fired at very close
range. The medical examiner opined that Mr. Holdbrooks was turning his head and
looking up when he was hit with the fatal shot to the head. Mr. Yancy was shot three
times. One of the shots caused paralysis and another struck the aorta, resulting in
Mr. Yancy dying from loss of blood within 15-20 minutes. Mr. Jarvis was shot five
times, with one shot striking his heart. According to the medical examiner, Mr.
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Miller was standing over Mr. Jarvis as he shot him in the heart. Mr. Jarvis could
have lived anywhere from several minutes to 15 minutes after being shot.
II
The district court’s denial of Mr. Miller’s habeas corpus petition is subject to
plenary review.See Fults v. GDCP Warden, 764 F.3d 1311, 1313 (11th Cir. 2014).
But because his habeas corpus petition is governed by the provisions of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104–132,
110 Stat. 1214 (1996), Mr. Miller can obtain relief only if the state court’s
adjudication of a claim was “contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme Court,” or was “based
on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2). AEDPA “imposes a highly
deferential standard for evaluating state-court rulings and demands that state-court
decisions be given the benefit of the doubt.”Trepal v. Sec’y, Fla. Dep’t of Corr.,
684 F.3d 1088, 1107 (11th Cir. 2012) (quotingHardy v. Cross, 565 U.S. 65, 66
(2011)). This standard is “difficult to meet.” Harrington v. Richter, 562 U.S. 86,
102 (2011).
A state court decision is “contrary to” clearly established federal law when “it
arrives at an opposite result from the Supreme Court on a question of law, or when
it arrives at a different result from the Supreme Court on ‘materially
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indistinguishable’ facts.”Owens v. McLaughlin, 733 F.3d 320, 324 (11th Cir.
2013) (quotingWilliams v. Taylor, 529 U.S. 362, 405 (2000)).See, e.g.,Premo v.
Moore, 562 U.S. 115, 128 (2011) (“A state-court adjudication of the performance of
counsel under the Sixth Amendment cannot be ‘contrary to’Fulminante,
forFulminante—which involved the admission of an involuntary confession in
violation of the Fifth Amendment—says nothing about theStricklandstandard of
effectiveness.”). A state court decision cannot be contrary to clearly established
federal law “where no Supreme Court precedent is on point.”Washington v. Crosby,
324 F.3d 1263, 1265 (11th Cir. 2003).
“[A]nunreasonableapplication of federal law is different from anincorrect
application of federal law.”Richter, 562 U.S. at 101 (emphasis in original and
internal quotation marks and citation omitted). As the Supreme Court has put it:
An unreasonable application [of clearly established federal law] must
be objectively unreasonable, not merely wrong; even clear error will
not suffice. Rather, as a condition for obtaining habeas corpus from a
federal court, a state prisoner must show that the state court’s ruling on
the claim . . . was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility
for fairminded disagreement.
White v. Woodall,572 U.S. 415, 419–20 (2014) (internal quotation marks and
citations omitted).
With these standards in mind, we address Mr. Miller’s claims.
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III
Mr. Miller argues that his death sentence is unconstitutional under Ring v.
Arizona, 536 U.S. 584 (2002), and Hurst v. Florida, 136 S. Ct. 616 (2016), because
the jury did not find the facts that made him eligible for the death penalty. Because
the Alabama Court of Criminal Appeals reasonably concluded that the jury did find
the statutory aggravating circumstance necessary to make Mr. Miller death-eligible,
we reject his argument.
Ring, which applies here because it was decided while Mr. Miller’s direct
appeal was pending in the Court of Criminal Appeals, holds that the Sixth
Amendment requires a jury to find an aggravating circumstance that makes a
defendant eligible for the death penalty. See Ring, 536 U.S. at 609. The only
statutory aggravating circumstance submitted to Mr. Miller’s jury was that the
offense was “especially heinous, atrocious, or cruel compared to other capital
offenses.” Ala. Code § 13A-5-49(8). The trial court instructed the jury that it could
not vote on the death penalty unless it first found beyond a reasonable doubt the
existence of at least one aggravating circumstance.
