Frogge v. Branker

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-19

DANNY DEAN FROGGE,

Petitioner - Appellant,

GERALD J. BRANKER, Warden, Central Prison, Raleigh, North
Carolina,

Respondent - Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:05-cv-00502-NCT-WWD)

Argued: May 16, 2008 Decided: July 15, 2008

Before NIEMEYER, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion. Judge Gregory wrote
a dissenting opinion.

ARGUED: James Patrick Cooney, III, WOMBLE, CARLYLE, SANDRIDGE &
RICE, PLLC, Charlotte, North Carolina, for Appellant. Valerie
Blanche Spalding, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee. ON BRIEF: Don Willey, Jefferson,
North Carolina, for Appellant. Roy Cooper, Attorney General of
North Carolina, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Danny Dean Frogge appeals the district court’s denial of

his federal habeas corpus petition, by which he seeks to have

his North Carolina death sentence vacated. Frogge contends that

he is entitled to such relief on the ground that his trial

counsel was constitutionally ineffective by failing to develop

and present, for sentencing purposes, mitigating evidence of his

permanent organic brain damage. As explained below, we are

constrained to affirm.

It is undisputed that, on the night of November 4, 1994,

Frogge stabbed and killed his father, Robert Edward Frogge, and

his invalid stepmother, Audrey Yvonne Frogge. In 1995, Frogge

was tried and found guilty in the Superior Court of Forsyth

County, North Carolina, on two counts of first-degree murder.

The jury then considered whether Frogge should receive the death

penalty for each of the murders. On the jury’s recommendation,

Frogge was sentenced to life imprisonment for the killing of his

father, and to death for the murder of his stepmother. The

Supreme Court of North Carolina thereafter granted him a new

trial on the ground that inadmissible hearsay had been

3
introduced during the guilt phase of the 1995 trial. See State

v. Frogge, 481 S.E.2d 278 (N.C. 1997).

At Frogge’s second trial in 1998, he was found guilty on

two counts of first-degree murder, as well as an additional

count of robbery with a dangerous weapon. Frogge was sentenced

to life imprisonment for the killing of his father, a concurrent

prison term for the robbery, and, on the jury’s recommendation,

received a death sentence for the murder of his stepmother. At

this trial, the jury had considered the death penalty only with

respect to his stepmother’s murder. Frogge appealed his death

sentence and the robbery conviction, and the state supreme court

affirmed. See State v. Frogge, 528 S.E.2d 893 (N.C. 2000). The

state supreme court summarized the facts of the case as follows:

The State’s evidence at defendant’s second trial
tended to show that defendant stabbed his father and
bedridden stepmother to death. At the time of the
murders, defendant lived with his father and
stepmother at their home in Winston-Salem.
Defendant’s father did not work, and his stepmother
had been confined to her bed for over two years.
Defendant worked part-time and helped around the
house, but paid no rent.

Between 4:00 and 4:30 a.m. on 5 November 1994,
the Winston-Salem Police Department received a 911
call from a person who identified himself as Danny
Frogge. Frogge reported that his parents were dead.
When Winston-Salem police officers arrived at the
scene, they found the bodies of Robert and Audrey
Frogge in their bedroom. Robert Frogge was found on
the floor lying on his left side with bloodstains on

4
his shirt and arms. He had sustained ten stab wounds.
A leather wallet, containing his driver’s license and
miscellaneous papers but no money, was found next to
his body. The wallet, which was lying open, had a
drop and a smear of blood inside. Near the wallet, a
white, bloodstained sock was found. An iron bar from
a lawnmower was found under Robert Frogge’s body.
Audrey Frogge was found in her hospital-type bed with
bloodstains on her chest and arms. She had sustained
eleven stab wounds to her chest. In addition, she
suffered defensive knife wounds to her hand. A
hospital-type rolling table stood beside the bed. Dr.
Patrick Lantz, a forensic pathologist, opined that the
angle of the stab wounds indicated the person stabbing
Audrey Frogge either stood at the edge of the bed
beside the table or climbed on the bed itself to
deliver the blows.

Outside the home near the back porch, the
officers found a bloodstained butcher knife. Just
beyond the edge of the woods behind the house, the
officers found men’s clothing, including a pair of
blue work pants, a pink tee shirt with red stains, a
pair of men’s underwear, and a white sock which
contained bloodstains and blood spatter. The white
sock appeared to match the sock found near Robert
Frogge’s body. The officers also collected several
pairs of white underwear and blue work pants from
defendant’s bedroom which appeared similar to those
found in the woods.

While talking further with the officers that
night, defendant appeared calm and showed no signs of
emotion. In a statement to Winston-Salem Police
Detective Sergeant Dennis Scales, defendant claimed
that on the day of the murders he had been in and out
of the house on numerous occasions taking care of his
stepmother and preparing her supper. After a night of
drinking and crack cocaine use with friends, he
returned to the home at approximately 4:00 a.m. and
found his parents murdered.

5
The State also offered into evidence defendant’s
testimony from the sentencing proceeding of his first
trial. This testimony included the following: On the
day of the murders, defendant worked around the house
and later met with Earl Autrey, Audrey Frogge’s son-
in-law, at approximately 2:00 p.m. The two began
drinking. Defendant went back to his parents’ home to
prepare supper for his stepmother and later returned
to Autrey’s home to continue drinking. Subsequently,
defendant returned to his parents’ home. Defendant
had consumed almost an entire pint of liquor and
several beers. Defendant’s father awoke from a nap
between 8:00 and 8:30 p.m. and began to argue with
defendant about his drinking. Defendant could not
recall what he said to his father; however, his father
became so upset that he took an iron bar from a
lawnmower and jabbed and hit defendant four or five
times. Defendant got up, went to the kitchen, and
retrieved a butcher knife. He recalled stabbing his
father three or four times while his father held the
iron bar. Defendant did not remember stabbing his
stepmother, but admitted that he must have done it.
He then took approximately twenty-five or twenty-six
dollars from his father’s wallet. Defendant attempted
to wash the blood from his hands. He then changed
clothes and threw the soiled clothes in the woods
behind the house. When asked how blood got inside his
father’s wallet, defendant stated that he did not
know, but admitted it might have dropped from his
hand. Defendant left and went to Kim Dunlap’s house.
He and Dunlap then rode with Dunlap’s sister to
downtown Winston-Salem. They used the money defendant
had taken from his father’s wallet to purchase crack
cocaine. After smoking the crack, defendant and
Dunlap returned to defendant’s parents’ home in a
taxicab around 4:00 or 4:30 a.m. Defendant entered
the house, but returned to the taxicab and said that
his parents were dead. He then called the police.

Defendant elected to testify on his own behalf at
his second trial. His testimony was similar to that
given at his first sentencing proceeding. He
testified he served over four years in prison for a
previous second-degree murder conviction and that he

6
saved $ 8,000 to purchase a mobile home where he
resided for six months after his release. Thereafter
he returned to live with his father and stepmother.
Defendant again admitted killing his father and
stepmother and stated that after the murders, he
changed his clothes and washed his hands. His
testimony differed somewhat in that defendant claimed
he did not take the money from his father’s wallet
until after he had washed his hands and was preparing
to leave the house approximately thirty minutes after
the murders. Defendant again admitted purchasing
crack cocaine with the money he took from his father’s
wallet.

Frogge, 528 S.E.2d at 895-96. Following the state supreme

court’s affirmance of Frogge’s death sentence for the murder of

his stepmother, the Supreme Court of the United States denied

Frogge’s petition for writ of certiorari. See Frogge v. North

Carolina, 531 U.S. 994 (2000).

