Abu-Ali Abdur'rahman, Petitioner-Appellee/cross-Appellant v. Ricky Bell, Warden, Respondent-Appellant/ Cross-Appellee

ABDUR’RAHMAN, Abu-Ali Petitioner-

Appellee/Cross-Appellant, Ricky BELL, Warden, Respondent-

Appellant/Cross-Appellee. 98-6568,

Nos. 98-6569. Appeals, United States Court of Sixth Circuit. Argued: Jan. Sept. Decided and Filed: SILER, BATCHELDER,

Before: COLE, Judges. Circuit SILER, J., delivered opinion BATCHELDER, 715-19), (pp. court. J. separate concurring opinion. delivered a 719-24), COLE, (pp. J. delivered a separate opinion concurring part and part. dissenting OPINION SILER, Judge. Circuit Bell, Respondent, Ricky Warden (“State”), appeals the issuance of a writ of Petitioner,. corpus Abu-Ali Ab- (“Petitioner”),1 vacating dur’Rahman Peti- tioner’s first-degree sentence of death for murder on grounds of ineffective assis- tance of sentencing phase Petitioner’s trial. Additionally, Petitioner cross-appeals petition denial his for corpus seeking writ of habeas relief from his conviction for first-degree murder. We reverse the finding district court’s Petitioner was trial prejudiced by his coun- sel’s performance deficient at the sentenc- ing stage and portion vacate the of the district judgment granting peti- court’s tion corpus for writ of habeas as to the death sentence. Additionally, we affirm portion judgment district court’s denying petition for a writ of habeas

corpus toas the conviction. Bradley A. MacLean (argued and I. BACKGROUND

briefed), Farris, Warfield Kanaday, & Petitioner was tried and convicted of Nashville, TN, (briefed), Brian K. Frazier murder, first-degree assault with intent to Harwell, Nashville, TN, Neal & William P. murder, commit and robbery. armed He Redick, briefed), (argued Jr. and White penalty received the death for the murder Creeks, TN, Petitioner-Appellee for conviction and two consecutive life terms Cross-Appellant. for the each of thé other convictions. The Smith, Gordon Attorney W. Asst. death imposed pursuant Gen. sentence was (argued briefed), Pruden, and R. jury’s Glenn finding of three cir- aggravating General, (1) Associate Solicitor Office cumstances: previ- the defendant was General, Attorney Justice ously Criminal Divi- convicted of one or more felonies sion, Nashville, TN, Respondent-Ap- statutory whose elements involved the use pellant (2) Cross-Appellee. person; of violence to the the murder originally 1. Petitioner was Lee named James Abdur'Rahman. Jones, changed but he his name to Abu-Ali his heart four times. Prior heinous, penetrating cruel atrocious or especially cry- stabbing, Daniels was physi- during or serious it involved torture in that pro- Petitioner not to hurt necessary begging beyond that abuse cal motionless, com- death; anyone. the murder was After Daniels became duce engaged stabbed Norman the back the defendant Petitioner mitted while in the accomplice times, pulled or was an but Miller Petitioner committing, several of, fled, attempting to com- away leaving or was and the two men commission committing or mit, fleeing after or was in Norman’s back. Daniels died as knife commit, any first-degree wounds, attempting but Norman sur- the result of his arson, murder, robbery, burglary, rape, also took vived. Petitioner Miller convic- theft, Petitioner’s kidnaping. from a box Norman’s bedroom. $300 an offense that occurred arose out of tions trial, argued At that the real in 1986. for the crime was born out of motivation pur- February Petitioner On membership “qua- of his a the influence from marijuana amount of a small chased paramilitary group” called the si-religious in which duplex at the (“SEGM”). Patrick Daniels Gospel Ministry Southeastern Nashville, Tennessee. Pe- lived in Daniels in- long history, a criminal Petitioner had later Devalle Miller and Harold titioner second-degree a conviction for cluding plan was for Daniels. The agreed to rob for in 1972 and a conviction assault murder the duplex the under to enter Petitioner (a knife) in weapon a dangerous with drug purchase, a pretext making of incarceration for these of- Following his into way force his point Miller would which fenses, halfway moved to a house he and “rob” both Daniels duplex the and halfway living at the Nashville. While Petitioner shotgun with a Petitioner called organization for an house he worked plan was never execut- supplied. This had Board, eventu- Publishing and Baptist ed, however, fright- Miller became too Boyd, one of the Board’s ally met Allen with it. Petitioner go through ened associate, owners, Boyd’s William and Dan- plan to rob then formulated second leaders and Beard were the Boyd Beard. mak- iels, a knife to avoid using this time SEGM; a member Miller was also of much noise. ing too of alleged goals of the the SEGM. One 1986, Petitioner, the black com- armed was to cleanse SEGM February On undesir- Miller, dealers and other munity drug armed with shotgun, with Boyd allegedly furnished elements. duplex under able entered the pistol, unloaded during used offense shotgun drug purchase. pretext making after the and Miller Petitioner displayed their fire- assisted and Miller Petitioner offense, some mon- including giving Miller girlfriend, and his and forced Daniels arms Norman, ey to flee. the floor. Petitioner Norma and Norman with duct Daniels

then bound initially represented Petitioner feet, hands, eyes, tape about their Boyd to was asked McAlpin, Neal who stealing Daniels’s bank After mouth. alleged- Boyd representation. take on the reveal card, forced Daniels to Petitioner be McAlpin that he would ly indicated to Petitioner also searched his PIN number. How- attorney’s fees. paying Petitioner’s marijuana found some the house and determined ever, subsequently McAlpin sofa cushions. some a member of the SEGM. Boyd fees, as of his Boyd being the source had With told Daniels that he Petitioner then in the being involved perhaps up ev- well as Chicago to “clean sent from been of inter- crime, that a conflict McAlpin felt to teach and that he was there erything” fee ar- third-party existed within obtained a est Petitioner Daniels a lesson. not continue that he could rangement the kitchen and knife from butcher an asso- chest, Hughes, representation. Gail in the Daniels six times stabbed date then Boyd’s, requested that Lionel Supreme States petition Court denied a represent Barrett Petitioner. Barrett for a writ of certiorari in Jones v. Tennes- $15,- agreed see, to do so for a fee retainer

000, $5,000 paid (1996). of which was to him fairly L.Ed.2d 860 Petitioner filed later soon, though inquired he never as to the petition for a writ of corpus, of the source funds. Barrett and another challenging both his conviction and sen- attorney, Camp, represented Sumter Peti- tence. After par- Petitioner’s motion at trial. tioner denied, tial summary judgment was district court held an evidentiary hearing Petitioner alleges representa- that this to address the peti- merits of his habeas trial, tion was throughout ineffective tion. The district granted the writ including both the guilt phase and the on Petitioner’s claim of ineffective assis- sentencing phase. Barrett that at testified tance of counsel at sentencing stage $5,000 the time he received the first due to present counsel’s failure to mitigat- retainer he decided he going was not despite availability. its How- perform any work on the until case he ever, district court denied Petitioner’s fee, received the balance of the retainer claim of ineffective assistance of counsel at paid. balance that was never guilt stage, holding although also performed claims that Barrett no performance of Barrett and Camp was de- work pre-trial on the case until he filed ficient, Petitioner suffered no Petitioner alleges motions. that Barrett’s thereby. Bell, Abdur’Rahman v. 999 performance as counsel was ineffective due (M.D.Tenn.1998). F.Supp. 1073 This is an (1) (2) to failure to: investigate; present appeal from that decision. (3) potentially evidence; exculpatory present mitigating evidence at the sentenc- II. DISCUSSION

