Tibbetts v. Bradshaw

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Pursuant to Sixth Circuit Rule 206
File Name: 11a0054p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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RAYMOND TIBBETTS,
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Petitioner-Appellant,
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No. 06-3886
v.
,
>
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Respondent-Appellee. -
MARGARET BRADSHAW, Warden,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 03-00114—Susan J. Dlott, Chief District Judge.
Argued: June 15, 2010
Decided and Filed: February 15, 2011
Before: BATCHELDER, Chief Judge; MOORE and McKEAGUE, Circuit Judges.

_________________

COUNSEL
ARGUED: David L. Doughten, Cleveland, Ohio, for Appellant. Holly E. LeClair,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
ON BRIEF: David L. Doughten, Cleveland, Ohio, Lori Ann McGinnis, Mount Gilead,
Ohio, for Appellant. Holly E. LeClair, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee.
BATCHELDER, C.J., delivered the opinion of the court, in which McKEAGUE,
J., joined. MOORE, J. (pp. 17–35), delivered a separate dissenting opinion.
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OPINION
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ALICE M. BATCHELDER, Chief Judge. Raymond Tibbetts, an Ohio death row
inmate represented by counsel, appeals the district court’s decision to deny his petition
for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. A certificate of

1
No. 06-3886 Tibbetts v. Bradshaw Page 2

appealability (“COA”) was granted for three claims: (1) whether trial counsel was
ineffective for failing to develop and present evidence about Tibbetts’ mental status at
the penalty phase; (2) whether trial counsel was ineffective for failing to present
mitigating evidence at the penalty phase; and (3) whether counsel on direct appeal was
ineffective for failing to argue that the trial court did not consider all relevant
information to support the imposition of a sentence less than death. We AFFIRM the
district court’s decision to deny the petition for a writ of habeas corpus because we find
that the efforts of Tibbetts’ trial counsel were not constitutionally deficient and because
any failure of the trial court to consider relevant mitigation evidence was cured by the
Ohio Supreme Court’s independent reweighing of the relevant mitigating factors.

BACKGROUND

In 1998, a Hamilton County, Ohio, jury found Tibbetts guilty on three counts of
aggravated murder, one count of murder, and one count of aggravated robbery, in
connection with the robbery and murder of James Hicks and Susan Crawford. Each
guilty verdict for the aggravated murder and murder counts contained two death penalty
specifications: that the offense was committed during the course of an aggravated
robbery; and that the offense included the murder of two or more persons. The Ohio
Supreme Court summarized the facts as follows:

On November 6, 1997, Hicks’s sister, Joan Hicks Landwehr, arrived at
Hicks’s home in Cincinnati to meet him for lunch. Landwehr often
visited Hicks, who was sixty-seven years old and suffered from
emphysema. Due to his condition, Hicks employed Crawford as a live-in
caretaker. Tibbetts, who had married Crawford just over a month earlier,
also lived in the house.
After getting no answer at the door and seeing Hicks’s car missing from
its usual parking space, Landwehr entered the home with her spare key.
Landwehr went to a second-floor living room and found Hicks’s dead
body slumped in a chair. Landwehr immediately called 911. Landwehr
noticed that her brothers’ chest and stomach were bloody and that his
right pants pocket, where Hicks usually kept his money, was turned
inside out.
When Cincinnati police officers responded a short time later, they found
Hicks with a tube still connecting his nose to a nearby oxygen tank. Two
No. 06-3886 Tibbetts v. Bradshaw Page 3

knives protruded from Hicks’s chest, a third knife protruded from his
back, and the broken blade of a fourth knife was also in his back.
Officers found additional knives and a knife sheath near Hicks. A
butcher block used to store knives lay behind Hicks’s chair. Deputy
coroner Daniel Schultz later determined that Hicks died as a result of
multiple stab wounds to his chest that punctured Hicks’s heart, lungs, and
aorta. Hicks did not have any defensive wounds.
Officers searched the rest of the house and found Crawford lying dead on
the floor of a third-floor room, covered with a sheet. Crawford had been
brutally beaten; her head was cracked open and lay in a pool of blood.
Pieces of Crawford’s brain were lying on the floor next to her head.
Crawford had also been stabbed several times, with one knife still stuck
in her neck. Crawford also had a broken left arm, which Dr. Schultz
characterized as a probable result of her attempt to ward off blows.
Police found a bloodstained baseball bat and several knives near
Crawford’s body. Dr. Schultz concluded that Crawford died of multiple
skull fractures and that at least nine of her stab wounds were inflicted
after her death. In all, Crawford had been struck at least four times in the
head with blunt-force blows and sustained stab wounds to her back,
lungs, chest, arm, shoulder, and neck.
Dr. Schultz, who also investigated the crime scene, determined that
Hicks and Crawford had been dead for several hours. Police
investigators found no identifiable fingerprints on the baseball bat or the
knives. The only fingerprints found in the house belonged to either
Tibbetts or Crawford. There were no signs of forced entry anywhere in
the residence. Police also learned from Landwehr and others at the scene
that Hicks’s car, a white Geo Metro, was missing. Landwehr told police
that Tibbetts did not have permission to drive the car.
The day after discovering the bodies, Cincinnati police learned that a
Covington, Kentucky police officer had stopped Tibbetts on the night of
the murders. Just after midnight on November 6, 1997, Covington police
lieutenant Michael Kraft found Tibbetts in a white Geo Metro that had
broken down in the middle of an intersection. According to Kraft,
Tibbetts appeared nervous and “smelled somewhat of intoxicants.”
Tibbetts also lied to Kraft about the car’s owner, saying that the car
belonged to a friend in Covington.
Kraft summoned another officer to the scene to assist Tibbetts and
investigate whether Tibbetts was driving under the influence of alcohol
or drugs. Officer David Finan arrived a short time later and also noted
that Tibbetts was nervous and smelled of intoxicants. He allowed
Tibbetts to go, however, after concluding that Tibbetts was not under the
influence of alcohol or drugs. The car was towed away and impounded
No. 06-3886 Tibbetts v. Bradshaw Page 4

by Covington police. Cincinnati police later recovered the Geo Metro
from the Covington impoundment lot and found bloodstains on the
steering wheel, gearshift, door panel, and brake handle.
After learning of the Covington police’s encounter with Tibbetts,
Cincinnati police charged Tibbetts with receiving stolen property and
obtained an arrest warrant on November 7, 1997. The very next day,
Tibbetts voluntarily admitted himself to the psychiatric unit at St.
Elizabeth Hospital in Edgewood, Kentucky. Tibbetts told nurses that his
name was Ray Harvey and provided an incorrect Social Security number.
Despite the false name and identification information, nurses at the
psychiatric unit recognized Tibbetts from his previous treatment at the
hospital. On the same day that Tibbetts checked into St. Elizabeth,
police arrested Tibbetts on the warrant for receiving stolen property and
took him to a local jail for questioning.
Tibbetts signed a waiver of his Miranda rights and calmly cooperated
with the two investigating officers who questioned him. Tibbetts had a
noticeable cut on his hand and told the investigators he had cut his hand
on a river barge where he had been staying. When an officer asked
whether Tibbetts had seen his wife lately, Tibbetts responded that he had
not and then terminated the interview. As police were leaving, Tibbetts
queried, “What’s the charge, manslaughter?” The investigators, who had
not mentioned the murders to Tibbetts during the interview, responded
that the matter was under investigation.
A few days later, a Cincinnati police officer retrieved from St. Elizabeth
the clothing Tibbetts was wearing when he checked himself into the
psychiatric unit and took it to the crime lab for DNA testing. The socks,
T-shirt, and blue jeans Tibbetts was wearing on November 8, 1997, were
all stained with human blood. A serologist found that the blood on
Tibbetts T-shirt matched Tibbetts’s blood, that blood on the socks
matched Hicks’s blood, and that blood on the blue jeans matched blood
from Tibbetts, Crawford, and an unknown person. The serologist also
analyzed blood found in the Geo Metro and concluded that blood on the
door, brake handle, and gearshift matched Tibbetts’s blood.

State v. Tibbetts, 749 N.E.2d 226, 237-39 (Ohio 2001).

In preparation for the penalty phase, trial counsel hired a mitigation specialist,
James Crates, and a forensic psychiatrist, Dr. Glen Weaver. Crates obtained numerous
records from the Hamilton County Department of Children Services; St. Elizabeth,
Eastgate Psychiatric Center; Anderson High School; Forest Hill School District; Live
Oaks Career; Transitions, Inc./Droege House; and McGuinness Corp., Tibbetts’ former
No. 06-3886 Tibbetts v. Bradshaw Page 5

employer. Crates also contacted and interviewed members of Tibbetts’ family. Dr.
Weaver met with Tibbetts on three occasions, each meeting lasting between two and two
and a half hours. Apart from Tibbetts’ own unsworn statement to the jury, Dr. Weaver
was the only witness called during the penalty phase, and he testified primarily as to
Tibbetts’ upbringing and his difficulties with drugs and alcohol.