In 2001, Frogge filed a Motion for Appropriate Relief

(“MAR”) in the Superior Court of Forsyth County (the “MAR

court”), alleging, inter alia, ineffective assistance of trial

counsel. The MAR court conducted an evidentiary hearing on the

ineffective assistance issue in August 2002 (the “MAR hearing”).

By its Order of October 29, 2003, the MAR court granted relief

to Frogge, ruling in his favor on the ineffective assistance

claim, thus vacating the death sentence he had received for the

murder of his stepmother and ordering a new sentencing hearing.

7
State v. Frogge, No. 94 CRS 44964 (N.C. Super. Ct. Oct. 29,

2003) (the “MAR Order”).1

As described by the MAR court, Frogge’s ineffective

assistance claim “ar[ose] out of the alleged failure of trial

counsel to investigate and offer evidence that at the time of

the murders the defendant suffered permanent residual effects of

a head injury sustained from a beating in 1990.” MAR Order 8-9.

Frogge maintained that his trial counsel should have arranged

for neurological testing to assess whether the 1990 injury

resulted in permanent organic brain damage and whether such

brain damage contributed to the murders of his father and

stepmother — an inquiry that, according to Frogge, “would have

resulted in an opinion from an adequately qualified expert that

as a result of [a brain damage-related] mental disturbance and

consumption of alcohol, the defendant’s capacity to appreciate

the criminality of his conduct and to conform his conduct to the

requirements of the law was impaired.” Id. at 9 (internal

quotation marks omitted). Frogge further contended

that the failure to investigate, and to offer the
evidence that would (or should) have been developed,
was objectively unreasonable, satisfying the
“performance” prong of the Strickland test. He then

1
The MAR Order is found at J.A. 2124-52. (Our citations to
“J.A. “ refer to the contents of the Joint Appendix filed by
the parties in this appeal.)

8
argue[d] that if the jury at the sentencing stage had
been presented with this evidence, a reasonable
probability exists that the ultimate result —
recommendation of the death penalty — would have been
different, satisfying the “prejudice” prong.

Id. at 9-10 (citing Strickland v. Washington, 466 U.S. 668

(1984)).2

The trial records and the MAR hearing evidence reflected

that Frogge was represented by lead counsel Danny Ferguson and

associate counsel David Freedman at both the 1995 and 1998

trials. During the sentencing phase of the 1995 trial, Frogge’s

sisters testified to changes they observed in Frogge’s

personality after the 1990 beating, and a defense expert,

clinical psychologist Dr. Gary Hoover, opined that the resulting

brain damage contributed to Frogge’s murders of his father and

stepmother. Dr. Hoover’s methodology and opinion were

challenged by the State’s rebuttal expert, neuropsychiatrist Dr.

Stephen I. Kramer, who perceived no link between the head injury

and the murders of Frogge’s parents. At least one juror on the

1995 jury found two statutory mitigating circumstances with

respect to each of the murders: that Frogge was under the

2
In its seminal Strickland decision, the Supreme Court
recognized that an ineffective assistance claim requires showing
(1) “that counsel’s performance was deficient,” and (2) “that
the deficient performance prejudiced the defense.” 466 U.S. at
687.

9
influence of a mental or emotional disturbance at the time of

the offense, see N.C. Gen. Stat. § 15A-2000(f)(2) (the “‘(f)(2)’

mitigator”), and that he suffered from an impaired capacity to

conform his conduct to the requirements of the law, see id.

§ 15A-2000(f)(6) (the “‘(f)(6)’ mitigator”). Thereafter, for

the 1998 trial, Frogge’s counsel replaced Dr. Hoover with

another expert, clinical psychologist Dr. William Tyson, who

testified during the guilt phase — in an attempt to avoid first-

degree murder convictions — that Frogge possibly suffered from a

personality disorder and that he likely had been acting on

impulse with limited ability to reason at the time of the

murders; Dr. Tyson did not mention Frogge’s 1990 head injury or

opine on its effects. The State again presented Dr. Kramer as

its rebuttal expert, and Frogge’s sisters again gave nonexpert

testimony (during the sentencing phase) regarding the head

injury. The 1998 jury did not find either the “(f)(2)”

mitigator or the “(f)(6)” mitigator with respect to the murder

of Frogge’s stepmother.3

3
The jury at the 1995 trial had found four aggravating
circumstances with respect to each of the murders, including
that Frogge had previously been convicted of a violent felony
(i.e., second-degree murder in 1985), that the murders of his
father and stepmother occurred during the commission of a
robbery, that these murders were “especially heinous, atrocious,
or cruel,” and that each murder was part of a course of conduct
in which Frogge engaged in a separate violent crime against

10
In its MAR Order, the MAR court made the following findings

of fact, based on the evidence presented to it:

1. For the 1995 trial, the defendant’s trial
counsel engaged and offered testimony from a
psychologist, Dr. Hoover.

another person. J.A. 669-70, 679-80. The 1995 jury also found
— in addition to the statutory “(f)(2)” and “(f)(6)” mitigators
discussed above — ten other mitigating circumstances regarding
the murder of Frogge’s father: Frogge had been physically and
emotionally abused as a child by his father; had been sold as a
child by his father to another man for purposes of child
molestation; had helped to cook for and look after his father
and stepmother; had committed the murders after being provoked
by his father; had consumed alcohol at the time of the murders;
had been under the influence of alcohol at that time; had a
lengthy history of drug and alcohol abuse; had admitted his
guilt; had made no attempt to flee or evade arrest after the
murders; and had made himself available to the investigating
officers. The jury found six of these additional mitigating
circumstances with respect to the murder of Frogge’s stepmother.
For both murders, the jury concluded that the mitigating
circumstances were insufficient to outweigh the aggravating
ones. The jury recommended the death penalty, however, for only
the murder of Frogge’s stepmother.

The jury at the 1998 trial — which considered the death
penalty with respect to only the stepmother’s murder — found the
same four aggravating circumstances that had been found by the
1995 jury. The 1998 jury also found the following six
mitigating circumstances: that Frogge had been physically and
emotionally abused as a child by his father; had, during his
childhood, repeatedly watched his father physically,
emotionally, and sexually abuse his mother and sisters; had a
lengthy history of drug and alcohol abuse; had admitted his
guilt; had adjusted well to being in custody; and had made
himself available to the investigating officers. Of course, as
a prerequisite to its recommendation of the death penalty, the
jury also found that the mitigating circumstances were
insufficient to outweigh the aggravating circumstances.

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2. Dr. Hoover testified in the form of opinion
that at the time of the homicides in 1994, the
defendant suffered from “[d]elirium due to multiple
etiologies, substance intoxication delirium, alcohol
[sic] and mood disorder due to postconcussive
disorder.”

3. Dr. Hoover described the latter as “the
aftermath of a head injury that [Frogge] sustained in
1990 that left him with residual mood difficulties and
cognitive functions, intellectual skills . . . [that]
caused him to have episodic seizures, slurred speech
and increased irritability, more withdrawn type of
personality, episodes of paranoia over the years.”

4. In Dr. Hoover’s opinion, the “postconcussive”
disorder combined with substance-induced delirium to
produce explosive rage provoked by the defendant’s
father.

5. Dr. Hoover based his diagnosis in part on
“known” correlation between “residual behavioral
difficulties” and head injuries, and the descriptions
provided to him of marked differences in the
defendant’s behavior after the injury.

6. During cross-examination, Dr. Hoover admitted
that he had done no neurological or neuropsychological
testing of the defendant, stating that medical records
and behavioral information provided were sufficient
for the “diagnosis.”