ing stage. His conviction and sentence were af Appeal A. State’s Challenging by firmed the Tennessee Supreme Court Judgment Granting the Petition for Jones, (Tenn.), State v. 789 S.W.2d 545 a Corpus ofWrit Habeas as denied, 908, cert. 111 S.Ct. Death Sentence (1990). 112 L.Ed.2d sought post- 234 He Presumption 1. of Correctness conviction relief in the trial court state § Under 28 U.S.C. 2254 which hearing, conducted a made findings, and denied relief. judgment The af was The State argues that the district State, firmed in Jones v. No. 01C01-9402- court improperly dispensed pre with the CR-00079, (Tenn.Crim. 1995 WL 75427 sumption of correctness that is to be ac App. Feb.23, 1995), and the Tennessee Su corded to state court findings of fact under preme Court denied review. 2254(d)2 The § United 28 U.S.C. without providing a 2254(d) § 2. (repealed), 28 U.S.C. in effect lish it appear, or shall otherwise or the filed, petition when the instant respondent states: shall admit— (1) that the dispute merits of the factual (d) any proceeding instituted in a Feder- were not resolved in the State court hear- al application for a writ of ing; corpus by person custody pur- a (2) factfinding procedure court, em- judgment suant to the of a State a ployed by adequate the State court was not determination after a hearing on the merits issue, to a hearing; afford full and fair factual made a State court of (3) that the competent jurisdiction material facts were not ade- proceeding in a quately developed applicant which the at the State for the writ court hear- and the ing; agent State or an officer or thereof were parties, evidenced finding, jurisdic- written State court lacked opinion, written subject other tion reliable and ade- of the person matter or over the indicia, quate presumed written shall applicant be proceed- in the Slate court correct, be applicant unless the ing; shall estab- files of trial counsel Testimony and 4. doing so for its reasons statement investigate they failed Mata, 449 showed U.S. v. by Sumner required con- information available (1981), and obtain 66 L.Ed.2d 101 S.Ct. juvenile incarcera- (6th cerning petitioner’s Cir. Rees, F.3d 571 v. Mitchell delinquent being psychopathic tion for claims 1997). responds Tacoma, Hospital State at Western involve counsel assistance ineffective Washington. are fact that of law and questions mixed of correct presumption accorded files of trial counsel Testimony and 5. Washington, under Strickland ness investigate they failed showed that L.Ed.2d 674 information con- available and obtain (1984). records petitioner’s school cerning the May Philadelphia, where held that trial court post-conviction psychological for request there was failed to ade- had trial counsel Petitioner’s by Sayre School. High service Petitioner’s back- investigate quately making the trial history, and files of counsel Testimony mental 6. ground process: investigate they in the findings failed following factual showed con- information available and obtain trial files of counsel Testimony and 1. school records cerning petitioner’s investi- were few witnesses showed that on June 17 he Philadelphia, where petition- regarding or interviewed gated Education. Special for referred health histo- and mental background er’s trial and files of counsel ry. Testimony 7. investigate they showed trial and files of Testimony con- information available and obtain investigate they failed showed that at the petitioner’s incarceration cerning information con- available and obtain New Jer- Boys, Institute Annadale prior psychological cerning petitioner’s being placed on his when he was sey, 12 14 while at Ft. ages to at consultation and January of watch in psychiatric Shatter, Hawaii. exami- psychological and to his referral files of trial counsel Testimony and 3. [Psychi- Jersey State at the New nation investigate to they failed that showed February of at hospital Trenton atric] information readily available and obtain 1967. as- petitioner’s psychological concerning of trial counsel Testimony and files 8. by psy- the school age sessment at investigate to they that failed showed School Dupont High Jr. chologist at con- information available and obtain Lewis, Washington. Ft. deter- such factual concludes that indigent a whole (5) an applicant was the by supported the rec- fairly court, is his mination deprivation of and State ord: appoint right, coun- failed constitutional hearing proceed- in the pro- And in court State represent him the sel to court, of proof due when Federal in the ceeding; made, has been determination such factual (6) applicant did not receive that the of the one or more existence full, fair, unless the of hearing adequate in the State para- forth respectively set circumstances or proceeding; court inclusive, (7), is graphs numbered (7) de- applicant otherwise (1) appears, by applicant, otherwise shown the State court of law in process due nied by respondent, or unless is admitted proceeding; provisions of pursuant to the court concludes (8) of the part the record of or unless record numbered paragraph which the deter- proceeding in State court made, as proceeding, considered court the State whole, factual issue of such mination factual support such fairly does not of the suffi- determination pertinent to a determination, upon the shall rest the burden support such fac- ciency of evidence convincing determination, applicant to establish provided produced as tual State determination hereinafter, factual court on and the Federal erroneous. court was part of the record of such consideration petitioner’s Army records at cerning which is reviewed de novo.” Abdur’Rah- man, regarding F.Supp. 17 and 18 with notations ages 1092. status,” “questionable mental bizarre his This was an accurate statement of behavior, psychiatric reports leading court, though law the district not a. ultimately discharge. complete one. A reading close of the rele Testimony and files of trial counsel 9. portion vant of Strickland indicates that they investigate showed question while the ultimate of ineffective information con- and obtain available of question assistance counsel is a mixed of cerning petitioner’s psychiatric examina- fact, law and the factual findings of state Hospital, tion at St. Elizabeth’s Wash- underlying analysis courts such an are ac D.C., following ington, his incarceration presumption corded the of correctness: day for assault on or about the of his Although findings state court of fact discharge Army, despite from the deciding made in the of course part fact that information was subject ineffectiveness claim are sent to MTMHI Tennessee [Middle requirement deference per Institute] Mental Health their re- 2254(d), § although district court quest. subject findings clearly are to the erro Testimony 10. and files of trial counsel neous standard of Federal Rule of Civil they failed investigate showed that 52(a), performance Procedure both the and obtain available information con- prejudice components cerning petitioner’s institutional records inquiry ineffectiveness are ques mixed prison system.

while in the federal tions of law and fact. Testimony 11. of trial and files Strickland, 466 U.S. at 104 S.Ct. 2052 they showed that failed to investigate added). (emphasis Thus, the post- state and obtain available information con- findings conviction trial court’s of fact un- psychiatric cerning petitioner’s examina- derlying its inquiry ineffectiveness should tion following petitioner’s lolling presumed have been correct. prisoner fellow while incarcerated for in paragraph assault referenced presumption This is not mandatory be- above. cause a district may preclude its knowledge application Trial counsel has little upon the finding one of petitioner’s exceptions the facts related listed in 28 U.S.C. 2254(d). § 1972 However, murder conviction. in order to do so “a habeas court should opinion 13. include its They psychi- failed to interview the granting the reasoning writ the which atrist and led psychologist who conducted it to conclude that any of the first the MTMHI until seven evaluation after the present, factors were or the began. reasoning trial which it led to conclude that the state Abdur’Rahman, F.Supp. 999 at 1093. The finding was fairly supported by ‘not the district court referred to these findings ” Sumner, 551, record.’ 449 U.S. at 101 opinion relief, its partially granting habeas opinion S.Ct. 764. the recent in Mitch- but did not the presumption address Rees, ell v. this court discussed this re- arguably applied correctness that to them quirement. Instead, § under 28 citing U.S.C. 668, Washington, Strickland v. 466 U.S. begin application We with the of 28 698, (1984), 104 2254(d), § U.S.C. which establishes a McQueen v. Scroggy, 99 F.3d presumption of correctness for factual (6th Cir.1996), merely it noted that determinations made the state courts question “[t]he ultimate of whether Peti- judgments whose are challenged by the tioner received effective assistance of petitioner. federal habeas Supreme fact, Court, counsel is a question Mata, mixed of law and in Sumner v. held that solely upon the erroneous Relying 2254(d) presump- that the mandated § of correct presumption argument applied by the correctness be tion apply post-conviction not ness does finding of the state to a court habeas “ fact, fails findings of court’s trial ‘the facts that appellate court excep the listed argue that one of support adequately did not case’ present 2254(d) requires that applies §in on tions went claim.” The Court respondent’s presumption of dispense the court with “a habeas court rule that down the lay However, argues he that opinion granting correctness. in its include should 2254(d)(8) §, him to an evi would entitle con- led it to reasoning which writ the dentiary hearing, pointing to first seven factors any of the clude that that he did allegedly showing record reasoning which led or the present, were hearing in state receive a full and fair not finding was that the state it to conclude trial, pro during post-conviction by the record.’” court supported fairly ‘not ceedings, appeal. and on The State requirement, for this The reason presence formal due to Petitioner’s court re- that explained, “[n]o is Court courts, appellate the state trial and for before application of an grant viewing and otherwise ability to call witnesses as his guess be left to corpus should evidence, pursuit of his and his present grant- court’s reasons to the habeas appeal, he be heard cannot provisions claims notwithstanding the relief full and fair 2254(d).” footnote, that he did receive claim And in a §of An position correct. See hearing. This is explained “the further Court (5th Collins, 2254(d) 21 F.3d drews v. § embodied amendments Cir.1994) opportunity to (noting that limita- by Congress as intended were witnesses, evidence, present present court] of [federal on the exercise tions wit prosecution fully cross-examine & and in Louisville jurisdiction. As we held of a full and supports finding nesses Mottley [211 R. Co. v. Nashville Sumner, (1908)] 449 U.S. at hearing); see also L.Ed. 126 fair 29 S.Ct. reaffirmed, (stating “[s]ince ‘it repeatedly and have since re appellate court] was court [state to it to see duty [C]ourt respon issue to determine the quested jurisdiction of the [district murderer], we do not convicted [the limited dent defined and which is court] ” to assert that now be may he heard statute, think is not exceeded.’ within ‘hearing’ not a proceeding was its therefore, error, dis- for the ... It was 2254(d).”). Thus, § be meaning pre- dispense with trict court fair a full and Petitioner received cause embodied sumption of correctness ap presumption of correctness hearing the 2254(d) § and to order plies. a written providing without hearing which led it “reasoning statement of in not erred It is clear that of the first seven conclude to of correctness presumption addressing reasoning present, or’the factors were Strickland, Sumner, by required that the .state led it to conclude which However, unclear as it is Mitchell. supported by the fairly was ‘not finding held that court the district whether ” record.’ apply. did not of correctness presumption (citations the district ambiguity arises Mitchell, because 575-77 This 114 F.3d at hearing and evidentiary an omitted). Thus, commit- court court ordered district presented not evidence that was apparently dispens- received by error the same ted Ad- proceedings. state court any of the in presumption correctiiess with the new evidence ditionally, it considered of its reasons a statement without partially granting- opinion its provi- notwithstanding relief granting Petitioner, explicitly yet 2254(d). relief §of sions Alternatively, the new evidence contradict- it argues find whether that Petitioner is presumption rebutted the possibly ed and to an evidentiary hearing entitled due correctness, merely supplemented to his failure to show either cause and post-conviction findings trial court’s prejudice develop for the failure to fact. proceedings facts the state or that a justice fundamental miscarriage of would however, Presumably, because the court result from the district court’s failure to de simply exercised novo review under its evidentiary hold an hearing. Petitioner interpretation mistaken Strickland it responds by attempting distinguish dispense presumption with the of cor- did Mitchell and by arguing that a district Thus, by the district court erred rectness. court authority has inherent an order failing recognize presumption evidentiary hearing settle claims of inef- applied post-convic- of correctness fective assistance of counsel. findings of tion trial court’s fact and erred opinion include in its failing to above-quoted portion As the of Mitchell reasoning why presumption of correct- shows, this court has held that a district Mitchell, apply. ness did not Unlike how- court authority does not have the to order ever, require this error does not a remand evidentiary an hearing when it fails to because we hold that the district court properly dispense presumption with the properly evidentiary an hearing ordered Additionally, correctness. this court suc- properly it considered cinctly discussed the cause and heard. requirements that the State are appeal: relevant to this Inherent Discretion to Order 2254(d) § Because express is an limi- Evidentiary Hearing an jurisdiction, tation on the district court’s Applying presumption of cor a district court is without authority to 2254(d) § entirely rectness under is an hold an evidentiary hearing on a matter separate from and distinct issue whether a on which the state court has made find- may district court required or is to order ings unless one of the factors contained an evidentiary hearing allegedly to settle 2254(d) § applies. error, It was disputed However, issues of material fact. therefore, for the district court to dis- matter, practical as a when a district court pense presumption with the of correct- finds that presumption of correctness 2254(d) § ness embodied and to order apply does not due to one of the listed hearing without providing 2254(d), exceptions § a hearing prob a written statement of the “reasoning ably below, warranted. As discussed which it led to conclude that any of the is an independent issue that is of whether first seven present, factors were or the a habeas Petitioner is entitled to an evi reasoning which it led to conclude that dentiary hearing. This latter issue is not finding state fairly sup- was ‘not ” raised appeal, the instant because the ported by the record.’ district properly ordered an eviden Once a district court has properly de- tiary hearing pursuant to its inherent dis may termined that it dispense with the cretionary authority. presumption of correctness mandated The district 2254(d), § court ordered evidentia- the court has some discretion ry hearing “to resolve the numerous com- in determining whether to hold an evi- plex presented.” factual and legal However, issues dentiary hearing. an [sic] ha- argues State the district court petitioner beas developed who has not abused its in ordering discretion an evi- the record in state court is entitled to an dentiary hearing because Mitchell (1) does not evidentiary if hearing only he shows allow for hearing such a in the absence of “cause for his develop failure to the facts 2254(d) a finding of § one of the factors. in state-court proceedings and actual

