Eric Lynn Ferrell v. Hilton Hall

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 13, 2011
No. 06-11954
JOHN LEY
________________________ CLERK

D. C. Docket No. 02-02896-CV-TWT

ERIC LYNN FERRELL,

Petitioner-Appellant,

versus

HILTON HALL, Warden,
Georgia Diagnostic and
Classification Prison,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(May 13, 2011)

Before TJOFLAT, MARCUS and BLACK, Circuit Judges.

MARCUS, Circuit Judge:
 Petitioner Eric Lynn Ferrell (“Ferrell”) was sentenced by a state trial court in

Georgia to die following his convictions on two counts of malice murder for the

fatal shootings of his grandmother and fifteen-year-old cousin. The Georgia

Supreme Court, on direct appeal and during collateral habeas proceedings, rejected

all of Ferrell’s attacks on his convictions and sentence. Thereafter, a federal

district court denied Ferrell’s petition for writ of habeas corpus, including his

claims that trial and appellate counsel were ineffective in failing to conduct a

reasonable investigation for mitigating evidence; that trial counsel’s penalty-phase

closing argument also was ineffective; that his right to conflict-free trial counsel

was wrongfully denied; and, finally that Ferrell was constructively absent from the

penalty phase of his trial.

After thorough review of this ample record, we are compelled to reverse in

part the judgment of the district court. We hold that the state court’s rejection of

Ferrell’s ineffective-assistance claims was an unreasonable application of

Strickland v. Washington, and, accordingly, we reverse the district court’s denial

of habeas relief from Ferrell’s death sentence. Neither the jury nor the sentencing

judge was ever told, because defense counsel never discovered that Ferrell suffers

from extensive, disabling mental health problems and diseases including organic

brain damage to the frontal lobe, bipolar disorder, and temporal lobe epilepsy. Nor

2
did they learn that the defendant had attempted suicide at age eleven, or that

because of these mental health issues, Ferrell exhibits increased impulsivity and

decreased sound judgment; that his conduct was not entirely volitional; or that his

judgment and mental flexibility were significantly impaired by organic brain

damage. Nor, finally were they ever told that Ferrell’s father was physically

abusive to his children, especially to Ferrell, waking them in the middle of the

night to beat them (sometimes after stripping them naked) with razor strops, fan

belts, and old used belts; that the family was repeatedly evicted from their homes

and hungry, and lived in fear of those to whom the father owed gambling debts; or

that Ferrell’s mother suffered from clinical depression, suicidal ideations, rage

blackouts, and urges to physically injure her children.

Since we grant habeas relief concerning the death penalty, we have no

occasion to address Ferrell’s remaining penalty-phase claims. Finally, we are

unpersuaded by Ferrell’s claim that he was otherwise unconstitutionally

encumbered by conflict-ridden counsel.

I.

A. The Murders and the Guilt Phase of Ferrell’s Trial

This tale of murder and abuse began on the night of December 29, 1987,

when Eric Lynn Ferrell spent the evening at his grandmother’s home along with

3
his grandmother, Willie Myrt Lowe, and his cousin, Tony Kilgore. (RE43 at 554,

632-33).1 At around 5:30 a.m. the next morning, Ferrell left Mrs. Lowe’s home

and returned to his mother’s house, where he lived. (RE43 at 554).

Later that morning Ferrell called to ask a friend, Barry Wise, for a ride to

Ferrell’s probation officer to pay his overdue probation fees. (RE43 at 579, 615).

While on route, Wise saw Ferrell with a “wad of money,” and heard Ferrell explain

that the money had come from the police for loss of income after a lawsuit. (RE43

at 579, 615). Ferrell paid the fees to his probation officer, who had previously

threatened to revoke Ferrell’s probation and incarcerate him if he did not pay up.

(RE43 at 600). Wise described the Petitioner as acting “real hyper” and “upset”

that morning. (RE43 at 579).

In the interim, shortly before noon, one of Mrs. Lowe’s daughters, Annie

Fallen, stopped by Mrs. Lowe’s house to pick up her mother for an appointment.