7. The State offered rebuttal expert testimony
from Dr. [K]ramer, a neuropsychiatrist, who disagreed
with Dr. Hoover’s opinion concerning “delirium.”

8. Dr. [K]ramer said that Dr. Hoover’s
conclusions were “not supported,” and lacked “data.”

9. Dr. [K]ramer’s own review of the medical
records concerning the 1990 head injury did not
support a conclusion that it had any effect on the
defendant in 1994.

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10. Dr. [K]ramer testified that tests could have
been done on the defendant to determine whether the
head injury contributed to the homicides in 1994, but
that none were done.

11. At the 1995 sentencing phase, the “(f)(2)”
and “(f)(6)” mitigators were submitted to the jury,
and were found by at least one juror; however, with
respect to the murder of Audrey Frogge, the jury did
not find that the mitigating factors found outweighed
the aggravating factors, and recommended death.

12. For the 1998 trial, defense counsel elected
not to use Dr. Hoover again, and engaged another
psychologist, Dr. Tyson.

13. During the 1998 trial, Dr. Tyson testified
that at the time of the homicides, the defendant
suffered from a “personality disorder . . . defined as
a pervasive limitation to adult functioning that had
been aggravated by long term substance abuse and
dependence,” as a result of which “it was most likely
he would have been acting on impulse with limited
ability to reason.”

14. Dr. Tyson did not perform or request any
neurological or neuropsychological tests on the
defendant, and none were done. His diagnosis was not
supported by reliance on any such tests, review of
medical records concerning the 1990 head injury or
descriptions by family and friends of changes in the
defendant’s behavior after that injury.

15. Lay witnesses who testified during the 1998
trial described changes in the defendant’s behavior
after the 1990 head injury.

16. During the 1998 sentencing phase, which
pertained only to the Audrey Frogge murder, the
“(f)(2)” and “(f)(6)” mitigators were submitted to the
jury, but neither was found, and the jury again
recommended death.

13
17. Trial counsel decided not to use Dr. Hoover
in favor of Dr. Tyson because of dissatisfaction with
Dr. Hoover and respect for Dr. Tyson’s abilities.

18. Claudia R. Coleman, Ph.D., a psychologist
specializing in neuropsychology and forensic
psychology, reviewed various written materials
concerning the defendant and conducted physical and
other examinations of the defendant in preparation for
the MAR hearing.

19. Among the materials reviewed by Dr. Coleman
were portions of the record of the 1995 and [1998]
trials (including testimony of Drs. Hoover, [K]ramer
and Tyson), the defendant’s criminal record and
affidavits from family members and friends. She also
reviewed a psychological report done by Dr. Tyson in
1998 and medical records that included information
about the 1990 head injury.

20. Dr. Coleman also personally met with the
defendant twice, and performed a neuropsychological
evaluation to determine if he suffered residual
deficits from the head injury.

21. Dr. Coleman testified that the defendant
suffered a closed head injury, that he spent several
days in the hospital, that he was “in and out” of
clear mental status during that time, that at
discharge he had speech and memory problems, that he
became “more explosive” and was more “easily
agitated,” that he had a lower tolerance for
frustration, that he became more withdrawn, and that
he became “quite paranoid and fearful of others.”

22. Dr. Coleman administered several tests on
the defendant, including the Weschler Adult
Intelligence Scale, the Weschler Memory Scale and the
Rhey Auditory Verbal Learning Test. She also tested
motor, visual, spatial and language skills, and
performed brain injury-specific tests. She also
administered tests to detect evidence of malingering.

23. Dr. Coleman observed that the defendant did
well on some of the tests, and poorly on others,

14
particularly in verbal and visual memory processes.
She considered these results to be consistent with
brain injury in the temporoparietal area, which was
the area involved in the 1990 head injury.

24. Based on her review of the materials
provided to her, her examination of the defendant,
including test results, and her education and
training, Dr. Coleman diagnosed the defendant with
“cognitive disorder NOS [not otherwise specified],”
personality disorder, combined type, with paranoid and
aggressive features, and with “polysubstance
dependence.” The cognitive and personality disorders
were causally linked to the head injury.

25. Dr. Coleman formed an opinion that the
residual effects of the defendant’s brain injury in
1990 significantly affected his behavior at the time
of the Audrey Frogge murder. She concluded that these
effects made it more difficult for the defendant to
control his emotions and impulses, and to consider the
consequences of his conduct.

26. In Dr. Coleman’s opinion, at the time of the
Audrey Frogge murder, partially as a result of the
brain injury, the defendant suffered from diminished
capacity fully to weigh and understand the
consequences of his actions. She further determined
that he committed the murder while under the influence
of such conditions and that his ability to appreciate
the criminality of his conduct and conform that
conduct to the requirements of law was impaired.

27. Thomas M. Hyde, M.D., Ph.D., a neurologist,
conducted a neurological evaluation of the defendant
in June 2002, and reviewed Dr. Coleman’s report,
affidavits, hospital records and a portion of trial
transcript. He observed several abnormalities,
including attention and visual deficits, motor
weakness and clumsiness. He concluded that the
defendant has organic brain damage, referable to the
frontal and parietal lobes, resulting from the 1990
head injury. In his opinion, the defendant had a
significant closed head injury in 1990 that produced
permanent and irreversible brain damage, which under

15
extreme distress would lead him to act impulsively,
with impaired judgment, reasoning and impulse control.

28. If the defendant’s trial counsel had been
aware of Dr. Hyde’s opinions in 1998, and if Dr. Hyde
were available as a witness and counsel was otherwise
satisfied that Dr. Hyde was a credible expert, he
would have used Dr. Hyde’s opinion at trial.

MAR Order 10-16 (internal citations omitted) (some alterations

in original).

Turning to the performance prong of the Strickland

analysis, the MAR court focused heavily on two decisions:

Wiggins v. Smith, 539 U.S. 510 (2003) (concluding petitioner

entitled to habeas corpus relief based on counsel’s failure to

investigate and present available mitigating evidence), and

Byram v. Ozmint, 339 F.3d 203 (4th Cir. 2003) (distinguishing

Wiggins and finding no ineffective assistance, where counsel

conducted thorough investigation and made strategic decision not

to present potentially damaging evidence). See MAR Order 19-22.

The MAR court concluded that

[t]he circumstances here are more similar to Wiggins
than to Byram. Counsel knew of Frogge’s head injury,
but did not investigate with the assistance of expert
consultation the potential mitigation evidence of
“organic brain damage” and its effects on his ability
to control violent impulses. Counsel here had the
“benefit” of Dr. [K]ramer’s criticism of Dr. Hooper’s
testimony in the 1995 trial — the “roadmap” that post-
conviction counsel now say was available. While true
that the effects of Frogge’s head injury include anti-
social behavior that could be damaging to his case,
trial counsel’s failure to investigate was not

16
influenced by that circumstance. Like trial counsel
in Wiggins, Frogge’s trial counsel turned their focus
to other concerns, and were “inattentive” to the
potential mitigating evidence arising out of the head
injury. Frogge had the benefit of good lawyers with
experience in capital cases, but Wiggins compels the
conclusion that their failure to pursue the evidence
of organic brain injury as has now been done in post-
conviction proceedings was objectively unreasonable.
From the evidence, applying applicable case law, this
Court concludes that the defendant has met the burden
of proof on the performance prong of the Strickland
test.

Id. at 22-23. Next, with respect to the prejudice prong of the

Strickland analysis, the MAR court determined that,

“[c]onsidering all of the circumstances, . . . the evidence of

the effects of organic brain injury is of such nature and

potential persuasive effect that the lack of it due to

ineffective assistance undermines confidence in the fairness of

the 1998 sentencing phase.” Id. at 29. Accordingly, the MAR

court ruled that “[t]he MAR for a new sentencing hearing should

be granted.” Id.