Because the jury recommended a death sentence by a vote of 10-2, the Court
of Criminal Appeals found that the jury must have determined the existence of the
“heinous, atrocious, or cruel” aggravating circumstance—the only one submitted to
it for consideration. See Miller I, 913 So. 2d at 1169. Given our general presumption
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that juries follow the instructions given to them, see Penry v. Johnson, 532 U.S. 782,
799 (2001), and applying AEDPA deference, we cannot say that the factual finding
of the Court of Criminal Appeals was unreasonable. Cf. Nichols v. Heidle, 725 F.3d
516, 546–49 (6th Cir. 2013) (holding that the finding of the Tennessee Supreme
Court—that jurors in a capital case had found the existence of the two aggravating
factors submitted to them even though they listed aggravating factors of their own
creation on the verdict form—was not an unreasonable finding of fact because the
jurors never rejected the two relevant aggravating factors and, when polled, said that
they had found the existence of the two aggravating factors).
We also reject Mr. Miller’s argument that the remand by the Court of Criminal
Appeals demonstrated that the trial court had exclusive authority to make the
findings of fact necessary to make Mr. Miller death-eligible. See Br. for Appellant
at 25–26 (citing and quoting Miller I, 913 So. 2d at 1152, 1167). We do so for two
reasons.
To begin, Mr. Miller did not raise this argument in the district court until he
filed his motion to alter the judgment under Rule 59(e). See Reply Br. for Appellant
at 3. We review a district court’s denial of a Rule 59(e) motion for an abuse of
discretion. See Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006). In denying
Mr. Miller’s Rule 59(e) motion, the district court did not address the remand
argument or whether it had been forfeited. See generally D.E. 63. But the district
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court’s denial of the motion was not an abuse of discretion in any event because a
motion to alter a judgment cannot be used to raise new arguments that could have
been raised prior to entry of the judgment. See, e.g.,Wilchombe v. TeeVee Toons,
Inc., 555 F.3d 949, 957 (11th Cir. 2009).
Mr. Miller’s argument also fails on the merits. When the Court of Criminal
Appeals remanded to the trial court, it did so to ensure compliance with Ex parte
Kyzer, 399 So. 2d 330, 334 (Ala. 1981), abrogated by Ex parte Stephens, 982 So. 2d
1148 (Ala. 2006), which had held that for capital offenses to be “especially heinous,
atrocious or cruel,” there must be a more specific finding that they were
“conscienceless or pitiless homicides which [were] unnecessarily torturous to the
victim.”Miller I, 913 So. 2d at 1152. The trial court’s original order failed to
comply with Kyzerbecause it merely recited the “especially heinous, atrocious or
cruel” language from the Alabama statute. See id.But the sentencing jury had been
properly instructed under the Kyzer standard.See Miller II, 99 So. 3d at 422 (quoting
the jury instructions). As explained above, the Court of Criminal Appeals could
have reasonably concluded that the jury, by recommending death in a 10-2 vote,
found that the offenses were “especially heinous, atrocious or cruel,” as well as the
more specific requirement necessary under Kyzerthat the offenses were
“conscienceless or pitiless homicides which [were] unnecessarily torturous to the
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victim[s].” Because the jury made this finding, Mr. Miller’s sentence does not
violate Ring.
Mr. Miller also makes a broader argument. He contends that under Alabama
law at the time, the jury performed only an advisory role in the sentencing process,
see Ala. Code §§ 13A-5-46(a) & 13A-5-47(e) (2000), and as a result, the trial court
had to make the necessary factual finding about the existence of the “heinous,
atrocious, or cruel” aggravating circumstance. And that, he says, renders his
situation indistinguishable from the Florida system the Supreme Court held
unconstitutional in Hurst.See Br. for Appellant at 23–26 (comparing, in a chart, the
similarities between the Florida scheme at issue in Hurst and the Alabama scheme
under which he was sentenced).See also Brooks v. Alabama, 136 S. Ct. 708 (2016)
(Sotomayor & Ginsburg, J.J., concurring in the denial of certiorari and Breyer, J.,
dissenting from the denial of a stay of execution and of certiorari).
We understand Mr. Miller’s comparison of the Florida and Alabama schemes.
For several reasons, however, we cannot grant Mr. Miller habeas relief.
First, the Supreme Court has upheld the Alabama capital scheme under which
Mr. Miller was sentenced, including its use of a purely advisory jury. See Harris v.