705 should, may, ordinarily he ac- ings, or that failure” resulting from prejudice hearing. as found in the cept the facts miscarriage of a fundamental “that every In case he has But he not. need to hold from failure result justice would only by his sound power, constrained There- evidentiary hearing.” a federal discretion, bearing receive evidence fore, its discretion a court abuses district upon applicant’s constitutional claim. first hearing a without ordering such req- make the petitioner to requiring the 318, Thus, it seems Id. at 745. S.Ct. showing. Mitchell, uisite despite holding in a dis- have the inherent authori- trict court does (citations Mitchell, omit- 114 F.3d at 577 hearing even if ty evidentiary to order an ted). Thus, Mitch- strictly on the basis of requiring evidentiary factors hear- ell, did not find the district court because are absent. in of the factors contained that one 2254(d) au- court lacked the in applies, § further discussed Kee- This issue was hearing.3 evidentiary thority partially to order an which overruled Townsend ney, holding the cause and incon argues that Mitchell is Petitioner petitioner’s failure applies test to habeas authority Supreme Court both sistent with develop material facts at the state court this emanating from authority and other 5,112 Keeney, 504 S.Ct. level. See U.S. that district recognizes Circuit which discussed in holding, 1715. In so the Court authority inherent always have the courts in- relation between the a footnote the dis evidentiary hearings settle to order in in Townsend which dis- stances listed material fact. of Petitioner puted issues evidentiary hear- trict court must hold Sain, quotes to Townsend cites exceptions presumption ing and the 745, 9 L.Ed.2d 83 S.Ct. U.S. 2254(d): § listed in of correctness (1963), Tamayo- by Keeney v. overruled 2254(d) First, § it is evident that does 1, 112 Reyes, 504 U.S. specifications of codify Townsend’s not (1992), proposition L.Ed.2d 318 required. Townsend hearing when a is federal'habe- inquiry of power that “the categories of cases which described Id. at 83 S.Ct. plenary.” review is required. evidentiary hearings would be Although partially Townsend was 745. 2254(d), however, does not pur- Section below, the Court discussed overruled as govern question when port a district in which out six situations set rather, it lists required; hearings are an evi review must hold court on habeas presumption normal exceptions to the 313-14, Id. at 83 S.Ct. dentiary hearing. findings of state-court correctness that: stated Additionally, the Court 745. proof where with the burden deals indicate of the test is to purpose [t]he are The two issues hearings are held. of an holding the situations which distinct, as- indicates no the statute mandatory. In all hearing is presence absence sumption that facts are where the material other cases statutory exceptions will any of hearing of such a dispute, holding hearing is held. whether determine judge. discretion of the‘district Thus, n. 112 S.Ct. applicant Id. at 10 that the habeas If he concludes viability continuing indicates the hearing by passage a full and fair was afforded district Townsend’s statement find- of resulting reliable the state presumption that because distinguish Mitchell tioner attempts 3. case, apply in the instant Kentucky, does not correctness arguing the Batson v. applicable and therefore Mitchell is not 90 L.Ed.2d However, controlling. as the above-stated (1986), based challenge involved therein was shows, presumption of correct- findings, conclusion solely upon state court factual post-conviction trial apply to the ness does ineffec- the instant case involves an whereas Thus, findings of fact. Petitioner’s clearly a court’s counsel claim that tiveness of law, turn, distinguish Mitchell is erroneous. attempt Peti- finding of fact and mixed evidentiary may hearing Following order an to the oral in arguments court case, of material fact even disputed settle issues Supreme this Court decided adoption exceptions following the to 420,120 v. Taylor, Williams S.Ct. of correctness listed in presumption 1479, (2000), in 146 L.Ed.2d 435 which it 2254(d). § interpreted requirement pro the fault of a Thus, that a Mitchell’s statement district vision the Antiterrorism and Effective authority court without to order an evi- is 1996, Penalty Death Act of 110 Stat. 1214 dentiary hearing in the absence of one of (“AEDPA”). specific provision that 2254(d) §in exceptions listed is over- applicant was at issue states that “[i]f it recognize broad fails to inher develop has failed to the factual a basis of authority always ent that a district court claim in proceedings, State court the court evidentiary to order has habeas cases shall not hold an evidentiary hearing on hearings disputed to issues of mate settle applicant the claim unless the shows [the previously recog rial fact. This court has existence of exceptions].” two limited Livesay, nized See Sims v. principle. this 2254(e)(2). § U.S.C. While the use of the (6th Cir.1992) 1575, 1579 (quoting 970 F.2d provision word may “shall” this proposition Townsend for the that a dis Congressional intent to a remove dis power to judge’s trict receive evidence on trict court’s inherent discretion to an order a petitioner’s habeas constitutional claim is evidentiary hearing in the of ei absence discretion). only constrained his sound provided ther of the exceptions, provi this recognized Other Circuits have likewise apply sion does not appeal to the instant discretion. inherent See Seidel v. because Petitioner petition filed his habeas Merkle, (9th 146 F.3d 754-55 Cir. day on the before the enactment of AED- 1998); Delo, Clemmons v. F.3d PA. See Lindh v. Murphy, 521 U.S. (8th Cir.1997); Keane, Pagan v. 984 326-27, (2d Cir.1993). F.2d 63-65 (1997) (holding only that AEDPA applies course, Of recognizing district court’s petitions filed after the date of its enact inherent discretion to order an evidentiary ment). may While there not be inher hearing separate is an issue that is ent discretion evidentiary to order an distinct petitioner from whether habeas hearing following the enactment of AED- is entitled an hearing. As PA, we decline to specifically determine out, correctly points Keeney and whether AEDPA has so altered the law. Mitchell stand for proposition that a: not; therefore, Williams does lead to the petitioner developed who has not conclusion that the district court erred be record state court is entitled an low. (1) evidentiary hearing only if he shows Additionally, although Williams