The State appealed the MAR Order to the Supreme Court of

North Carolina. By its decision of February 4, 2005, the state

supreme court reversed the MAR court and reinstated Frogge’s

death sentence. See State v. Frogge, 607 S.E.2d 627 (N.C. 2005)

(the “State Decision”). In so doing, the state supreme court

recognized that, in reviewing the MAR Order, the relevant

17
questions were “whether the findings of fact are supported by

evidence, whether the findings of fact support the conclusions

of law, and whether the conclusions of law support the order

entered by the [MAR] court.” Id. at 634 (internal quotation

marks omitted). The state supreme court ultimately reversed the

MAR court by finding fault with its analysis on the performance

prong of the Strickland test, without reaching the prejudice

prong. Id. at 637.

The state supreme court began its State Decision by

reviewing the relevant factual and procedural history — covering

the 1995 trial, the 1998 trial, and the MAR court proceeding.

See Frogge, 607 S.E.2d at 628-33. In substantial part, the

state supreme court focused on matters beyond those discussed in

the MAR Order. For instance, essential to its State Decision,

the state supreme court observed the following with respect to

the pretrial investigatory efforts made by Frogge’s lawyers:

[W]hile preparing for defendant’s second trial,
defense counsel provided Dr. Tyson with their entire
discovery file; advised him as to defendant’s head
injury, the resulting perceived changes in his
personality, and the significance that family members
placed on the injury; and made available to him
defendant’s medical records. The material supplied to
Dr. Tyson also included the testimony given at [the
1995 trial] by Drs. Hoover and Kramer, and attorney
Freedman believed that Dr. Tyson testified in [the
1998 trial] that he had reviewed this testimony. Even
possessing this information, Dr. Tyson advised

18
attorney Ferguson that he would not change his
diagnosis.

In deciding prior to [the 1998 trial] whether to
pursue evidence of defendant’s head injury as
potentially mitigating evidence, defense counsel
testified that they depended on Dr. Tyson’s expertise.
Although attorney Ferguson acknowledged during the MAR
hearing that he knew Dr. Tyson was not a neurologist
or neuropsychologist and could not render neurological
opinions, he added, “I think he had the ability to
tell me that if it was significant where we should go
next. And he didn’t indicate that there was any
significance, that [the head injury] was significant.
So, I relied on what he said.” When cross-examined,
attorney Ferguson reaffirmed that he depended on Dr.
Tyson’s informed opinion:

Q. Now, I think you made it clear this
morning, I just want to be sure, that you
advised Doctor Tyson, or discussed with him
more than once, the concerns of the family
members about the personality changes they
observed in the Defendant after the beating
in 1990, is that correct?

A. Yes.

Q. And you asked him whether that was
significant, in his opinion?

A. Yes.

Q. And he was firm on saying no, it
would not change my diagnosis, was he not?

A. Yes.

Q. And you felt entitled to rely on
the superior knowledge of an expert?

A. That’s correct.

Attorney Ferguson reemphasized the point during a
similar exchange later in the hearing:

19
Q. Doctor Tyson did not specifically
focus on the head injury, did he?

A. No, and as I’ve said earlier, he
was told about it, provided the information,
and did not deem it significant.

Q. Yes, sir. And yet he made that
decision without [the] benefit of any type
of neurological or neuropsychological
testing?

A. Yes, sir, I assume that he had the
— at least the qualifications to make that
decision, whether neurological testing might
be needed; and he was much more qualified to
make that decision than I was, and [w]e
relied on his opinion.

All this testimony indicates that defense counsel
relied both on Dr. Tyson’s diagnosis of defendant’s
condition and on his informed opinion that additional
testing or experts were not needed.

Id. at 632-33 (some alterations in original).

Turning to its analysis of Frogge’s ineffective assistance

claim, and invoking the Supreme Court’s decisions in Strickland

and Wiggins, the state supreme court emphasized the proposition

that a court must “review counsel’s[] decisions in light of the

information available to them at the time and not with the

benefit of hindsight.” Frogge, 607 S.E.2d at 634 (citing

Wiggins, 539 U.S. at 523; Strickland, 466 U.S. at 689). The

state supreme court then observed

that counsel had numerous pertinent factors to
consider as they decided their strategy for

20
defendant’s second sentencing proceeding. First,
defendant had committed a murder prior to suffering
the head injury. Second, graphic lay evidence of
defendant’s 1990 head injury and its sequelae had been
presented through his sisters and others close to him
at the [1995] trial and would be presented again.
Third, at the [1995] sentencing proceeding, Dr. Hoover
had presented an expert psychological opinion that
took into account both defendant’s head injury and his
background. The sentencing jury, having heard that
evidence, returned a capital verdict. Fourth, Dr.
Kramer criticized Dr. Hoover for failing to conduct
additional psychological testing that might determine
whether defendant’s head injury was a contributing
factor to the murders. However, Dr. Kramer went on to
state that, in his opinion, the 1990 injury was of
mild to moderate severity and defendant’s prognosis on
discharge was good, implying that the additional
psychological testing was unlikely to bear fruit. Dr.
Kramer did not indicate that in preparation for trial
defendant should have been tested for organic brain
damage or neurological harm resulting from the 1990
head injury. Fifth, defense counsel were dissatisfied
with Dr. Hoover’s performance in [the 1995 trial] and
replaced him with Dr. Tyson, who had been an effective
witness in the past for attorney Freedman. When
supplied with defendant’s medical and social histories
and with transcripts of the proceedings in [the 1995
trial], Dr. Tyson stood by his opinion that defendant
suffered from a personality disorder and, at the time
of the murders, was acting on impulse with limited
ability to reason.

Id. at 634-35. After outlining these factors, the state supreme

court recognized that “we must now decide whether, under

Wiggins, the trial court properly concluded that defense

counsel’s decision not to pursue evidence of organic brain

damage through neurological testing was objectively unreasonable

21
and undermined confidence in the verdict.” Id. at 635. The

state supreme court engaged in this assessment as follows:

The test in Wiggins is whether a strategic
decision was made after sufficient investigation, not
whether that decision was later proven to be correct.
Unlike counsel in Wiggins, who abandoned the idea of
pursuing a defense based on mitigation after reviewing
only a psychological report, [social services]
records, and a presentence investigation report,
defense counsel here interviewed defendant and his
siblings and obtained defendant’s school records,
hospital records, correctional systems records, and
psychological reports. Thus, defendant’s counsel
cannot be said to have “acquired only rudimentary
knowledge of [defendant’s] history from a narrow set
of sources.” Wiggins, 539 U.S. at 524. Defendant’s
attorneys also had the benefit of watching the first
trial unfold and seeing what worked and what did not.
Specifically, a defense which took defendant’s head
injury into account had been unsuccessful. By the
time defense counsel were preparing for defendant’s
second trial, they had consulted two mental health
experts, Drs. Hoover and Tyson, both of whom had full
access to defendant, his family, and the pertinent
medical records of defendant’s head injury, and
neither of whom recommended neurological testing.

In addition, defense counsel testified that they
depended on Dr. Tyson to advise them whether or not
additional testing of defendant was needed but that,
after receiving all the information from the first
trial, Dr. Tyson stuck by his original diagnosis of
defendant. This testimony indicates that defense
counsel were prepared to seek such testing if they had
adequate reason to believe it was necessary or would
be useful.

