Neal v. Puckett

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-60511
_____________________

HOWARD MONTEVILLE NEAL,

Petitioner-Appellant,

versus

STEVE W. PUCKETT, Commissioner,
Mississippi Department of
Corrections; JAMES ANDERSON,
Superintendent, Mississippi
State Penitentiary,

Respondents-Appellees.
_________________________________________________________________

Appeal from the United States District Court for the
Southern District of Mississippi

_________________________________________________________________
January 18, 2001
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Howard Neal was sentenced to death by the state courts of

Mississippi for the brutal rape and murder of his thirteen-year-old

niece, Amanda Joy Neal. He also shot and killed his brother, Bobby

Neal, and he raped and murdered his niece’s fourteen-year-old

friend, all during the same episode. He now seeks federal habeas

corpus relief on the grounds of ineffective assistance of counsel.

Neal argues that his counsel failed to thoroughly investigate
Neal’s background--including his horrid childhood of rejection,

abandonment, and mental institutions, plus his torturous prison

experience--to uncover evidence of mitigating circumstances that he

could have presented to the jury during the sentencing phase of his

trial. Neal raised this ineffective counsel claim before the

Mississippi Supreme Court. That court denied relief, concluding

that the additional evidence would have been cumulative of what

actually was presented. Because we conclude that the Mississippi

Supreme Court’s conclusion, although incorrect, was not an

unreasonable application of Strickland v. Washington, we deny

Neal’s request for a writ of habeas corpus.

I

The facts of this case are discussed in detail in the

published opinion by the Mississippi Supreme Court on Neal’s direct

appeal. Neal v. State, 451 So.2d 743, 747-51 (Miss. 1984). We

restate the facts briefly here.

Neal is a moderately retarded man, with an IQ of between 54

and 60. The record indicates that he had a nightmarish childhood

and young adulthood. We will discuss these facts in more detail in

the body of this opinion. In short, as a youth he was discarded by

his family, spent eight years in Mississippi state mental

institutions, and then some time in an Oklahoma prison for assault

and battery with a dangerous weapon, where, as a helpless

2
individual, he apparently suffered sexual abuse by fellow

prisoners.

In January 1981, Neal drove to the home of his half-brother,

Bobby Neal, against whom he may have had a longstanding resentment.

Bobby, Bobby’s thirteen-year-old daughter, Amanda Joy, and her

friend, Melanie Sue Polk, were together in the house. The three

left with Neal in Neal’s car, perhaps by force (but this is

uncertain). During the drive, while they were on a logging road,

Neal, according to his confession, began fondling Amanda Joy.

Bobby told Neal to stop, and an argument ensued. Neal stopped the

car, and he and Bobby got out and walked some distance away. At

that point, Neal shot Bobby, killing him. Neal then returned to

the car and drove to another deserted area with the two girls. He

pulled a blanket from his car and proceeded to rape Amanda Joy. He

then raped Melanie Sue and shot both girls.

After the bodies were found, the pathologist’s examination of

Amanda Joy revealed bruises and lacerations about her face, head,

and left wrist, and evidence of manual strangulation, in addition

to the bullet hole in her abdomen. The pathologist concluded that

Amanda Joy could have survived between five and thirty minutes

given her wound.

The police began by canvassing the nearby communities. As

part of their investigation, they showed some people a photograph

3
of Neal and asked whether he looked familiar. The owner of a

nearby motel said that he remembered Neal renting a room about the

time of the murder. By this time, however, Neal was in California,

where he was later arrested for shoplifting. During a standard

background check, the California police discovered that Neal was

wanted for questioning in Mississippi. After several days of

interrogation in California, Neal admitted to the California

authorities that he had committed the murders.

Neal was tried and convicted for Amanda Joy’s murder based on

the confession he gave police,1 and the jury sentenced him to

death. Under Mississippi law, the jury is required to balance

statutorily-defined aggravating factors against any mitigating

factors in determining whether the death penalty is warranted.

Billiot v. Puckett, 135 F.3d 311, 315 (5th Cir. 1998). In Neal’s

case, the jury found that two aggravating circumstances--that the

murder was committed in the course of a kidnaping and was

“especially heinous, atrocious, or cruel”--were sufficient to

impose the death penalty and were not outweighed by mitigating

circumstances. See Miss. Code Ann. § 99-19-101(5)(d) and (h).

Neal appealed this conviction and sentence, both of which the

Mississippi Supreme Court ultimately affirmed. Neal, 451 So.2d

1
In a separate trial, Neal was tried and convicted for Bobby’s
murder but received only a life sentence. He was never tried for
Melanie Sue’s murder.

4
743. Neal then sought habeas corpus relief. The Mississippi

Supreme Court granted Neal an evidentiary hearing on whether he had

been denied the opportunity to testify on his own behalf, Neal v.

State, 525 So.2d 1279, 1283 (Miss. 1987), but after this hearing,

that court denied relief. Neal v. State, 687 So.2d 1180 (Miss.

1996). Neal then filed a petition for a writ of habeas corpus in

the United States District Court for the Southern District of

Mississippi on July 7, 1997. In an unpublished order, the district

court denied Neal’s petition on January 7, 1999, and then denied

his request for a Certificate of Appealability (“COA”) on

October 7, 1999. Neal then filed a motion seeking a COA in this

court. We denied his motion on all claims but one. We did grant

a COA to determine whether Neal’s trial counsel was ineffective at

the sentencing phase of the trial for failing to investigate

evidence of mitigating circumstances and to present that evidence

during the sentencing hearing. We now address that issue on the

merits.

II

A

Neal contends that his trial counsel was ineffective for

failing to investigate and gather, and consequently failing to

present, mitigating evidence during the sentencing phase of the

trial. The Sixth Amendment requires defense counsel to conduct a

5
reasonably thorough pretrial inquiry into the defenses that might

be offered in mitigation of punishment. Baldwin v. Maggio, 704

F.2d 1325, 1332-33 (5th Cir. 1983). Neal argues that his lawyers

failed to do so and, as a result, called only two witnesses during

sentencing--Neal’s mother and a psychologist.