Alabama, 513 U.S. 504, 515 (1995) (“The Constitution permits the trial judge, acting
alone, to impose a capital sentence. It is thus not offended when a State further
requires the sentencing judge to consider a jury’s recommendation and trusts the
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judge to give it the proper weight.”). Some of the cases Harris relied on, such as
Spaziano v. Florida, 468 U.S. 447, 465 (1984), were overruled in Hurst. But as a
lower court we must follow an on-point Supreme Court decision even if we believe
that later cases have eroded or even abrogated it. See, e.g.,Hohn v. United States,
524 U.S. 236, 252–53 (1998) (explaining that the Supreme Court’s “decisions
remain binding precedent until [the Court] see[s] fit to reconsider them, regardless
of whether subsequent cases have raised doubts about their continued vitality”).
Given Harris, which remains binding precedent, we cannot hold that Alabama’s use
of an advisory jury to recommend punishment in Mr. Miller’s case was
unconstitutional.
Second, Mr. Miller’s argument relies heavily on the holding and rationale of
Hurst. But we have held that Hurst announced a new rule of constitutional law that
is not retroactive on collateral review. See Knight v. Fla. Dep’t of Corr., 936 F.3d
1322, 1335–37 (11th Cir. 2019) (applying retroactivity analysis of Teague v. Lane,
489 U.S. 288 (1989)). And the Supreme Court has come to the same conclusion.
See McKinney v. Arizona, 140 S. Ct. 702, 708 (2020). We are therefore unable to
apply Hurst in Mr. Miller’s case. See id. Furthermore, because the sentencing jury
made the necessary death-eligibility finding, it would not matter whether the trial
court had ultimate sentencing authority. See id.(holding that, under Ring, any states
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“‘that leave the ultimate life-or-death decision to the judge may continue to do so’”)
(quoting Ring, 536 U.S. at 612 (Scalia, J., concurring)).
IV
Mr. Miller contends that the trial court’s jury instructions violated Caldwell v.
Mississippi, 472 U.S. 320 (1985). We disagree.
The trial court instructed the jury that it had to unanimously find a statutory
aggravating circumstance before it could consider the death penalty. It also
instructed the jury that its role at sentencing was to make a “recommendation” as to
the appropriate punishment.
Caldwell requires that a jury in a capital case be correctly instructed as to its
role under state law. “Thus, ‘[t]o establish a Caldwellviolation, a defendant
necessarily must show that the remarks to the jury improperly described the role
assigned to the jury by local law.’” Romano v. Oklahoma, 512 U.S. 1, 9 (1994)
(quoting Dugger v. Adams, 489 U.S. 401, 407 (1989)). The jury instructions here
accurately described the jury’s advisory role in Alabama’s capital sentencing
scheme. Indeed, Mr. Miller does not claim otherwise. His argument, instead, is that
the jury instructions violated Caldwellbecause—as a matter of federal constitutional
law under Ring and its progeny, including Hurst—the jury’s finding of an
aggravating circumstance had to be binding on the trial court.
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The argument is an interesting one, but at the end of the day it fails because
the jury instructions accurately characterized the jury’s role under Alabama law. Mr.
Miller cannot use Caldwell as an end run around federal retroactivity law to apply
Hurst to the Alabama capital sentencing scheme and then argue that, because of
Hurst, the instructions were incorrect. See Carr v. Schofield, 364 F.3d 1246, 1258
(11th
Cir. 2004) (“We have . . . held that ‘references to and descriptions of the jury’s
sentencing verdict as an advisory one [or] as a recommendation to the judge’ . . . do
not constitute Caldwell violations where they ‘accurately characterize the jury’s and
judge’s sentencing roles under [state] law.’”) (quoting Davis v. Singletary, 119 F.3d
1471, 1482 (11th Cir. 1997)).
V
Mr. Miller asserts that his trial counsel rendered ineffective assistance of
counsel, in violation of the Sixth Amendment, when he “sabotaged” the evaluation
of his sanity by his medical expert and then withdrew his insanity defense. We are
not persuaded.
2

2
The district court concluded that because Mr. Miller did not argue on direct appeal that
trial counsel was ineffective for failing to provide documents to Dr. Scott, that this part of his
ineffective assistance of trial counsel claim was procedurally defaulted. See D.E. 53 at 43.