“cause charac- develop for his failure to the facts Keeney terized the decision as proceedings “requiring] state-court and actual prejudice prisoner resulting from that failure” or demonstrate cause and miscarriage “that a fundamental excusing the default he before justice would claim,” result from failure to hold could hearing receive a on his id. at a federal evidentiary hearing.” -, 120 S.Ct. at the use of the word “could” imply does not that if the Mitchell, district (quoting Keeney, F.3d at 577 1715). ordered a hearing upon based its 11-12, 504 U.S. at 112 Be- discretion, Thus, inherent it erred. cause properly the district court ordered distinction between petitioner when a evidentiary hearing pursuant in- its entitled so, hearing, herent which authority to do the issue of issue in Keeney, whether Petitioner is entitled to eviden- versus whether a district court tiary hearing is irrelevant and will not has the be inherent discretion to order addressed. hearing, is still intact following Williams. A would have been different. proceeding of Counsel Assistance 3. Ineffective probability is a suf- probability reasonable in a habeas case that Recognizing confidence out- ficient to undermine the authority inherent has the court a district 694, 104 2052. Addi- come.” Id. at S.Ct. to settle evidentiary hearing to order an tionally, obviously fact of material disputed issues re issue of how challenges raises the a death a defendant [w]hen con court is be district question ceived the ... the is whether sentence pre that the that, if the court holds sidered probability there is a reasonable 2254(d) § under sumption correctness errors, of absent the the sentencer-includ- court post-conviction trial The applies. court, the it appellate extent trial counsel’s that Petitioner’s concluded reweighs the evidence— independently during sen deficient the performance was would concluded balance have to investi due to the failure tencing phase mitigating circum- aggravating of information about Peti gate and obtain did not warrant death. stances and mental health. background tioner’s Finally, Id. at However, that Petition it went on to hold pro- in a judge a federal “[w]hen sentencing at the prejudice no er suffered a doubt about whether ceeding grave is that he would the evidence stage because law had ‘substantial trial error of federal finding of miti support have offered injurious influence effect or deter- helpful was both gating circumstances verdict,’ that error is not mining jury’s the it would not been harmful and that have And, petitioner must win.” harmless. present the evidence. prudent strategy 432, 436, McAninch, O’Neal Appeals of Criminal The Tennessee Court (1995). L.Ed.2d 947 Jones, 1995 See affirmed that decision. above, course, Of as stated argues that in at *2. The State WL is a of Strickland test mixed presented prong the evidence the absence of that is below, of and fact reviewed question the state law evidentiary hearing Nevertheless, the state court per novo.4 fact show de findings court deficient accorded the of Petitioner’s trial should be part findings of fact formance on counsel, under any prejudice correctness presumption do not show but 2254(d). Peti trial court performance. post-conviction § deficient from that by arguing that the state trial counsel had responds tioner held Petitioner’s fact do show that he was findings adequately investigate Petition- per history, trial counsel’s deficient mak- prejudiced and mental background er’s forth findings formance. factual set above ing the upon findings these process. Based forth the test for Strickland set fact, trial court found post-conviction assis when ineffective determining any prejudice did suffer that Petitioner prejudices a tance of counsel so defendant holding performance, from the deficient First, must be set aside. that his sentence Ap- Court Criminal Tennessee performance in counsel’s “any deficiencies peals affirmed: to the defense order prejudicial be must attorneys investigated had If the coun trial ineffective assistance of to constitute further, found Strickland, they would have sel under the Constitution.” of violent long history appellant “The had 104 S.Ct. 2052. 466 U.S. at dis- personality behavior anti-social that there a rea must show defendant judge’s the trial that, agree We with orders. probability but for counsel’s sonable were ineffec- errors, finding trial counsel the result of unprofessional Strickland test. prong of the any error has ever mance party 4. Neither respect perfor- with been committed failing investigate jury precluded considering. tive in to further from Tate, upon of the under the background accused Petitioner also relies Glenn v. (6th 1204, circumstances, Cir.1995), agree but we also with 71 F.3d 1211 for the testimony and the trial proposition Mr. Barrett’s sister circuits “[o]ur have that it probably difficulty conclusion would had no judge’s finding prejudice prudent sentencing proceedings the most trial where not have been proof appellant’s present pertinent to use of his- strategy evidence of history tory capacity.” of violent behavior and anti-social mental and mental Id. personality guilt disorders at either the prejudice Petitioner did not suffer suffi phase sentencing or at the innocence probability cient to create a reasonable Supreme the trial. As the phase of sentencing jury that the would have con of the United States noted in Court cluded that the balance of aggravating 668, Washington, 466 Strickland U.S. mitigating did factors not warrant death. L.Ed.2d 104 S.Ct. 674 We reach this conclusion even considering (1984), overwhelming aggra- “Given the presented the evidence at the evidentiary factors, vating there is no reasonable below. hearing When district court in a probability that omitted evidence habeas case evidentiary hearing orders an changed would have the conclusion that disputed to settle issues of material fact aggravating circumstances out- pursuant so, authority to its inherent to do weighed mitigating circumstances that evidence variety could be offered for a and, hence, imposed.” the sentence In- purposes, though pre of the most common proof appellant’s psychologi- deed of the sumably would be presump to rebut the history probability cal in all would not tion of correctness accorded to state court result, changed especially have Bell, findings of fact. See Groseclose v. light appellant’s prior of conviction (6th 1161, 1163-64 Cir.1997) (stat 130 F.3d in a killing peni- malicious while federal ing that “federal courts must defer to state tentiary aggravating and the other fac- court factual findings, according pre tors. A relating decision of counsel to a sumption of petitioner correctness that the appellate strategy, choice of trial or even may only rebut with clear and convincing improvident, if it proven were could not evidence.”). However, case, in the instant form the basis for assis- ineffective the additional evidence and factual findings tance of counsel claim. by made the district court do not contra Jones, at *2. WL dict findings the factual post- made Compare conviction trial court. Ab this conclusion dur’Rahman, 999 F.Supp. at with id. error, Ohio, was in citing Lockett v. Instead, at 1094-1102. the additional evi 586, 604, 57 L.Ed.2d dence seems to merely supplement (1978), proposition for the findings factual post-convic made capital may precluded sentencer “not be Estelle, tion trial court. See Pollinzi v. considering, factor, from a mitigating (5th Cir.1980) 628 F.2d (allowing any aspect of a defendant’s character or evidence obtained at an hear record and of the circumstances of the supplement transcript the trial proffers offense that the defendant as a record). basis for a sentence of than less death.” Id. upon Petitioner’s reliance Lockett is considering supplemental Even evi- misplaced presentation as it involved the dence heard the district court and out- mitigating evidence of opinion, circumstances that lined in its Petitioner did not suf- was deemed not to fit within Ohio’snarrow fer sentencing phase due 594-95, death penalty statute. id. at See trial performance. his counsel’s deficient case, 98 S.Ct. 2954. In the instance Peti- it true that much supple- While is tioner “proffer” any did not evidence that mental evidence contains evi- hand; judged the statute case at find be might that a sentencer dence vague Claims as-applied basis. has likewise same evidence compelling, circum aggravating ness directed evidence compelling be that would aspects capital punishment defined in particu- stances circumstances. aggravating Eighth under the analyzed are contained statutes lar, supplemental characteristically assert for kill- motive Amendment Petitioner’s description of history provision fails challenged ade inmate and prison fellow ing a Therefore, we juries they what traits. to inform must quately character violent penalty trial court and impose the death post-conviction find to agree with Ap- appellate Criminal and Court of a result leaves them and the Tennessee dis mitigating open-ended because courts with the kind peals that also con- introduced held invalid Fur have been which was that cretion could information, did Petitioner U.S. 92 S.Ct. Georgia, man v. 408 tained harmful (1972). create a sufficient suffer not sentencing that probability reasonable Georgia’s then- Furman held that the bal- that have concluded jury would punishment statute capital standardless factors of aggravating ance arbitrary in an being applied was Thus, decision death. not warrant did manner; princi- there was no capricious was court that the district distinguish provided means those pled due to stage sentencing at the prejudiced from penalty those that received re- is performance deficient his counsel’s Furman, our cases not. Since that did versed. channeling and have insisted discretion in the sentencer’s limiting of Atrocious, Heinous, or is a funda- penalty the death imposing Instruction Cruel requirement mental constitutional argues cross-appeal, Petitioner

On wholly minimizing the risk sufficiently “heinous, atrocious, ag or cruel” capricious action. arbitrary instruction circumstance gravating (citations 361-62, 108 S.Ct. Id. jury was un sentencing to the given was omitted). partially overbroad, rely constitutionally vague in- in the' instruction penalty death (6th Bell, 161 F.3d upon Coe v. stated: case stant Dutton, Cir.1998), 60 F.3d v. and Houston imposed un- shall be penalty No death Cir.1995). (6th court con The district find that the State unanimously you less if the instruction that even cluded trial, during the sen- during the and/or was cured thereby any error caused vague, beyond a proven hearing, has tencing appli Supreme Court’s the Tennessee more of the one or doubt reasonable narrowing con a constitutional cation of statutory aggravating specific following circumstance. aggravating struction circumstances: if the instruction The State was harmless other Court addressed In Maynard unconstitutionally vague, aggravating due to 100 L.Ed.2d Cartwright, 486 circumstances. vagueness jury’s finding of aof similar any error (1988),the torture or atrocious ^{[******] [******]} the murder was or depravity cruel, in that especially mind; it involved heinous, following forth the or not the State determining and. set whether instruction In circumstance employ: proved aggravating standard has above, governed are you number two challenges statutes Vagueness are in- You following definitions. interests Amendment threatening First heinous means word structed of the facts light are examined wicked, reprehensible, jury’s analysis or abo- grossly aggravating —how odious, minable, vile. Atrocious means and mitigating circumstances balanced— cruel, extremely evil or monstrous ex- would have reached the same result bad, ceptionally abominable. Cruel even without the invalid factor. disposed pain to inflict or suffer- means ing, causing suffering, painful causing— only is when the “death [I]t sentence has suffering painful. Torture —excuse me— constitutionally been infected ... physical means the infliction of severe or aggravating invalid factor” that state re- pain upon mental the victim while he or weighing required preserve remains alive and conscious. De- she definition, verdict. By though, an error wicked, corruption, pravity means moral is harmless does not “infect” the (sic) preverse act. sentence require reweigh- and does not

Abdur’Rahman, F.Supp. at 987. ing by the state. Maynard, the Court held that an including aggravating instruction as an “especially turn, therefore,

factor that the murder was hei- We analyze this error nous, atrocious, or cruel” was unconstitu- question harmfulness. The we must tionally vague, though open the Court left ask is whether the error “had substan- possibility limiting that certain con- injurious tial and effect or influence structions of instruction would be con- determining jury’s verdict.” 364-65, stitutionally acceptable. Id. at 108 Coe, Id. at In 334-35. the error was it Additionally, S.Ct. 1853. noted that deemed harmless jury because the made “some or physical kind of torture serious finding narrow that “the murder was limiting may pass abuse” instruction con- heinous, especially atrocious, or cruel and stitutional muster. See id. Following torture,” involved when it had been Maynard, this court held unconstitutional- charged “espe- to find that the murder was ly vague stating specified instruction heinous, atrocious, cially or cruel in that it statutory aggravating circumstance as: involved torture or depravity of mind.” heinous, especially murder was “[t]he atro- at Id. 335. cious, or cruel in that it involved torture or Unfortunately, jury’s verdict form in Houston, depravity of mind.” 50 at F.3d the instant preserved. case was not How- 387. ever, Supreme Court of Tennessee pass decline to We the consti made the factual finding jury had tutionality of the instruction in this case aggravating found the three circumstances any because error therein was harmless. as set forth above in Background sec- aggravating “[W]henever factor has Jones, tion. See State v. 789 S.W.2d state,5 in weighing been invalidated (Tenn.1990). 550 findings These factual reweighed analyzed sentence must be or are presumption accorded the of correct- for harmless error if the sentence is to be 2254(d). § ness under 28 U.S.C. See Sum- Coe, affirmed.” 161 F.3d at 334. The Coe ner, 101 S.Ct. 764 (stating court went on to state that: 2254(d) § “makes no distinction be-

In a ... weighing state when a court tween the factual determinations of a state aggravators, invalidates one of the it has trial court and appellate those of a state court.”). removed a mass from one side Additionally, Petitioner nei- has way scale. There is no to know if the any ther offered argument why as to is, ‘weighing’ "Tennessee is a state—that jurors. stances found the individual If the jury any aggravating determines jury unanimously whether cir- aggravators finds that the beyond outweigh mitigators, cumstances have been established death must be im Dutton, reasonable doubt posed.” the State and then bal- Houston v. 50 F.3d against (6th 1995). any mitigating ances this circum- Cir.