Neal argues that his lawyer should have interviewed members of

the staff at the two institutions where Neal spent time as a youth,

Ellisville and Whitfield.2 He also contends that his lawyer should

have obtained the records from the prison in Oklahoma where Neal

was incarcerated as a young man or at least consulted officials or

medical personnel from that prison regarding his mental

capabilities and character. Finally, he contends that he should

have been evaluated by a neurologist to explain further his mental

state. None of this occurred, so any possible mitigating evidence

from these sources was unavailable to the jurors deciding his

sentence. Neal further argues that he was prejudiced by his

counsel’s performance because there is a reasonable probability

that if this evidence had been before the jury, he would have

received a life sentence instead of death.

B

2
Ellisville was a school for retarded children and Whitfield
was the state mental hospital.

6
 Our first responsibility is to determine the standard of

review. Because Neal filed his petition for habeas corpus relief

on July 7, 1997, the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) governs this appeal. See Lindh v. Murphy, 521 U.S. 320,

324-26, 117 S.Ct. 2059, 2062-63, 138 L.Ed.2d 481 (1997)(confirming

that the AEDPA applies to federal habeas corpus petitions filed on

or after April 24, 1996). The AEDPA standard for granting habeas

corpus relief with respect to an adjudication on the merits in

state court is stated in 28 U.S.C. § 2254(d):

“(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the 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 of the United States....”

In the context of federal habeas proceedings, adjudication “on

the merits” is a term of art that refers to whether a court’s

disposition of the case was substantive as opposed to procedural.

Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). In the

present case, the state supreme court denied habeas corpus relief

on the grounds that any additional evidence that Neal could have

uncovered and presented would have been “substantially redundant or

cumulative when compared with the evidence Neal offered at trial.”

Neal v. State, 525 So.2d 1279, 1281 (Miss. 1987). Thus, that

7
court’s disposition of this issue was substantive and therefore

qualifies as a decision “on the merits.”

In this case, the “clearly established Federal law” is the

Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny, which

govern ineffective assistance of counsel claims. As the Supreme

Court noted recently,

It is past question that the rule set forth in Strickland
qualifies as “clearly established Federal law, as
determined by the Supreme Court of the United States.”
That the Strickland test “of necessity requires a case-
by-case examination of the evidence” obviates neither the
clarity of the rule nor the extent to which the rule must
be seen as “established” by this Court.

Williams v. Taylor, 120 S.Ct. 1495, 1512, 146 L.Ed.2d 389 (2000).

The meaning of “unreasonable application,” however, is less

clear. The Supreme Court has recently explained that a state court

decision involves an unreasonable application of this Court’s

precedent

if the state court identifies the correct governing legal
principle from this Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s
case.

Id. at 1523. Although “unreasonable” is difficult to define, the

Court offered some guidance. First, while acknowledging that

earlier Supreme Court decisions may have caused confusion, the

Court specifically rejected the subjective standard that we set out

in Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996). Instead,

8
the Court held that the standard is objective: “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.” Williams,

120 S.Ct. at 1521-22. Second, the Court emphasized that the “most

important point” of the Williams decision is the critical

distinction between an unreasonable application of federal law and

a merely “incorrect” or “erroneous” application of federal law.

Id. at 1522-23. Because section 2254(d) “places a new constraint”

on a federal habeas court and demands greater deference to state

courts, we have no authority to grant habeas corpus relief simply

because we conclude, in our independent judgment, that a state

supreme court’s application of Strickland is erroneous or

incorrect. Id. at 1523.

Given this deferential standard of review under Section

2254(d), the question before us is whether the Mississippi Supreme

Court’s decision to reject Neal’s ineffective assistance claim

“involved an unreasonable application” (and not merely an incorrect

application) of Strickland.

C

To establish an ineffective assistance of counsel claim, Neal

must show both that his counsel’s performance was deficient and

9
that the deficient performance prejudiced his defense. Strickland,

466 U.S. 668, 687.

(1)

(a)

Counsel’s performance is considered deficient if it “falls

below an objective standard of reasonableness” as measured by

professional norms. Strickland, 466 U.S. at 688. We must

determine whether there is a gap between what counsel actually did

and what a reasonable attorney would have done under the

circumstances. In scrutinizing counsel’s performance, we make

every effort to “eliminate the distorting effects of hindsight,”

id. at 689, and do not assume that counsel’s performance is

deficient “merely because we disagree with trial counsel’s

strategy.” Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999).

But with that said, we consider it indisputable that, in the

context of a capital sentencing proceeding, defense counsel has the

obligation to conduct a “reasonably substantial, independent

investigation” into potential mitigating circumstances. Baldwin,

704 F.2d at 1332-33. In assessing counsel’s performance, we look

to such factors as what counsel did to prepare for sentencing, what

mitigating evidence he had accumulated, what additional “leads” he

had, and what results he might reasonably have expected from these

leads. Applying this standard to the facts of Neal’s case, we

10
conclude that a reasonable attorney would have investigated further

and put on a more compelling defense during sentencing.3

(b)

Neal’s evidence of mitigating factors presented during

sentencing consisted of the testimony of only two witnesses: Neal’s

mother, who gave an overview of Neal’s troubled background; and a

psychologist, Dr. Dana Alexander, who testified about Neal’s mental

and emotional difficulties. Reviewing this testimony does not take

long.

