Lead Opinion
Following various Oklahoma state-court proceedings, an Oklahoma jury convicted Emmanuel Littlejohn of first-degree murder and sentenced him to death. This case—which comes before us for a secohd time—arises from the district court’s denial of Mr. Littlejohn’s petition for a writ of habeas corpus under 28 U.S.C.- § 2254.
The first time around the district court found Mr. Littlejohn’s ineffective-assistance and cumulative-error claims—among twelve other bases for relief—meritless or procedurally barred. Reviewing the district court’s conclusions de novo, we addressed the declaration of Dr. Manual Saint Martin, a psychiatrist who diagnosed Mr. Litt-lejohn—for the first time—with undefined, synapse-level neurological deficits, or an organic brain disorder. Given that evidence, we reasoned that the disposition of Mr. - Littlejohn’s ineffective-assistance claim—and,.derivatively, his cumulative-error claim—hinged on whether Dr. Saint Martin’s averments would prove worthy of belief, because “[ejvidence that an organic brain disorder was a substantial factor in engendering Mr. Littlejohn’s life of deviance probably would have been a significant favorable input for Mr. Littlejohn in the jury’s decisionmaking calculus” during the penalty phase. Littlejohn v. Trammell (Littlejohn I),
On remand, the district court held an evidentiary hearing; the parties presented the testimony of various individuals—including Dr. Saint Martin and Mr. Little-john’s trial counsels James Rowan.-Following the hearing, the district court largely restated its earlier findings and again denied Mr. Littlejohn habeas relief on-his ineffective-assistance and cumulative-error claims. Mr. Littlejohn now appeals from the district court’s judgment on remand. With the '-benefit of a more robust factual record relative to Mr. Littlejohn’s alleged organic brain damage, for the reasons, that follow, we affirm. - -
I
In Littlejohn 7, we detailed'the factual and procedural backdrop of Mr. Little-john’s state-court conviction and sentencing. See
Following Mr. Littlejohn's unsuccessful efforts for state post-conviction relief, he filed a habeas petition under 28 U.S.C. § 2254 in federal district court. See Littlejohn v. Workman, No. CIV-05-225-M,
The district court denied Mr. Little-john’s petition, and he brought his first appeal. In Littlejohn I, we affirmed the district court’s disposition of Mr. Little-john’s due-process and Confrontation Clause claims, but reversed the district court’s judgment as to the ineffective-assistance claim and vacated its judgment as to the cumulative-error claim, with instructions to the district court to conduct an evidentiary hearing on remand. See
II
We begin with Mr. Littlejohn’s ineffective-assistance claim. To make out an ineffective-assistance claim, a petitioner “must show both that his counsel’s performance ‘fell below an objective standard of reasonableness’ and that ‘the deficient performance prejudiced the defense.’ ” Byrd v. Workman,
Under the prejudice prong, a petitioner must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland,
In doing so, we “reweigh the evidence in aggravation against the totality of available mitigating evidence,” Hooks v. Workman,
Under the foregoing rubric, we begin by discussing the salient aspects of the procedural history and factual background of Mr. Littlejohn’s ineffective-assistance claim. We then turn to whether the more comprehensive factual record now before us lends force to Mr. Littlejohn’s claim of prejudice under Strickland.
A
In his habeas petition, Mr. Littlejohn asserted that his trial counsel, Mr. Rowan, rendered ineffective assistance in the re-sentencing proceeding by failing to adequately investigate and present a mitigation theory of organic brain damage. Rather, Mr. Rowan focused his mitigation case on the testimony of Dr. Wanda Draper, a developmental epistemologist who presented a socio-psychologieal account of the impact that Mr. Littlejohn’s troubled upbringing had on his development. More specifically, Dr. Draper testified extensively about the substance abuse of Mr. Litt-lejohn’s mother during her pregnancy and regarding the lack of nurturing and attention that Mr. Littlejohn received as a child, and then explained the stunted development that Mr. Littlejohn suffered as a result of these factors. In particular, she testified that Mr. Littlejohn had long exhibited emotional problems and disruptive behavior, and determined that, although he understood the difference between right and wrong, he often did not act on that knowledge. More specifically, on cross-examination, Dr. Draper stated that she did not think that Mr. Littlejohn had “a mental illness per se”; rather, “he had emotional disturbance, [and] he was a troubled child.” State R., Vol. VI, Resen-tencing Tr. at 133.
In his habeas petition, Mr. Littlejohn advanced the view that Mr. Rowan should have investigated and presented evidence of organic brain damage that he suffered as a result of his mother’s drug use during her pregnancy with him. In order to buttress that assertion, Mr. Littlejohn attached a declaration from Dr. Saint Martin, a psychiatrist who examined him in 2005, five years after his resentencing. In the declaration, Dr. Saint Martin stated that “Mr. Littlejohn’s history and behavioral symptomatology presented indications of neurodevelopmental deficits.” R., Vol I, at 176. In other words, Mr. Little-john’s brain was “not ‘wired’ correctly” at the “level of the synapse[—i.e.,] the microscopic connections between individual brain cells.” Id. at 177. Dr. Saint Martin specifically explained that Mr. Littlejohn “suffer[ed] [from] a behavioral disorder manifested by poor impulse control, psychological immaturity and judgment [and] caused by neurodevelopmental deficits experienced iñ his peri-natal development.” Id. Finally, Dr. Saint Martin described these deficits as “irreparable, but .., treatable” bécause “drug therapy” can “control the behavior and diminish the im-pulsivity, which creates most of the problems in interacting with society.” Id. at 178-79. Based on Dr. Saint Martin’s declaration, Mr. Littlejohn argued that Mr. Rowan acted ineffectively by failing to investigate and present evidence of Mr: Litt-lejohn’s organic brain damage during his resentencing.