Dr. Weaver characterized Tibbetts’ childhood as “miserable,” detailing his
parents’ use of drugs and his father’s abuse of alcohol. Dr. Weaver testified that Tibbetts
was removed from his parents’ home and placed into foster homes. Dr. Weaver
described those foster homes as “punitive” and related that Tibbetts’ sister had said that
Tibbetts and his brothers “were tied in bed at night so they would not be any problem.
No sheets, no pillows, no pillow case or anything. Treated more like animals. There
wasn’t any touching of him or the other sibling. Matter of fact, there was no touching
even with his own parents.” Dr. Weaver testified that Tibbetts was “essentially damaged
goods when he was as [young] as five years old,” and testified that his formative years
“were certainly lacking in most respects.” Dr. Weaver stated that Tibbetts had trouble
controlling his impulses, and attributed that trouble to his difficult upbringing. Dr.
Weaver testified that Tibbetts never received any psychiatric testing or treatment while
a child, even though he was in the care of the state.

Dr. Weaver testified that Tibbetts started using drugs and alcohol when he was
a fourteen-year-old resident of General Protestant Orphan Home. He had been playing
high school football and was injured during a game. Dr. Weaver testified that Tibbetts’
drug use began shortly after the injury; that Tibbetts entered a drug treatment facility in
approximately 1993, and was able to remain sober for a while; but that a workplace
injury required heavy painkillers which led to his return to drug abuse. Dr. Weaver also
testified that Tibbetts’ substance abuse led to the end of a common-law marriage, and
was exacerbated by a second marriage to a woman who also abused drugs and died
shortly after they married.

Dr. Weaver testified that he administered the Minnesota Multiphasic Personality
Test II to Tibbetts and learned that he was “an individual with limited personality
No. 06-3886 Tibbetts v. Bradshaw Page 6

resources or a personality control. That he was subject to instances of explosiveness
rage. And that, particularly, with the use of alcohol or with drugs, he would have no
ability to control the impulses which he might feel.” According to Dr. Weaver, the test
results also suggested that “he might exhibit features of hysterical episode. For example,
he might even have dissociative episodes which he might do things which he would have
no recall for later.” Dr. Weaver testified that, on the night of the murders, Tibbetts
experienced just such a dissociative reaction, which comports with Tibbetts’ own
testimony at trial that he remembered nothing of the night of the murders. Dr. Weaver
also testified that Tibbetts had a reduced capacity either to appreciate the criminality of
his actions or to refrain from those activities.

Dr. Weaver testified that Tibbetts could barely control his behavior while under
stress when he was sober, and that his use of some combination of alcohol or drugs was
“just like an explosion waiting to happen.” Dr. Weaver explained that Tibbetts could
become a productive individual if he was able to receive treatment in a prison setting,
which would diminish his propensity for inappropriate violence.

The jury recommended that Tibbetts be given a sentence of death for the murder
of Hicks and a sentence of life imprisonment without parole for the murder of Crawford.
The trial court adopted the recommendation of the jury on August 27, 1998, sentencing
Tibbetts to ten years for aggravated robbery, life without parole on the murder
conviction, and death for the three aggravated murder convictions. Tibbetts appealed
his conviction and sentence to the Ohio Supreme Court, alleging fifteen claims for relief.
The Ohio Supreme Court denied all of Tibbetts’ claims and affirmed the conviction and
sentence, after re-weighing all of the aggravating and mitigating factors. Tibbetts then
unsuccessfully sought post-conviction relief in state court, and the Ohio Supreme Court
declined further review. Tibbetts filed an application to re-open his direct appeal, which
was also denied.

In February 2003, Tibbetts filed a petition for a writ of habeas corpus in the
district court. The district court denied his petition, but granted a COA on three claims.
First, Tibbetts claims that his trial counsel was ineffective for failing to develop and
No. 06-3886 Tibbetts v. Bradshaw Page 7

present evidence of Tibbetts’ mental status at the time of the crime during the penalty
phase. Tibbetts argues that he was entitled to the have a pharmacological expert testify
as to the effect of alcohol and drugs on Tibbetts’ mental state and, specifically, his
ability to control his rage impulse. Second, Tibbetts claims that his trial counsel was
ineffective for failing to present mitigating evidence at the penalty phase. Tibbetts
argues that trial counsel failed to make a reasonable investigation into Tibbetts’
childhood, failed to provide any evidence to corroborate the testimony offered by Dr.
Weaver, and that, consequently, vital information about Tibbetts’ childhood was never
heard by the jury. Third, Tibbetts argues that his appellate counsel was ineffective for
failing to raise, on direct appeal to the Ohio Supreme Court, that the trial court failed to
consider valid mitigation evidence. Tibbetts argues that the trial court failed to consider
a number of factors that were recognized by the Ohio Supreme Court, and that the Ohio
Supreme Court’s re-weighing of mitigation factors was insufficient to cure the error.

ANALYSIS

We review a district court’s denial of a petition for writ of habeas corpus de
novo. Tolliver v. Sheets, 594 F.3d 900, 915 (6th Cir. 2010). Because Tibbetts filed his
petition after April 24, 1996, it is subject to the requirements of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Carter v. Mitchell, 443 F.3d 517, 524
(6th Cir. 2006). Under AEDPA, a writ may not be granted unless the state court’s
adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceedings. 28 U.S.C. § 2254(d)(1)-(2). Factual determinations made by the state
courts are presumed to be correct unless rebutted by clear and convincing evidence. Id.
§ 2254(e)(1).

“A state court renders an adjudication ‘contrary’ to federal law when it ‘arrives
at a conclusion opposite to that reached by [the Supreme] Court on a question of law’
or ‘decides a case differently than [the Supreme] Court has on a set of materially
No. 06-3886 Tibbetts v. Bradshaw Page 8

indistinguishable facts.’” Biros v. Bagley, 422 F.3d 379, 386 (6th Cir. 2005) (quoting
Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). “A state court unreasonably applies
Supreme Court precedent ‘if the state court identifies the correct governing legal rule . . .
but unreasonably applies it to the facts of the particular prisoner’s case.’” Barnes v. Elo,
339 F.3d 496, 501 (6th Cir. 2003) (quoting Williams, 529 U.S. at 407). “In order for a
writ to issue, we must determine both that the state court incorrectly applied the relevant
Supreme Court precedent and that this misapplication was objectively unreasonable.”
Tolliver, 594 F.3d at 916.

We emphasize that AEDPA sets forth a heavy burden for a petitioner to
overcome. “The question under AEDPA is not whether a federal court believes the state
court’s determination was incorrect but whether that determination was unreasonable—a
substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). A state
court determination is not unreasonable “simply because [a federal court] concludes in
its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Williams v. Taylor, 529 U.S. 362,
411 (2000). Rather, the state court’s application of clearly established Supreme Court
precedent must be “objectively unreasonable.” Woodford v. Viscotti, 537 U.S. 19, 24-25
(2002).

When reviewing ineffective-assistance-of-counsel claims, we engage in a two-
part inquiry.

First, the defendant must show that counsel’s performance was deficient.
This requires a showing that counsel made errors so serious that counsel
was not functioning as “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial,
a trial whose results are reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s performance is
constitutionally deficient if it falls below an objective standard of reasonableness.
Phillips v. Bradshaw, 607 F.3d 199, 208 (6th Cir. 2010). “The burden is on the
defendant to make such a showing by identifying the acts or omissions of counsel that
No. 06-3886 Tibbetts v. Bradshaw Page 9

are alleged not to have been the result of reasonable professional judgment,” id. at 209,
and “a court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689. To
establish prejudice, Tibbetts must show that a reasonable probability exists that, but for
counsel’s deficient performance, the result of the proceedings would have been different.
Phillips, 607 F.3d at 217.

Our review utilizes both the Strickland and AEDPA standards. Even if we were
to conclude that counsel’s performance fell below an objective standard of
reasonableness, and that a reasonable probability exists that, but for that failure, the
result of the proceeding would have been different, we must still ask whether the state
court’s conclusion to the contrary was “objectively unreasonable.”

I. Failure to develop and present evidence of Tibbetts’ mental state

Tibbetts argues that his trial counsel was constitutionally deficient because he
failed to call an expert in pharmacology during the penalty phase. At an evidentiary
hearing before the district court, Tibbetts presented the testimony of Charles T. Kandiko,
Ph.D., a pharmacologist, and Janice Ort, Psy.D., a clinical psychologist. At the hearing,
Dr. Kandiko testified that he believed that Tibbetts was impaired the day of the murders,
and that his aggressive actions were an effect of the combination of cocaine and alcohol.
Dr. Kandiko also testified that it is possible that memory can be affected by ingesting
various substances, and that there is evidence that someone could have an aggressive
period while under the influence of cocaine, and then not have any memory of it later.
Dr. Ort conducted additional psychiatric tests on Tibbetts, to test his mental state. She
testified that a full understanding of Tibbetts’ mental state would only have been
possible with the input of an expert pharmacologist. Dr. Ort offered additional testimony
regarding Tibbetts’ mental state, based on the testimony offered by Dr. Kandiko and the
additional tests she conducted.
No. 06-3886 Tibbetts v. Bradshaw Page 10

In White v. Mitchell, 431 F.3d 517 (6th Cir. 2005), this court rejected a claim
almost identical to the one brought here,1 stating that we “[did] not find a meaningful
difference in the two diagnoses as they pertain to the legal considerations relevant here,
and therefore, we find that [Petitioner] cannot show prejudice as a result of his trial
counsel’s performance.” Id. at 529-30. Dr. Weaver’s testimony covered each subject
Petitioner claims was necessary for a constitutionally adequate defense, including that
Tibbetts’ use of drugs and alcohol was an explosion waiting to happen, and that Tibbetts
was unable to control his rage response while intoxicated. Tibbetts argues, however, that
Dr. Weaver could not have provided the detailed testimony needed because he was not
a trained pharmacologist. For the purposes of the penalty phase of Tibbetts’ trial, this
is a distinction without a difference. See, e.g., Clark v. Mitchell, 425 F.3d 270, 285 (6th
Cir. 2005) (holding that trial counsel was not ineffective for failing to retain a
pharmacologist because a mental health expert testified at trial about the defendant’s
drug addiction).