(RE10 at 848-49). She and a neighbor discovered the bodies of Mrs. Lowe and

fifteen-year-old Tony Kilgore in a bedroom where they had been murdered. Both

Willie Myrt Lowe and Tony Kilgore had been shot twice in the head at contact

range and were dead. Tony Kilgore’s head was found resting on a pillow

1
Citations to the district court’s docket are denoted by “D”; citations to Respondent’s
Exhibits in the district court are denoted by “RE” and the exhibit number, followed by page
number (e.g., “RE43 at 7”).

4
indicating that he was asleep, and never disturbed, when he was shot. (RE11 at

1178-82, 1221-22). Mrs. Lowe suffered two gunshot wounds to the head. Her

dress was torn and two buttons were detached from the front of her dress. The

medical examiner concluded that the time of death of both victims was around 5:30

a.m. (RE11 at 1241, 1244-45, 1247-48).

After paying his probation fees, Petitioner called home. Ferrell’s mother had

already gone to the crime scene and a neighbor answered Ferrell’s call. (RE43 at

569-72). The neighbor only advised Ferrell that his grandmother was sick and that

his mother had gone to his grandmother’s house. (Id.) The neighbor purposefully

did not tell Ferrell anything else, and specifically did not advise him his

grandmother was dead. (RE43 at 569-72, 614). Ferrell explained to his friend that

“the mafia had hurt his grandmother because his Uncle Freddie had killed a guy

last weekend,” and “he needed to get back home.” (RE43 at 581, 615; RE10 at

897-98).

At the site of the fatal shootings, the police discovered three purses, one

underneath the bed where Mrs. Lowe normally slept, one on the door, and one on

the wooden table beside her bed. The contents of one purse had been emptied onto

the bed. (RE11 at 1037-39).

5
 As part of the investigation, Ferrell, along with other family members, were

interviewed at the police station. During his initial interview, the police asked

Ferrell to empty his pockets and discovered about $676 in cash and a lot of loose

change. (RE43 at 638). During subsequent interviews, Ferrell was unable to

account for the $676 in cash. Contrary to what he had told his friend, he told the

police that he had saved some of the money and had recently been paid for a

construction job. (RE10 at 981-84; RE11 at 1046-47). But the detectives soon

learned that Ferrell usually had little or no money. (RE43 at 640). Also, contrary

to his claim that nothing was missing from Mrs. Lowe’s home, the police

discovered that a substantial amount of money was missing. According to family

members, Mrs. Lowe received Social Security benefits and approximately $50 a

day in change2 from selling drinks, candy, and snacks in the neighborhood. (RE43

at 568, 631). She kept all of her money in her house. Further, Mrs. Lowe’s

daughter, Annie Fallen, had taken her mother to the hospital earlier in the year and

Mrs. Lowe had about $700 in cash at the time. (RE10 at 846-48). Mrs. Lowe hid

the money in a powder puff in her bra. (RE10 at 847-48).

Based on the repeated irregularities in statements made by Ferrell during his

interviews with the police, the police obtained a search warrant for his mother’s

2
On the morning of the murders, Ferrell asked his mother for coin wrappers. (RE43 at
559, 612).

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home, where he resided. (RE43 at 644). Pursuant to the warrant, the police

searched the home and found a .22 caliber revolver later identified as the murder

weapon. (RE43 at 644, 654, 657). The police then arrested Ferrell, and discovered

four spent rounds of .22 ammunition still in his pocket; the rounds were later

determined to have been fired from the murder weapon. (RE43 at 647-48).

During the course of the investigation, Ferrell gave several voluntary

statements, was advised of his rights under Miranda v. Arizona, 384 U.S. 436

(1966), and waived them in writing at least two times. (RE43 at 643, 650). In his

first three or four statements to police, he claimed that on the morning of the

murders his grandmother had awakened him at 5:30 a.m., and he had left to get

ready for work. (RE43 at 635). Ferrell also mentioned that he spent the night with

his grandmother because she was afraid to stay alone after having received a series

of threatening phone calls.3 (RE43 at 634). He did not report that anything had

happened that morning.

3
Several witnesses denied that Mrs. Lowe was afraid immediately before her murder.
(RE43 at 675, 677 (daughter knew nothing about threatening phone calls); RE42 at 516 (church
pastors knew of no threats and said Mrs. Lowe “was not afraid to stay alone and was doing just
fine”); RE42 at 517 (Fred Lowe had received several hang-up calls before turning himself in, but
no threats, and his mother never reported threatening calls); RE42 at 518-19 (Robert Lowe spoke
to his mother twice a day from jail, and had not heard of any threats to his mother or the family,
or for that matter that his mother was afraid or had problems with anyone); RE43 at 566, 628
(daughter and mother spoke day before murders and mother did not say she had received threats
or threatening calls)).