Because we are denying relief on the merits, we need not address procedural bar issues. See 28
U.S.C. § 2254(b)(2); Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011).
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A
Through counsel, Mr. Miller initially entered a plea of not guilty by reason of
mental disease or defect. Two medical professionals employed by the state, Drs.
James Hooper and Harry McClaren—one a psychologist and the other a
psychiatrist—evaluated Mr. Miller. Dr. Hooper, who spent only 30 minutes with
Mr. Miller and did not conduct any psychological tests, concluded that he did not
find any mental illness that would rise to the level of an insanity defense. Dr.
McClaren concluded that Mr. Miller gave the impression of suffering from a
personality disorder with schizoid and paranoid features, and he could not rule out
the possibility of a brief period of dissociation because Mr. Miller reported
experiencing a sort of “tunnel vision” near the time of his arrest.
Counsel retained a forensic psychiatrist, Dr. Charles Scott, to evaluate Mr.
Miller and determine whether he had been insane at the time of the murders. Dr.
Scott requested that he be provided all of Mr. Miller’s psychological evaluations,
including reports, tests, notes, and raw data. But counsel failed to give Dr. Scott (a)
the work file of Dr. Hooper (which included notes of his interview with Mr. Miller
shortly after the shooting and which stated that Mr. Miller denied “any memory” of
the offense); (b) Dr. McClaren’s report and file, which suggested at times that Mr.
Miller was not aware of his actions; (c) the recordings of the questioning of Mr.
Miller on the day of his arrest, in which he asked, “I’m being charged with
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something?”; and (d) a form prepared by counsel shortly after the murders indicating
that Mr. Miller was suffering from the “apparent loss of some memory surrounding
the events.”
Despite not having these materials, Dr. Scott concluded in his preliminary
assessment that Mr. Miller suffered from a severe mental illness, and that there was
evidence both for and against a determination of insanity. But as things stood, Dr.
Scott opined that Mr. Miller did not meet the definition of insanity under Alabama
law. In reaching his conclusion, Dr. Scott consulted with Dr. Barbara McDermott,
a psychologist who had administered certain tests to Mr. Miller.
At trial, counsel withdrew Mr. Miller’s insanity defense, entered a plea of not
guilty, and presented no defense during the guilt phase. Counsel later explained that
he believed that jurors in Shelby County were “solid” and “hard working” people
who “don’t believe a lot of hullabaloo about these things they can’t see,” and they
would have regarded the assertion of an insanity defense as “whiny.” Counsel told
the jury that he was not proud of representing Mr. Miller and that there was “fairly
convincing” evidence that he had done what he was charged with. The jury returned
a guilty verdict after 20 minutes of deliberation.
In the penalty phase, counsel put on Dr. Scott as Mr. Miller’s only witness.
Dr. Scott testified that Mr. Miller was mentally ill at the time of the murders because
he suffered from a “delusional disorder that substantially impaired his rational
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ability,” and that the disorder, together with his history as a loner, resulted in his
belief that his co-workers were spreading rumors that he was homosexual. Dr. Scott
also testified, however, that the mental illness did not rise to the level of insanity
under Alabama law because Mr. Miller was able to appreciate the nature and
consequences of his actions. See Ala. Code § 13A-3-1(a) (defining insanity as when,
as a “result of a severe mental disease or defect,” the defendant “was unable to
appreciate the nature and quality or wrongfulness of his acts”). For example, Mr.
Miller returned to shoot Mr. Holdbrooks before driving to another location and
shooting Mr. Jarvis.
B
On direct appeal, the Alabama Court of Criminal Appeals stated that counsel’s
withdrawal of the insanity defense was a “well-reasoned decision,” which was a part
of a strategy to try to save Mr. Miller’s life given the overwhelming evidence of
guilt. See Miller I, 913 So. 2d at 1159–61. On post-conviction review, the Court of
Criminal Appeals concluded that counsel’s withdrawal of the insanity defense was
a reasonable strategic decision, explaining that all of the medical professionals who
had evaluated Mr. Miller had concluded that he did not meet Alabama’s definition
of insanity at the time of the murders. See Miller II, 99 So. 3d at 377.