We cannot conclude that a habeas petitioner is entitled to the testimony of every
qualified expert who might possess some specialized knowledge regarding the
petitioner’s case. Because there is no meaningful difference between the testimony of
Dr. Weaver and the proposed testimony of Dr. Kandiko, at least as they pertain to the
legal considerations before the trial court during the penalty phase, Tibbetts cannot show
prejudice as a result of his trial counsel’s performance. We therefore affirm the district
court’s denial of relief on this claim.

II. Failure to investigate and present mitigating evidence at the penalty phase

In his second claim, Tibbetts argues that trial counsel failed to conduct an
adequate investigation into his past. A more thorough investigation, Tibbetts argues,
would have allowed greater detail regarding his childhood to be presented to the jury.
Tibbetts also faults his trial counsel for failing to call any witnesses to corroborate the

1
Not only were the claims in White virtually identical to those presented here, but the expert
testimony at issue was to be offered by Drs. Kandiko and Ort, the same experts who testified at the
evidentiary hearing before the district court.
No. 06-3886 Tibbetts v. Bradshaw Page 11

testimony of Dr. Weaver. When the adequacy of trial counsel’s investigations are at
issue we must consider the extent to which limitations on the investigation are supported
by reasonable professional judgments. Strickland, 446 U.S. at 690. “In other words,
counsel has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Id. As stated previously, we must
apply “a heavy measure of deference to counsel’s judgments” and Tibbetts “must
overcome the presumption that, under the circumstances, challenged action might be
considered sound trial strategy.” Id. at 689.

Tibbetts relies heavily on our case law that establishes that trial counsel may be
constitutionally deficient if an investigation is not conducted in preparing mitigation
evidence. See, e.g., Glenn v. Tate, 71 F.3d 1204, 1207 (6th Cir. 1996) (declaring that
trial counsel was objectively unreasonable when they “never took the time to develop
[mitigation evidence]” and “made virtually no attempt to prepare for the sentencing
phase of trial”). However, the record here clearly shows that trial counsel engaged in
an investigation of mitigating factors, including Petitioner’s family history,
psychological background, and every other category to which Petitioner now claims he
was entitled. While trial counsel certainly could have conducted a more thorough
investigation, we cannot say that the investigation was constitutionally deficient.2

Moreover, Dr. Weaver testified at length about the awful state of Tibbetts’
childhood. As noted, Dr. Weaver testified that Tibbetts’ parents both used drugs and
that Tibbetts was removed from his home at an early age and placed into foster homes.
Dr. Weaver also painted a grim picture of Tibbetts’ life in those foster homes,
concluding that he was treated more like an animal, tied up at night, etc. While it is true
that Dr. Weaver’s testimony did not reveal some details contained in additional affidavits
now offered by Tibbetts, including affidavits from his sister and a female friend of
Tibbetts at the General Protestant Orphan home, Dr. Weaver did not diminish or
downplay the difficulties experienced by Tibbetts during his childhood. Tibbetts argues,

2
While the dissent is able to cite several cases as examples of performance by counsel that go
above and beyond the constitutional minimum, Dissent at 10–11, these cases are not useful for establishing
what indeed the constitutional minimum is, and whether or not Tibbetts’ counsel fell below that standard.
No. 06-3886 Tibbetts v. Bradshaw Page 12

however, that the testimony of Dr. Weaver should have been supplemented by testimony
from Tibbetts’ family members. But affording trial counsel a “heavy measure of
deference,” we cannot conclude that there is no conceivable trial strategy that would
present evidence of Tibbetts’ childhood through a mental health expert, as opposed to
friends and family members, who might be seen as having an incentive to stretch the
truth in order to save Tibbetts’ life.

Furthermore, “in order to establish prejudice, the new evidence that a habeas
petitioner presents must differ in a substantial way—in strength and subject
matter—from the evidence actually presented at sentencing.” Hall v. Mitchell, 400 F.3d
308, 319 (6th Cir. 2005). The evidence in the affidavits Tibbetts now offers does not
meet this test, but is cumulative, albeit somewhat more detailed. The new evidence does
not differ in subject matter—much less “in a substantial way”—from the evidence
already presented at sentencing. It covers the exact same subject, namely, the difficult
and abusive childhood that Tibbetts suffered. Certainly this new evidence cannot be
described as “shocking, disheartening, and utterly disturbing,” the kind of evidence that
we have held would generally support a finding of prejudice warranting habeas relief.
See Beuke v. Houk, 537 F.3d 618, 646 (6th Cir. 2008).

While the dissent effectively reviews the additional, cumulative evidence, it fails
to explain how such evidence, had it been presented, would have done anything to
change the jury’s perception of Tibbetts’ moral culpability for such a brutal and horrific
crime. See Jells v. Mitchell, 538 F.3d 478, 498 (6th Cir. 2008) (“Prejudice is established
where, taken as a whole, the available mitigating evidence might well have influenced
[the sentencer’s] appraisal of [the petitioner’s] moral culpability.”) (internal quotation
marks omitted). This case is similar to Phillips v. Bradshaw, 607 F.3d 199 (6th Cir.
2010). There, the petitioner, Phillips, had been convicted of the rape and aggravated
murder of a three year old girl. The jury recommended a sentence of death for Phillips.
At the sentencing phase, Phillips’ counsel focused on Phillips’ good character and good
behavior in the community. Id. at 210. A psychologist testified as to Phillips’ low IQ,
low tolerance for stressful situations, and need for a structured environment. Id. at 211.
No. 06-3886 Tibbetts v. Bradshaw Page 13

The psychologist specifically testified that there was no sign that Phillips had grown up
in a physically or sexually abusive environment. Id. In his habeas petition, Phillips
claimed ineffective assistance of counsel, pointing to Child Service Bureau reports, the
testimony of various half-siblings, and another psychologist’s report that would have
detailed an abusive childhood. Id. at 211-15. This court had no problem in deciding that
given the brutality of the crime, such additional evidence—even covering substantially
different subject matter—was not enough to conclude that the state court was objectively
unreasonable in holding that there was no reasonable probability that the outcome of the
sentencing would have been different. Id. at 219.

Here, the brutality of Tibbetts’ crimes would have completely overwhelmed any
additional, cumulative mitigation evidence of Tibbetts’ difficult childhood. Tibbetts
murdered two people—his own wife and a sixty-seven year old disabled man, suffering
from emphysema, breathing from an oxygen tank. When the police found James Hicks’
dead body, they found no fewer than three knives that Tibbetts had used still sticking in
his body, with another blade broken off in his back. There were no signs that the
disabled Hicks put up a fight. Tibbetts own wife, Susan Crawford, was able to fare
slightly better, as her broken arm indicates that she may have attempted to fight off
Tibbetts for a time. But that attempt failed and she succumbed to the attack, dying in a
pool of her own blood, skull cracked, pieces of her brain scattered on the floor. Tibbetts
also inflicted multiple knife wounds upon his wife’s body, at least nine of which came
after he had already killed her.

But there is no need to substitute our own judgment on the matter. The state
court already concluded that such additional evidence would have made no difference
in the outcome—one life sentence and one sentence of death. We cannot say that the
court was “objectively unreasonable” in doing so. Tibbetts has failed to overcome the
presumption that his trial counsel acted in accordance with a sound trial strategy, and he
cannot show prejudice from the trial counsel’s failure to present the evidence Tibbetts
now offers. Moreover, Tibbetts cannot show that the state court applied these standards
No. 06-3886 Tibbetts v. Bradshaw Page 14

in an objectively unreasonable manner. Accordingly, we will affirm the district court’s
denial of this claim.

III. Failure to appeal the trial court’s weighing of mitigating evidence

In this third claim, Tibbetts argues that his appellate counsel was ineffective
because he did not challenge the state trial judge’s failure to adequately consider all
mitigation evidence. According to Tibbetts, the trial court clearly erred in failing to
consider all the mitigating factors, and it was unreasonable for appellate counsel to fail
to raise on direct appeal the trial court’s error. Applying the heavy measure of deference
to counsel’s decisions required by AEDPA, we conclude that this claim fails because it
is unclear that the trial court did not consider the mitigating factors. Moreover, even if
the trial court erred and counsel was unreasonable in failing to raise the claim, there was
no prejudice because the Ohio Supreme Court cured any defect by conducting an
independent re-weighing of the mitigating and aggravating factors, and affirmed the
sentence of death.