In its initial consideration of Mr. Little-john’s habeas petition, the district court denied relief on the ineffective-assistance claim. See Littlejohn,
In Littlejohn I, we reversed the district court’s judgment on- this claim. At the outset, we detailed two unique procedural features of Mr. Littlejohn’s ineffective-assistance claim. First, we emphasized that the absence of a state-court “merits adjudication” or a “procedural default” on the ineffective-assistance claim triggered a merits-based de novo review.
Undertaking our own de novo review, we concluded—based on the averments in Dr, Saint Martin’s declaration—that Mr. Littlejohn’s ineffective-assistance claim “may have merit.” Id. at 856 (emphasis added). We noted that “[evidence that an organic brain disorder was a. substantial factor in engendering Mr. Littlejohn’s life of deviance probably would have been a significant favorable input for Mr. Little-john in the jury’s decisionmaking calculus.” Id. at 864. Evidence of organic brain damage, we explained, could have strengthened Mr. Littlejohn’s mitigation case by offering “at least a partial explanation” for his extensive criminal history—and importantly, one grounded in his physical, neurological deficits. Id. .
In addition, the evidence of organic brain damage could have weakened the prosecution’s case in support of the continuing-threat aggravator, by “offer[ing] a less blameworthy explanation of Mr. Litt-lejohn’s extensive criminal history” and by providing some suggestion that Mr. Little-john suffered from treatable deficits. I'd. at 865. Along these lines, we emphasized that evidence of organic mental deficits “ranks among the most powerful types of mitigation evidence available” and stressed that such evidence is qualitatively different—in significant ways—from the social-environment evidence that we typically are called on to consider in capital habeas cases, Id. at 864.
Based on the current record, we concluded as to the prejudice showing that Dr. Saint Martin’s declaration created “a reasonable probability that [the presentation of] such evidence would have led at least one juror to support a sentence less than death.” Id. In other words,. we determined—under the limited circumstances developed at that time—that “[e]vidence that an organic brain disorder was a substantial factor in engendering Mr. Little-john’s life of deviance probably would have been a significant favorable input for Mr. Littlejohn in the jury’s decisionmaking calculus,” and that Mr. Rowan’s failure to investigate and present organic-brain-damage evidence (as sketched by Dr. Saint Martin) would have caused Mr. Littlejohn prejudice. Id.; see id: at 865-67.
However, we also underscored that further factual development would be necessary before a definitive conclusion could be reached regarding the merits of Mr. Litt-lejohn’s ineffective-assistance claim. Id. at 856. Indeed, we emphasized the “highly fact-bound” nature of Mr. Littlejohn’s particular ineffective-assistance claim, and thus explained that “[a] further exploration of the substance of Dr. Saint Martin’s findings might well reveal significant theoretical or factual holes that would make a finding of deficient performance or prejudice unsound.” Id.
Consistent with our reticence to reach definitive determinations on the undeveloped record, we said:
[W]e conclude that Mr.- Littlejohn has alleged a mitigation theory and supporting facts. which, if 'true, would entitle him to relief under Strickland—viz., would justify -us in concluding that his counsel was constitutionally deficient in failing to investigate and put on mitigating evidence concerning Mr. Littlejohn’s claimed physical brain injury and that, but for that failure, there is a reasonable probability that the jury would have selected a penalty less than death.
Id. at 867. In light of these .conclusions, we remanded the matter to the district court for further factual findings concerning Mr. Littlejohn’s mitigation theory.
- In particular, on remand, we tasked the district court with determining whether Mr. Littlejohn could demonstrate sufficient factual support for his mitigation theory. The district court held an evidentiary hearing at which both parties presented evidence and testimony. As most relevant here, Dr. Saint Martin offered—in terms far more specific than in his declaration, which we considered in Littlejohn I—diagnoses of Mr. Littlejohn’s physiological mental deficits. Dr. Saint Martin explained that he “diagnosed an impulse control disorder ] and attention deficit disorder[,]”
These two' disorders, in Dr. Saint Martin’s opinion, }ed Mr. Littlejohn to have “low frustration tolerance” and “a lot of problems with impulses” because “the normal controls one would expect [to] override destructive impulses are not present or present enough.” Id. at 126-27. When asked about possible treatment options for these disorders, Dr. Saint Martin noted “an 80 percent response rate to medication” for attention deficit disorder and a response “on the order of about 40 percent” for an impulse-control disorder, but admitted that Mr. Littlejohn had never received medications for these disorders and that, consequently, there was no guarantee that he would respond to them. Id. at 128-29,186.