The district court, applying AEDPA deference, ruled that Mr. Miller had not
carried his heavy burden of demonstrating that counsel “performed unreasonably”
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in withdrawing the insanity defense. See D.E. 53 at 45. First, Dr. Scott had
concluded that Mr. Miller did not meet the definition of insanity under Alabama law.
Second, Drs. Hooper and McClaren had agreed with Dr. Scott’s conclusion. See id.
at 46.
3
Mr. Miller argues that the Court of Criminal Appeals and the district court
erred with respect to the matter of performance. He points out that insanity was his
only defense, and he contends that, in such a circumstance, counsel’s decision cannot
be presumed to be a reasonable strategic choice. See, e.g.,Profitt v. Waldron, 831
F.2d 1245, 1248–49 (5th Cir. 1987). He also asserts that, under Alabama law, an
expert opinion is not required to send the question of insanity to the jury. See, e.g.,
Harkey v. State, 549 So. 2d 631, 634–35 (Ala. Crim. App. 1989) (concluding that
the insanity defense was properly presented to the jury even though counsel did not
proffer expert evidence, and quoting Young v. State, 428 So. 2d 155, 161 (Ala. Crim.
App. 1982), for the general rule that “only slight evidence of insanity at the time of
the commission of the crime is required to raise the issue for submission to the jury”).
And he cites to Wheeler v. State, 659 So. 2d 1032, 1035 (Ala. Crim. App. 1995), in
which the Court of Criminal Appeals said that the matter of insanity was for the jury,
even though in that case the defense expert testified only that the defendant had

3
Given its ruling on performance, the district court did not address prejudice. See D.E. 53
at 45–46.
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major depression with psychotic features and experienced some depersonalization
at the time of the murder.
We need not address the performance prong of Strickland. Assuming without
deciding that counsel’s performance as to the insanity defense was constitutionally
deficient, Mr. Miller has not demonstrated prejudice.
C
Under Strickland v. Washington, 466 U.S. 668, 696 (1984), Mr. Miller has the
burden of showing that, but for counsel’s errors concerning the insanity defense (i.e.,
the failure to provide Dr. Scott with all of the information he requested and the
withdrawal of the insanity defense), there is a “reasonable probability” of a different
outcome, i.e., a reasonable probability that the jury would have found him to be
insane under Alabama law at the time of the murders. See Roberts v. Comm’r, Ala.
Dep’t of Corr., 677 F.3d 1086, 1092 (11th Cir. 2012) (per curiam) (“The appropriate
prejudice analysis for this [ineffectiveness] claim would require . . . consider[ing]
whether there is a reasonable probability that Roberts’ trial would have resulted in
his being found not guilty by reason of insanity had his trial counsel properly
investigated and presented an insanity defense.”); Weeks v. Jones, 26 F.3d 1030,
1038 (11th Cir. 1994) (“Weeks would have to establish a reasonable probability that
his trial counsel’s failure to discover and review his mental history . . . and, thus, to
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present an insanity defense, would have resulted in his being found not guilty by
reason of insanity.”).
The reasonable probability standard does not impose a “more likely than not”
burden, but instead requires a defendant to demonstrate a probability “sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 693, 694.
Nevertheless, the likelihood of a different result must be “substantial, not just
conceivable.” Richter, 562 U.S. at 112.
On post-conviction review, the Alabama Court of Criminal Appeals affirmed
the trial court’s ruling that Mr. Miller had not shown prejudice from his counsel’s
alleged errors. It separately analyzed the two purported errors—the failure to
provide Dr. Scott with all the information and materials he needed, and the
withdrawal of the insanity defense. See Miller II, 99 So. 3d at 384–86, 389–90.
With respect to counsel’s failure to give Dr. Scott what he had requested, the
Court of Criminal Appeals explained that none of the experts who evaluated Mr.
Miller—either at trial or in the post-conviction proceedings—concluded that he was
legally insane at the time of the murders. For example, Dr. Catherine Boyer, a
psychologist retained by Mr. Miller for the post-conviction proceedings, reviewed
all of the materials which Mr. Miller says should have been provided to Dr. Scott
and also administered several other tests. Although she concluded that Mr. Miller
suffered from post-traumatic stress disorder with dissociative features, and believed
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that he had experienced a dissociative episode during the shootings that “impaired
his ability to appreciate the nature and quality or wrongfulness of his acts,” she never
testified that he was legally insane at the time of the murders.See id. at 385. When
asked if she had an opinion about Mr. Miller’s sanity, Dr. Boyer said she had none.