Tibbetts argues that the trial court violated clearly established federal law by
failing to comply with the requirement that all mitigation evidence be considered at
sentencing. Eddings v. Oklahoma, 455 U.S. 104 (1982); Davis v. Coyle, 475 F.3d 761
(6th Cir. 2007). Tibbetts relies, however, on a slight misstatement of the rule established
in Lockett v. Ohio, 438 U.S. 586 (1978), and applied by the Eddings Court. The rule is
that the sentencer must be permitted to consider any relevant mitigating factor, Eddings,
455 U.S. at 112, not that the sentencer must expressly list all relevant mitigating factors.3
In Davis, we applied the rule and remanded because the trial court had excluded
mitigating evidence. Davis, 475 F.3d at 774. But the record here is devoid of any
indication that the trial court excluded any evidence. In fact, the trial court expressly

3
That rule, of course, incorporates a prohibition on a trial court’s express refusal to consider
relevant mitigating evidence. However, the rule does not require a trial court to make an extensive list of
all possible factors in mitigation, and then address each factor in turn. Such a rule would, of course, be
an invitation to mischief, for clever counsel would always be capable of finding one additional factor,
however minor, that should have been included on the list.
No. 06-3886 Tibbetts v. Bradshaw Page 15

weighed a number of mitigating factors and stated clearly that it had considered all
mitigating evidence.

Plaintiff argues that the trial judge was insufficiently clear in describing all of the
mitigation evidence which was considered. In support of this argument, Plaintiff cites
to Ohio sentencing law, Ohio Rev. Code § 2929.03(F), which requires that a trial judge
state, “in a separate opinion its specific findings as to the existence of any of the
mitigating factors set forth in [Ohio statute], the existence of any other mitigating
factors, . . . and the reasons why the aggravating circumstances the offender was found
guilty of committing were sufficient to outweigh the mitigating factors.” However, even
Tibbetts acknowledges that the trial court stated that there were two statutorily required
mitigation factors present: (1) lack of capacity to appreciate the criminality of his
conduct; and (2) “any other factors that call for a penalty of less than death or to lessen
the appropriateness of the death penalty.” Ohio Rev. Code § 2929.03(B)(3) & (7).
Tibbetts points to the fact that the trial court did not find any “other factors” in
mitigation, and argues that this is evidence that the trial court failed to truly consider any
“other factors.” This is pure speculation, which fails to meet the clear and convincing
standard required to overcome the presumption of correctness afforded state trial courts’
findings of fact. 28 U.S.C. § 2254(e)(1).

Even assuming, arguendo, that the state trial judge’s sentencing opinion failed
to meet the requirements of § 2929.03(F), the Ohio Supreme Court’s independent
consideration of the mitigating evidence allegedly ignored by the trial judge cured any
error. State v. Lott, 555 N.E.2d 293, 304 (Ohio 1990). Tibbetts argues that the Ohio
Supreme Court effectively found error in the trial court’s weighing of mitigating factors
when it afforded some weight to Tibbetts’ troubled childhood and family background,
his drug use, his expressed remorse, and his ability to maintain gainful employment prior
to the work-related accident that reintroduced drugs into his life. Tibbetts, 749 N.E.2d
at 259. However, even if the Ohio Supreme Court intended to make an implied finding
of error, its express reconsideration of those very mitigating factors, and its subsequent
decision to affirm the trial court’s imposition of the death sentence cured any error.
No. 06-3886 Tibbetts v. Bradshaw Page 16

Because the Ohio Supreme Court raised, sua sponte, and rejected the very claim that
Tibbetts argues appellate counsel should have raised on direct appeal, he cannot show
prejudice from his appellate counsel’s actions. We affirm the district court’s denial of
relief on this claim.

CONCLUSION

Accordingly, and for the reasons set forth above, we AFFIRM the district court’s
denial of Petitioner’s habeas petition.
No. 06-3886 Tibbetts v. Bradshaw Page 17

___________________

DISSENT
___________________

KAREN NELSON MOORE, Circuit Judge, dissenting. Raymond Tibbetts
committed a reprehensible crime, and he should be punished for the acts for which the
jury found him guilty. Despite his guilt, however, his death sentence is more than
troubling. Tibbetts was sentenced to death by a jury that was not presented with
mitigation evidence concerning Tibbetts’s mentally and physically abusive childhood
that was key to understanding Tibbetts’s culpability and, by extension, evidence that was
instrumental to determining whether he should live or die. Because I believe that
Tibbetts’s counsel failed to provide constitutionally adequate representation during the
penalty phase of his capital proceeding, and because I believe that Tibbetts was
prejudiced by counsel’s actions, I would grant his petition for a writ of habeas corpus on
this ground. I must therefore dissent.

“‘The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.’” Broom v. Mitchell, 441
F.3d 392, 408 (6th Cir. 2006) (quoting Strickland v. Washington, 466 U.S. 668, 686
(1984)). To prevail on a claim of ineffective assistance of counsel under Strickland,
Tibbetts must first show that his “counsel’s performance was deficient”; that is, that
“counsel’s representation fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 687, 688. Even assuming deficient representation, however,
Tibbetts is also required to show that the “deficient performance prejudiced the defense.”
Id. at 687. Moreover, Tibbetts is entitled to relief only if the Ohio courts’ “rejection of
his claim of ineffective assistance of counsel was ‘contrary to, or involved an
unreasonable application of’ Strickland, or it rested ‘on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.’” Porter v.
McCollum, 130 S. Ct. 447, 452 (2009) (per curiam) (quoting 28 U.S.C. § 2254(d)).
Tibbetts argues that his counsel’s failure “to investigate and present” to the jury
No. 06-3886 Tibbetts v. Bradshaw Page 18

“compelling mitigating evidence” of Tibbetts’s upbringing and childhood abuse
amounted to ineffective assistance of counsel such that he warrants relief from his death
sentence. Appellant Br. at 23. For the reasons discussed below, I agree with Tibbetts’s
claim that counsel’s representation at the mitigation phase was constitutionally
inadequate and that the state courts unreasonably applied Supreme Court precedent when
rejecting Tibbetts’s claim on this ground.

I. ANALYSIS

A. Counsel’s Deficient Performance

Under the prevailing professional standards in existence at the time of trial,
Tibbetts’s “counsel had an ‘obligation [either] to conduct a thorough investigation of
[Tibbetts’s] background,’” Porter, 130 S. Ct. at 452–53 (quoting Williams v. Taylor, 529
U.S. 362, 396 (2000)), or to make a reasonable decision that such an investigation was
unnecessary, Wiggins v. Smith, 539 U.S. 510, 521 (2003). Counsel’s “ultimate
presentation” of mitigation evidence “to the jury might have been justified as the product
of strategic choice” if “[b]uttressed by a reasonably adequate investigation,” but defense
counsel was “‘not in a position to make . . . reasonable strategic choices’” when “‘the
investigation supporting [counsel’s] choices was unreasonable.’” Johnson v. Bagley,
544 F.3d 592, 603 (6th Cir. 2008) (quoting Wiggins, 539 U.S. at 536) (alterations
omitted). Tibbetts’s counsel plainly did not engage in conduct sufficient to satisfy the
constitutional norm, and I would hold that Tibbetts has succeeded in showing that
counsel’s performance fell below an objective standard of reasonableness.

It is true that the instant case is distinguishable from some of our more egregious
examples of deficient performance in that Tibbetts’s counsel did engage in some
investigation in preparation for the penalty phase of Tibbetts’s trial. The post-conviction
record indicates that counsel hired a mitigation specialist, Jim Crates. Joint Appendix
(“J.A.”) at 13 (Release Form); id. at 14–15 (Crates Letter). The record also indicates
that a little over one month prior to Tibbetts’s penalty-phase hearing, Crates interviewed
Tibbetts’s ex-girlfriend and the mother of his son, Robin Amburgey. 6th Cir. Dkt. Doc.
No. 06-3886 Tibbetts v. Bradshaw Page 19

006110643575 (Trial Ex. N, Crates Notes). Notwithstanding counsel’s retention of
Crates and Crates’s conversation with Amburgey, however, counsel’s preparation and
investigation stands out more for what it utterly lacked. First, neither counsel nor Crates
interviewed even one member of Tibbetts’s family prior to the day of the
commencement of the mitigation phase despite the fact these family members could have
provided counsel with extremely relevant information concerning Tibbetts’s abusive
childhood. It is clear that counsel knew the whereabouts of at least two family
members—Tibbetts’s father and sister—because, according to an affidavit from
Tibbetts’s father, Stanley Tibbetts, Crates contacted him sometime “before Raymond’s
trial,” and said that he would like to speak with Stanley about Tibbetts. Although
Tibbetts’s father agreed to speak with counsel, Crates “never contacted [Stanley] again,”
and neither Crates nor trial counsel “[]ever showed up to talk.” Tibbetts, S. Aff. at ¶ 2.
According to his post-conviction affidavit, the only reason that Tibbetts’s father did not
speak with counsel was because no one ever asked. “No ‘reasonable professional
judgment’ could have supported a decision not to interview” Tibbetts’s father, and the
failure to do so amounted to deficient performance. Johnson, 544 F.3d at 600 (quoting
Strickland, 466 U.S. at 690, and concluding that counsel was deficient in failing to
interview the petitioner’s “mother, not a distant aunt or neighbor”); Jells v. Mitchell, 538
F.3d 478, 493 (6th Cir. 2008) (finding deficient performance where counsel “interviewed
only three family members, neglecting to speak with many other family members who
had lived with [the petitioner] and were available”).