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 In his final statement to the police, however, the Petitioner claimed that two

men had entered his grandmother’s home as he was leaving and demanded to see

his uncle, Fred Lowe, who had just been charged with murdering a man named

Whimphrey (“Wimp”) Hinton. (RE43 at 651).4 Ferrell said the two men then took

his gun from him and shot both Tony Kilgore and Mrs. Lowe in the bedroom

where the bodies were found. (RE43 at 651-52). After the shooting, the two men

purportedly returned the gun to Ferrell, inexplicably gave him a large sum of cash,

and let him live. (RE43 at 652). He also told the officers that he left his

grandmother’s home through the front door (which was dead bolted when police

arrived) and went home. (RE43 at 652). Ferrell then put his gun away, checked to

see how much money the men had given him, and made himself hot chocolate.

(RE43 at 652-53).5

Ferrell was tried for the murders in the Superior Court of DeKalb County,

Georgia. Ferrell was the only witness called to testify for the defense. Again, he

claimed that two men had committed the killings in revenge for his uncles’ killing

of Wimp Hinton (RE11 at 1321), and that they left him with the gun and money.

However, Tony Hinton, the son of murder victim Hinton, was allowed, over

4
By the time Ferrell gave this statement, he had already been arrested, and had signed the
second waiver of his Miranda rights. (RE43 at 650).
5
Subsequently, Petitioner took a polygraph examination about his version of the events
and failed. (RE43 at 842-43).

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defense counsel’s objection, to testify that no one in his family sought revenge for

his father’s death. Ferrell’s uncle, Fred Lowe, assisted the prosecution in obtaining

Tony Hinton’s testimony. (RE11 at 1162-64).6

On September 16, 1988, Ferrell was convicted of two counts of malice

murder for the fatal shooting of his 72-year-old grandmother and his young cousin.

(RE12 at 1601). He was also convicted of one count of armed robbery and one

count of possession of a firearm by a convicted felon. (RE12 at 1601).

B. The Penalty Phase of Trial

During the penalty phase, the State presented no evidence. Defense counsel,

Larry Schneider, called five witnesses: Ferrell’s parents, two of his five brothers,

and an uncle -- all of whom testified for a total of 26 minutes, including a break. In

their sparse testimony, the witnesses said that they did not believe Ferrell had

committed the murders, brother Darrell Walker and both of Ferrell’s parents asked

the jury for mercy, and brother Stanley Ferrell noted that Ferrell had committed

himself to Christ before the murders. (RE13 at 1622-60).

6
Ferrell was represented by the DeKalb County Public Defender’s Office. The Public
Defender’s Office also represented Petitioner’s uncles, Fred and Robert Lowe, on charges arising
from Wimp Hinton’s murder. Ferrell’s uncles’ charges were pending throughout his indictment
and trial. A month after Ferrell’s conviction, Fred Lowe pled guilty to involuntary manslaughter
and was sentenced to six months in jail and five years’ probation for the Hinton killing. (RE18,
Ex. 1). Robert Lowe pled guilty to the reduced charge of simple battery and was sentenced to
twelve months’ probation. (RE18, Ex. 2).

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 Notably, Ferrell suffered a seizure during the charge conference following

the presentation of testimony at the penalty phase, in the presence of the court but

out of the presence of the jury. He fell to the floor, “flopping,” shaking and crying

out unintelligibly. (RE13 at 1643-44). The court recessed while deputies and

defense counsel investigator Phyllis Corder remained with Ferrell. Some ten

minutes after adjourning, the court observed that “Mr. Ferrell’s composure” had

returned, and defense counsel announced that Ferrell wished to proceed. (RE13 at

1644).7 Defense counsel did not seek any continuance or make any motion to have

the defendant evaluated by a mental health expert.