7H apply, any nor presumption given requiring jurors should not evi- find the find jury dence that the did not the three existence of mitigating each factor unani- aggravating mously, circumstances. jury repeatedly was informed that their deci- out, correctly points theAs State there unanimous, sions had to be but were not ample support aggra- evidence to they instructed that did not have to be vating circumstances Petitioner had unanimous as to mitigating circumstances. previously been convicted of one or more The district court held that “there is anot involving felonies the use or threat of vio- reasonable jury likelihood that the inter- person lence to the and that the instant preted the require instructions to unanimi- murder was committed while the Petition- ty as to mitigating .... circumstances engaged committing, attempt- er was persuaded Court [t]his that silence commit, first degree murder or finding as to a mitigating circumstance Jones, robbery. See State v. S.W.2d likely would jury lead the to believe that (stating that “[t]here is no doubt that unanimity required this case.” Ab- the evidence this case was sufficient to dur’Rahman, F.Supp. at 994. This support aggravating each circum- holding was correct. found the jury.”). quoted stances As above, the Coe court that removing found Maryland, Mills v. one aggravating circumstance from the (1988), sentencing in a weighing calculus state Court held that sentencing instructions normally require re-weighing would that create a substantial likelihood that the aggravating factors. jurors might reasonable think they that Coe, However, See 161 F.3d at 334. in the precluded are from considering any miti- ease, found, instant as the district court gating evidence in the absence of unanimi- “[tjhis is a of no mitigating case evidence— ty are constitutionally invalid. See id. at being jury despite offered to the its none— 384, 108 S.Ct. 1860. The standard availability and abundance.” AbdurRah- reviewing such a challenge jury to the man, Thus, F.Supp. at 1101. even if instructions “is whether there ais reason- heinous, atrocious, the aggravator cruel able likelihood jury applied has calculus, is form removed the there is no challenged instruction in a way that mitigating weigh against evidence to prevents the consideration of constitution- remaining prior felony conviction and felo- ally Boyde relevant evidence.” v. Califor- ny aggravators. murder Therefore the er- nia, 370, 380, ror was harmless in that it did not have (1990). L.Ed.2d 316 injurious substantial effect or influ- case, por- In the instant the substantive ence in determining jury’s verdict.6 tions of the trial court’s instructions were: Unanimity Objection statutory provides Our law 5. Petitioner’s Sentencing jury punishment sepa- shall fix after Instructions rate sentencing hearing, to determine the sen whether the defendant shall be sen- tencing improperly ju instructions led the imprisonment. tenced to death or fife rors to believe that they had to unanimous Your verdict must be unanimous as to ly any mitigating find circumstances and punishment. either form of specifically did not instruct them other ‡ s¡: Although wise. no direct instruction was H4 stage, argue This conclusion is not affected our hold- Petitioner does not that a re- ing properly Thus, district court considered weighing necessary basis. during the evidence it obtained the evidentia- possible re-weighing, only terms of we look ry hearing although because that evidence presented sentencing the evidence at mitigating contained circumstances stage. sentencing could have been offered at the circumstances have been imposed cumstance or shall be penalty No death beyond a reasonable proved by find that State unanimously you unless doubt, circumstance or trial, but that the said during the during the State and/or outweigh any miti- circumstances do not proven beyond a hearing, has sentencing circumstances, punishment gating or more of the doubt one reasonable imprisonment. be life statutory aggravating shall following specific circumstances: Abdur’Rahman, F.Supp. at 993. Ad- jury shall which shall vating circumstances that at least one cated circumstance death. sion of the and that entitled, quote: shall then or circumstances In arriving If the Punishment of Death Hi # the State following: circumstances, any mitigating If the death H* H* jury jury consider, complete the attached include, beyond or several aggravating unanimously determines the members sfc ^[*] outweigh any mitigat- statutory aggravating the sentence shall but penalty is the deci- a reasonable as heretofore have been H* H* punishment, statutory aggra- circumstances circumstance be H* ^[*] limited to proved doubt, form indi- jury ^[*] n be must thereto. Your verdict must unanimous. See the trial court stated mous.” Id. the death sentence its verdict must This court held:' dict, ditionally, at the end of each .factor. the results of the Their lenged by Coe do not violate Mills. far different matter nimity reasonably ty Coe is jury We find that it is as to the represent juror. language requires dispositive of this issue. as to the necessary Nothing be taken to similarly 993-94. In order to return a ver- presence the .considered presence Coe, in this the instructions weighing, that, than requiring told that of the instructions 161 F.3d at 337. each require of a unanimity language of a “[t]he but this is a juror agree be unani- mitigating judgment unanimi- impose verdict could chal- una- Coe, be End quote. say clearly factor. The instructions correctly that in order to obtain a unani- jury

The include and reduce to must verdict, juror mous each must conclude statutory writing specific aggrava- the mitigators outweigh that the do not ting circumstances so circumstance or aggravators. Further, jury must include found. statutory finding aggrava-

in its that the Coe, 161 F.3d at 338. The same can be circumstances so ting circumstance or said of the instructions the instant case. circum- any mitigating found outweigh No statement therein can be said to re- finding, unanimous Upon stances. such quire unanimity presence as to the of a jury shall affix his each member of the Indeed, mitigating factor. Petitioner or her written find- signature to the said merely argues proximity that ing, and then said written verdict return and “mitigating terms “unanimous” cir- to the Court. jury cumstances” could have led the unanimously

If determines jury misinterpret obligation. their This is not statutory aggravating enough no circum- to create reasonable likelihood prov- jury in- applied challenged stance or circumstances have been by prevented beyond way en the State a reasonable struction the con- doubt; unanimously constitutionally or if deter- sideration of relevant evi- jury statutory aggravating mines that the cir- dence.7 found, precluded Additionally, jury

7. would have been from as the district court presented properly considering even if the there was no evidence instructions Cross-Appeal Challeng- 1. B. Petitioner’s Conflict of Interest ing the Denial of his Petition for argues Petitioner that he need not Corpus Habeas as to his the Writ of any prejudice show as defined by Strick Conviction Sullivan, land Cuyler because under 100 S.Ct. 64 L.Ed.2d cross-appeal, argues On Petitioner (1980), “a defendant who shows that a the district court’s conclusion that he suf- conflict actually of interest affected the prejudice fered no from his trial counsel’s adequacy representation of his need not performance guilt stage deficient at the prejudice demonstrate in order to obtain First, argues was erroneous. Petitioner 349-50, relief.” Id. at [habeas] that due to his trial counsel’s conflict of argues Petitioner third- wholly inadequate representa- interest and party arrangement fee created a conflict of tion,8 prejudice presumed can be interest for his trial counsel Boyd, because Second, therefore need not be shown. Pe- payment, the source of was involved in the argues titioner that he did in fact suffer crime due having allegedly supplied prejudice by delay pre- trial counsel’s shotgun However, used Petitioner. trial, by pres- for his paring failure next in Cuyler dispositive sentence evidence, failure to ent forensic Cuyler strictly Petitioner’s claim. re present concerning Petitioner’s quires that “until a defendant shows that history. response, mental the State actively represented his counsel conflicting that there no actual argues conflict of interests, he has not a claim established interest and that Petitioner no suffered assistance_ possibili- ineffective [T]he cannot because he show rea- ty of conflict is insufficient to impugn a probability that sonable the result of the conviction.” Id. at 100 S.Ct. 1708. proceeding would have been different per- the absence of trial counsel’s deficient fails to show that his trial formance. actively representing counsel was conflict- most, At interests. Petitioner’s trial prejudice prong delayed preparation Strickland of his case relating long anticipation ineffectiveness of counsel at the for too of receiving the guilt phase question asks “the ... whether balance Though of his retainer fee. Peti- that, probability there is a adversely reasonable ab tioner that he was affect- errors, interest, sent the factfinder would have ed the conflict of he does not respecting had a reasonable doubt guilt.” allege actively that his trial counsel was Strickland, 466 U.S. at representing conflicting S.Ct. 2052. interests. Addi- above, prejudice As stated prong tionally, of Petitioner could not make such a question Strickland is a mixed of and showing law because as the district court not- ed, subject fact to de novo Boyd’s review. See id. at “even if Mr. were interests 698, Petitioner, 2052. Petitioner’s claims adverse to Mr. Barrett certain- keeping ly protect must be evaluated in mind the did not the interests of SEGM compelling incriminating testimony Boyd of both or Mr. during the trial and sentenc- Abdur’Rahman, Additionally, Miller and Norman. ing.” F.Supp. Peti tioner to confessed the crime at the sen 1091. The district court noted that Bar- Abdur’Rahman, tencing stage. testimony See 990 rett elicited about the SEGM F.Supp. cross-examination, at 986. from Beard on men- Cronic, misinterpreted require unanimity were to 104 S.Ct. Bell, (1984), to the existence of a factor. L.Ed.2d 657 and Rickman v. However, (6th 1997). F.3d 1150 Cir. Petition argues 8. Petitioner that he is entitled to habe- points supporting er to no facts a claim of as relief on his conviction due to trial his wholly inadequate representation. inadequate performance counsel's without having prejudice to show under United States in his ba- with the whether counsel was influenced connection the Petitioner’s tioned of strategic by decisions the interests closing argument, and sic during his group him.” employer Beard to who hired Id. Boyd for and issued-subpoenas Thus, appeal, 1097. In the instant it cannot be said 101 S.Ct. at the trial. appear compel con- record does not the same actively representing below Barrett was the district court’s con- conclusion. Given flicting interests. protect clusion that Barrett did not upon v. Geor reliance Wood Petitioner’s SEGM, Boyd or Petitioner interests of gia, 450 U.S. actively rep- that Barrett cannot show (1981), misplaced. Wood L.Ed.2d 220 resenting conflicting interests and that he challenge Equal Protection an involved presumption is therefore entitled to probationers of three imprisonment guilt stage. at the inability to make install of their because The did Court payments fines., ment Prejudice it remanded this issue because not resolve a conflict of of whether for a determination argues Petitioner that the district court third-party payor within interest existed concluding that he not suffer erred did probationers were arrangement. any prejudice by his trial counsel’s defi- movie theater employees three adult performance delaying prepara- cient his who had been and bookstore convicted trial, present by tion for the failure to point distributing obscene materials. As evidence, by the failure forensic Petitioner, the Court noted that by ed out present concerning evidence Petitioner’s in every of interest inheres conflict “‘[a] history. mental being criminal defendant [a such situation First, argues Petitioner that Bar lawyer by represented by paid hired and rett’s decision not to work on the case until inherently wrong ... It is party] a third he received the balance of the retainer employer and the em represent both prejudiced him the lack of mean inherently wrong ... it is also ployee ingful being performed work de represents only attorney who the em priving representation during him of his promise to from ployee accept pay one However, psychological evaluation. Peti liability may criminal turn on the whose points specific tioner to no Id. at 271 n. employee’s testimony.” probability would raise a reasonable 101 S.Ct. 1097. the factfinder would had a reasonable have .-case, in Unlike the instant Wood- respecting guilt doubt the absence of attorney representing the em- both delay. this employees: it was ployer “[s]ince and the Second, pay that he [not fines] decision employer placed petitioners prejudiced by their was his trial counsel’sfailure present present and since their coun- predicament, investigate report a lab agent the employer showing sel has acted as the that no blood was found on the paid by employer, during was allegedly wearing has been clothes he correctly risk of interest in this situation conflict of offense. The district is evident.” 101 S.Ct. 1097. held that evidence would not Id. such have Additionally, guilt from created a doubt about be the statement Wood reasonable upon heavily although testimony which Petitioner so relies was cause there was that opinion wearing long contained in a footnote to that and Petitioner was dark coat on offense, night the Court’s decision to the there was no the basis of evidentiary hearing remand to de- that at the time of the homicide for an evidence wearing termine a conflict of interest ex- the clothes seized whether Instead, apartment. isted. the Court stated that from his See Abdur’Rah “[o]n later us, man, F.Supp. the record at 1096. before we cannot be sure retry the ability that tri back of federal courts to Finally, Petitioner investigate already his men cases tried in the state courts. I al counsel’s failure diagnoses his of would hold that history, especially therefore the district court tal Disorder and Bor in improvidently granted peti- Post-Traumatic Stress this case the Disorder, prejudiced Personality an I evidentiary hearing. derline tioner concur in The guilt stage the of his trial. all parts Judge opinion. him at other Siler’s preju that this was not district court held that there was no evidence dicial because I produced expert have an