With regard to Tibbetts’s sister, Suzanne Terry, the record indicates that Crates
also contacted her but that he did so “the day before [she] was needed to testify in court
on [her] brother’s behalf,” Terry Aff. at ¶ 2 (emphasis added), which hardly left
sufficient time for counsel to prepare a mitigation strategy surrounding whatever
information Terry could provide. See Beuke v. Houk, 537 F.3d 618, 644 (6th Cir. 2008)
(“We will generally find that an attorney has rendered deficient performance if he waits
until after a conviction to begin his mitigation investigation.” (citing cases)); Jells, 538
F.3d at 493–94 (same). Furthermore, there is no indication that counsel or Crates
actually spoke with Terry once they contacted her. Instead, the evidence reveals merely
No. 06-3886 Tibbetts v. Bradshaw Page 20

that Crates referred Terry to Dr. Weaver and that Terry spoke with Dr. Weaver on the
morning of the penalty-phase hearing. Even assuming that Dr. Weaver relayed all of
Terry’s information to counsel in the few hours immediately preceding the hearing,
counsel certainly would not have had time to incorporate that information into any
reasonable mitigation theory or to followup on any leads that Terry’s information
uncovered.

It is also important to note that the only reason that Tibbetts’s sister did not
testify was a direct result of counsel’s dilatory investigative tactics. Again, it is worth
emphasizing that Crates did not contact Terry until the day before the hearing. Terry
Aff. at ¶ 2. Despite the short notice, Terry agreed to testify on the condition that her
testimony not be filmed. Anticipating that this might prove problematic, Terry also
offered to testify on film if she were given the opportunity to notify her employer and
her clients that she was participating in a capital case and explain the matter.
Presumably because the hearing was scheduled to begin the next day, Crates told Terry
that accommodations were impossible and that it would be “good enough” for her to
speak with Dr. Weaver and that Dr. Weaver would relay her testimony to the jury. Id.
Terry affirmed that she would have testified without qualification had she known that
the details of her conversation with Dr. Weaver would not have reached the jury. As
with counsel’s failure to interview Tibbetts’s father, no reasonable judgment justified
counsel’s decision to wait until the day before the mitigation hearing to contact
Tibbetts’s sister to request that she testify.

Second, in addition to failing to speak with anyone in Tibbetts’s family, counsel
made no real “attempt to locate significant persons from [Tibbetts’s] past who may have
provided valuable testimony regarding mitigating factors.” Powell v. Collins, 332 F.3d
376, 399 (6th Cir. 2003). As the affidavits from Tibbetts’s childhood friend, Sandra
Nunley, and his Alcoholics Anonymous (“AA”) sponsor, Keith Riddell, indicate,
however, there were at least two non-related persons willing to provide such
information. In fact, Crates even recognized this, writing a letter to counsel two months
before the penalty phase stating that there was “Limited or No Documentation” from AA
No. 06-3886 Tibbetts v. Bradshaw Page 21

and that someone “must interview [Tibbetts’s AA] sponsor.” J.A. at 14 (Crates Letter).
According to Riddell, however, no one ever did. In short, counsel’s failure even to “take
the first step of interviewing witnesses,” Porter, 130 S. Ct. at 453, such as Tibbetts’s
father and friends, and to do so in a timely manner, in the case of Tibbetts’s sister, was
unsupportable, objectively unreasonable, and, as a result, plainly constitutionally
deficient, cf. Bobby v. Van Hook, 130 S. Ct. 13, 18–19 (2009).

It is true that Tibbetts’s counsel did request, approximately one month prior to
the start of trial, several records concerning Tibbetts’s history and childhood, which
included documents from the Ohio Department of Human Services, St. Elizabeth
Hospital, Tibbetts’s previous employers and high school, as well the Ohio Department
of Corrections. And it is also true that these records were provided to the jury to review
during its sentencing deliberations. But the fact that counsel requested these records and
provided them to the jury does not overcome counsel’s clear investigative deficiencies.
As an initial matter, it is unlikely that many of these documents could have been much
help to Tibbetts, regardless of their substantive content. Many of them are illegible from
years of copying; they are disorganized, at least as submitted in the record on appeal; and
they cover literally decades of foster-care placements and admissions to various
institutions without any accompanying explanation to place them in context.
Furthermore, the records concern not only Tibbetts’s upbringing but also that of his
numerous siblings who, depending on the year, were not even living with Tibbetts,
which made some of the records simply irrelevant, or at least less clearly pertinent. As
we have stated previously, “it hardly constitutes a reasonable investigation and
mitigation strategy simply to obtain Human Services records from the State, then dump
the whole file in front of the jury without organizing the files, reading them, eliminating
irrelevant files or explaining to the jury how or why they are relevant.” Johnson, 544
F.3d at 602.

Even assuming that counsel was not deficient in the handling of the records—i.e.,
that they were legible, organized, and clearly relevant such that no explanation from
counsel was required—the substantive content of the records serves only to highlight
No. 06-3886 Tibbetts v. Bradshaw Page 22

counsel’s investigative deficiencies as opposed to insulate and justify counsel’s actions.
The records themselves contain very little definitive information about whether Tibbetts
suffered abuse as a child, but they do contain ample speculative statements from social
workers and other officials that plainly would have put reasonable counsel on notice that
further investigation into Tibbetts’s upbringing was required. For example, the Ohio
Department of Human Services records indicate that Tibbetts was “afraid of water
because someone had tried to hold him under,” 6th Cir. Dkt. Doc. 006110646585 at 15;
that social workers were concerned that the Merrimans, Tibbetts’s first foster-care
family, were “not adequate[ly] nourishing the children,” id. at 20; and that there were
allegations from the older Tibbetts children that the “younger children,” including
Tibbetts, “were actually abused” at the Merrimans’ home, 6th Cir. Dkt. Doc.
06110646582 at 38. The records also recounted the detailed allegations of abuse leveled
by Tibbetts’s biological mother and Tibbetts’s sister. As recounted by one state social
worker:

[Tibbetts’s mother believes that] Mrs. Merriman [does not] feed
[Tibbetts’s younger brother] enough, so his brain is suffering. [Tibbetts’s
mother] also had a great deal to say about the poor treatment the children
are receiving at the Merriman’s, saying Suzanne is now telling her the
many cruelties they received; couldn’t watch TV, were beaten if they
soiled their pants, were tied in bed, didn’t get to eat after school—had to
go outside or to bed, beat Suzanne’s ear—if she didn’t cry, beat her
harder. Suzanne says she couldn’t talk before because she would be
beaten if anything got back to the Merrimans. Ricky verifies these
statements adding the Merrimans had eggs or french toast for breakfast,
but the Tibbetts always had oatmeal. [Tibbetts’s mother] said all the
children are skeletons now.

6th Cir. Dkt. Doc. 006110646585 at 25. In addition to these very clear red flags, there
were also ample cryptic statements throughout the various records hinting at the
existence of abuse, including the fact that the state social workers refused to allow the
Tibbetts children to be taken to the Merrimans, even for a visit, after they had been
removed from that placement, and at least one social worker suspected that Tibbetts’s
time with the Merrimans “created [his] nervous disposition,” 6th Cir. Dkt. Doc.
No. 06-3886 Tibbetts v. Bradshaw Page 23

006110646583 at 6, and noted that contact with the Merrimans led Tibbetts to rock
himself to sleep at night.

Additionally, despite the majority’s assertion to the contrary, the fact that the sole
mitigation witness, forensic psychologist Dr. Glen Weaver, testified at Tibbetts’s
mitigation hearing and conveyed some of the information that Tibbetts’s sister had
provided him just hours prior to his testimony and some of the information that was
alluded to in the various records does not save counsel’s eleventh-hour investigation.
See Johnson, 544 F.3d at 602 ( “[A]n unreasonably truncated mitigation investigation
is not cured simply because some steps were taken prior to the penalty-phase hearing and
because some evidence was placed before the jury.” (citing Rompilla v. Beard, 545 U.S.
374, 382–83 (2005)). To be sure, Dr. Weaver conducted a thorough psychological exam
and was qualified to testify as to Tibbetts’s mental state at the time of the crime, which
was necessary for the mitigation theory that the defense decided to present, but Dr.
Weaver’s understanding of the reality of Tibbetts’s childhood was extremely limited,
and he was not equipped to testify as to that aspect of Tibbetts’s social history. For
example, to obtain information about Tibbetts’s past and prepare for the mitigation
hearing, Dr. Weaver merely reviewed the documents introduced in the penalty phase,
J.A. at 1132–33 (Weaver Test.), and met with Tibbetts for approximately six hours, id.
at 1120–21. Like counsel, Dr. Weaver did not interview Tibbetts’s family members or
close friends prior to the day of the hearing and surprisingly voiced a strong aversion to
doing so. See Mason v. Mitchell, 543 F.3d 766, 777 (6th Cir. 2008) (finding problematic
the fact that a psychiatrist “based his examination and report solely on interviewing [the
defendant] himself and . . . did not cover [his] background or childhood in any great
detail”). In fact, when the prosecutor noted that Dr. Weaver had failed to interview third
parties when evaluating Tibbetts, Dr. Weaver testified that it “certainly” was not his job
to do “independent investigation” and that doing so was “rare” and perhaps
inappropriate. J.A. at 1185–86 (Weaver Test.).