The testimony by Neal’s mother covers nine pages in the

transcript. She began with a brief description of his difficulties

in school and his subsequent transfer to Ellisville and Whitfield:

He went to school till he was ten years old. He couldn’t
learn in school. The teachers tried, I tried. He had a
[hard] time remembering things. He couldn’t remember,
and at the time his daddy and I separated, and because of
his ability to learn, the welfare told me to send him to
a State School at Ellisville, and he would have a trade,
and he stayed there till he was sixteen, and then they
took him from Ellisville to Whitfield, and he stayed
there till he was eighteen or nineteen, and then he came
home and stayed with me--lived with me for about a year
or maybe two, and then my husband got disabled to work
and he started drawing his Social Security, and he
wasn’t--he couldn’t stay there with us because they told
us that he couldn’t, and he got mad and left home, and I
didn’t know where he even went from there, and we had

3
The Mississippi Supreme Court appears to have assumed that
counsel’s performance was deficient, as the state court focused
solely on Strickland’s second prong, prejudice. But because the
state does not concede the point, we address its arguments
regarding deficiency.

11
 five other kids, and I wasn’t able to take care of them
when we separated.

This testimony also included several responses to counsel’s

questions about Neal’s education level (second grade, but unable to

read or write), his marital status (married twice, with one

daughter), and whether he owned a home (he did not). Neal’s mother

also testified that she tried to see him often when he was at

Ellisville, but often could not get there. Finally, Neal’s mother

explained that she had been unable to find anyone to adopt Neal, as

she had done with her other ten children, and consequently placed

Neal in the Ellisville institution.

Dr. Alexander’s testimony, excluding voir dire, includes

twenty-four pages in the transcript, about a third of which is

cross-examination. Dr. Alexander testified that she had tested

Neal’s IQ, and that his score was 54, at the low end of mild

retardation. According to her, Neal suffered from “organic brain

syndrome,” a disability characterized by “slowness, perseveration,

concreteness of perception, problems with memory, problems with

orientation and poor impulse control . . . impaired intellectual

functioning, impaired social and vocational functioning . . . and

inability to use controls like you or I.” She concluded that Neal

had the mental ability of an eight year old. Dr. Alexander also

testified about Neal’s behavioral problems. She described him as

“more irritable” and “more easily provoked” than normal people.

12
She also explained that Neal suffered from “psycho-sexual

confusion,” “a lack of a definite identity with either the male or

the female role.” This is the essence of her testimony on direct

and redirect examination.

The jury was therefore given the following picture of Neal: a

man with an IQ of 54, with the mental ability of an eight year old,

with conceptual deficiencies, with sexual identity problems, who,

because of his mental deficiencies was less able to control himself

and his impulses, including provocation, who had been denied any

semblance of a homelife and virtually rejected by his mother who

had placed him in state institutions for the retarded and mentally

ill, where he grew up and spent eight years of his youth. That is

the essence of the mitigating evidence that defense counsel

presented to the jury. Although it seems to touch many relevant

points, it was presented to the jury in an abbreviated form with no

elaboration.

(c)

Neal’s habeas counsel now presents us with forty-two pages of

affidavits and reports concerning Neal’s background as evidence of

mitigating factors. The affidavits come primarily from doctors and

employees at Ellisville, Whitfield, and the prison in Oklahoma.

There is also one from Neal’s sister and another from a social

worker. Neal contends that trial counsel was ineffective for

13
failing to gather and present these materials that would have

weighed against the death sentence. It is important to understand

fully the additional evidence that could have been presented, and

we turn now to the relevant material contained in the habeas

record.

The additional evidence does, indeed, make disturbing reading.

Neal’s sister, Maryann McNeese, describes his childhood household--

eleven children living with their parents in a two-bedroom house.

Neal’s father was an abusive alcoholic who was particularly brutal

towards Neal. An affidavit by Neal’s mother confirms this, as does

an affidavit by a social worker who knew the family at the time,

Marguerite McAulay. Neal was ten when he was sent to Ellisville,

a school for retarded children. McNeese’s affidavit states that

when that happened, “he was like a throwed away child. It was like

he didn’t have parents.”

Lamar Collom, an Ellisville bus driver and cafeteria worker,

befriended Neal and has provided another affidavit. It describes

Neal as a “good worker” and “likeable kid.” Collom goes on to say

that he “thought a lot” of Neal, but felt sorry for him because of

his terrible family background. Collom’s affidavit also explains

how Collom “used to give [Neal] a little money some weekends,”

which Neal “would spend at the little canteen.” An affidavit by

Lucille McIntosh, an Ellisville cafeteria employee, describes Neal

14
as “a good worker,” “cooperative,” and a boy who “got along with

the other kids.”

Two other items of evidence related to Neal’s time at

Ellisville concern Neal’s level of intelligence. James Woolington,

who founded Ellisville’s psychology program, tested Neal twice. In

his affidavit, Mr. Woolington concludes that Neal had an IQ between

54 and 60 at that time. James Johnson, Ellisville’s Coordinator of

Psychological Services at the time, also tested Neal’s

intelligence. A report attached to his affidavit sets his IQ at

55. The report also discusses Neal’s behavioral problems, such as

running away, picking on smaller children, and lack of remorse for

misdeeds. It describes his behavior as “spasmodic” and questions

Neal’s ability to control himself. Finally, the report mentions

that Neal was suspected of having engaged in homosexual

relationships while at Ellisville.

At age sixteen, Neal was transferred to Whitfield, a mental

institution. Dr. A. G. Anderson, a psychologist who knew Neal at

that facility, describes the conditions there in another affidavit:

The unit was not an enjoyable place for a young retardate
to live and was not a good therapeutic environment. It
was not a place that was beneficial to Howard’s mental
prognosis. Neither Howard nor any of the other residents
got the care they should have gotten. In fact it was not
a good environment for anyone including the staff. Not
many professionals wanted to work there.

15
The facility had little in the way of education, training, or

recreation. The affidavit goes on to explain that between ages

sixteen and eighteen, Neal lived in the maximum security unit with

approximately 150 “chronics,” people with mental disorders that

rendered them unable to stand trial, or who had shown aggressive

tendencies.