Petitioner could In testify Supreme that he was insane at the time of the Court invested testify stabbings, or even if one did so federal habeas courts with broad discretion testimony effectively aspects have been in most of collateral review of would state judgments. from the Middle criminal Contending countered evidence from common law Tennessee Mental Health Institute conceived of the Great Writ prior remedy authorized to trial available for kind of an examination governmental contrary was no basis for Petitioner to detention there funda- law, insanity Fay defense. A review of mental invoke Court Noia it jurisdiction MTMHI document shows that declared that “federal court this compelling against any allegation evidence conferred would be unconsti- Thus, Petitioner cannot tutional restraint and is not defeated insanity defense. probability may occur in ... anything show that there is reasonable state court 391, 426, proceedings.” Fay, that the factfinder would have had a rea 372 U.S. (1963). if respecting guilt his trial S.Ct. This sonable doubt conception investigated presented had ev broad led the Court to hold history. petitioner procedural- mental that even had idence of his who ly defaulted his claims state court could court did not err in conclud- The district relief, subject to obtain habeas the district prejudice that Petitioner suffered no deny court’s “discretion” to relief when the defi- guilt stage due his counsel’s courts had orderly procedure the state performance. cient deliberately bypassed. been Id. at fashion, parallel 83 S.Ct. 822. III. CONCLUSION empowered courts to Court federal habeas finding The district court’s when a hearings conduct even sentencing stage at the is REVERSED petitioner develop the facts had petition for judgment granting and the case,” “In proceedings. every court state corpus a writ of habeas as to Petitioner’s in Townsend v. Supreme Court wrote death sentence is VACATED. The dis- Sain, judge power, “has district petition judgment denying trict court’s discretion, only by his sound constrained corpus a writ of habeas as to Petition- appli- bearing upon to receive er’s conviction is AFFIRMED. Townsend, constitutional claim.” cant’s 293, 318, 745, 9 L.Ed.2d BATCHELDER, Judge, Circuit (1963). Townsend limited the discre- concurring. only by regard tion of habeas courts The habeas court this case believed evidentiary hearings be held requiring that essentially it unlimited discretion had that would call under six circumstances evidentiary hearing to conduct an question integrity into of state petitioner’s of coun- ineffective assistance factfinding. Id. at 83 S.Ct. 745. is, however, an claim. discretion sel Such Fay generation following bygone artifact of a era. As this court Rees, in sea-change a in v. the modern Townsend has witnessed recognized Mitchell corpus. change This substantially pared the law of habeas Supreme Court has 716 rule, claims is habeas review of the an atten- federal increased spurred

has been demon- comity prisoner can of barred unless to considerations tiveness system.” Cole- the default actual federal cause for of “our strate the values 722, 731, 111 alleged 501 U.S. viola- Thompson, as a result of the man v. (1991). The 2546, 640 law, 115 L.Ed.2d S.Ct. of federal demonstrate tion and Town- Fay of predictions idealistic in claims will result failure consider the mindful judges, federal district send that Id. miscarriage justice.” of a fundamental in the maintenance delicate role of their 750, (emphasis supplied). 111 2546 at S.Ct. relations, would proper federal-state harm significant suffered view of the in- to subvert employ their discretion to re- federal courts failed States when justice, had been criminal of state tegrity rules, court procedural federal spect state Townsend, at U.S. wrong. 372 proven petition- a to consider habeas “discretion” 745; Fay, also see 83 S.Ct. when inappropriate claims was er’s federal (suggesting that the 822 at 83 S.Ct. deprived the state petitioner had habe- power inquiry federal plenary opportunity to address those courts of for create incentives corpus would not instance. claims in first claims state to withhold defendants and the respect law reviews to evi- proceedings). holding The Townsend’s with calls for the press too, echoed with popular overruled. dentiary hearings, from judiciary to desist federal unelected court had no discretion to' Just as a district of democratic the outcomes frustrating peti that a consider federal claims capital cases. See particularly process, state tioner had not submitted Friedman, History Barry generally courts, could it have neither discretion Difficulty, Part Countermajoritarian petitioner develop a had allow facts Supremacy, to Judicial One: The Road presented to the state fairly not been (1998) (tracing the 73 L.Rev. 333 N.Y.U. Tamayo-Reyes, 504 Keeney courts. v. See countermajoritarian difficul- history of the 1, 7-8, L.Ed.2d S.Ct. U.S. Goldsmith, ty); also Thomas see Activists that it is “irrational to (stating Group Takes Impeached: Want Nixon properly distinguish failing between as Park, The Tennes- Message to Centennial a claim in state court and sert federal sean, 26, 2000, (noting IB current at Mar. develop failing properly state court to aof federal impeachment calls claim”). Thus, Keeney v. Ta such a that his judge ground district on the court Supreme applied mayo-Reyes, Court penalty personal the death against bias cause-and-prejudice to deter standard in which it him unfit hear makes cases had prisoner mine a state who whether factor). was overruled. See Fay is a develop material facts state 72, 87-88, Wainwright Sykes, U.S. evidentiary hear court entitled to an (1977). S.Ct. corpus. Id. at 112 S.Ct. ing on habeas system, in a federal Recognizing 1715. opportuni- have the first should States petitioner in which was a case a Keeney ty to and correct violations address sought evidentiary hearing federal but prisoners’ rights, and state federal 4,112 did not receive one. See id. inter- Fay important had undervalued fact, this, Judge Taking 1715. his cue from rules, procedural ests served state interprets Keeney to mean that a Siler Supreme Fay’s “deliberate replaced Court prejudice requires showing of cause cause-and-preju- bypass” with a standard 731, habeas to conduct Coleman, dice inquiry. in the hearing, but that even absence in which “In all cases showing, the court retains discre- such prisoner