See id. Furthermore, at the post-conviction hearing Dr. Scott did not say that his
opinion about Mr. Miller being legally sane had changed since the time of trial and
after he had been informed of the previously omitted materials.See id.
Turning to counsel’s withdrawal of the insanity defense, the Court of Criminal
Appeals similarly affirmed the trial court’s ruling that Mr. Miller had not shown
prejudice. See id. at 389–90. First, Dr. Scott testified that Mr. Miller was not unable
to appreciate the wrongfulness of his actions, and therefore did not meet the legal
definition of insanity under Alabama law. Second, any attempt by counsel to argue
lack of intent would have “run contrary to the overwhelming evidence” of Mr.
Miller’s intent to commit murder (e.g., the number of times Mr. Yancy and Mr.
Holdbrooks were shot, the fact that Mr. Miller—after killing those two men—drove
to another location to find and shoot Mr. Jarvis multiple times). See id. at 389.
Third, the failure to introduce mental health evidence during the guilt phase did not
prejudice Mr. Miller because Alabama does not recognize a diminished capacity
defense. See id. at 390.
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Applying AEDPA deference, we conclude that the Court of Criminal
Appeals’ prejudice determination was not unreasonable. Mr. Miller shot and killed
two men, and then got in his vehicle and drove to another location where he shot and
killed a third man. Given that no medical expert could say that Mr. Miller was
legally insane under Alabama law at the time of the murders, the Court of Criminal
Appeals did not unreasonably conclude that his counsel’s alleged errors with respect
to the insanity defense did not prejudice him under Strickland.
Our decision in Robertsis instructive. In that case the defendant, who had
been convicted of capital murder in Alabama and sentenced to death, alleged in part
that his trial counsel rendered ineffective assistance by not investigating and
pursuing an insanity defense. We declined to address counsel’s performance and
analyzed the matter of Strickland prejudice without AEDPA deference because the
Alabama courts had not ruled on prejudice. See Roberts, 677 F.3d at 1092. We held
that the defendant had failed to show prejudice resulting from his counsel’s allegedly
deficient performance even though there was evidence that he had a personality
disorder, suffered from alcohol abuse and was intoxicated at the time of the murder,
may have had memory lapses around the time of the murder, and may not have
remembered what happened at the time of the murder. See id. at 1092–93. Two
facts were critical to our holding on prejudice. First, we understood Alabama law to
require a mental disease, and the defendant had no history of a “major debilitating
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mental illness.” Id. at 1093. Second, no medical expert could testify that the
defendant was legally insane under Alabama law at the time of the murder. Id.
There
was therefore no basis to conclude that, as a result of a severe mental illness, the
defendant could not appreciate the wrongfulness of his actions. See id. at 1093–94.
A similar result is appropriate here. As in Roberts, no medical professional
has ever concluded that Mr. Miller was legally insane under Alabama law at the time
of the murders. See also Smith v. Mullin, 379 F.3d 919, 935 (10th Cir. 2004)
(holding that the defendant, who had been convicted of murdering his wife and
stepchildren, was not prejudiced by his counsel’s failure to present an insanity
defense under Oklahoma law: “Even on the [mental health] evidence available to
[counsel], should he have obtained it and presented it, an acquittal [on insanity
grounds] was highly unlikely.”); Sandgathe v. Maass, 314 F.3d 371, 382 (9th Cir.
2002) (holding that counsel’s failure to investigate and present an insanity defense
did not prejudice the defendant because there was “no evidence anywhere in the
record . . . establishing that if counsel had properly investigated, he could have
shown that [the defendant’s] mental state at the time of the crime met the [Oregon
insanity] standard”).
VI
Mr. Miller argues that his trial counsel also rendered ineffective assistance of
counsel during the penalty phase by failing to present compelling and readily
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23
available mitigating evidence. And he says that his appellate counsel also performed
deficiently (at the new trial stage and on appeal) by failing to investigate and
preserve trial counsel’s errors with respect to mitigating evidence. We conclude that
the Alabama Court of Criminal Appeals reasonably determined that Mr. Miller failed
to show prejudice resulting from these alleged errors.