In addition, Dr. Saint Martin acknowledged on cross-examination that, “on a very, very, very large number of tests of intellectual functioning and neuropsycho-logical functioning, Mr. Littlejohn perform[ed] in the low-average to average-range.” Id. at 146-47. Additionally, he diagnosed Mr. Littlejohn with “mixed personality traits,” but declined to conclude that he suffers from antisocial personality disorder. Id. at 128. Nevertheless, Dr. Saint Martin acknowledged that Mr. Litt-lejohn exhibited a number of characteristics “consistent with anti-social personality disorder” and admitted that “individuals with attention deficit hyperactivity disorder are significantly more likely to develop anti-social personality disorder.” Id. at 177.
In Littlejohn I, we asked the district court to reevaluate in an evidentiary hearing Mr. Littlejohn’s ineffective-assistance claim, notably on the issue of prejudice. More specifically, this examination should have entailed the district court making a critical determination in the first instance of whether Mr. Littlejohn did in fact suffer from treatable mental deficits that could have substantially explained his past criminal behavior, such that it was reasonably probable that Mr. Rowan’s failure to investigate and present evidence of organic brain damage caused Mr. Littlejohn prejudice. However, the district court’s findings are not specific regarding these matters. Instead, the court generally reasoned that Dr. Saint Martin’s declaration was “not all that it appeared to be,” and found that “the introduction of this evidence would have been accompanied by demonstrated limitations and pitfalls.” R., Vol. I, at 961. Essentially, under this rationale, the district court concluded that Mr. Littlejohn had failed to demonstrate prejudice, and this appeal followed.
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Our analysis begins with a discussion of the relevant standard of review. We then turn to whether the evidence elicited on remand demonstrates that organic brain damage played a substantial role in engendering Mr. Littlejohn’s life of criminal deviance—viz., the critical question we identified in Littlejohn I. Although we cannot fully embrace the district court’s analysis, we ultimately agree with the court’s determination that Mr. Littlejohn has not demonstrated prejudice under Strickland.
B
On 'appeal, Mr. Littlejohn argues that the district court erred in finding that he failed to demonstrate prejudice stemming from Mr. Rowan’s failure to investigate and present evidence of organic brain damage. Based on the unique procedural circumstances of this case explicated above, the district court appropriately reviewed Mr. Littlejohn’s ineffective-assistance claim de novo. See Littlejohn I,
In this procedural setting, “we review the district court’s legal conclusions de novo and factual findings for clear error.” Allen v. Mullin,
As noted, the district court made no precise findings on the key question of whether organic brain damage played a substantial role in engendering Mr. Little-john’s life of criminal deviance. The district court did, however, impliedly conclude that any evidence of brain damage that Mr. Rowan could have presented to the jury would have' done little to explain Mr. Litt-lejohn’s criminal history, given the court’s explanation that Dr. Saint Martin’s declaration was “not” Mr, Littlejohn’s “holy grail,” nor “all that it appeared to be.” R., Vol. I, at 961. Indeed, the district court explained that “the introduction of this evidence would have been accompanied by a number of “demonstrated limitations and pitfalls[,]” including evidence suggesting that Mr. Littlejohn suffered from antisocial personality disorder,
With the stage thus set, we first address the central issue of whether evidence of Mr. Littlejohn’s-alleged organic brain damage could have substantially explained his criminal past, and ultimately conclude that the actual evidence—in contrast to the general averments of Dr. Saint Martin’s declaration—would have offered .a sentencing jury little, if anything, meaningful in this regard. Moreover, like the district court, we conclude.that the,weak mitigating effect of the brain-damage. evidence would have been significantly diminished by the evidence the prosecution almost inevitably would have introduced in rebuttal. As a-result, we determine that Mr. Littlejohn has failed to meet his burden of demonstrating prejudice under Strickland.
1
On the first question of whether the evidence demonstrates that organic brain damage operated as a “substantial factor” engendering Mr. Littlejohn’s life of criminal deviance, we conclude that it did not. Littlejohn I,
Focusing on the specific diagnoses that Dr. Saint Martin proffered at the eviden-tiary hearing—that is, attention deficit disorder and an impulse-control disorder—we conclude that under the circumstances of this case, these two commonly diagnosed conditions are too weak to support an argument for prejudice under Strickland. In other words, • although Dr. Saint Martin’s declaration in Littlejohn I presented the legally-cognizable possibility that evidence of organic brain damage would go far in explaining Mr. Littlejohn’s criminal background—thereby significantly contributing to a showing of Strickland prejudice—his more detailed testimony on remand largely negates that possibility. This is particularly true when his testimoñy is evaluated in the context of other evidence that was—or could have been—offered to the resentenc-ing jury.
To frame our analysis, we begin with the general proposition that we underscored in Littlejóhn I: “Evidence of organic'mental deficits ranks among the most powerful types of mitigation evidence available.”