Frogge, 607 S.E.2d at 635. Finally, after surveying decisions

in what it deemed to be analogous cases, the state supreme court

concluded as follows:

22
[W]here the record demonstrates (1) defense counsel
fully investigated defendant’s social and medical
history and provided that information to Drs. Hoover
and Tyson, (2) neither expert indicated to counsel a
necessity for neurological testing, and (3) counsel
relied on their experts as they made the difficult but
necessary choices as to which theory of defense to
pursue, we are unwilling to find that the decisions of
defendant’s attorneys constituted ineffective
assistance of counsel or represented inattention to
other possible defenses. Accordingly, we conclude
that defense counsel did not prematurely abandon a
defense based on organic brain damage and that their
election to pursue a defense predicated on other
grounds constituted a “‘reasonable professional
judgment[].’” Wiggins, 539 U.S. at 533 (quoting
Strickland, 466 U.S. at 691).

Frogge, 607 S.E.2d at 637 (second alteration in original).

Thus, without reaching the prejudice prong of the Strickland

test, the state supreme court reversed the MAR court and

reinstated Frogge’s death sentence. Id. at 637-38.

In June 2005, Frogge filed his federal habeas corpus

petition in the Middle District of North Carolina, asserting,

inter alia, his ineffective assistance claim, by which he

challenges his death sentence. On March 28, 2006, the

magistrate judge recommended that Frogge’s petition be denied.

See Frogge v. Polk, No. 1:05-cv-00502 (M.D.N.C. Mar. 28, 2006)

23
(the “Recommendation”).4 With respect to the ineffective

assistance claim, the magistrate judge concluded that

[a] review of the record supports the ruling of the
North Carolina Supreme Court; trial counsel’s decision
not to pursue evidence of organic brain damage through
neurological testing was not contrary to or an
unreasonable application of Strickland or its progeny.
There is no requirement to ‘shop around’ for a more
favorable expert opinion and the hindsight of a later
obtained diagnosis does not render representation
ineffective. Even assuming arguendo that this court
in its independent judgment believed that trial
counsel were in error for failing to pursue
neurological testing, the deferential standard of
review under the [1996 Antiterrorism and Effective
Death Penalty Act] precludes relief. As noted, the
North Carolina Supreme Court’s decision is neither
unreasonable nor substantially different from relevant
United States Supreme Court precedent. [Frogge’s
ineffective assistance claim] should, therefore, be
denied.

Recommendation 19-20 (internal citations omitted). On June 5,

2006, the district court summarily adopted the Recommendation in

a two-page Order, thus rejecting Frogge’s ineffective assistance

claim and denying his federal habeas corpus petition. See

Frogge v. Polk, No. 1:05-cv-00502 (M.D.N.C. June 5, 2006).5 The

district court also denied Frogge a certificate of appealability

(“COA”).6 On February 22, 2008, however, we granted Frogge a COA

4
The magistrate judge’s Recommendation is found at J.A.
2325-49.
5
The district court’s Order is found at J.A. 2359-60.
6
By its Order, the district court sua sponte denied Frogge a

24
on his ineffective assistance claim. We possess jurisdiction

over Frogge’s appeal pursuant to 28 U.S.C. §§ 1291 and 2253.

COA. Frogge thereafter filed a motion to alter or amend
judgment. On July 19, 2006, the magistrate judge recommended
that the motion be denied with respect to Frogge’s request
therein to revisit the merits of his ineffective assistance
claim, but granted with respect to his request to delete the
denial of the COA and replace it with language recognizing
Frogge’s right to seek a COA within thirty days. On October 24,
2007, the district court adopted the magistrate judge’s
recommendations. Frogge then filed an application in the
district court for a COA, which was rejected by the district
court on December 22, 2007.

25
II.

We review de novo a district court’s denial of federal

habeas corpus relief on the basis of a state court record. See

Tucker v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003). Because

the Supreme Court of North Carolina adjudicated Frogge’s habeas

corpus claim on the merits, the State Decision is entitled to

deference pursuant to the 1996 Antiterrorism and Effective Death

Penalty Act (“AEDPA”). See 28 U.S.C. § 2254(d). Under AEDPA,

we may award relief only if (1) the state court adjudication of

the issue on its merits “resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the United States”; or (2) the adjudication “resulted in a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.” Id. State court factual determinations are

presumed to be correct and may be rebutted only by clear and

convincing evidence. Id. § 2254(e)(1).

III.

Frogge contends that we should vacate his death sentence

under 28 U.S.C. § 2254(d), because the State Decision “involved

an unreasonable application of” Supreme Court precedent — in

26
that the state supreme court “identifie[d] the correct governing

legal principle from [the Supreme] Court’s decisions but

unreasonably applie[d] that principle to the facts of” his case,

Williams v. Taylor, 529 U.S. 362, 413 (2000) — and also because

the State Decision “was based on an unreasonable determination

of the facts in light of the evidence presented in the” MAR

court proceeding. As discussed above, the state supreme court

reversed the MAR court by finding fault with its analysis on the

performance prong of the Strickland test, without reaching the

prejudice prong. See Strickland v. Washington, 466 U.S. 668,

687 (1984) (recognizing that an ineffective assistance claim

requires showing (1) “that counsel’s performance was deficient,”

and (2) “that the deficient performance prejudiced the

defense”). In so doing, the state supreme court largely relied

on the Strickland analysis in Wiggins v. Smith, 539 U.S. 510

(2003). See State v. Frogge, 607 S.E.2d 627, 635 (N.C. 2005)

(observing that “[t]he test in Wiggins is whether a strategic

decision was made after sufficient investigation, not whether

that decision was later proven to be correct”).

The state supreme court concluded, in short, that trial

counsel’s decision to abandon further pursuit of evidence of

Frogge’s permanent organic brain damage was not the result of an

insufficient investigation. Rather, the court ruled that

27
counsel exercised reasonable professional judgment by “fully

investigat[ing] defendant’s social and medical history” —

alerting counsel to the 1990 head injury — “and provid[ing] that

information” to defense experts Dr. Hoover (for the 1995 trial)

and Dr. Tyson (for the 1998 trial). Frogge, 607 S.E.2d at 637.

When “neither expert indicated to counsel a necessity for

neurological testing,” it was then reasonable for “counsel [to

rely] on their experts as they made the difficult but necessary

choices as to which theory of defense to pursue.” Id. Indeed,

as the supreme court recognized, counsel did not know at the

time they were preparing for the 1998 trial whether — as Dr.

Hoover had testified at the 1995 trial without having performed

neurological tests — Frogge truly suffered from permanent

organic brain damage which contributed to the murders of his

father and stepmother. Dr. Hoover’s testimony had been

discredited by the State’s expert, Dr. Kramer, who himself had

opined that there was no link between the head injury and the

murders. Thereafter, counsel provided information to Dr. Tyson

about the head injury, and Tyson convinced them that no

additional testing or experts were needed.