4
A
During the penalty phase, counsel called only one witness—Dr. Scott. As
explained earlier, Dr. Scott was a psychiatrist who had been retained to evaluate Mr.
Miller’s sanity. He testified about Mr. Miller’s mental disorder, but he was not a
mitigation expert or specialist, and had only obtained limited information about Mr.
Miller’s background, family life, and employment.
According to Mr. Miller, his counsel could have and should have obtained and
presented the following mitigating evidence: (1) Mr. Miller’s parents were poor and
frequently unemployed, and lived in a rat- and rodent-infested home; (2) Mr.
Miller’s father used the money the family had to buy drugs; (3) three generations of
the Miller family suffered from severe and well-documented mental illnesses (e.g.,
his paternal great-grandmother suffered from insanity and was hospitalized and his
father and uncles had severe mental illnesses); (4) Mr. Miller’s father physically

4
The district court found the ineffective assistance of trial counsel claim to be procedurally
barred, but we choose to deny relief on the merits, as AEDPA allows us to do. See Loggins, 654
F.3d at 1215.
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abused and threatened Mr. Miller on a regular basis, treated him harshly (e.g., calling
him names like “little bastard,” “retarded,” and “moron”), and told him he was a
homosexual; (5) Mr. Miller was an excellent employee; (6) Mr. Miller had a close
and loving relationship with his siblings, was a great uncle to his nieces and
nephews, and provided financial support to them; and (7) Mr. Miller had behaved
strangely in the weeks before the shootings. See Br. for Appellant at 11–13.
After he was sentenced to death, Mr. Miller (now represented by new
appellate counsel) filed a motion for a new trial alleging in part that trial counsel had
rendered ineffective assistance. The trial court held an evidentiary hearing, and then
summarily denied the motion. See Miller I, 913 So. 2d at 1151.
On direct appeal, the Court of Criminal Appeals rejected Mr. Miller’s
argument that trial counsel had failed to “adequately explore all possible mitigating
routes,” which left him “unable to make well-informed decisions on the question of
mitigation.” Id. at 1163. It recounted that trial counsel had testified about why he
chose to present Mr. Miller’s family and social history through Dr. Scott instead of
through relatives, and held that it “fail[ed] to see what other mitigating evidence
counsel could have offered. Moreover, despite [Mr.] Miller’s allegations, he offers
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25
no additional mitigating evidence that counsel did not discover during his
investigation or that counsel failed to consider in formulating his trial strategy.” Id.
5
On Mr. Miller’s post-conviction appeal, the Court of Criminal Appeals again
addressed the claims that trial counsel and appellate counsel were ineffective with
respect to the investigation and presentation of mitigating evidence at sentencing. It
rejected both claims.
The Court of Criminal Appeals affirmed the trial court’s conclusions that trial
counsel had performed adequately: trial counsel had presented a “competent
mitigating case” (including Mr. Miller’s mental health and background) through Dr.
Scott; “the fact that . . . trial counsel could have presented more mitigation evidence
. . . does not establish deficient performance under Strickland”; and Mr. Miller had
failed to ask trial counsel during the post-conviction hearing why he did not present
other witnesses or evidence at the post-conviction hearing (and therefore trial
counsel’s performance was “presumed to be reasonable”). See Miller II, 99 So. 3d
at 424.
With respect to prejudice, the Court of Criminal Appeals agreed with the trial
court that Mr. Miller had failed to carry his burden. First, Mr. Miller had failed to
establish what additional mitigating evidence could have been presented. Second,

5
At the penalty phase, Dr. Scott testified to the jury about Mr. Miller’s father’s verbal
abuse, his impoverished childhood, and the history of mental illness in his family. SeeD.E. 53 at
104– 07 (citing R. Vol. 8, Tab 22, at 1349, 1350-51, 1362).
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the substance of the reports of Dr. Scott and Dr. McDermott were presented during
the penalty phase. Third, the trial court found three statutory mitigating
circumstances—that Mr. Miller had no significant history of prior criminal activity,
that Mr. Miller committed the murders while “under the influence of extreme mental
or emotional disturbance,” and that Mr. Miller’s capacity to appreciate the
criminality of his conduct or to conform his conduct to the requirements of the law
“was substantially impaired”—and Mr. Miller failed to show what additional
mitigating circumstances could have been proven. See id. at 411, 424. The Court
of Criminal Appeals was “confident that there would be no change in the result in
this case.” Id. at 415.