After Neal was released from Whitfield, he returned home. He

lived there several months until his mother forced him to leave

because she feared losing her welfare benefits if he stayed. Neal

then headed to Oklahoma, where he was soon arrested for assault and

battery with a dangerous weapon.

The habeas record also contains several affidavits from people

who knew Neal in the Oklahoma prison. The prison psychologist,

Thomas Norwood, testifies that he knew Neal “about as well as [he

had] known anybody [he has] worked with in [his] professional

capacity.” Mr. Norwood’s affidavit goes on to explain that “the

treatment of [Neal] by other inmates was so horrible [that he has]

difficulty discussing it,” and that Neal was the “most tragic case

[he] had” because Neal was so defenseless. As an example, Mr.

Norwood describes an incident where thirty-to-forty inmates forced

Neal under a table and to commit sodomy on each of them in

succession. Finally, Mr. Norwood explains that he helped Neal get

16
a place to live and social security benefits after Neal got out of

prison.

Jack Cowley, currently a warden at another Oklahoma prison,

was Neal’s case manager at the time. His affidavit asserts that he

“more or less adopted [Neal]” in prison. Mr. Cowley’s affidavit

also relates that he was concerned about what would happen to Neal

if Neal returned to Mississippi, where there was no one there to

care of him.

In addition, Neal has presented us with his prison records

from Oklahoma. There is no report concerning the event Mr. Norwood

described. The records do contain a report, however, about an

incident in which two inmates raped Neal. The report presents Neal

as defenseless, gullible, and at the mercy of the inmates

generally: “Inmate Neal also made reference to several instances

when his cell partner . . . has tried to get Neal to sell himself

so they could have some money.”

Several of the affidavits mention that Neal married Glenda

Snow, who was also mildly retarded, after his release from prison.

Though the two moved to Mississippi, her parents broke up the

marriage and took their daughter home. McNeese’s affidavit

describes her brother’s reaction: “Howard told me it hurt him when

Glenda had to go back to Oklahoma.” A few of the affidavits

17
mention that Neal subsequently remarried and had a child with his

second wife.

(d)

In a later section of this opinion, we will address the

question whether presentation of this additional testimony would

have changed the outcome of the sentencing hearing. For now, we

emphasize only the volume and easy availability of this additional

mitigating evidence.

Perhaps the most troubling aspect of these affidavits is that

they indicate that counsel never contacted any of the other people

(with the exception of Neal’s mother) who have provided the

additional testimony we now have before us, and which would have

added to and developed the skeletal evidence before the jury. For

example, Neal’s sister, Maryann McNeese, states that she contacted

defense counsel to ask about the case, and would have been willing

to testify on her brother’s behalf, but that they never asked her

to do so. And having examined the mother’s testimony at

sentencing, it is not even clear how much information defense

counsel collected from her before putting her on the stand. Dr.

Alexander’s testimony, too, was surely limited by the fact that she

had met with Neal just one time, three days before testifying, and

that trial counsel failed to tell her about what specific crime

Neal had been charged with or any facts about his personal history.

18
 The only materials that defense counsel appears to have had,

other than the assistance of Neal’s mother, are the records from

Neal’s time at Ellisville and Whitfield.4 And while they had some

indication of his difficult life in the institutions and in prison,

Neal’s attorneys chose not to pursue these sources of evidence. In

his affidavit, one of Neal’s attorneys at trial tried to explain

that they did not contact these potential witnesses due to lack of

funds and experience.

We did not have the time or money to properly investigate
[Neal’s] case. We had no money to interview witnesses or
travel. . . . I did not get Howard’s records or
interview people who had dealt with him in Oklahoma. I
did not interview any of his relatives other than his
mother. . . . We did not have a complete psychological
examination of Howard which would have included a
thorough investigation of his past medical and
psychological history and a neurological examination.
Had we had the time and money we would have done the
above investigations for use at both trial and
sentencing.

This explanation does not fully address, however, the fact that

most of the mitigating evidence was readily available and would

4
Of course, we do not assume that all of this evidence should
have gone before the jury. A psychologist’s report, for example,
was included in the Ellisville records that defense counsel
obtained before sentencing. Some portions of that report are
directly relevant to one the statutory mitigating factors:
“[Neal’s] ability to control his own behavior is questionable.”
But other portions of the report present an unflattering picture of
Neal, describing him as a bully who felt no remorse for misdeeds.
Given these facts, counsel may have made a strategic decision to
withhold that report, which, in the context of the sentencing
hearing that occurred, we will not second-guess.

19
have cost no more than several long distance telephone calls or

postage stamps.

Because of the extent to which these available materials could

reasonably have been expected to augment Neal’s case, we conclude

that his trial counsel was deficient in failing to investigate,

gather, and consider it for purposes of presentation at Neal’s

sentencing hearing.5

(2)

(a)

Having concluded that counsel’s performance during sentencing

was deficient, we now turn to the second prong of Strickland and

determine whether the deficient performance prejudiced Neal’s

defense during sentencing. To establish prejudice, Neal must show

that there is at least “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; see also United

States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) (“A defendant

who alleges a failure to investigate on the part of his counsel

must allege with specificity what the investigation would have

5
Several factually similar Fifth Circuit decisions have also
found deficient performance where counsel have failed to
investigate a defendant’s background in mental institutions and
prisons. See Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990);
Profitt v. Waldron, 831 F.2d 1245 (5th Cir. 1987); Beavers v.
Balkcom, 636 F.2d 114 (5th Cir. 1981).

20
revealed and how it would have altered the outcome of the trial.”)

By reasonable probability, the Court means a probability sufficient

to undermine confidence in the outcome. Id.

