Foust v. Houk, 655 F.3d 524

Foust, a death-row Ohio inmate, was convicted of murder, rape, arson, and related offenses stemming from a 2001 home invasion.
Mitigation hearings relied on letters from family and a non-specialist psychologist; extensive childhood abuse records existed but were not gathered.
Defense counsel did not interview mitigation witnesses or obtain Children's Services records despite repeated reminders from the proposed mitigation expert.
Karpawich was appointed as a mitigation evaluator but not as a mitigation specialist; no independent mitigation investigation was conducted.
The district court denied habeas relief; the Sixth Circuit granted a limited certificate of appealability on ineffective assistance of counsel at the mitigation phase.
The panel reversed, vacated the death sentence, and ordered a conditional writ unless Ohio started a new mitigation hearing within 180 days.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel provided ineffective assistance at mitigation.	Foust argues failure to investigate and interview witnesses violated Strickland.	State contends selected investigation was tactical and adequately presented mitigating evidence.	Yes; deficient performance under Strickland.
Did failure to obtain Children's Services records prejudice the outcome?	New records would reveal horrific childhood and support mitigation.	The records would be cumulative or not sufficiently different.	Yes; prejudice established; new evidence would have changed outcome.
Was failure to hire a trained mitigation specialist error?	A mitigation specialist is essential for thorough development of family history.	Mitigation expert (Karpawich) sufficed.	Yes; failure to hire a trained mitigation specialist was deficient.
Was failure to hire a substance-abuse expert prejudicial?	An expert could better explain addiction’s role in behavior.	Karpawich provided sufficient testimony.	No; not unreasonable under existing precedent.

Wiggins v. Smith, 539 U.S. 510 (2003) (requirement to search for mitigating evidence beyond trial record; necessity of thorough investigation)
Rompilla v. Beard, 545 U.S. 374 (2005) (unreasonable investigation when counsel failed to examine evidence)
Bobby v. Van Hook, 558 U.S. _ (2010) (defense's use of investigators and experts; prudent evaluation of testimony)
Porter v. McCollum, 130 S. Ct. 447 (2010) (counsel's investigation reasonable no longer; weighing of mitigation evidence)
Pinholster v. Cullen, 563 U.S. _; 131 S. Ct. 1388 (2011) (AEDPA review; record-before-state-court constraint on habeas evidence)
Harrington v. Richter, 131 S. Ct. 770 (2011) (double deference standard in Strickland under AEDPA)