In seeking federal habeas corpus relief, Frogge asserts

that his trial counsel provided constitutionally ineffective

assistance at the 1998 trial by: relying on Dr. Tyson, who was

28
neither a medical doctor (much less a neurologist) nor qualified

to perform neurological or neuropsychological tests; allowing a

long delay between the grant of the retrial (on March 7, 1997)

and Dr. Tyson’s two examinations of Frogge (on February 16 and

March 9, 1998); receiving Dr. Tyson’s report on March 12, 1998,

just two days before the new trial began (on March 14, 1998) and

two weeks before Tyson testified (on March 26, 1998); advising

Dr. Tyson of the head injury only after February 16, 1998;7 and

failing to actually provide Dr. Tyson with — rather than merely

offering to make available to him — pertinent documents,

including head injury-related medical records and statements

from Frogge’s family members. According to Frogge, “the

circumstances surrounding Dr. Tyson’s selection and evaluation

lead to only one reasonable conclusion: defense counsel’s

failure to discover this evidence [of permanent organic brain

damage] was the result of inattention and neglect, not ‘sound,

evidence-based judgment.’” Br. of Appellant 31 (quoting Meyer

v. Branker, 506 F.3d 358, 371 (4th Cir. 2007) (recognizing that

“the touchstone of effective representation must be sound,

7
Lead counsel Ferguson testified at the MAR hearing that he
“remember[ed] calling Doctor Tyson, who had already conducted
some . . . testing and done an evaluation, or was in the process
of doing an evaluation, and telling Doctor Tyson that this [head
injury] might be significant, and asking him did I need to do
anything. How did that affect his evaluation?” J.A. 1875.

29
evidence-based judgment, rather than a set of mandates counsel

must programmatically follow without deviation”)).

Unfortunately for Frogge, although we might be inclined to

rule favorably on his ineffective assistance claim if we were

assessing it under a less deferential standard of review, we

cannot say that the State Decision “involved an unreasonable

application of” Supreme Court precedent, as required by AEDPA to

grant federal habeas corpus relief. 28 U.S.C. § 2254(d); see

also Williams, 529 U.S. at 409 (“Stated simply, a federal habeas

court making the ‘unreasonable application’ inquiry should ask

whether the state court’s application of clearly established

federal law was objectively unreasonable.”). The relevant

precedent certainly includes Strickland and Wiggins, in which

the Supreme Court instructed:

“[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.
In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that
makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to
investigate must be directly assessed for
reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgments.”

Wiggins, 539 U.S. at 521-22 (quoting Strickland, 466 U.S. at

690-91). The Wiggins Court further explained that, “[i]n

30
assessing the reasonableness of an attorney’s investigation, . .

. a court must consider not only the quantum of evidence already

known to counsel, but also whether the known evidence would lead

a reasonable attorney to investigate further.” Id. at 527.

In the circumstances presented here, it was not objectively

unreasonable for the state supreme court to determine, in

reliance on Strickland and Wiggins, that Frogge’s trial counsel

made a valid strategic choice not to further pursue evidence of

permanent organic brain damage once they informed Dr. Tyson

about the 1990 head injury and he declined to recommend

additional testing or experts. Cf. Wilson v. Greene, 155 F.3d

396, 403 (4th Cir. 1998) (observing that, where counsel had

received psychologist’s report opining that defendant was not

mentally ill at time of offense, “counsel was not required to

second-guess the contents of this report,” but rather

“understandably decided not to spend valuable time pursuing what

appeared to be an unfruitful line of investigation” (internal

quotation marks omitted)). We conclude that the State Decision

was not objectively unreasonable despite the known lack of

qualifications on the part of Dr. Tyson to perform neurological

or neuropsychological tests; that is, it was not objectively

unreasonable for the state supreme court to accept counsel’s MAR

hearing testimony that they believed Dr. Tyson at least

31
possessed the ability to determine whether such testing was

necessary and justifiably relied on his view in this regard. We

also conclude that the State Decision was not objectively

unreasonable regardless of the circumstances of Dr. Tyson’s

evaluation of Frogge and consultation with counsel — including

the timing thereof — which Frogge has not sufficiently shown to

have influenced Dr. Tyson’s expert opinion and advice.

In addition to rejecting the proposition that the State

Decision “involved an unreasonable application of” Supreme Court

precedent, we also cannot say that the State Decision “was based

on an unreasonable determination of the facts in light of the

evidence presented in the” MAR court proceeding. 28 U.S.C.

§ 2254(d); see also Wiggins, 539 U.S. at 528 (recognizing that a

clear factual error “reflects ‘an unreasonable determination of

the facts’” under § 2254(d), and that, in the particular

circumstances before it, the state court’s “partial reliance on

an erroneous factual finding further highlight[ed] the

unreasonableness of the state court’s decision”). Frogge

attacks several aspects of the state supreme court’s

characterization of the facts, including the following

observations:

• “[D]efense counsel provided Dr. Tyson with their
entire discovery file . . . and made available to

32
him defendant’s medical records,” Frogge, 607
S.E.2d at 632;

• “The material supplied to Dr. Tyson also included
the testimony given at [the 1995 trial] by Drs.
Hoover and Kramer, and attorney Freedman believed
that Dr. Tyson testified in [the 1998 trial] that
he had reviewed this testimony,” id.; and

• “By the time defense counsel were preparing for
defendant’s second trial, they had consulted two
mental health experts, Drs. Hoover and Tyson,
both of whom had full access to defendant, his
family, and the pertinent medical records of
defendant’s head injury, and neither of whom
recommended neurological testing,” id. at 635
(emphasis added).

According to Frogge, these observations reflect that the state

supreme court based its State Decision on the erroneous

propositions that counsel had actually provided Dr. Tyson with

pertinent documents, including head injury-related medical

records and statements from Frogge’s family members, and that

Dr. Tyson had reviewed all of the 1995 trial testimony of Drs.

Hoover and Kramer. Frogge asserts that, in fact, Dr. Tyson did

not receive copies of the medical records and family member

statements, and his own testimony at the 1998 trial indicated

that he did not fully review the 1995 expert testimony.

Although we can understand how one might interpret the somewhat

ambiguous State Decision as Frogge has, a close reading reflects

that the state supreme court merely observed (with support in

the record) that counsel provided Dr. Tyson with an undefined

33
“discovery file” and the expert testimony from the 1995 trial;

told him about the 1990 head injury, thereby providing him with

the relevant information; and made available to him pertinent

medical records and family member statements. The state supreme

court further observed that counsel believed Dr. Tyson reviewed

the 1995 expert testimony, and that counsel decided not to

pursue the permanent organic brain damage evidence after

informing Dr. Tyson of the head injury and being advised by him

that no further testing or experts were needed. The state

supreme court did not aver that counsel actually provided Dr.

Tyson with the medical records and family member statements, or

that Dr. Tyson fully reviewed the 1995 expert testimony.

Accordingly, the state supreme court made no clear factual

errors.

Finally, Frogge takes issue with the state supreme court’s

suggestion that counsel’s decision to forego testing for

permanent organic brain damage was informed, at least in part,

by the “failure” of the head injury defense in the 1995 trial.

See, e.g., Frogge, 607 S.E.2d at 635 (observing that, in

preparing for the 1998 trial, counsel “had the benefit of

watching the first trial unfold and seeing what worked and what

did not[, including the unsuccessful] defense which took

defendant’s head injury into account”). Although we agree with

34
Frogge that the record does not support the proposition that

counsel’s 1998 trial strategy was based on the failure of the

1995 head injury defense, any contrary suggestion by the state

supreme court is not ultimately necessary to its bottom-line

conclusion that counsel reasonably relied on the advice of Dr.

Tyson.

IV.

Pursuant to the foregoing, we must affirm the Order of the

district court denying Frogge’s petition for federal habeas

corpus relief.

AFFIRMED

35
GREGORY, Circuit Judge, dissenting:

Because “[d]eath is different[,]” Gregg v. Georgia, 428

U.S. 153, 188 (1976), an attorney’s failure to present

mitigating evidence in a capital case takes on heightened

significance. Strickland v. Washington, 466 U.S. 668 (1984).

While my colleagues provide a thorough recitation of the facts,

they fall short in applying the Sixth Amendment, which

guarantees every defendant effective assistance of counsel. Id.