In short, counsel’s investigation fell below the then-prevailing professional
standards, and the fact that counsel uncovered and introduced some evidence does not
No. 06-3886 Tibbetts v. Bradshaw Page 24

excuse counsel’s failure to engage in basic preparation, such as conducting interviews
with ready and willing family members and friends and organizing and explaining any
relevant state records regarding Tibbetts’s childhood. Had counsel contacted Tibbetts’s
family and friends at some point prior to the mitigation hearing, Dr. Weaver, who knew
very little about Tibbetts’s background, would not have been tasked with presenting the
sole evidence about Tibbetts’s upbringing, which he amassed, in substantial part, during
an interview hastily conducted with Tibbetts’s sister on the morning of the hearing.
Tibbetts’s father, his sister, his best childhood friend, and his AA sponsor could have
each provided material details about Tibbetts’s background and humanized Tibbetts to
a degree that Dr. Weaver simply was not able to do.1

Given counsel’s failure to interview even the most obvious of mitigation
witnesses, this case is plainly distinguishable from those cases where the Supreme Court
and this Circuit have held that counsel’s investigation and presentation of mitigation
evidence was the result of a reasonable decision and did not amount to deficient
performance. Cf. Wong v. Belmontes, 130 S. Ct. 383, 387 (2009) (indicating that the
mitigating evidence that counsel presented “was substantial,” where defense counsel
“put nine witnesses on the stand[,] . . . [a] number of those witnesses highlighted [the
defendant’s] ‘terrible’ childhood,” including the father’s alcoholism and abuse, the very
poor conditions of the defendant’s house, his poor performance in school, and the death
of his younger sister and grandmother with whom he had a strong relationship); Van
Hook, 130 S. Ct. at 18–19 (2009) (holding that counsel’s mitigation investigation was
adequate with regard to both timing and scope where counsel “spoke nine times with
[the defendant’s] mother (beginning within a week after the indictment), once with both
parents together, twice with an aunt[,] . . . and three times with a family friend,” met with
several experts “more than a month before trial,” enlisted a mitigation expert “when the

1
Tibbetts’s former girlfriend and his son’s mother, Robin Amburgey, testified briefly during the
guilt phase of the trial for the prosecution, and this testimony was submitted to the jury in mitigation.
Amburgey’s testimony during the guilt phase of the trial did provide some “humanizing” details with
regard to Tibbetts. She mentioned that Tibbetts had periods of sobriety and had attempted to kick his drug
habit, J.A. at 404, 408 (Amburgey Test.), that Tibbetts was never violent towards her or their son, id. at
405, and that Tibbetts cared for their son, played with him, and was a good father, id. at 406–07. But she
provided no testimony concerning Tibbetts’s upbringing.
No. 06-3886 Tibbetts v. Bradshaw Page 25

trial was still five weeks away,” and could not have been expected to interview “distant
relatives”); Phillips v. Bradshaw, 607 F.3d 199, 209–10 (6th Cir. 2010) (“In his efforts
to acquire mitigating evidence, [the attorney] talked with [the defendant’s] mother and
father, at least one of his siblings and one of his half-siblings, his grandparents,
neighbors, and former teachers. [The attorney] obtained [the defendant’s] school records
and reviewed some [Child Services Bureau] records relating to the [the defendant’s]
family,” and at the mitigation hearing the defendant’s neighbor, grandmother, brother,
and father testified); Sneed v. Johnson, 600 F.3d 607, 610 (6th Cir. 2010) (distinguishing
the Supreme Court’s recent decision in Porter and holding that counsel’s investigation
of mitigating evidence was sufficient when “counsel produced 17 witnesses, including
three psychological experts, at least some of whose testimony concerned [the
defendant’s] mental health and severely troubled childhood”). I would thus conclude
that Tibbetts’s counsel’s performance fell below an objective standard of reasonableness,
and counsel was constitutionally deficient.

B. Counsel’s Deficient Performance Prejudiced Tibbetts

Beyond showing that counsel was deficient for failing to investigate and present
mitigating evidence, Tibbetts must further show that counsel’s actions were prejudicial.
The majority concludes that Tibbetts failed to demonstrate prejudice because any
additional evidence that counsel failed to uncover or present would have been
cumulative.

We have stated that we “reject a requirement that any later-identified cumulative
mitigating evidence must have been introduced in order for counsel to be effective.”
Clark v. Mitchell, 425 F.3d 270, 286 (6th Cir. 2005); id. at 286–90 (surveying cases); see
also Beuke, 537 F.3d at 645. And, according to our case law, “‘to establish prejudice,
the new evidence that a habeas petitioner presents must differ in a substantial way—in
strength and subject matter—from the evidence actually presented at sentencing.’”
Broom, 441 F.3d at 410 (quoting Clark, 425 F.3d at 286) (alteration omitted). The
question is thus whether the additional mitigation evidence concerning Tibbetts’s
mentally and physically abusive childhood and upbringing differs in strength and subject
No. 06-3886 Tibbetts v. Bradshaw Page 26

matter from the evidence introduced such that there is “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. As explained below, I believe that the evidence
does demonstrate that Tibbetts was prejudiced and that a contrary conclusion is
unreasonable.

At mitigation, Dr. Weaver’s testimony on Tibbetts’s abusive childhood consisted
of the following:

[Tibbetts] had a miserable childhood. Horrible. . . . The parents were
both drug users. His father was, in addition to an alcoholic. He and two
of his siblings, brothers, all of them who have been in difficulty with the
law, were cared for by a 10-year-old sister, whom I talked with this
morning incidentally. And when the Welfare Department—or Human
Services found out about this, or when it was reported, they stepped in.
And there was a continuing contact with Human Services from 1961 or
‘62, throughout those years, and he and his brothers were taken for foster
home placement. Not very happy ones, according to his sister. . . . And
he had several placements . . . which were not satisfactory. Like, they
were too punitive with him. Matter of fact, the sister reported that he and
his two brothers were tied in bed at night so they would not be any
problem. No sheets, no pillows, no pillow case or anything. Treated
more like animals. The[re] wasn’t any [nurturing] of him or the other
sibling.

J.A. at 1125–26 (Weaver Test.). Tibbetts’s unsworn statement regarding his childhood
revealed that Tibbetts did not “like to talk about [his] childhood because [he] never did
like it,” that he “didn’t like going home” because he “didn’t like to hear the hollering[
and] the belts,” and that “there was no family love.” J.A. at 1220–22 (Tibbetts
Statement).

The evidence discovered in post-conviction materials, however, revealed a much
more chaotic and abusive environment, including never-before-revealed details about
Tibbetts’s abuse at the hands of his biological parents. For example, Terry submitted an
affidavit disclosing that Tibbetts’s biological mother and father were “cruel” and
engaged in “extreme violence” toward the children, requiring Terry to protect Tibbetts
and the younger siblings from the blows of their parents. Terry Aff. ¶ 6. Terry also
No. 06-3886 Tibbetts v. Bradshaw Page 27

revealed that Tibbetts’s mother and father failed to provide their children with basic
needs, leaving them “alone often without food or proper clothing,” id. ¶ 7, and the
children had to rely on people from the community to donate such items, lest they go
hungry and cold. Tibbetts’s father also “brutalized” Tibbetts’s mother, “beating her
bloody with a fan and a telephone,” id. ¶ 8, and, in general, the household where Tibbetts
lived with his biological parents “was a place of constant violence,” id. ¶ 8. In addition
to Terry’s recollection of these events, an affidavit from Tibbetts’s father submitted
during post-conviction proceedings revealed that he would have testified first-hand that
he and Tibbetts’s mother were unable to care for their children. Tibbetts, S. Aff. ¶¶ 3, 4.