For example, in Smith v. Gibson,
Second, we have concluded, in some instances, that organic-brain-damage evidence would have been just as likely—if not more likely—to have had an aggravating effect rather than a mitigating effect on a sentencing jury. See Davis v. Exec. Dir. of Dep’t of Corr.,
In Gilson v. Sirmons,
Analogously, in Cannon v. Gibson,
a
Turning to the facts of this case, although Dr. Saint Martin couched his initial declaration under the broad rubric of organic brain damage, his findings—which the parties teased out in the hearing— ultimately centered on two diagnoses: attention-deficit disorder and an impulse-control disorder. Attention deficit disorder is a commonly diagnosed condition. See, e.g., Stephen P. Hinshaw & Katherine Ellison, ADHD: What Everyone Needs To Know 24 (2016) (“Today, approximately 11 percent of all US youth aged 4-17 have at some point received an ADHD diagnosis.... The estimates are less authoritative after age 17, but researchers believe that there may be around 10 million adults with the disorder in the United States.”); Mark Selikowitz, The Facts: ADHD 2 (2d ed. 2009) (ebook) (noting that the condition is “one of the most common conditions in childhood, affecting as many as 5% of school-aged children”); Dorothy Nelkin & Laurence Tancredi, Classify and Control: Genetic Information in the Schools, 17 AM. J.L. & MED. 51, 56 (1991) (describing “attention deficit disorder” as “the most common behavior problem of school-aged children” (citation omitted)); Attention-deficit/hyperactivity disorder (ADHD), Encyclopedia Britannica (database updated Sept. 15, 2017) (noting that ADHD “is the most commonly diagnosed childhood psychiatric disorder” in the U.S.). Moreover, Dr. Saint Martin notably testified at the evidentiary hearing that attention deficit disorder has “a very, very low correlation with criminal activity,” R., Vol. Ill, at 323—an admission that easts direct doubt on Mr. Littlejohn’s claim that the evidence would have offered an explanation for Mr. Littlejohn’s long history of criminal conduct.
In this regard, a number of cases from our court and our sister circuits have specifically concluded that evidence of attention deficit disorder does not favor a finding of prejudice. For example, in Wackerly v. Workman,
And our sister circuits have reached similar conclusions. See, e.g., Brown v. Ornoski,
Regarding Mr. Littlejohn’s impulse-control diagnosis, this, too, would appear to be a rather garden-variety condition—at least in the “non-specific” form (supra note 1) that Dr. Saint Martin diagnosed. R., Vol. Ill, at 131; see United States v. Miller,
In any event, courts have expressed skepticism about placing significant weight in the' Strickland prejudice analysis on such a condition. This is particularly so given that such evidence tends to depict the ■ petitioner as unstable and unable to control his actions;’ consequently, it could have an overall aggravating, rather than mitigating, effect. In Gilson, for example, a doctor who examined the petitioner after his sentencing found that he “would have difficulty conforming his behavior to societal norms due to impulsivity, poor judgment, and the failure to see or understand the consequences of his actions” and concluded, as a result, that the petitioner “had an inability to regulate behavior or inhibit impulses.”
Our sister circuits have, in turn, reached similar conclusions. See, e.g., Fautenberry v. Mitchell,
In other words, our authority and that of our sister circuits suggest that an impulse-control diagnosis typically tends to offer little, if any, quality mitigating evidence and, actually, may come with a sharp aggravating-evidence component. And, again, the nature of Mr. Littlejohn’s diagnosis offers us no reason to part from this premise.
b
■ The cases that Mr. Littlejohn identifies do'not compel a different conclusion. In his briefing, Mr. Littlejohn pointstto Williams v. Taylor,
Moreover, the Tenth Circuit cases that Mr. Littlejohn cites do not militate in favor of a prejudice determination here. First, in finding prejudice in Smith v. Mullin, we described counsel’s “halfhearted mitigation case,”
The circumstances here fall far short of constituting the paradigmatic halfhearted mitigation case, as ■ well illustrated in Smith and Anderson. In this regard, recall that Dr. Draper testified extensively on behalf of the defense about the substance abuse of Mr. Littlejohn’s mother during her pregnancy and the lack of nurturing and attention that Mr. Littlejohn received as a child, and then explained the stunted development that Mr. Littlejohn suffered as a result.- To be sure, the- Supreme Court’s “cases ... emphasized the need for courts to consider the prejudicial effect of counsel’s failure to investigate [and presumably present] a viable mitigation theory even in the face of an otherwise reasonable mitigation defense.” Littlejohn I,
In sum, although Dr. Saint Martin’s initial declaration created a significant impression that Mr. Littlejohn may have been prejudiced by Mr.' Rowan’s' alleged failure to investigate and present evidence of organic brain damage in the sentencing phase, the testimony he provided in the hearing on remand demonstrated that Mr. Littlejohn’s organic-brain-damage diagnosis ultimately consisted of only two commonly diagnosed conditions: attention deficit disorder and an impulse-control disorder, neither of which was powerful enough on these facts to support a claim of prejudice. Put another way, the evidence presented at the evidentiary hearing did not reveal that Mr. Little-john’s alleged organic brain damage played a substantial role in engendering his life of criminal deviance; this conclusion strongly militates against a determination of Strickland prejudice.