a state his federal has defaulted ante at 719. In hearing. tion to See claims in to an inde- hold pursuant state court view, language nor the pendent my neither procedural state adequate in Keeney support will this the Toimsend doctrine. The reasoning Supreme of addition, terpretation. Supreme Court likened the former value to the re- pronouncements in Court’s recent exhaustion, quirement of noting: “Just as 420, 120 Taylor, Williams S.Ct. petitioner the State must afford a full (2000), cor strongly claim, hearing and fair on his federal so Keeney a that limits reading roborate petitioner must the afford the a full State authority of habeas courts to order opportunity and fair to address and re- evidentiary hearings. solve the claim on the merits.” Id. at Keeney granted Court certiorari to 112 A S.Ct. 1715. doctrine that a allows excusing “the correct standard for a decide habeas court evidentiary to conduct an petitioner’s develop failure to a ma- habeas has, hearing petitioner where the without in proceedings.” terial fact state-court cause, develop facts in state court Keeney, 504 U.S. S.Ct. 1715. re-engineers two-way this street a into Ultimately, the Court determined “the alley. blind though Even the state court is ‘cause-and-prejudice’ standard embodies the appropriate forum for resolution of the correct accommodation between the instance, factual questions in the first implicated in a competing concerns federal Toimsend creates “incentives for the de- power.” court’s habeas Id. at 112 S.Ct. ferral of factfinding to later federal court matter, purely nothing 1715. As a textual proceedings” only “degrade can —which in framing question, the Court’s accuracy efficiency judicial pro- question, in suggests its resolution of ceedings.” Id. at 112 S.Ct. 1715. restricting holding that the Court was its Similarly, Keeney to those circumstances which a habeas Court rested its petitioner evidentiary is “entitled” to an holding on a symmetry juris- between the. hearing. prudence procedural default and that governing factfinding the habeas courts. importantly, the logic More good “There is no to maintain in reason followed to arrive at Court the cause-and- one area of habeas law a standard that has will standard not admit of such a rejected in been the area which it was holding construction. The Court based its enunciated,” principally wrote Court. quintet on a embedded in our values can holding “And little be said for system: comity, finality, judicial federal petitioner failing to one to standard economy, channeling ap- of claims to the bring excusing a claim in court and forum, state propriate uniformity in the law another, 8-10, petitioner under lower stan- corpus. of habeas Id. at develop dard for the factual basis failing 1715. It difficult to how understand sys- of these values would be of that claim in the same forum.” Id. at served prisoners dogged fidelity tem that entitled state to eviden- 1715. A tiary only upon hearings showing disrupts symmetry. Townsend Ab- prejudice, cause and but nevertheless in- showing prejudice, sent a of cause and vested the habeas courts with bottomless habeas court would have no discretion hearings they discretion to order where procedur- entertain a claim that had been required. system are not Such a still court, but ally defaulted state would deny opportunity would the States the have discretion to conduct errors, correct their own constitutional insufficiently hearing on a claim raised but multiply opportunities would to reliti- court, developed in even where the state convictions, gate consume would petitioner preju- did not cause and show judicial scarce resources. develop factual dice for his failure to im- record in the state court. Given particular disruption Of concern is the ascribed portance Keeney Court proper the values of forum allocation and corpus, uniformity uniformity that would attend survival of the law of habeas — at -, Williams, at S.Ct. the reading of a correct be that cannot the Su suggests, language 1489. this As case. Keeney itself does not read preme Court Keeney that recognized has Court This petitioner a is entitled deciding as when that discretion the withdrew implicitly rather, the case evidentiary hearing; v. In Mitchell granted. had Townsend do in petitioner a must sets forth what Rees,1 a district court we reversed at-, id. one. See also order to obtain evidentiary hearing on a habe- ordering an (“We pris required at 1488 challenge without Batson petitioner’s cause Keeney oner demonstrate [in ] either petitioner establish requiring the before excusing the default prejudice (1) for his failure prejudice cause on claim hearing receive a his he could facts in the material develop adequately _” supplied)). (emphasis that not proceedings, court state hearing would re evidentiary holding an Mitchell, thus and Williams Keeney, jus miscarriage of fundamental sult in a not petitioner that a who has command (6th Mitchell, F.3d Cir. tice. justify developed facts state court must 1997). abuses its dis district court “[A] showing a through failure to do so his said, ordering such a cretion,” “by we present prejudice may before he cause and peti requiring first hearing without those to a federal habeas court. facts showing.” Id. requisite make the tioner to un joined in this have been at We 577. II other Circuit. by at least one derstanding Zant, courts, v. 975 F.2d post-conviction See Mathis In Tennessee’s (11th Cir.1992). that his petitioner Abdur’Rahman claimed as- - trial counsel had rendered ineffective by a buttressed understanding is Our investigate mental by failing sistance his just Supreme Court by the ease decided sufficiently to health and criminal histories Term, Taylor. In Williams paint sympathetic picture a of his abusive Williams, interpreted 28 U.S.C. the Court ill- resulting serious mental childhood 2254(e)(2), years four § a enacted statute con- sentencing. The state court ness . Keeney. Section after the decision evidentiary hearing, which it ducted an 2254(e)(2) appli- “If the provides: [habeas] testimony Barry of one Dr. considered factual basis develop cant has school, Nurcombe; mili- Abdur’Rahman’s proceedings, the of a in State court claim records; prison transcript tary, and evidentiary hearing court shall not hold an trial; Middle previous a records of satisfies applicant” claim unless Institute; rec- Tennessee Mental Health 2254(e)(2) § 28 U.S.C. certain conditions. departments; ords of services social deciding the level (emphasis supplied). Jones, affidavit of Mark Abdur’Rahman’s “fail”, the of fault the term connoted brother; of other great and a deal evi- opening clause determined that the Court hearing, of the dence. At the conclusion 2254(e)(2) essentially § codification trial the court held Abdur’Rahman’s in- “Congress holding Keeney: constitutionally had been defi- aspect of preserve at least one tended to attorneys have in- cient—reasonable would are at Keeney’s, holding: prisoners who mental vestigated accused’s health deficiency in state-court fault for the concluded, criminal The court standard histories. satisfy heightened record must however, faulty performance hearing.” that counsel’s obtain ney, 1720 n. 5 suggested 504 U.S. at 10 n. 112 S.Ct. at To the extent that Mitchell 2254(d) authority (noting assump- § to hold an court is without "indicates district evidentiary hearing no finding without first presence or absence of tion that 28 U.S.C. one of the factors listed in exception determine statutory will whether 2254(d) Judge § Siler applies, agree I with held”). hearing is Kee- that its See statement is "overbroad”. Strickland v. Wash jury’s ev- sentence. See Abdur’Rahman. did 668, 694, 104 ington, court hearing, the at the introduced idence (1984). Judge As Siler documentation noted, extensive contained out, present past points had a the additional had Abdur’Rahman merely supplement violence, serious mental but no ed profound post- findings information factual made that this ed the Deciding illness. any trial attor- trial court. What state mine field for conviction like a “looks today: “It is court denied 1995 holds true through,” the court said in tiptoe to ney expect jury change to unrealistic to relief. post-conviction testimony about the result because of relief, for federal habeas petition In his and men petitioner’s background troubled contention renewed his Abdur’Rahman murder prior tal in the face of a illness performance counsels’ deficient trial added to two additional conviction which is prejudice. had resulted sentencing at including circumstances aggravating district objection, the the State’s Over I killing.” of the therefore heinousness hearing on evidentiary court conducted granting that the order the writ as concur Although claim. the ineffective assistance to death sentence should Abdur’Rahman’s with the district court confronted the State be reversed. Mitchell, unpublished cited an the court proposition order for the district court COLE, Judge, concurring in Circuit evidentiary hearing is of an granting part, dissenting part. proceed- discretionary. The district court of evi- significant volume ed to consider I affirm the district Because would dence, testimony of seven including the that Abdur’Rah- court’s determination witnesses, presented that was live constitutionally ineffec- man’s counsel the basis of Largely on the state courts. and that the writ should sentencing tive at evidence, court concluded the district this issue, respectfully I to this granted be as prejudiced had been Abdur’Rahman Judge portion from that Siler’s dissent attorneys have his trial could because opinion. circumstances as such shown matter, agree Judge I with an initial As illness, abuse, serious mental childhood properly or- the district court Siler good qualities. and the defendant’s evidentiary hearing, under its dered an so, the district court erred. doing In so, properly and consid- discretion to do Mitchell, authority Keeney Upon at hear- presented this ered evidence an evi- court could not order the district concurrence’s I note that ing. also dentiary hearing until Abdur’Rahman overreaching bugaboo invocation develop the for his failure to showed cause reality does not reflect federal courts courts. fully record the state factual 1 Federal review. See of federal habeas par- Ordinarily we would vacate the order Committee, Working Papers Study Courts corpus the writ of habeas tially granting (re- Reports 482 and Subcommittee hearing, evidentiary for the and the order that, only 1.1% of in 1987 and porting Mitchell, remand the 114 F.3d at a full petitioners received corpus Ab- court to afford matter to the district court). at the district hearing bring for- opportunity dur’Rahman counsel was constitu- Abdur’Rahman’s establishing prej- cause and ward evidence sentencing due udice, tionally ineffective Tamayo-Reyes, 504 U.S. Keeney case, investigate failure to counsel’s utter In howev- 112 S.Ct. 1715. mitigating evidence. present available er, unnecessary; disposition is such assistance prove ineffective adduced at order that Abdur’Rahman fulfill the fa- counsel, must Abdur’Rahman hearing plainly the federal of Strick- two-prong requirement in the miliar confidence to undermine insufficient expert; independent mental health Washington, land v. (1984). the nature of Ab- investigate failed to L.Ed.2d 674 convictions; prior failed dur’Rahman’s First, must show that defendant testi- present contact and available witness was deficient. performance counsel’s mony family Abdur’Rahman’s at sen- from showing that counsel made requires This tencing; investigate failed to Abdur’Rah- was not serious errors so records or man’s numerous mental health guaranteed the “counsel” functioning as records; educational, military, prison Amendment. by the Sixth the defendant inquire about Tennessee rec- Second, must show that the defendant regarding Abdur’Rahman’s mental ords performance prejudiced the deficient background or introduce evi- health or showing that requires defense. This sentencing dence from these at his hear- serious errors were so counsel’s sum, ing. completely trial, fair a defendant of a deprive the present Abdur’Rahman’s investigate and trial whose result is reliable. history, mental health his institutional his- 687,104 at 2052. As noted Id. S.Ct. tory, evidence. mitigating or other question mixed majority, we review this that, at majority suggests law and fact de novo. See id. The armed with 2052; McQueen evidence, Scroggy, v. 99 F.3d counsel could have S.Ct. this defense Cir.1996). (6th 1302, 1311 not to legitimate made a tactical decision evidence, present which is now the and both Tennessee The district court jury, presented record but was not post-conviction that examined this courts and that should defer to this decision. we that Abdur’Rahman’s case determined Unfortunately, defense counsel’s “tactical was deficient. The performance counsel’s prepare not decision” this case was to challenge state does not determina- capital sentencing hearing for the of their I here survey tion. counsel’s deficiencies “[Ojur rejects notion client. case law they help because I illuminate believe ‘strategic’ that a decision can be reason why Abdur’Rahman’s sentence death attorney able when the has failed to inves in the “resulted from a breakdown adver- a tigate options his and make reasonable sary process that renders the result unreli- Zant, choice between them.” Horton v. Strickland, able.” at 466 U.S. (11th Cir.1991). 1449, 1462 941 F.2d S.Ct. 2052. Further, importantly, I and more dis- performance, Counsel’s as it related to agree majority’s finding that Ab- preparation presentation at the with for and prejudiced constitutionally in dur’Rahman was not coun- sentencing hearing, was “[Wjhen adequate. pros prejudice, client faces the sel’s failure. To demonstrate a pect put to death unless counsel Abdur’Rahman being “must show there is that, something in presents mitiga probability obtains and reasonable but for coun- investigation.” tion, errors, require unprofessional minimal some sel’s the result of standards Map Coyle, proceeding 171 F.3d would have been different. es (6th Cir.1999); probability probability see Baxter v. A reasonable is a (11th Cir.1995) Thomas, 1501, 1512 sufficient to undermine in the F.3d confidence Strickland, 694,104 (stating that was obligated defense counsel outcome.” 466 U.S. at to investigate mitigating mental health evi 2052. He that coun- S.Ct. need show dence sentencing). performance likely for Counsel failed to sel’s more than not af- ask the trial court to declare Abdur’Rah-m fected the outcome of the case. See id. at “[wjhen 693-94,104 Instead, an1 indigent or to ask the court for funds S.Ct. 2052. ..., experts; for or a death sentence investigation challenges failed hire defendant present petitioner I use Abdur'Rahman’s name created when the went the name him, throughout referring to when even in of Jones. context of events that occurred or documents Although jury aggrava a reason- found three is whether there is question ting sentencing, factors at it had nothing errors, that, absent probability able weigh against; this information it is appellate including sentencer — unsurprising that comparing those three court, independently to the extent it re- factors with the dearth of mitigating evi have conclud- weighs the evidence—would jury impose dence chose to aggravating ed that the balance of death sentence on Abdur’Rahman. How mitigating circumstances did not warrant ever, Eighth Amendment requires “[t]he 696,104 death.” Id. at S.Ct. 2052. jury to consider the circumstances of the crime and the background defendant’s investigate prop failure to Counsel’s during sentencing phase character of a prepare sentencing resulted in the erly Bell, capital trial.” Austin v. 126 F.3d essentially mitigating no presentation of (6th Cir.1997). jury’s failure to jury sentencing evidence to the consider evidence “risks errone phase. Despite in his counsel’s assertion imposition ous of the death sentence.” opening put statement that he would Carolina, McKoy v. North witnesses, other Abdur’Rahman and his 442, 110 1227, 108 L.Ed.2d 369 sentencing wife were the sole witnesses Oklahoma, (quoting Eddings v. 455 U.S. at testimony and their related to the circum *, (O’Connor, J., n. 102 S.Ct. 869 for which he stances of offense was concurring)). guilty. found It did not Ab- address jury determining Unbeknownst abuse, history dur’Rahman’s his mental fate, mitigating Abdur’Rahman’s treatment, aspects health or other relevant presentation existed and was available for despite life. This is so the fact that his If sentencing hearing. at his counsel had jury precluded should ‘“not be from performed jury adequately, the could have mitigating factor, any as a considering, learned that that Abdur’ Rahman has a aspect of a defendant’s character or record child, history of traumatic as a abuse any of of the of and the circumstances history had a long he of mental health proffers that the defendant a ba treatments, and, fense as problems finally, and ” previously pro- sis for a sentence less than death.’ Pen Abdur’Rahman had been a society. ductive member of 302, 317, 109 ny Lynaugh, (1989) (quoting 106 L.Ed.2d 256 by a child The abuse suffered as Ab- Ohio, 586, 604, Lockett v. dur’Rahman, mostly at the hands of his (emphasis in father, policeman, military a was inhumane Winbush, original)). shocking.2 Raymond and Dr. 2. As the district court stated: Petitioner's statements to mental health Court, providers pro- of his [over life] course During hearing Nancy in this half-sister, Lancaster, description vide a of the abuse Peti- Petitioner's testified vivid about the abuse and difficulties Petitioner suffered at the hands of his father. tioner experienced during his childhood. Al- regular beatings a Petitioner received with though Ms. Lan- some information strap leather from his father. Petitioner's on statements caster related was based clothes, placed made take off father him his members, by family made other the Court closet, hog-tied him in a locked and teth- impressed very with Ms. Lancaster’s piece ered to a with a of leather him hook credibility and demeanor. penis. tied around the head of his Petition- Ms. Lancaster testified that she and the penis er's father struck Petitioner's with mother, Petitioner share a common who smoking, punish him baseball bat. To for abandoned Ms. Lancaster and her two required Petitioner’s father him to eat brothers when she was an infant. Petition- vomited, cigarettes, pack of and when he taxi, put er's her three children in a mother to eat the vomit. None of this made woods, and left drove them to the them. abuse, extraordinary which constitutes rele- Petitioner's mother later married Petition- evidence, by vant was heard father, Jones, Three er’s James Sr. more jury- marriage— children were born of that Mark, (Petitioner), Sylvia. James and court, that Thorazine and Pro- before the district stat- Craddock testified