In determining prejudice, we are thus required to compare the

evidence actually presented at sentencing with all the mitigating

evidence contained in the postconviction record. Stated to the

point: Is this additional mitigating evidence so compelling that

there is a reasonable probability at least one juror6 could

reasonably have determined that, because of Neal’s reduced moral

culpability, death was not an appropriate sentence?

(b)

The additional mitigating evidence has been described in

detail above. It seems indisputable that this new evidence,

standing alone, presents a hugely sympathetic case for mitigating

a death sentence. But the State argues that we must evaluate the

evidence in context of the actual proceedings at sentencing;

specifically, the State argues that no prejudice occurred because

much of the additional testimony would not have been admitted,

either for tactical or procedural reasons.

First, the State raises questions as to the admissibility of

the testimony by Mr. Collom, Mr. Norwood, and Mr. Cowley because

6
In Mississippi, the jury must vote unanimously to impose the
death penalty. Miss. Code Ann. § 99-19-103.

21
their statements about their personal affection for Neal,

indicating a degree of personal worth, do not relate to the

statutory mitigating factors. This argument creates a potential

concern that such evidence would not be proper for the jury to

consider. It seems clear, however, that this evidence would have

been permissible for the jury to consider as mitigation. While he

asserted two statutory mitigating factors--the offense was

committed under the influence of extreme mental or emotional

disturbance, and his capacity to conform his conduct to the

requirements of law was substantially impaired, see Miss. Code Ann.

§ 99-19-101(6)(b) and (f)--Neal was not limited to presenting

evidence that related to these statutory mitigating factors. In

seeming contradiction to Furman v. Georgia, 408 U.S. 238, 92 S.Ct.

2726, 33 L.Ed.2d 346 (1972),7 the Supreme Court has repeatedly

affirmed the portion of the plurality opinion in Lockett v. Ohio,

438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978),

holding that the sentencer may not be “precluded from considering,

as a mitigating factor, any aspect of a defendant’s character or

record and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death.” See

Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139

7
See Walton v. Arizona, 497 U.S. 639, 656-69, 110 S.Ct. 3047,
3059-66, 111 L.Ed.2d 511 (1990)(Scalia, J., dissenting)(explaining
the conflict between Furman and Lockett).

22
L.Ed.2d 702 (1998)(reaffirming Lockett); Penry v. Lynaugh, 492 U.S.

302, 318, 109 S.Ct. 2934, 2946, 106 L.Ed.2d 256 (1989)(same);

Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S.Ct. 869, 876-77,

71 L.Ed.2d 1 (1982)(same). Such evidence appears clearly to be

admissible under Mississippi law. See Evans v. State, 725 So.2d

613, 694 (Miss. 1998)(explaining that § 99-19-101(1) of the

Mississippi Code provides for the admission of nonstatutory

mitigating evidence). The testimony in question here is evidence

concerning Neal’s character. These potential witnesses found

something worthy about Neal as a human being. Their testimony,

therefore, would have been before the jury as non-statutory

mitigating evidence and would have been weighed along with the

statutory mitigating circumstances. See Billiot, 135 F.3d at 315.

Second, the state argues that Mr. Norwood’s testimony about

the incident with the thirty-to-forty inmates would have been

inadmissible hearsay, as Mr. Norwood was presumably not present at

the time. Given this circuit’s narrow reading of Green v. Georgia,

442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), we cannot assume

that Norwood’s testimony would have been admitted. See Edwards v.

Scroggy, 849 F.2d 204, 212 (5th Cir. 1988)(exclusion of priest’s

testimony about direct statements made by the defendant did not

render the trial “fundamentally unfair” and thus did not violate

Due Process); Barefoot v. Estelle, 697 F.2d 593, 597 (5th Cir.

23
1983) (“We think that Green is limited to its facts, and certainly

did not federalize the law of evidence . . . . [although] certain

egregious evidentiary errors may be redressed by the due process

clause.”). However, even if Norwood’s testimony would have been

deemed inadmissible, the written report about the rape is similar

in nature. That report discusses Neal’s defenselessness and that

his own cellmate was trying to manipulate Neal to sell himself for

the cellmate’s profit. Thus, we believe the flavor of the Norwood

testimony, if not its details, would have been available to the

jury in the form of that report.

Third, the State argues that defense counsel made a strategic

decision to withhold some of the testimony. As we pointed out

above, this argument could apply only to Mr. Johnson’s report,

which was included with the Ellisville records that defense counsel

had. As to the other evidence, Neal’s attorneys simply could not

have made a decision strategically to withhold information that

they had not obtained.

Fourth, the State maintains that even if defense counsel had

obtained the new mitigating evidence, counsel would not have

presented that evidence for strategic reasons. The State makes

this argument primarily with respect to evidence about Neal’s

imprisonment in Oklahoma. As the State points out, defense counsel

successfully suppressed evidence of this conviction and

24
imprisonment during the guilt phase of the trial. But the State

also acknowledges that the prosecutors themselves could have

presented evidence of Neal’s imprisonment and past offenses during

sentencing under Miss. Code Ann. § 99-19-101(5)(b). In one sense,

Neal would not have “opened the door” by putting this evidence on

during sentencing because the door was already open. But if Neal

had sought to introduce evidence from his Oklahoma imprisonment--if

Neal had, in effect, invited the State to walk through this

already-open door--then the State would have tried to put Neal’s

Oklahoma past criminal experience in the worst possible light for

Neal. In sum, we cannot tell whether withholding the evidence may

have been strategically advantageous, and we find this argument

inconclusive.

(c)

The State’s most persuasive argument concerning prejudice is

that the additional mitigating evidence would have been, in the

Mississippi Supreme Court’s words, “substantially redundant and

cumulative.” Although the mitigating evidence the jury actually

heard was skeletal, they were presented the basic evidence that

Neal was moderately retarded, had been severely neglected by his

family, spent several years in state institutions, and suffered

from serious behavioral problems, including lack of self-control

25
and sexual identity problems.8 In the State’s view, the additional

evidence presented in the affidavits does little more than

reinforce the testimony of Neal’s mother and Dr. Alexander and

provide details to an otherwise sketchy portrait of Neal’s life.