c
But there is more bad news for Mr. Littlejohn. Aside from its inherent qualitative weaknesses, the introduction of Mr. Littlejohn’s organic-brain-damage evidence at resentencing likely would have been the impetus for developments harmful to his case. In this regard, in analyzing Strickland ’s prejudice prong, as previously noted, “we must consider not just the [omitted] mitigation evidence ... but also what the prosecution’s response to that evidence would have been.” [Michael] Wilson,
Turning first to the evidence of antisocial personality disorder, in similar circumstances, we have characterized a petitioner’s potential for continued dangerousness, even if incarcerated, as “perhaps [the] most important aggravating circumstance” that juries consider in weighing the death penalty. Grant,
Importantly, courts have characterized antisocial personality disorder as the prosecution’s “strongest possible evidence in rebuttal.” Evans v. Sec’y, Dep’t of Corr.,
Furthermore, the mitigating effect of Mr. Littlejohn’s evidence of organic brain damage would likely have been diminished by the lack of reliable treatment options for Mr. Littlejohn’s attention deficit and impulse-control disorders. As we explained in Littlejohn I, evidence of organic brain damage “could have been used [for its] powerful mitigating effect,” if it demonstrated that Mr. Littlejohn’s criminal past derived from a treatable physical condition, because his criminal past would no longer be “an accurate predictor of his future.”
However, Dr. Saint Martin’s testimony likely would have left doubt in the minds of the jurors regarding whether Mr. Little-john had treatable organic-brain conditions. While he did explain that attention deficit disorder has “an 80 percent response rate to medication,” he also had to acknowledge that an impulse-control disorder responds to medication only in “about 40 percent” of cases. R., Vol. Ill, at 128-29. Therefore, it was not certain tjiat Mr. Littlejohn’s two identified conditions were treatable; this was especially so as to the impulse-control disorder for which the rate of positive response was less than 50%. This uncertainty is further compounded by Dr. Saint Martin’s admission that Mr. Litt-lejohn had never received treatment for the two conditions; thus, Dr. Saint Martin could not guarantee that Mr. Littlejohn would in fact respond favorably. In view of the relative lack of reliable treatment options, the potency (such that it is) of Dr. Saint Martin’s organic-brain-damage evidence would likely have been diminished. Finally, the introduction of Dr. Saint Martin’s theory would have invited—as the district court noted—the introduction of damaging evidence regarding Mr. Little-john’s post-offense misconduct that likely would not have put him in a positive light with the jury. More specifically, the prosecution could have (and likely would have) introduced evidence that Mr. Littlejohn lied to mental-health examiners—on at least two prior occasions—presumably, to secure a favorable evaluation. In other words, the prosecution could have cast doubt on Dr. Saint Martin’s diagnosis, as well as painted Mr. Littlejohn as a liar, based on Mr. Littlejohn’s documented efforts to manipulate mental-health experts.
3
In sum, we conclude that Dr. Saint Martin’s testimony offered far less than suggested in his initial declaration. Indeed, although the initial declaration created the impression that Mr. Rowan omitted powerful mitigating evidence, the additional evi-dentiary development on remand demonstrated that Dr. Saint Martin’s organic-brain-damage theory ultimately derived from two concrete diagnoses: attention deficit disorder and an impulse-control disorder. As noted, courts routinely decline to attribute significant mitigating value to these commonly diagnosed conditions, and we believe that they would have been quar litatively weak in their mitigating effects on jurors, át least under the circumstances of this case. Furthermore, any mitigating value derived from the introduction of this evidence here likely would have been significantly diminished by the prosecution’s expected response.
Given the shortcomings of Dr. Saint Martin’s.theory and evidence—revealed by his hearing testimony—we conclude that thére is no reasonable probability that the omitted mitigating evidence of organic brain damage would have altered the re-sentencing outcome. In reaching this conclusion, we have considered both the totality of the' evidence that was before the reséntencing jury and the evidence that' the prosecution likely would have presented in response to the omitted organic-' brain-damage evidence. See, e.g., Brooks,
But Mr. Littlejohn urges us to keep in mind that “this was hardly a worst of the worst homicide case” and that a “[rjealistic potential for a non-death choice existed.” Aplt.’s Opening Br. at 47, 52. In the latter regard, he asserts that the “jurors’ request for further instruction on the life without parole sentence indicates they may have been seriously considering the same.” Id. at 52. However, we specifically rejected similar arguments in Littlejohn I. See
In sum, we conclude that Mr..Littlejohn was not prejudiced under Strickland by any ineffectiveness of his counsel in investigating and presenting organic-brain-damage evidence in his mitigation case. Consequently, we uphold the district court’s, denial of relief on Mr. Littlejohn’s ineffective-assistance claim.
ill
Finally, we address Mr. Littlejohn’s claim of cumulative error. On this issue, Mr. Littlejohn argues that even if we decline to grant relief on his ineffective-assistance claim, we should nonetheless reverse on the basis of cumulative error.
The cumulative-error analysis addresses the possibility that “[t]he cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error.” United States v. Rivera,
Mr. Littlejohn argues that two errors in addition to Mr. Rowan’s alleged ineffective assistance prejudicially impacted the jury’s death-penalty determination at his resen-tencing: (1) “[t]he failure to provide adequate notice of the testimony of Bill Meers concerning an alleged admission and an alleged threat uttered by Mr. Littlejohn,” Aplt’s Opening Br. at 57; and (2) “Confrontation Clause violations concerning who fired the fatal shot,” id.