Strickland and its progeny establish that trial counsel is

constitutionally obligated to provide effective assistance and

to comport with prevailing professional norms. Id. Counsel

must also investigate and introduce mitigating evidence unless

he or she could “reasonably surmise” that evidence “would be of

little help.” Id. at 699; Wiggins v. Smith, 539 U.S. at 525

(holding that counsel’s failure to investigate mitigation

evidence was ineffective but noting that further investigation

is excusable where counsel has evidence suggesting it would be

fruitless). In capital cases where a defendant does not claim

actual innocence and the jury only has one choice – life

imprisonment or death, counsel’s sole role is to advocate

effectively for a life sentence.

Here, defense counsel (“David Freedman” and “Danny

Ferguson,” collectively “defense counsel”) knew that before

36
murdering his father, Robert, and step-mother, Audrey, Frogge

suffered a subdural hematoma and a subarachnoid hemorrhage to

his brain, significantly altering his personality and ability to

function. Specifically, Frogge had speech problems, memory

problems, and exhibited personality changes. He became more

fearful, anxious, paranoid, easily agitated, and explosive. In

Frogge’s first trial (“Frogge I”), defense counsel secured

Dr. Hoover, a neuropsychologist, to testify that the brain

injury induced Frogge’s violent actions. But in Frogge’s second

trial (“Frogge II”) defense counsel did not introduce the brain

injury or seek neurological testing from an expert qualified to

evaluate the extent to which that injury affected Frogge. The

Superior Court of Forsyth County’s (“MAR Court”) held that

defense counsel’s failure to conduct neurological testing and

introduce Frogge’s brain injury was ineffective assistance of

counsel. The North Carolina Supreme Court reversed the MAR

Court and found that defense counsel’s failure to do so was a

sound and strategic trial tactic. When “directly assessed for

reasonableness in all the circumstances,” this holding is

untenable. Wiggins, 539 U.S. at 533 (quoting Strickland, 466

U.S. at 690-91).

In my view, one cannot, on this record, “reasonably

surmise” that the evidence of Frogge’s organic brain damage

37
would have been of “little help.” Hence, my principal concern

is not whether counsel should have presented a mitigation case,

but rather whether counsel’s failure to seek neurological

testing from an expert qualified to evaluate conditions known to

exist was itself reasonable. Wiggins, 539 U.S. at 523. As the

majority, remarkably answers this question affirmatively, I must

dissent.

The Supreme Court, in Wiggins, held that it is

constitutionally ineffective for counsel not to investigate and

introduce mitigating evidence of a defendant’s social

background. 539 U.S. at 525. Although aware of Wiggins’s

unfortunate childhood, counsel in Wiggins did not investigate

his family and social history, which revealed that he was

abused, and had limited intellectual capacities and a childlike

emotional state. Id. at 516. The post-conviction court

concluded that the decision not to investigate was strategic

and, thus, not ineffective. Id. at 519; see also Strickland, at

690-91 (“Strategic choices made after thorough investigations

are virtually unchallengeable; and strategic choices made after

less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the

38
limitations on investigation”). The Supreme Court resoundingly

rejected the post-conviction court’s holding, concluding that

the investigation was inadequate and a reasonable competent

attorney would have realized that pursing those leads was

necessary to making an informed choice among possible defenses.

Id. at 526, 534.

Similarly in Rompilla v. Beard, 545 U.S. 374 (2005), the

Supreme Court found Rompilla’s counsel ineffective for failing

to review Rompilla’s court file and to present significant

mitigating evidence about Rompilla’s childhood, mental capacity,

alcoholism, and prior conviction. Id. Noting that counsel

unreasonably relied on family members and medical experts to

tell them what records might be useful in Rompilla’s mitigation

case, the Court stated: “[t]here is no need to say more,

however, for a further point is clear and dispositive: the

lawyers were deficient in failing to examine the court file on

Rompilla’s prior conviction.” Id. at 383.

II.

Here, the majority upholds the State Supreme Court’s

objectively unreasonable application of Strickland’s principles.

The State Supreme Court reversed the MAR Court on the basis

that: (1) defense counsel conducted more than a sufficient

39
investigation; and (2) it was a sound strategic defense to rely

on expert opinion since the expert, Dr. Tyson, had Frogge’s

medical records and Frogge I transcripts. The record does not

support either holding.

To their credit, defense counsel in Frogge I did

investigate and present a persuasive mitigation case. But see

Wiggins, 539 U.S. at 524 (noting that counsel abandoned their

investigation of Wiggins’s background after having acquired only

rudimentary knowledge of his history from a narrow set of

sources.). However, for Frogge II, where the only salient issue

was whether Frogge would receive a death sentence for

Audrey Frogge’s murder, defense counsel clearly demonstrated a

lack of attention to investigating and presenting critical

mitigation evidence in a capital case.

In Frogge I, State expert, Dr. Kramer, undercut

Dr. Hoover’s opinion primarily on the basis that Dr. Hoover did

not conduct neurological testing in support of his opinion that

Frogge’s brain injury was permanent and affected his mental

capabilities. Because, in their view, Dr. Hoover testified

poorly, defense counsel sought out a new expert for the second

trial. Remarkably, defense counsel hired Dr. Tyson, a clinical

psychologist, not specialized in neuroscience or

neuropsychology, and who by his own admission could not perform

40
the relevant neurological tests. (J.A. 1109.) Notwithstanding

knowledge of Frogge’s brain injury and the need for neurological

testing, defense counsel waited until the eve of Frogge’s second

trial to ask Dr. Tyson, whether Frogge’s brain injury

“affect[ed] his evaluations.” (J.A. 1875.) Even though at

least one juror found that Dr. Hoover’s testimony in the first

trial supported the statutory mitigating factor of mental

illness, defense counsel accepted Dr. Tyson’s opinion that the

brain injury was irrelevant. Having not provided any family

statements or Frogge’s medical records to Dr. Tyson, it was

unreasonable for defense counsel to rely on or, in the

majority’s words, be “convinced” by Dr. Tyson’s uninformed

opinion. (Maj. Op. at 28.) Moreover, given that Dr. Kramer

eviscerated Dr. Hoover’s opinion based on his failure to conduct

neurological testing, it is unfathomable that defense counsel

would not obtain such testing to shore up this glaring weakness.

What is more, there is no evidence that defense counsel’s

failure to conduct neurological testing and present Frogge’s

brain injury was a “strategic” decision. Defense counsel did

not testify or even suggest that they thought it a better

strategy to not present the brain injury evidence. The ABA

Guidelines for Appointment and Performance of Defense Counsel in

Death Penalty Cases notes that mental health mitigation evidence

41
is extremely important to capital sentencing juries. See

Commentary to ABA Guideline 4.1 (stating that “mental health

experts are essential to defending capital cases.”). The

“[Supreme Court] [has] long [] referred [to these ABA standards]

as ‘guides to determining what is reasonable.’” Wiggins, 539

U.S. at 524.

In Frogge’s case, the most persuasive mitigating evidence

regarding his mental health was kept from the jury. The mandate

of Strickland and the Constitution is not simply to investigate,

but rather to provide “effective” assistance. Defense counsel’s

actions in light of the circumstances were “rudimentary” and

certainly illogical and unreasonable. While I do not suggest

that defense counsel must scour the earth “shopping” for the

most preeminent experts, I do believe that justice requires, at

a minimum, for counsel to secure an expert in the relevant

field. This is particularly so, for a counsel who knows, as

here, the specific testing required to support its mental health

defense.