It must be conceded that the jury was presented a clear, if not

fully portrayed, picture of Neal’s pathetic life. It was on this

basis that the Mississippi Supreme Court concluded that Neal was

not prejudiced by the omission of the evidence.

The State further argues that when we are considering the

mitigating effect of this supplementary evidence, we must weigh it

against the facts of the crime. The jury had heard how Neal had

brutally raped and murdered Amanda Joy, his thirteen-year-old

niece. The manner of death was unspeakably horrible. There were

bruises and lacerations about her face, head, and left wrist, and

there was also evidence of manual strangulation in addition to the

bullet hole in her abdomen. The pathologist’s report states that

Amanda Joy could have survived between five and thirty minutes

after Neal had left her to die. To overcome the aggravating

factors and avoid the death penalty, Neal’s mitigating evidence

would had to have been overwhelming and specifically relevant to

reducing his moral culpability for his heinous crimes. The state

8
The evidence presented to the jury is summarized in more
detail in section II.C.(1).(b) above.

26
thus concludes that if the facts the jury had already heard were

not sufficient to outweigh the aggravating circumstances, then the

additional evidence would have been unlikely to sway a jury.

Although this question is extremely close, we are unable to

agree with the State’s argument because, as the Supreme Court has

recently explained, courts must give due consideration to the

quality and volume of the additional mitigating evidence. The

Court’s evaluation of ultimate prejudice in that case is

instructive:

[T]he graphic description of [the defendant’s] childhood,
filled with abuse and privation, or the reality that he
was “borderline mentally retarded,” might well have
influenced the jury’s appraisal of his moral culpability.
. . . [T]he entire postconviction record, viewed as a
whole and cumulative of mitigation evidence presented
originally, raised “a reasonable probability that the
result of the sentencing proceeding would have been
different” if competent counsel had presented and
explained the significance of all the available evidence.

Williams, 120 S.Ct. at 1515-16. To be sure, there are several

significant factual differences between Williams and Neal.9 But

that does not allay our concern that the underlying principle of

the Williams prejudice determination requires that we must assign

9
First, some of the additional mitigating evidence in Williams
was not just of a better quality of evidence than that presented at
sentencing but was, in fact, evidence of new mitigating factors.
Second, the fact that Williams had turned himself in to the police
was a significant piece of additional mitigating evidence that is
not present in the case before us. Third, the circumstances of the
murder in that case, which arose from a simple robbery, were less
atrocious and unforgivable than those in the case before us.

27
significant weight to the quality of additional mitigating

evidence. Specifically, Williams suggests to us that the correct

analysis of our case is that with a more detailed and graphic

description and a fuller understanding of Neal’s pathetic life, a

reasonable juror may have become convinced of Neal’s reduced moral

culpability.

Viewed together, these affidavits and other evidence augment

Neal’s mitigating circumstances argument in at least five ways.

First, they present additional details about Neal’s childhood,

including the terrible living conditions with the alcoholic and

abusive father. Second, they provide a description of the bleak,

depressing, and hopeless life at the mental institutions. This is

especially true with respect to Whitfield. Third, the affidavits

describe Neal’s abuse and mistreatment in prison and his general

helplessness there. Fourth, Mr. Woolington’s testimony supports

Dr. Alexander’s limited testimony as to the level of Neal’s

retardation and his inability to control much of his behavior.

Fifth, the affidavits humanize Neal by demonstrating that there

were people along the way who saw some worth in him and befriended

him.

Our inquiry is obviously very difficult, but given the amount

and character of the mitigating evidence in this case, we believe

that there is a reasonable probability that a jury would not have

28
been able to agree unanimously to impose the death penalty if this

additional evidence had been effectively presented and explained to

the sentencing jury. In our judgment, then, the Mississippi

Supreme Court’s conclusion that the additional mitigating evidence

was merely redundant and not prejudicial is erroneous.

D

Our conclusion that the state court’s prejudice determination

is incorrect, however, is not enough to afford federal habeas

relief to Neal because, under AEDPA, we owe considerable deference

to the Mississippi Supreme Court. The statute plainly states that

we may not grant habeas relief unless the state court’s decision

unreasonably applies federal law. See 28 U.S.C. § 2254(d)(1); H.R.

Conf. Rep. 104-518, 104th Cong., 2d Sess. 111 (1996) (Section

2254(d) generally "requires deference to the determinations of

state courts”). Thus, Neal must go further yet and demonstrate

that the prejudice determination of the Mississippi Supreme Court

“involved an unreasonable application” of Strickland. We now turn

to try to give meaning to the term “unreasonable application,”

especially as it applies to this case.

(1)

The Supreme Court in Williams explained that “a federal court

making the ‘unreasonable application’ inquiry should ask whether

the state court’s application of law was objectively unreasonable.”