As detailed in Littlejohn I, the first alleged error relates to testimony from Bill Meers, the victim’s brother, that “Mr. Litt-lejohn told him that ‘the motherfucker’s [i.e., his brother’s] dead and he ain’t coming back’ ” and “I killed the motherfucker, I’ll kill you.”
The second alleged error concerns the testimony of two witnesses from Mr. Litt-lejohn’s 1994 trial, both of whom testified that, Mr. Littlejohn made a statement implicitly admitting that he , (as opposed to Mr. Bethany) shot the victim. The state trial judge at the resentencing allowed the prosecution to read the testimony over Mr. Littlejohn’s objection that the prosecution had not made a sufficient showing concerning the witnesses’ unavailability.
In reviewing Mr. Littlejohn’s case, the OCCA considered these claims of error, but not the ineffective-assistance claim that Mr. Littlejohn mounts in these federal proceedings. See Littlejohn,
Accordingly, we evaluate the current cumulative-error claim “de novo under the Brecht standard, asking whether the various errors we have identified collectively ‘had substantial and injurious effect or influence in determining the jury’s’ ” sentence. Cargle v. Mullin,
An error may be deemed to have a substantial and injurious effect under Brecht’s rubric when a “conscientious judge [is left] in grave doubt about the likely effect of an error on the jury’s verdict.” O’Neal v. McAninch,
In Littlejohn I, we had occasion to separately consider whether the two additional errors that Mr. Littlejohn identifies here were prejudicial under the Brecht standard—the same one governing our cumulative-error analysis. See Littlejohn I,
Indeed, in his appellate briefing, Mr. Littlejohn provides no explanation for why the limited notice caused him prejudice. Rather, he argues about the damaging aspects of the Meers testimony itself and, more specifically, suggests that the testimony must have had a prejudicial impact, otherwise the prosecution would not have been “at great pains to get this evidence before the sentencing jury.” Aplt.’s Opening Br. at 65. However, this line of argument is inapposite. As we stated in Little-john I, “[a]t bottom, it must be emphasized that the alleged error here relates to a lack of notice—not the prejudicial content of Mr. Meers’s testimony.”
Turning to the Confrontation Clause violations, these specifically concerned the admission in Mr. Littlejohn’s resentencing of transcripts of testimony from two witnesses at the 1994 trial that related to Mr. Littlejohn’s alleged admission of shooting the victim. In Littlejohn I, we deemed “the admission of [that] testimony” harmless for at least three reasons.
We then explained that
the Supreme Court has recognized that counsel’s prior ability to cross-examine an unavailable declarant in a prior proceeding that was not “significantly limited in any way” counsels .in favor of a finding of no underlying violation. [California v. ]Green, 399 U.S. [149,] 166 [90 S.Ct. 1930 ,26 L.Ed.2d 489 (1970)]. Here, we find the same considerations found in Green weigh in favor of a find- . ing of harmless error because Mr. Litt-lejohn’s' counsel was not at all precluded from thoroughly cross-examining [the two witnesses] at the 1994 trial.
Id. at 847. Unlike the first error, the Litt-lejohn I court did not explicitly conclude that no prejudice flowed from this error. However, having, studied our thorough prejudice analysis in Littlejohn I, we are hard-pressed to conclude that Mr. Little-john suffered anything more than modest prejudice from the error—if any prejudice at all.
Thus, standing alone, we are not convinced’ that more than one of the two additional errors (aside from the assumed error associated with the ineffective-assistance claim) that Mr. Littlejohn has identified was the source of prejudice to him. However, for purposes of further cumulative-error analysis, wé are willing to assume arguendo that Mr. Littlejohn' suffered modest prejudice from both errors. Consequently, the central question we must decide is whether this modest prejudice, when cumulated with any prejudice stemming from the alleged ineffective-assistance claim, would cause Mr. Little-john’s resentencing proceeding to be fundamentally unfair and cause us to have grave doubts about whether the errors affected the jurors’ verdict. We answer this question in the negative.
In light of the now-clear shortcomings of Dr, Saint Martin’s theory and evidence, we do. not believe the. Strickland prejudice question is a close, one—viz., Mr. Little-john did not come close to establishing the requisite quantum of prejudice to satisfy the Strickland standard. We are prepared, however, to assume arguendo that Mr. Littlejohn suffered some modest prejudice due to Mr. Rowan’s assumed constitutionally ineffective assistance at the resentenc-ing. In this regard, we acknowledge the view stressed in Littlejohn I that “[e]vi-dence of organic mental deficits ranks among the most powerful types of mitigation evidence available.”
Therefore, it seems reasonable to assume that the failure to investigate and present evidence of organic brain damage through the testimony of a physician may have engendered some modest prejudice. But, as we emphasized at the start, the prejudice analysis must always focus on the precise nature of the alleged organic brain damage. And, when we do that here, for the reasons explicated supra, we are unwilling to accord Mr. Littlejohn more than an assumption of modest prejudice: in brief, Dr. Saint Martin’s qualitatively weak organic-brain-damage evidence warrants nothing more under the circumstances of this case, particularly given the likelihood of robust rebuttal evidence from the State.