Without question, defense counsel’s initial inquiry

revealed that neurological testing was necessary. The anecdotal

evidence of Frogge’s post-brain injury behavior, Dr. Hoover’s

assessment, and the testimony of Dr. Kramer taken together

illustrate that defense counsel could not have “reasonably

42
surmised” that neurological testing, in spite of Dr. Tyson’s

opinion, would have been fruitless. Indeed, it is neurological

testing alone that revealed that Frogge suffers from permanent

organic brain damage. Thus, defense counsel’s decision not to

conduct neurological testing or even present evidence of

Frogge’s brain injury was unreasonable in light of Strickland

and prevailing professional norms.

III.

Additionally, the record further underscores the State

Supreme Court’s unreasonable denial of relief. The State

Supreme Court held that it was objectively reasonable for

defense counsel to rely on Dr. Tyson’s assessment because

Dr. Tyson had Frogge’s medical and social histories, and

transcripts from Frogge I. (J.A. 2198.) How the State Supreme

Court reaches this conclusion is befuddling. The MAR court

specifically found that:

Dr. Tyson did not perform or request any neurological
or neuropsychological tests on [Frogge], and none were
done. His diagnosis was not supported by reliance on
any such tests, review of medical records concerning
the 1990 head injury or descriptions by family and
friends of changes in the defendant’s behavior after
that injury.

(J.A. 2135, emphasis added.) In light of the Anti-Terrorism

Effective Death Penalty Act’s mandate that a state court’s

43
findings of fact are entitled to a “presumption of correctness,”

the State Supreme Court’s factual error is a dispositive display

of an “erroneous application of facts to the law.” 28 U.S.C.

§ 2254(e)(1). First, Ferguson testified that he did not

“recall” or “think” that he provided the medical records or

social history reports to Dr. Tyson. (J.A. 1909). Second, in

an affidavit provided to the MAR court, Dr. Tyson attested that

he was not provided with, nor did he review, any medical records

concerning Frogge’s brain injury. (J.A. 1109.) Third, Freedman

also submitted an affidavit attesting that he did not provide

Dr. Tyson with Frogge’s medical records, which detailed Frogge’s

brain injury. (J.A. 2028). Finally, the State Supreme Court

did not find any error in the MAR court’s clear factual

findings.

According to the majority, the State Supreme Court’s

factual error is inconsequential because the court “merely

observed” that Dr. Tyson reviewed the medical records. However,

the majority, itself, recognizes that the State Supreme Court

thrice stated this factual error.1 Most tellingly, it was only

1
The State Supreme Court stated the following: “[D]efense
counsel provided Dr. Tyson with their entire discovery
file . . . and made available to him defendant’s medical
records;” “The material supplied to Dr. Tyson also included the
testimony given at [the 1995 trial] by Drs. Hoover and Kramer,
and attorney Freedman believed that Dr. Tyson testified in [the
1998 trial] that he had reviewed this testimony;” “By the time
44
in the context of this erroneous factual predicate - Dr. Tyson

being given Frogge’s medical and social histories - that the

Court decided whether defense counsel’s failure to pursue

neurological testing was objectively reasonable and prejudicial

to Frogge. (J.A. 2198.) The State Supreme Court’s rationale

demonstrates that the Court’s holding was tethered to a

significant factual error. The majority’s observations to the

contrary are incredulous.

Put simply, the State Supreme Court’s assumption that

Dr. Tyson offered an opinion informed by Frogge’s medical

records was clearly erroneous and reflects “an unreasonable

determination of the facts in the light of the evidence

presented in the State court proceeding.” § 2254(d)(2).

Moreover, the State Supreme Court’s conclusion that the scope of

defense counsel’s investigation of Frogge’s mental health meets

the legal standards of Strickland is an objectively unreasonable

application of Supreme Court precedent.

defense counsel were preparing for defendant’s second trial,
they had consulted two mental health experts, Drs. Hoover and
Tyson, both of whom had full access to defendant, his family,
and the pertinent medical records of defendant’s head injury,
and neither of whom recommended neurological testing. State v.
Frogge, 607 S.E.2d 632, 635.
45
IV.

Unlike the majority, I am also certain that defense

counsel’s “ineffective assistance” prejudiced Frogge within the

meaning of Strickland. Under Strickland, Frogge must show that

“but for counsel’s unprofessional errors, the [sentence] would

have been different.” Bowie v. Branker, 512 F.3d 112, 120 (4th

Cir. 2008). In determining prejudice, we must “reweigh the

evidence in aggravation against the totality of available

mitigating evidence.” Wiggins, 123 S.Ct. at 2542.

Because the State Supreme Court reversed the MAR Court on

the Strickland performance prong, it did not assess Frogge’s

ineffective assistance claim for prejudice. The State, however,

offered substantial evidence of aggravating circumstances. For

example, the State emphasized that Audrey was bedridden and

Frogge stabbed her over eleven times. Due to her condition, she

was also forced to watch Frogge stab his father to death.

Frogge also testified that Audrey had done nothing to provoke

his rage.

Mental health evidence was the crux of Frogge’s mitigation

case. How else to explain why the same young man who

thoughtfully came home to make his bed-ridden step-mother a

grilled cheese sandwich and tomato soup would, mere hours later,

beat her to death. Thus, it was paramount for defense counsel

46
to offer an explanation as to why Frogge went into an

uncontrollable rage and murdered Audrey. Dr. Tyson testified

that Frogge likely suffered from personality disorder and had

limited functioning skills aggravated by substance abuse.

Unlike Frogge I, no evidence of Frogge’s brain injury - let

alone organic brain damage - was presented to the jury, despite

defense counsel’s belief that the injury was significant.

“Under North Carolina law, . . . the prejudice inquiry in this

case distills to whether [Frogge] had shown that there is a

reasonable probability that, but for counsel’s deficient

performance, at least one jury member would have found the

mitigating circumstances outweigh the aggravating circumstances

and recommended life imprisonment.” Bowie v. Branker, 512 F.3d

at 120.2

The answer to this inquiry is obvious. When presented with

evidence of Frogge’s brain injury at least one juror in Frogge I

found that the crime was committed under the influence of mental

or emotional disturbance, thereby depriving Frogge of the

capacity to appreciate the criminality of his conduct - a

2
Because the State Supreme Court did not reach Strickland’s
prejudice prong, we review the question of prejudice de novo.
See Dugas v. Coplan, 428 F.3d 317, 327 (1st Cir. 2005) (citing
Ellsworth v. Warden, 333 F.3d 1, 3-4 (1st Cir. 2003) (en banc)
(“Appellate review of the district court’s denial of habeas
relief is de novo, but we accord deference to the state court as
to issues it actually decided.”)).
47
statutory mitigating factor under North Carolina law. The

absence of such evidence from the guilt and penalty phase of

Frogge’s second trial undoubtedly prejudiced him. But for

defense counsel’s deficient performance, the jury would have

known that Frogge suffers from permanent organic brain damage -

a diagnosis the State does not rebut – which “under periods of

extreme emotional distress would lead him to act impulsively and

not appreciate the full consequences of his actions, impairing

his judgment, reasoning and impulse control.” (J.A. 1706-07.)

Given the powerful nature of this evidence, the outcome

reached by the majority truly is alarming. Frogge’s organic

brain damage coupled with the other mitigation evidences “might

well have influenced” at least one juror’s ‘appraisal’ of his

‘culpability,’” as it did the experienced MAR judge - a rarity.

Rompilla, 545 U.S. at 393 (citing Wiggins, 539 U.S. at 538).

Quite clearly, defense counsel’s failure to even present

evidence of Frogge’s brain injury and obtain neurological

testing is ineffective assistance of counsel under Strickland.