29
Williams, 120 S.Ct. at 1521. But even after Williams, it is not

immediately clear to us whether a federal habeas court looks

exclusively to the objective reasonableness of the state court’s

ultimate conclusion or must also consider the method by which the

state court arrives at its conclusion. This question takes on some

significance in a case such as Neal’s, where the state court’s

holding (that Neal suffered no prejudice under Strickland) may be

objectively reasonable, but in reaching that holding, the court did

not adequately evaluate and weigh the substantial evidence–the

implicit suggestion being that the state court may have reached a

different, but still “reasonable,” conclusion if a more thorough

method of reasoning had been applied.10

10
The Mississippi Supreme Court’s prejudice determination is
fairly brief. After summarizing Neal’s argument, the court stated
that the additional evidence was
substantially redundant or cumulative when compared with
the evidence Neal offered at trial. Specifically, Neal
now wants to present evidence of his lack of mental
capacity, a fact said to go to the voluntariness of his
confession and to be in mitigation of sentence. But he
went into these same matters at trial. He called Dr.
Dana Alexander, a clinical psychologist. He showed that
he had been in Ellisville State School for retarded
youths and that he was later in the retardation unit at
Mississippi State Hospital at Whitfield. He further
proved that his IQ was 54. Because it is cummulative
[sic], what Neal alleges and purports to show now that
counsel should have developed and proved simply does not
amount to a substantial showing of denial of a state or
federal right. Miss. Code Ann. § 99-39-27(5).
The same is true of Neal’s allegations that
competent counsel should have done a better job at
sentencing phase of proving the details of Neal’s

30
 The Seventh Circuit, sitting en banc, appears to have

concluded that federal courts must scrutinize a state court’s

method of reasoning. “By posing the question whether the state

court's treatment was ‘unreasonable,’ § 2254(d)(1) requires federal

courts to take into account the care with which the state court

considered the subject.” Lindh v. Murphy, 96 F.3d 856, 871 (7th

Cir. 1996) (en banc), rev’d on other grounds, 521 U.S. 320 (1997).

The reasonableness of a court’s application of federal law must be

measured, at least in part, by determining whether a state court

provided “a responsible, thoughtful answer reached after a full

opportunity to litigate.” Id.11

Certain passages in the Williams decision could be read to

support this view. Writing for the Court, Justice Stevens

troubled life. In addition to the testimony described
above regarding his prior institutionalization, Neal
called his mother as a witness who told his life story.
Perhaps the details could have been fleshed out more
fully through additional witnesses. This may often be
said after an unsuccessful trial experience.

Neal, 525 So.2d at 1282-83. Cf. Williams, 120 S.Ct. at 1502.
11
In spite of the straightforward language of Lindh, a Seventh
Circuit panel rejected the argument that the “unreasonable
application” test requires a federal habeas court to consider the
state court’s process of reasoning. See Hennon v. Cooper, 109 F.3d
330 (7th Cir. 1997). Chief Judge Posner contended that Lindh stands
only for the proposition that “the better the job the state court
does in explaining the grounds for its rulings, the more likely
those rulings are to withstand further judicial review.” Id. at
335.

31
explained that the Virginia Supreme Court’s “prejudice

determination was unreasonable insofar as it failed to evaluate the

totality of the available mitigation evidence-–both that adduced at

trial, and the evidence adduced in the habeas proceeding–-in

reweighing it against the evidence in aggravation.” Williams, 120

S.Ct. at 1515. There is, therefore, at least some basis for the

view that Section 2254(d)’s “unreasonable application” standard

refers to the quality of the state court’s analysis.

On the other hand, this process-oriented view has been

rejected by other circuits12 and challenged by Chief Judge Posner

of the Seventh Circuit. In his view, scrutinizing state courts’

methods of reasoning “would place the federal court in just the

kind of tutelary relation to the state courts that the [AEDPA was]

designed to end.” Hennon, 109 F.3d at 334-35. Similarly, we do

not interpret AEDPA in such a way that would require a federal

habeas court to order a new sentencing hearing solely because it

finds the state court’s written opinion unsatisfactory.13 It seems

clear to us that a federal habeas court is authorized by Section

12
See, e.g., Long v. Humphrey, 184 F.3d 758, 760-61 (8th Cir.
1999) (focusing on the reasonableness of the “outcome”); O’Brien v.
Dubois, 145 F.3d 16, 25 (1st Cir. 1998) (same).
13
In that situation, a habeas petitioner may not be the victim
of constitutional error but only of a mere lapse in “judicial
articulateness.” Hennon, 109 F.3d at 335.

32
2254(d) to review only a state court’s “decision,” and not the

written opinion explaining that decision.

In the absence of clear guidance from the Supreme Court, we

conclude that our focus on the “unreasonable application” test

under Section 2254(d) should be on the ultimate legal conclusion

that the state court reached and not on whether the state court

considered and discussed every angle of the evidence. The latter

approach appears unduly formalistic considering that the federal

habeas court has the full record before it and is competent to

determine whether Strickland has been unreasonably applied to the

case before it. Even though a thorough and well-reasoned state

court opinion may be more likely to be correct and to withstand

judicial review, it simply does not follow that “the criterion of

a reasonable determination is whether it is well reasoned.” Id. at

334-35. Instead, the only question for a federal habeas court is

whether the state court’s determination is “at least minimally

consistent with the facts and circumstances of the case.” Id. at

335.

(2)

Thus, in making our unreasonable application determination, we

look only to the substance of the Mississippi Supreme Court’s

decision. The state court concluded that presentation of the

additional mitigating evidence would probably not have changed the

33
outcome of the case. The precise question, then, is whether the

court’s ultimate conclusion--that there was no prejudice and,

consequently, no ineffective assistance of counsel under the

Strickland test--is minimally consistent with the facts of Neal’s

case.

As we have iterated throughout this opinion, the facts of this

case are as horrible as one can imagine. The jury was reminded

repeatedly that Neal killed his own brother in an argument that

began when Neal fondled his young niece; that Neal, after killing

his brother, kidnaped his niece and her friend and then brutally

raped and killed both girls; that he shot his niece and left her to

suffer for perhaps thirty minutes before she died. If any murder

qualifies as “heinous, atrocious, or cruel,” the murder of Amanda

Joy Neal does. We acknowledge that it was surely not unreasonable

for the Mississippi Supreme Court to suggest (implicitly) that the

evidence mitigating his moral culpability would have to be

overwhelming.

The jury in mitigation heard Neal’s pitiful life story from

his mother and a psychiatrist. The jury thus had before it

evidence that Neal had an IQ of 54 and the mental ability of an

eight year old; that he had been neglected by his family and spent

much of his youth in state institutions for the retarded and

mentally ill; that he had sexual identity problems; and that

34
because of his mental deficiencies, he was less able to control his

impulses. The evidence actually presented at the sentencing hearing

did not persuade the jury to mitigate Neal’s sentence.