Once removed from the biological household, Tibbetts did not fare any better.
One of the foster-care mothers, Ms. Merriman, was a drug addict, “wacked out of her
head,” and never took care of Tibbetts. Terry Aff. ¶ 11. In fact, far from becoming a
safe space for the already-abused Tibbetts, the foster-care mother’s own biological
children “brutalized” Tibbetts and his siblings by kicking them down the stairs, beating
them with spatulas, and burning their hands on heat registers, which sent at least one
child the hospital. Id. ¶ 12. The Merrimans essentially treated Tibbetts like an animal.
He was required to sit in the corner of the kitchen all day long until bedtime, id. ¶ 11, at
which point he was tied to the bed. Although Dr. Weaver did mention this detail,
perhaps equally disturbing is how this task was accomplished: Ms. Merriman would
lash “rope around [Tibbetts’s] waist[] that dug into [his] stomach[],” id. ¶ 11, causing
pain throughout the night. Moreover, Ms. Merriman “never fed” the children while in
the foster-care home, id. ¶ 13, and locked them outside for long periods of time without
access to a toilet, causing one of Tibbetts’s siblings to have a bowel impaction, id. ¶ 14.
Mr. Merriman also abused the Tibbetts children, and according to Terry, he attempted
to molest her sexually on at least one occasion while they were residing in the Merriman
home. Id. ¶ 14. Tibbetts’s father’s affidavit indicated that he and Tibbetts’s mother
knew that the children were being mistreated in foster care but did nothing. Tibbetts, S.
Aff. ¶¶ 3, 4. Ultimately, Tibbetts’s mother gained authorization to remove her children
from the Merrimans’ care, but she decided to take only two of them, leaving Tibbetts
behind. According to Terry, when it came time for the others to leave, her mother
No. 06-3886 Tibbetts v. Bradshaw Page 28

ignored Tibbetts, “act[ing] like [he] did not exist,” and she “refused to even see” Tibbetts
when he came to visit. Id. ¶ 15. Tibbetts’s father confirmed that Tibbetts’s mother
simply wanted nothing to do with Tibbetts. Tibbetts, S. Aff. ¶¶ 3, 4. Perhaps Tibbetts’s
mother’s cruelty and emotional abuse was not entirely surprising, however, as post-
conviction materials also revealed that she likely had a “borderline personality” disorder
and was a “dangerous” individual. Id. ¶ 17. The State finally removed Tibbetts from
the Merriman home, and Tibbetts was placed with a second family, where he was not
treated much better. Id. ¶ 19.

The evidentiary hearing also revealed that had counsel contacted Tibbetts’s
childhood friend, Sandra Nunley, counsel would have learned that once Tibbetts exited
the foster-care system he was still denied an environment conducive to normal childhood
development. The Children’s Protestant Orphanage where Tibbetts was sent following
foster care was “very strict,” and although it was not physically abusive, the children
were not permitted to do much of anything. Nunley Aff. ¶ 3. Nunley recounted that the
people who ran the orphanage provided “no affection” or “nurturing” and there was “no
opportunity to get close to or bond with any of the adults,” id. ¶ 4, which was what
Tibbetts most desired. Moreover, Tibbetts “never received visits from anyone,” which
was “[u]nlike the other children” at the orphanage, id., and Tibbetts was never allowed
to engage in activities with friends after school or participate in normal social functions,
id. ¶ 5. Nunley also would have explained to the jury that Tibbetts so yearned for
affection that she and Tibbetts often broke the rules in order to see one another. Id.
¶¶ 6–7.

This additional evidence is not cumulative but instead adds real substance to the
story of Tibbetts’s childhood that was conveyed to the jury. For example, the
undisclosed evidence reveals Tibbetts’s mental and physical abuse at the hands of his
biological mother and father, which was not presented to the jury during the penalty
phase. Cf. Eley v. Bagley, 604 F.3d 958, 969 (6th Cir. 2010) (“Although the evidence
presented at the post-conviction hearing did go into more depth than the evidence
presented by trial counsel at sentencing, it did not cover any new subject matter and was
No. 06-3886 Tibbetts v. Bradshaw Page 29

not substantially more persuasive than the trial evidence.”). The additional evidence also
provides “shocking, disheartening, and utterly disturbing details about [Tibbetts’s]
upbringing,” Beuke, 537 F.3d at 646, and does not merely elaborate on a difficult
childhood that had been described already by several witnesses. See Williams, 529 U.S.
at 398 (finding prejudice where the evidence that was not disclosed provided a “graphic
description of [the petitioner’s] childhood, filling with abuse and privation”); cf. Wiles
v. Bagley, 561 F.3d 636, 639 (6th Cir. 2009) (“Most of the ostensibly new evidence
represents variations on th[e] same theme” presented at the penalty phase); Beuke, 537
F.3d at 646 (concluding that details such as the fact that the petitioner had low self-
esteem and was sheltered when growing up did not support a finding of prejudice despite
being noncumulative); Broom, 441 F.3d at 410. To the contrary, as outlined above, none
of Tibbetts’s family or friends had been interviewed or testified about the details
revealed in the post-conviction hearing, and Dr. Weaver’s description of Tibbetts’s
childhood as “miserable” or “horrible,” or even Dr. Weaver’s example of Tibbetts’s
foster family as being “too punitive” by tying the children to the bed, does not even
come close to conveying the extent and gravity of Tibbetts’s torture and abuse. The two
foster-care placements were more than just “not satisfactory,” as Dr. Weaver testified,
but rather they were abusive. In essence, “rather than being cumulative,” the evidence
that counsel failed to uncover and present “provides a more nuanced understanding of
[Tibbetts’s] psychological background and presents a more sympathetic picture of
[Tibbetts]” that is sufficient to support a finding of prejudice. Jells, 538 F.3d at 501; see
Johnson, 544 F.3d at 604 (finding prejudice where “not one witness testified about the
abuse that [the petitioner] suffered as a way of life” (internal quotation marks omitted));
cf. Broom, 441 F.3d at 410 n.27 (holding habeas relief was not warranted when the
additional mitigation evidence included “the fact that [Defendant] was placed in a
juvenile detention facility as a teenager, that a close friend of [Defendant’s] was shot and
killed, and that [Defendant’s] father was a pimp.”).2

2
The Supreme Court of Ohio’s description of the background evidence that was presented in
mitigation further reveals the extent to which salient details about Tibbetts’s abuse simply were not
disclosed during the penalty phase. The entirety of the Supreme Court of Ohio’s description is as follows:
The defense presented evidence about Tibbetts’s background, which offers
No. 06-3886 Tibbetts v. Bradshaw Page 30

Even assuming, however, that the majority is correct that sufficient details about
Tibbetts’s abuse were introduced via Dr. Weaver’s testimony, I remain unconvinced that
Tibbetts was not prejudiced by counsel’s deficient performance and failure to call lay
witnesses such as Tibbetts’s sister, father, and friends. First, had Tibbetts’s family and
friends testified, the evidence regarding Tibbetts’s childhood abuse would have come
directly from individuals who experienced the same abusive environment as Tibbetts and
even from one individual who actually inflicted some of the abuse. Having those
individuals testify as to what Tibbetts endured certainly would have had a greater impact
on the jury than just listening to Dr. Weaver mention Tibbetts’s childhood abuse vaguely
and in passing. Second, it is important to remember one of the State’s tactics during the
penalty phase was to challenge the legitimacy of the defense’s mention of childhood
abuse, however minimal the reference. Thus, even assuming that the testimony from the
above-mentioned lay witnesses would not have uncovered evidence different in
substance from that which was introduced—again, a proposition with which I do not
agree—the evidence certainly would have been different in strength based on its source.
Throughout the hearing, the State attempted to undermine the mitigation value of
Tibbetts’s abusive childhood by implying that the defense was fabricating any mention
of such abuse. For example, when Dr. Weaver spoke vaguely about the problems that
Tibbetts had in foster care, the prosecutor pointed out that “[t]he information [Dr.
Weaver was] telling . . . the jury [wa]sn’t in [the children’s services records]. . . . This
[information was] in a conversation [that Dr. Weaver] had with [Tibbetts’s] sister at
some other time which [the court and the jury] have nothing about.” J.A. at 1171
(Weaver Test.). The State also noted that the records contained no information about
Tibbetts’s abusive childhood, id. at 1170, and, to the contrary, indicated that the State
had monitored appropriately Tibbetts’s placement in foster care, implying that any claim

some modest mitigating value. Dr. Weaver described Tibbetts’s childhood as
“miserable” and “horrible.” Because Tibbetts’s parents were drug users, Tibbetts and
his siblings were placed in foster care at an early age. Tibbetts spent most of his
childhood living in either a foster home or an orphanage. Tibbetts eventually achieved
some success in high school as a member of the football team, but suffered a knee injury
that ended his high school football career. At an early age, however, he began a pattern
of getting into trouble with the authorities and eventually spent time in prison.
State v. Tibbetts, 749 N.E.2d 226, 258 (Ohio 2001).
No. 06-3886 Tibbetts v. Bradshaw Page 31

that the placements were problematic was exaggerated, if not an outright lie, id. at 1172.
As mentioned above, the State’s claim regarding the various records was not far from
the truth. Again, the records contained surprisingly little in the way of definitive
evidence that Tibbetts was raised in a mentally and physically abusive environment, and
much of the mention of abuse was couched in terms of speculation and possibilities with
social workers reporting rumors of abuse but never making any determination or
conclusion. Based on the evidence that counsel submitted at mitigation, then, the jury
could have deliberated with the erroneous impression that Tibbetts was never actually
abused as a child, which the evidence revealed in post-conviction proceedings shows is
clearly not the case. In short, had counsel relied on first-hand accounts about Tibbetts’s
abusive home and foster-care placements, the State would have been unable to challenge
so readily the little evidence of Tibbetts’s abusive childhood that was conveyed.