During closing argument, the prosecutor stressed the depravity of the crime

and Ferrell’s odd behavior after the murders. He declared that Ferrell was “the

7
Defense investigator Corder later described the seizure this way:

During the penalty phase, Eric had a convulsion or seizure, and fell out. It
happened completely out of the blue. He fell onto the floor, shaking and speaking
gibberish. Really, it sounded like a foreign language. All I could think was that it
sounded like speaking in tongues, perhaps because he had said so many times that
Jesus would save him. It lasted about five minutes, and he indicated for a couple
of minutes that he could not breathe. The judge cleared the courtroom of everyone
except two or three deputies, and me. When it ended, it seemed Eric didn’t know
what had happened, or that anything had in fact happened.

There was no question in my mind that this was a genuine seizure -- the jury was
not present and Eric was not trying to get some kind of delay. It seemed then that
the trial should have been stopped and Eric should have been examined medically
or had some sort of evaluation, but it all happened extremely quickly.

(RE41 at 18-19 (Aff. of Phyllis Corder)).

10
Devil made flesh”; Ferrell’s behavior demonstrated “depravity of mind”; Ferrell

“planned it out”; the crime was “depraved, and evil, and totally corrupt”; it was “a

cold-blooded execution” showing depravity and cruelty and a complete lack of

remorse; and “after executing his grandmother and his cousin, [Ferrell] walked

slowly up the street to his mother’s house . . . fixed a cup of hot chocolate . . .

plopped down on the couch, watched TV with the remote . . . and dozed off for a

while.” (RE13 at 1670-96). The prosecutor then asked the jury, “[w]hy in the

world, how in the world, could anybody do this? How could a human being act

like this?” (RE13 at 1694). The prosecutor assured the jury that he, unlike the

defense witnesses, would not insult their verdict. (RE13 at 1683).

Defense counsel then argued to the jury that because they had already found

one aggravating circumstance -- that Ferrell had committed the murder of his

grandmother during the course of another felony, the murder of his cousin -- they

could “legitimately find the death penalty.” (RE13 at 1698). Counsel “assum[ed]

that it’s true that [Ferrell] did do it,” (RE13 at 1698), and bemoaned his

responsibility for arguing to the jury “that the death of a 72-year-old lady, by

execution, and the death of a 15-year-old boy, by execution, are not deserving of

the death penalty.” (RE13 at 1699). He added that “the only way I can try to

convince you” this “enormous” crime was not so bad, was to compare it to other

11
situations counsel had seen at the Public Defender’s Office: “young children,

babies, who are sexually assaulted, to the point of mutilation and strangled.”

(RE13 at 1699).

Defense counsel asked the jury whether Ferrell was “completely . . . the

animal” the prosecutor had labeled him, and admitted that Ferrell was not

necessarily a “person of good character,” but questioned whether it was necessary

to kill him. (RE13 at 1701-02). Counsel highlighted for the jury that there was no

rational reason for Ferrell to have committed the double murder and that it was a

case based solely on circumstantial evidence, but noted that all the circumstances

pointed toward Ferrell, and that Ferrell’s “absurd tale of two gunmen” who

committed the double homicide using his pistol, then paid him some money and

returned his pistol to him, was “hard to swallow” and “hard to believe.” (RE13 at

1704). Counsel assured the jury “I am not ridiculing your decision. No rational

jury would have found otherwise in the guilt-innocence phase because of the

ludicrousness of that story.” (RE13 at 1705). Counsel then closed by asking the

jury for mercy.8

8
Defense counsel’s entire argument went like this:

Ladies and gentlemen, I guess you can tell from Mr. McDaniel’s closing
argument that he is a good attorney. He’s relatively young, and I guess you could
say that he’s going to be . . . a really good attorney . . . but he already is one. He
did a brilliant job.

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My function at this point is to do the best I can to persuade you not to sentence
Eric Ferrell to death.

I’ll start with the law. This (indicating) is the charge of the Court on the
death-penalty phase. You’ll each be given a copy of this to go out with you. This
(indicating) is the law you are required to follow in the determination of death or
life.

I’ll start by stating . . . that the first aggravating circumstance was the ones
involving . . . commission of a crime during . . . a capital felony -- murder during
another capital felony -- are in the case; there’s no question about it; you’ve found
that. You’ve met the requisite standard, beyond a reasonable doubt. So you are
authorized under the law to sentence him to death.

As far as the other two aggravating circumstances, the ones . . . which you will
see from the charge . . . both require torture. Our contention is: Those are not in
the case. That Mr. McDaniel’s theory of how things happened is a theory that is
supported by the evidence, but there are any number of other theories that would
rule out torture. The Judge will charge you that you would not be authorized to
find that the offense of murder involved torture simply because the victim
suffered pain or briefly anticipated the prospect of death.