who testified singularly lixin, prescribed “is ed that Abdur’Rahman’s the medications for Ab- I abuse have come across worst case of prison, powerful dur’Rahman were anti- being psychologist an academic years psychotic which a ques- medications raised my memory remember ... I can’t even ill, mentally tion whether he was remotely comes close to anything that symptoms exhibited Ab- by I read.” things some of the dur’Rahman were like those of someone personality with a borderline disorder. peti- was attested to This abuse half-sister, tioner, petitioner’s McCoy diag- who was Dr. Diana testified that she not counsel but was available contacted post-traumatic nosed Abdur’Rahman with brother, testify, petitioner’s and the possible stress disorder and a borderline Jones, Mark who likewise was contact- personality disorder. Dr. Robert Sadoff in an affidavit ed counsel but stated diagnosis McCoy. offered a similar willing testify that he have been would Included the records before this court abuse, justifica- while not a at trial.3 This department are a report of social services conduct, criminal petitioner’s tion for Washington stating from the state of relevant, mitigating evidence that should “paranoid personali- had a Abdur’Rahman presented jury. have been disorder;” ty” “personality pattern persistent history Abdur’Rahman had Philadelphia school records which include psychiatric and mental health disorders services; request psychiatric ,commit[s] problems. “defendant[ ] A who records, prison including psychiatric exam- are criminal acts that attributable to a inations, some which state that Abdur’Rah- disadvantaged background, or emotional man does not have a mental illness or problems, may culpable be less mental psychosis, but have a history does of docu- excuse,” than who have no such defendants attempts, mented suicide and some which Brown, 538, 545, 107 v. 479 U.S. California indicate Abdur’Rahman was diag- (1987) (O’Con 93 L.Ed.2d 934 disorders, nosed with other ’including a nor, J., concurring). The mental health of psychopathic severe personality and a consistently the defendant has been deter “psychotic depressive reaction and antiso- relevant, probative mined to be informa cial personality.” prison Abdur’Rahman’s jury tion to is entitled when which See, records also indicate that making e.g., a life or death decision. Abdur’Rahman (6th Cir.2000) Bell, Carter v. 218 F.3d 581 frequently heavily was medicated dur- (finding petitioner prejudiced was ing prison at least some of his time in by investigate counsel’s failure to against that he beat his head the wall present mitigating sentencing); evidence at in prison. while Records from the New Calderon, Hendricks v. 70 F.3d 1043 Jersey Department of Human Services (9th Cir.1995). however, jury, heard stay youth document his 1967 while a nothing sentencing regarding Ab- Psychiatric Hospital, the Trenton where he history. dur’Rahman’s mental health diagnosed sociopathic with a personal- ity disturbance and antisocial reaction with us,

In the record before we have the depression, and records from the Davidson Craddock, testimony of Dr. Samuel who County Department Sheriffs show that part diagnosed of the Ab- team Abdur’Rahman beat his head against dur’Rahman for the- state of Tennessee for Further, purposes wall after his there. competency to stand trial and arrest potential insanity record indicates that defense without knowl- others Abdur’Rah- edge of history family his of mental illness. man’s problems. had mental health Bell, F.Supp. subsequently v.

Abdur’Rahman Petitioner’s brother committed (M.D.Tenn.1998) (footnote 1097-98 and cita- suicide. omitted). tions to record appeals available to court of of these records were evidence that Many through the MTMHI re- investigate defense counsel defense counsel failed to or purpose for the of deter- port, prepared present also contained instances of vio- competence to mining Abdur’Rahman’s by lent conduct and anti-social actions trial;4 however, in- counsel failed to stand Abdur’Rahman. This treatment of the present any mitigating of this vestigate or majority contradicts the Nor did jury. information to the emphasis by the courts that evidence present jury expert to the a mental health mitigating by person considered fac- regarding have Ab- who could testified ing a death sentence should be allowed to health problems. dur’Rahman’s mental greatest possible extent to insure a full and fair jury. determination Further, from the trial Ab- testimony See, Oklahoma, e.g., Eddings second-degree dur’Rahman’s conviction for 104, 110, a fellow killing murder for inmate— (1982). Further, the majority overlooks supported ag-

a conviction that one of the indicated, jury already had much of this in the gravating circumstances— prior evidence of violent or criminal con- opinion expert, of one that Abdur’Rahman presentation duct before it and that personality disorder and had borderline available, relevant evidence at personality. schizoid This evidence could sentenc- respect subjected would not mitigating have been with to the have Abdur’ health, petitioner’s statutory aggrava- mental as well with Rahman to additional prior ting murder. respect factors. The elements of instead, served, this evidence would have wife could have her Abdur’Rahman’s present jury with an accurate and personal observations about his mental complete picture person they were health, fact that her including the husband sentencing very purpose capital of a —the people conversations with who did not had addition, sentencing hearing. the ma- wall, exist, banged against his head jority ignores mitigating potential couple give and believed that would nearly all of the available evidence and birth to the next Messiah. She also stated the fact that some of the evidence that psychi- that she told defense counsel that a investigate present or counsel failed to atrist should examine her husband. does not involve violence harmful be- Despite and exten- his childhood abuse havior Abdur’Rahman. See Williams history, mental health Abdur’Rahman sive 1495, Taylor, v. 529 U.S. 120 S.Ct. comport was able to his conduct to societal (noting productive engage norms activi- presence of unfavorable records did fiancé, ties. His former about whom he justify “the failure introduce counsel, informed defense but whom coun- comparatively voluminous amount of evi- contact, that, sel failed later testified speak [petitioner’s] that did fa- dence him in Abdur’Rah- when she knew vor”). job, steady college, man held a attended Quaker youth and volunteered with adequately performed, Had group large housing project. at a She a death jury weighing whether sentence petitioner a caring stated that the Ab- appropriate punishment for person sincerely gentle who held Christian representa- dur’Rahman would have had a beliefs. picture person they were sen- tive account tencing, instead of the one-sided acknowledging While that some of this their decision. mitigating, upon they have been which based evidence would majority adopts petitioner recently the rationale of the state Like the before the Su- jury at fact that Abdur'Rahman was found should be considered sentenc- not, course, ing. Singletary, competent to stand trial does See Blanco v. 943 F.2d (11th Cir.1991). problems alter the fact his mental health Court, has “a con Abdur’Rahman

preme provide right ... stitutionally protected evidence that mitigating jury with the failed discover either trial counsel his — Williams, U.S. to offer.” failed the total -, at 1513. Given presented at lack hearing, sentencing Abdur’Rahman’s undermined the so conduct “counsel’s pro of the adversarial functioning proper cannot [sentencing hearing] cess just having produced relied on be Strickland, result.” Austin, 2052; 126 F.3d at also see (6th 1204, 1210 Tate, 848; v. 71 F.3d Glenn Cir.1995). respectfully I dissent. AMADOU, Petitioner,

Mamadou AND IMMIGRATION SERVICE, NATURALIZATION Respondent. No. 99-3824. briefed), Bryan (argued Hicks Scott Appeals, United States Court Ohio, Cincinnati, for Petitioner. Circuit. Sixth briefed), Smiley (argued Joan E. 13, 2000 Argued: June (briefed), Karen Torstenson Fletcher Justice, Division, Department Civil Sept. Decided and Filed: D.C., Washington, Respondent. MOORE, JONES, BOGGS, and Before: Judges. Circuit OPINION JONES, R. Circuit NATHANIEL Judge. challenges Amadou

Petitioner Mamadou Immigration Appeals’ denial the Board of asylum, withholding applications of his departure. deportation, voluntary

Case Details

Case Name: Abu-Ali Abdur'rahman, Petitioner-Appellee/cross-Appellant v. Ricky Bell, Warden, Respondent-Appellant/ Cross-Appellee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 13, 2000

Citation: 226 F.3d 696

Docket Number: 98-6568, 98-6569

Court Abbreviation: 6th Cir.