Neal’s supplemental mitigation evidence also relies almost

exclusively on testimony that he was mentally retarded and had been

badly mistreated by numerous people throughout his life. Much of

this evidence had already been presented, even if in an outline

form. The only new evidence was that some of the people whom he

had encountered felt sorry for Neal and that their sympathy for his

plight caused them to reach out to him. Moreover, the testimony

about Neal’s life at Whitfield and the Oklahoma prison would have

proved to have been double-edged in the sense that it would have

reminded the jurors that Neal was a bully and had a criminal

conviction. Although the additional mitigating evidence was of a

significantly better quality than that actually presented, much of

it was similar in nature to the original evidence. With those

considerations in mind, the Mississippi Supreme Court concluded

that the additional evidence was not substantial enough to outweigh

the overwhelming aggravating circumstances.

Under the deferential standard of Section 2254(d), and given

the circumstances of this case, we cannot conclude that the

Mississippi Supreme Court unreasonably applied Strickland to the

facts of Neal’s case. It was not unreasonable, in other words, to

35
conclude that the outcome would have been the same because the

additional evidence did not serve to reduce further his moral

culpability for such a heinous and unforgivable crime beyond the

evidence already presented. We thus hold that the state court’s

prejudice determination was objectively reasonable in the sense

that it is not inconsistent with the facts of this case--

specifically, when those facts are viewed in the context of the

extreme cruelty of the murder as an aggravating circumstance and

that much of the mitigating evidence had already been presented to

the jury, albeit in an abbreviated form.

III

Because we conclude that the Mississippi Supreme Court’s

decision did not involve an unreasonable application of Strickland,

Neal’s petition for a writ of habeas corpus must be DENIED and,

accordingly, the judgment of the district court is

A F F I R M E D.

ENDRECORD

36
EDITH H. JONES, Circuit Judge, concurring:

While I generally agree with the majority’s articulation

and application of the Supreme Court’s recent decision in the

Williams case, I think a strong argument can be made that Neal was

not prejudiced under Strickland by his attorneys’ failure to

investigate and flesh out for the jury certain mitigating

evidence.14 Williams, in my view, did not break new ground in the

assessment of Strickland prejudice. Rather, both Justice Stevens’s

and Justice O’Connor’s comments on the fact-specific application of

the test state why the Virginia Supreme Court erred under

Strickland. Both those opinions observe that the state supreme

court failed to weigh the total available mitigating evidence

against the aggravating factors in Williams’s crime. Both of them

state that the Virginia Supreme Court did not consider the

possibility that mitigating evidence unrelated to the petitioner’s

dangerousness, i.e. his tragic childhood and mental problems, would

affect the imposition of the death penalty. Neither of those

errors can be attributed to the Mississippi Supreme Court in this

case.

Moreover, Williams makes a particularly appealing case

for erroneous application of Strickland’s prejudice prong on facts

which are quite different from those before us. First, entirely

new mitigating evidence was uncovered in the Williams state habeas

14
I would pretermit and do not comment on whether Neal’s
attorneys were constitutionally deficient. The Mississippi Supreme
Court did not rule on this point either.

37
proceeding. Second, the quality and quantity of this mitigating

evidence led the same judge who tried Williams’s case to conclude

that it would have affected the jury’s evaluation of the death

penalty. Third, Williams had turned himself in, confessed, and

cooperated with the police and expressed remorse about the killing.

Fourth, Williams’s murder was not as brutal as the one before us,

and Justice Stevens noted that it might even have been compulsive.

Fifth, Williams’s counsel made a brutally frank closing argument,

in which he said that although his client had shown no mercy to his

victims, the jury ought to show mercy. Sixth, Williams had

received commendations in prison for assisting the authorities.

Seventh, a lay prison minister would have testified that Williams

appeared to perform well in a structured prison environment.

Eighth, the sentencing jury was never informed that Williams was

borderline mentally retarded.

This case offers few direct comparisons with Williams.

Both petitioners suffered an unfortunate childhood and both are

somewhat mentally retarded. The similarities appear to end there.

In Neal’s case, the jury was not wholly ignorant of these

mitigating facts. In Neal’s case, it was suggested that he may

have premeditated the murders of his brother and the two girls; in

any event, no one would call them “compulsive.” Neal apparently

did not display remorse, nor did he turn himself in. He was on the

38
lam in California when he was arrested.15 All of these factors

would weigh heavily in a jury’s mind on aggravation, and the jury

was able to balance them against its knowledge of his deprived

childhood and borderline mental retardation.

The grounds for the majority’s attributing an erroneous

application of Strickland prejudice in Neal’s case thus boil down

to inadequate knowledge by the jury, as opposed to ignorance, of

the possible extent of mitigating factors. I agree with the

majority opinion that Williams mandates a painstaking review of the

Strickland prejudice prong in cases of constitutionally deficient

counsel. Measuring this case fact-by-fact against Williams,

however, I do not believe that Williams strengthens a finding that

the Mississippi Supreme Court erroneously applied Strickland.

Since I think it arguable that the Mississippi Supreme Court did

not make such an error, it is much easier for me to conclude that

the court did not “unreasonably” apply Strickland under the AEDPA.

In short, neither Williams nor this opinion should be

viewed as breaking new ground under Strickland’s prejudice prong.

Both cases represent conscientious applications of well-established

law, though reasonable minds might differ.

15
As the majority note, some of the newly proffered mitigating
evidence, involving Neal’s inability to control himself and Neal’s
experiences in an Oklahoma prison (which would have led to the
revelation that he was incarcerated on an aggravated assault
charge), may not have been to Neal’s full advantage.

39
40