From a purely additive or sum-of-the parts perspective, the three dashes of modest prejudice that we have assumed here—i.e,, related to the Meers testimony, the testimony of the two 1994 witnesses, and Mr. Rowan’s mitigation presentation— hardly constitute, in the aggregate, a recipe for the kind of prejudice that would render Mr. Littlejohn’s resentencing proceeding fundamentally unfair or cause us to have grave doubts about whether the errors affected the jurors’ verdict, especially when viewed in the context of the State’s substantial case in aggravation, See Grant,
Moreover, Mr. Littlejohn has not meaningfully demonstrated how any of these three assumed errors possessed “an inherent synergistic effect” that would have made them collectively more potent than the sum of their parts. Cargle,
To be sure, Mr. Littlejohn does attempt to show a “particularized synergy” by suggesting that, if the jury had received Dr. Saint Martin’s organic-brain-damage evidence, it would have “ameliorated” the alleged prejudicial effects of his “post-trial outburst” directed at Mr. Meers. Aplt.’s Opening Br. at 69. But this argument is predicated on Mr. Littlejohn’s failure, once again, to acknowledge that the Meers-re-lated error that we are considering in the cumulative-error analysis is not the admission of the evidence regarding the outburst itself—or, more precisely, the contents of the outburst—but rather the alleged inadequacy of the notice that' Mr. Littlejohn’s counsel received as to the prosecution’s intent to admit the Meers evidence. And Mr. Littlejohn does nothing to suggest any “particularized synergy” between that notice error and any of the other two errors at issue.
Accordingly, considering the totality of the circumstances in Mr. Littlejohn’s re-sentencing proceeding, we cannot conclude that the cumulative effect of the three harmless errors before us prejudiced Mr. Littlejohn within the meaning of Brecht,
IV
For the reasons stated above, we AFFIRM the judgment of the district court.
Notes
. For clarity’s sake, we note that conditions falling under the general classification of “attention deficit disorder,” which is commonly abbreviated as "ADD,” also may be referred to in the caselaw and secondary literature as “atténtion-deficit/hyperactivity disorder,” which typically is abbreviated as “ADHD.” The latter name is of more recent vintage and is "the preferred official name” for the condition, though "many authors, speakers, and clinicians still use 'ADD' to describe the disorder.” Stephen P. Hinshaw & Katherine Ellison, ADHD: What Everyone Needs To Know 12 (2016); see also Mark Selikowitz, The Facts: ADHD 14 (2d ed. 2009) (ebook) (describing the shift from ADD to ADHD and noting "a number of name changes attest to the rapid evolution in our understanding of this condition”). "The essential function of Attention-Deficit/Hyperactivity Disorder is a persistent pattern of inattention and/or hyperactivity-impulsivity that is more frequently displayed and more severe than is typically observed in individuals at a comparable level of development....” Am. Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 85 (4th ed., text revision 2000) [hereinafter DSM]; see also Attention-deficit/hyperactivity disorder (ADHD), Encyclopedia Britannica (database updated Sept. 15, 2017) (describing “[a]ttention-deficit/hyperac-tivity disorder (ADHD)” as "a behavioral syndrome characterized by inattention and dis-tractibility, restlessness, inability to sit still, and difficulty concentrating on one thing for any period of time”). In some forms of ADHD, impulsivity is a significant feature. See, e.g., Selikowitz, supra, at 5 (“While some children with the hyperactive-impulsive form of ADHD will have hyperactivity and impul-sivity, some will have only hyperactivity, while others will have only impulsivity.”); DSM, supra, at 87 ("Although many individuals present with symptoms of both inattention and hyperactivity-impulsivity, there are individuals in whom one or the other pattern is predominant.”). However, Dr. Saint Martin testified that he intended for his impulse-control diagnosis to relate to a separate disorder—apart from, and in addition to, attention deficit disorder—which the DSM seemingly contemplates. See R., Vol. Ill, at 131 (testifying, "in the DSM ... not every impulse control disorder can be categorized with specificity, so you have these non-specific types of impulse control disorders and that’s what I [i.e., Dr. Saint Martin] diagnosed”). Specifically, for these "disorders of impulse control that are not classified” elsewhere, the DSM provides the following: "The essential feature of Impulse-Control Disorders is the failure to resist an impulse, drive, or temptation to perform an act that is harmful to the person or to others.” DSM, supra, at 663; see also United States v. McBroom,
. Because Dr. Saint Martin relied on the DSM in formulating his diagnoses regarding Mr. Littlejohn, a few words regarding that publication will contextualize his conclusions. First, though a fifth edition of the DSM was issued in 2013, Dr. Saint Martin did not rely on that edition in testifying in the evidentiary hearing in 2014, nor was it available for him to use in evaluating Mr. Littlejohn in 2005. Dr. Saint Martin had a "problem” with relying on the fifth edition in his testimony because “it ha[d] been out in the world for less than a year and we are really talking about conditions that were diagnosed prior to the time that text came out.” R., Vol. Ill, at 163. Instead, Dr. Saint Martin appears to have relied on the edition of the DSM immediately prior to the fifth in examining Mr. Little-john—viz., the fourth edition, text revision ("DSM-IV-TR”), which was published in July 2000. See id. at 178 (responding to a cross-examination question regarding how "another expert” could check his findings, Dr. Saint Martin said they could "look in ... at the time it would have been DSM-IV-TR”). This edition updated the DSM’s fourth edition, which was published in 1994. Because Dr. Saint Martin relied on the fourth edition, text revision, so do we. We note, moreover, that this edition would have been available at the time of Mr. Littlejohn’s October-November 2000 resentencing.