Furthermore, I cannot turn a blind eye in the prejudice analysis to the fact that
the effectiveness of the defense’s sole mitigation witness, Dr. Weaver, was undermined
by several of his statements characterizing Tibbetts as a dangerous individual, even
when sober. When trial counsel asked Dr. Weaver whether Tibbetts had the ability to
control himself and his impulses, Dr. Weaver stated:

When I saw him the first time, I guess that I got a little concerned about
my own safety. . . . When I saw him initially, and when he came in, the
air when I had—when I looked at him, you know, I’m not going to cross
him. I’m not going to cross him. This was even in the Justice Center in
the medical department there. . . . It was more of a—more of an open-
ended interview which I had with him for the most part, about things. I
didn’t push him. I’m concerned about my own safety.

J.A. at 1139 (Weaver Test.). These statements not only cast Tibbetts in an extraordinary
negative light, but they also weaken the legitimacy of the mitigation theory on which the
defense relied—that drugs and alcohol precluded Tibbetts from being able to appreciate
his criminal acts or control himself. After all, the only witness who had been called to
make the case to spare Tibbetts’s life was, in reality, concerned about Tibbetts’s inability
to control himself even when lucid, sober, and incarcerated, thus implying that it might
No. 06-3886 Tibbetts v. Bradshaw Page 32

not have been the drugs and alcohol that induced the crime. Dr. Weaver’s statements did
not escape the prosecutor, who emphasized them on cross examination:

Q: You were apprehensive of this man at that time when you walked
in to sit down to see him.
A: Sort of bad vibes that I had when he walked in the room, yes sir.

J.A. at 1162 (Weaver Test.).

In short, the evidence that counsel failed to uncover and introduce through
Tibbetts’s family members and friends differs in both substance and strength from that
introduced via Dr. Weaver, Tibbetts, and the official records. As in Porter, the jury at
Tibbetts’s “original sentencing heard almost nothing that would humanize” him “or
allow them to accurately gauge his moral culpability.” Porter, 130 S. Ct. at 454. And
the type of mitigation evidence that trial counsel failed to uncover and introduce—that
Tibbetts was abused as a child—is markedly different from the evidence that supported
defense counsel’s chosen mitigation theory. Evidence of childhood abuse certainly
would “have elevated the jurors’ sympathies for [Tibbetts],” Bueke, 537 F.3d at 645, in
a way that evidence of his intoxication and drug abuse would not. As a panel of this
Circuit stated in Wiles v. Bagley, “it is hardly self-evident that getting high on
barbiturates before stabbing someone to death is the kind of evidence that makes a
capital defendant look better in the eyes of a court as opposed to making him look even
worse.” Wiles, 561 F.3d at 640 (internal quotation marks and alteration omitted). But
it is impossible to conclude that evidence of his mistreatment as a child would not have
provided a compelling reason to find Tibbetts less morally culpable and spare him a
death sentence. “Mitigating evidence unrelated to dangerousness may alter the jury’s
selection of penalty, even if it does not undermine or rebut the prosecution’s death-
eligibility case.” Williams, 529 U.S. at 398.

As a final response to the majority’s claim that counsel was not constitutionally
deficient and that Tibbetts was not prejudiced, I emphasize that the Supreme Court
recently made clear that it has “never limited the prejudice inquiry under Strickland to
cases in which there was only little or no mitigation evidence presented.” Sears v.
No. 06-3886 Tibbetts v. Bradshaw Page 33

Upton, 130 S. Ct. 3259, 3266 (2010). Instead, the Court noted that it has found
“deficiency and prejudice” in cases such as the instant case, where “counsel presented
what could be described as a superficially reasonable mitigation theory during the
penalty phase,” id. (citing Williams, 529 U.S. at 398; Rompilla v. Beard, 545 U.S. 374,
378 (2005), and Porter, 130 S. Ct. at 449), but failed to uncover and present compelling
mitigation evidence related to another, legitimate and consistent theory,3 cf. Wong, 130
S. Ct. at 385 (“[Counsel] understood the gravity of [the] aggravating evidence [of guilt],
and he built his mitigation strategy around the overriding need to exclude it.”). Indeed,
the case that the majority selects to demonstrate lack of prejudice, Phillips v. Bradshaw,
607 F.3d 199 (6th Cir. 2010), is inapposite because in Phillips the additional mitigation
evidence conflicted with counsel’s mitigation strategy. In Phillips, “[“t]he majority of
the additional evidence [would have] contradict[ed] the theory that [the defendant’s]
counsel presented during the mitigation phase,” and “a different approach [to mitigation]
would have been required if the totality of the mitigating evidence [had been]
presented.” Id. at 217. Here, as shown above and in contrast to Phillips, the additional
evidence of first-hand accounts of Tibbetts’s childhood abuse would have provided
compelling reason for the jury to conclude differently at the penalty phase.

3
The State’s reliance on Brooks v. Bagley, 513 F.3d 618, 626 (6th Cir. 2008), and Nields v.
Bradshaw, 482 F.3d 442, 454 (6th Cir. 2007), is unconvincing. In Brooks, a panel of this Circuit held that
the petitioner was not prejudiced by counsel’s actions, even assuming deficient performance, because the
information contained within the post-conviction affidavits was either presented verbatim at trial, Brooks,
513 F.3d at 625–26, 629, or not of the type that would have helped, id. at 627 (indicating the additional
information consisted solely of Defendant’s “belief in voodoo,” the “accusation that [Defendant’s wife]
was having an incestuous relationship with the couple’s oldest son,” and the Defendant’s “refusal to allow
his oldest son to display athletic trophies”). As outlined above, however, that is not the case here.
Furthermore, unlike the instant case, the trial record in Brooks directly contradicted many of the claims
in the post-conviction affidavits, id. at 626–27, 628, and many affidavits failed to state what information
the affiants would have provided had they been contacted before the trial, id. at 630.
Nields is likewise distinguishable. In Nields, a panel of this Circuit first determined that counsel
was not deficient, Nields, 482 F.3d at 453, and then concluded that the undiscovered additional mitigating
evidence was “relatively weak” regardless, id. at 454. That additional evidence in Nields would have
revealed that the petitioner’s “‘childhood home life was chaotic and neglectful,’ that ‘he was an expert and
dedicated musician whose life was once very focused,’ that ‘he had several successful employment
experiences and was a hard worker,’ that ‘he did not drink while he was working,’ and that he ‘was a
dependable, kind-hearted friend and an extremely helpful, friendly person.’” Id. (quoting defendant’s
brief). The type of undiscovered additional evidence in Tibbetts’s case is of a different character. It does
not show simply that Tibbetts could be a good guy. It details his very traumatic, even tortured, childhood
and upbringing.
No. 06-3886 Tibbetts v. Bradshaw Page 34

C. Counsel Was Constitutionally Ineffective

The constitutional infirmities that plagued the penalty phase of Tibbetts’s capital
trial are unfortunately frequent. Yet again in this Circuit, however, a majority of a panel
casts aside obvious and prejudicial errors by upholding a death sentence issued by a jury
that was not informed of key mitigation evidence that could have made a difference in
whether the jury decided that Tibbetts should die for his admittedly horrible crime. For
the reasons discussed above, I believe that Tibbetts has shown that his trial counsel was
constitutionally ineffective during Tibbetts’s penalty phase. Counsel was clearly
deficient in his investigation of mitigating evidence. Although he hired a mitigation
specialist and requested several records from a variety of educational and medical
institutions, counsel failed to follow up on the specialists’ leads and explain the
relevance of the introduced documents. Moreover, counsel called only one mitigation
witness, who was not properly equipped to discuss Tibbetts’s childhood. Most
disturbingly, however, counsel failed to interview Tibbetts’s family and friends, despite
their willingness to provide information. Counsel’s performance was constitutionally
deficient.

In addition, counsel’s failure to uncover significant details about the abuse that
Tibbetts suffered as a child was prejudicial. The information uncovered in post-
conviction proceedings “paint[ed] a significantly more detailed picture of [Tibbetts’s]
troubled background” than the scant evidence introduced at the penalty phase, Jells, 538
F.3d at 499. The nonintroduced evidence provided numerous details of Tibbetts’s abuse
while in foster care and disclosed, for the first time, Tibbetts’s abuse while under the
care of his biological parents. In addition to providing additional substance, had counsel
uncovered and presented the evidence disclosed during post-conviction proceedings, the
jury would have heard the horrors of Tibbetts’s upbringing from first-hand sources, and
Tibbetts would have been able to stymie the State’s attack on the truthfulness of
Tibbetts’s claims that he was abused. Presented with such evidence, the jury would have
been provided with an alternative, much more compelling case for sparing Tibbetts’s
life. Because the Ohio Court of Appeals unreasonably applied clearly established law
No. 06-3886 Tibbetts v. Bradshaw Page 35

in concluding that counsel was not constitutionally ineffective, I would GRANT the writ
of habeas corpus on this claim.

II. CONCLUSION

For the reasons discussed above, I would REVERSE the district court’s
judgment and GRANT Tibbetts’s petition for a writ of habeas corpus on the basis of his
second assignment of error. I respectfully dissent.