The district court addressed only the matter of prejudice. See D.E. 53 at 102.
It recounted the additional mitigating evidence Mr. Miller claimed should have been
presented, see id. at 103–09, and compared that evidence to what was actually
presented at the sentencing hearing. Applying AEDPA deference, it determined that
a reasonable jurist could conclude that there was no reasonable probability of a
different outcome had the additional mitigating evidence been presented. See id. at
109. The district court noted that some of Mr. Miller’s new evidence was cumulative
of the information presented by Dr. Scott and explained that “the value of the
additional mitigating evidence . . . is minimal when weighed against the brutal
nature” of Mr. Miller’s crimes. See id. at 111.
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B
As explained above, the reasonable probability standard requires a defendant
to demonstrate a probability “sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. The likelihood of a different result must be “substantial,
not just conceivable.” Richter, 562 U.S. at 112. The question is “whether there is a
reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1326 (11th Cir. 2013)
(en banc) (internal quotation marks and citation omitted). In answering this
question, we must reweigh the aggravating evidence against the totality of the
available mitigating evidence. See Ferrell v. Hall, 640 F.3d 1199, 1234 (11th Cir.
2011).
But because we must apply AEDPA deference, we do not analyze the
prejudice issue de novo. Instead, we ask whether the prejudice ruling of the Court
of Criminal Appeals was reasonable. See Pittman v. Sec’y, Fla. Dep’t of Corr., 871
F.3d 1231, 1253 (11th Cir. 2017). Like the district court, we conclude that the Court
of Criminal Appeals reasonably held that Mr. Miller failed to show prejudice from
his trial counsel’s failure to present additional mitigating evidence and his appellate
counsel’s failure to investigate and preserve the issue of trial counsel’s alleged
ineffectiveness. See id. at 1252–54 (holding that state court reasonably concluded
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that defendant—who had committed a violent triple murder with indicia of
premeditation—failed to show prejudice resulting from his counsel’s alleged failure
to present additional mitigating evidence of sexual abuse, drug use, and mental
health at sentencing).
Based on the testimony that Dr. Scott provided at the sentencing hearing, the
trial court found three statutory mitigating factors. Applying AEDPA deference, the
additional mitigating evidence that Mr. Miller presented in post-conviction
proceedings (some of which was cumulative) is not strong enough to overcome the
three murders he committed and the way in which he carried them out. See D.E. 53
at 111–12 (recounting the trial court’s factual findings about the murders).
At the first location, Mr. Miller first shot Mr. Yancy in the leg, and the bullet
entered his spine and paralyzed him. Mr. Yancy, unable to move, tried to hide from
Mr. Miller under a desk but could not reach a cell phone that was inches away from
his hand. He must have been afraid he was going to be killed before Mr. Miller fired
the final two shots into him. Mr. Miller shot Mr. Holdbrooks several times, and Mr.
Holdbrooks crawled down a hallway for about 25 feet before Mr. Miller put the gun
to his head and fired the final bullet that killed him. At the second location, Mr.
Miller shot Mr. Jarvis five times after he denied spreading rumors about Mr. Miller’s
sexuality. In the words of the trial court, “[i]t appears all three of [Mr. Miller’s]
victims suffered for a while not only physically, but psychologically. In each
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instance, there appeared to have been hope for life while they were hurting, only to
have their fate sealed by a final shot, execution style.” Id. at 112 (quoting Rule 32
C.R. Vol. 43, Tab 72 at 1–3). On this record, we cannot say that the Court of
Criminal Appeals’ prejudice determination was unreasonable. Cf. Brooks v.
Comm’r, Ala. Dep’t of Corr., 719 F.3d 1292, 1302 (11th Cir. 2013) (“In light of the
extensive evidence regarding the horrific nature of the crime, it was reasonable for
the Alabama Court of Criminal Appeals to conclude that the penalty phase outcome
would not be affected by Brooks’s acquaintances’ and relatives’ impression of him
as a nice and polite young man[.]”).
VII
The district court’s denial of Mr. Miller’s habeas corpus petition is affirmed.
AFFIRMED.

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