. Ultimately, the question of whether Mr. Litt-lejohn’s organic-brain-damage evidence could have substantially explained his life of criminal deviance is a mixed question of law and fact with a significant legal component, which we ordinarily review de novo. See, e.g., Supre v. Ricketts,
. In Littlejohn I, we determined that some of these cases were “distinguishable" and that they could not undermine our conclusion that, if true, the mitigation theory and facts that Dr. Saint Martin averred in his declaration could establish prejudice under Strickland.
. For example, unlike the petitioner in Williams, who was "borderline mentally re- ' tarded,” "
. The State argues that "no authority from the United States Supreme Court recognizes ‘cumulative error’ as a separate violation of the federal constitution or as a separate ground for federal habeas relief.” Aplee.’s Br. at 48-49. In Hanson, however, we rejected that precise position. See
. Indeed, we may be constrained by the law-of-the-case doctrine from such a departure when separately analyzing the harmlessness of this first error—as well as the second. See Kennedy v. Lubar,
. Mr. Littlejohn suggests that the "realities” of the case favor a determination of cumulative error: specifically, he says the case involved "a single reactive gunshot” and "jurors were considering life without parole.” Aplt’s Reply Br, at 32. Mr. Littlejohn does not do much to develop this argument in the cumulative-error context and, for that reason, we could deem it waived. See, e.g., Grant,
Concurrence Opinion
concurring.
I concur in the judgment denying Little-john’s habeas petition. I agree Littlejohn suffered no prejudice from his counsel’s failure to develop and present evidence on organic brain damage. And I agree the cumulative effect of the alleged errors did not prejudice Littlejohn. But I write separately to once again express my view from the first habeas appeal that scientific testimony about organic brain damage is not categorically more powerful than other types of mental-health evidence.
I.
The lynchpin of Littlejohn I was that “a more technical presentation of organic brain injury evidence is inherently more persuasive than a more holistic presentation of the kind offered by Dr. Draper.” Littlejohn v. Trammell (Littlejohn. I),
I dissented, arguing the “central flaw in the majority’s analysis is its erection of a categorical invocation of ‘organic brain injury* evidence as different in kind for purposes of a Strickland analysis.” Id. at 878. After all, “some jurors may be swayed by testimony that sounds more technical and scientific; others may be confused or skeptical. It can be a mixed bag.” Id. I therefore believed the majority erred by “giv[ing] a talismanic quality to one type of mental health evidence without any showing that it [was] inherently more persuasive to juries than other evidence....” Id. And because “there are countless ways to provide effective assistance^]” I concluded counsel’s decision to have Dr. Draper testify rather than a psychiatrist like Dr. Saint Martin fell well within the “wide latitude counsel must have in making tactical decisions.” Strickland v. Washington,
II.
The district court’s findings on Dr. Saint Martin’s declaration support this view: Dr. Saint Martin’s scientific-based testimony was no more powerful or persuasive than Dr. Draper’s psychology-based testimony.
This is not surprising given what Dr. Saint Martin said all along. As he stated in his initial declaration, Littlejohn suffered from “a behavioral disorder manifested by poor impulse control, psychological immaturity and judgment that is caused by neu-ro-developmental deficits experiences in his peri-natal development.” R., Vol. 1 at 171. At the evidentiary hearing, Dr. Saint Martin confirmed the declaration by explaining how dysfunction in Littlejohn’s frontal lobes caused his behavioral disorders—specifically, ADD and an impulse-control disorder. All Dr. Saint Martin added at the evidentiary hearing, then, was a formal ADD diagnosis. The fact the majority finds Dr. Saint Martin’s testimony less persuasive than his largely identical declaration thus demonstrates that Littlejohn I did not need to assume that evidence of organic brain damage is intrinsically more powerful than other types of mental-health evidence.
To its credit, the majority adds two caveats to its broad Littlejohn I claim that evidence of organic mental deficits ranks among the “most powerful types” of mitigation evidence. Littlejohn I,
These proceedings demonstrate that evidence of organic brain damage is not categorically more persuasive than other types of mental-health evidence. And mental-health evidence is not necessarily at “the apex of its potency” when presented by a physician rather than a psychologist. Maj. Op. at 571. Jurors are complex, unpredictable, and, above all, different. Some jurors may agree evidence a defendant suffers from organic brain damage is most persuasive when a physician presents it; others may be skeptical of science and persuaded by holistic and less scientific testimony. See Littlejohn I,
Nothing has changed my view that at the penalty phase of a capital trial, a lawyer’s choice to present holistic, psychology-based testimony instead of scientific testimony on organic brain damage is a reasonable strategic choice. In fact, the last chapter of this case proves the point.