That’s not important. That’s not important, because it’s not necessary to find two
or three or aggravating circumstances to give the death penalty. You only need to
find one. And that unquestionably is here, so you can legitimately find the death
penalty, under the circumstances of this case, because you have two murders and
you have murder in the commission of an armed robbery.

Mr. McDaniel described, in graphic terms, what this lady suffered under his
theory of the case before she died. But we don’t know what happened in that
room that night. Don’t know.

Dr. Burton testified that the scenario, as spelled out by the District Attorney’s
Office, met the facts but there are other scenarios that meet the facts. We don’t
know why this crime was committed.

You have found that Eric Ferrell did it. I’m assuming that it’s true that he did do
it. We don’t know why. We don’t know what happened, we don’t know the
specifics. All we have are the bits of physical evidence and Mr. Ferrell’s denial.

And I have the unpleasant duty at this point of arguing to you that the death of a
72-year-old lady, by execution, and the death of a l5-year-old boy, by execution,
are not deserving of the death penalty. Those are enormous crimes, they’re very

13
serious crimes.

And the only way that I can try to convince you that the death penalty is not
justified is by pointing to other crimes, to worse crimes. You read the
newspapers, you see the television sets. This is not the worst of murders. In the
Public Defender’s Office we handle some 3,000, 4,000 felony cases a year and we
see a lot of nasty things. We see young children, babies, who are sexually
assaulted, to the point of mutilation and strangled; we see babies . . . .

There are worse crimes. The Alday family murders. We’ve been reading about
that one for a long time. That’s worse. Every week, in the Atlanta newspapers,
you see something worse. Where people undergo prolonged pain, prolonged
torture . . . prolonged anticipation of death.

But this is a bad one, no question about it. Because of the nature of the folks that
were killed. There is no impeaching their quality as people. They’re good folks,
and they were snuffed out. Quickly, we maintain. And painlessly. And possibly
-- certainly on the case of Tony -- possibly . . . on Eric’s grandmother . . . possibly
without knowing what hit them or knowing much of what hit them. But, it’s
difficult, and it’s rough; there’s no question about it.

Now, we’ve heard from Mr. Richter and Mr. McDaniel a lot of characterizations
of Eric. He’s been characterized as an animal, as a monster, as the Devil . . . as a
vulture . . . . I ask you to set aside the pep-rally atmosphere and look at the
evidence of what you’ve heard. Is he completely . . . the animal? Is he one of
these folks that has to be snuffed out for the protection of society? Or for the
enormity of what he did?

He’s not one of these folks, obviously, who has, since he was a little kid, been
terrorizing and tormenting people around him. He was never in trouble when he
was growing up. He’s never committed a crime of violence before. The only
offense on his record is a forgery. -- for stealing some money. He’s not a
mad-dog killer. He has people who care about him; his family cares about him.

I’m not maintaining he’s a person of good character, that he’s a sterling character,
that I’d like to have him move in next door to me -- I wouldn’t. But, is it
necessary to kill him? -- because of what he is.

Why would he do this thing? There’s been argument. The State uses the
senselessness of the crime to increase the enormity of the crime. Mr. Sheffield, in
attempting to convince you that he did not do it, used the senselessness of the
crime as one of the circumstances in the case, to show that he did not do it.

14
Why would someone like this, why would . . . Mr. Ferrell here, who, to all
accounts, loved these folks that he murdered . . . who is not a mad-dog killer, had
never done this sort of thing before -- why would he do this? Well, we don’t
know. We may never know.

Mr. Ferrell, if he did the crime, isn’t going to tell us, because he has, from the
beginning, denied the crime . . . denies the crime now . . . will continue to deny
the crime until the day he dies, whether that’s in the Georgia electric chair . . . or
somewhere else. We can’t know, to a certainty, what happened.

Now, all of you were selected for this jury because you believe the death penalty
is appropriate . . . . If you were opposed to the death penalty, you would not be
here. You would have excused by the Court. If you were one these folks who
believes any killing deserves the death penalty, you have been excused the Court.
You all have expressed some questions about the death penalty.

I submit to you that the most valid argument against imposing the death penalty is
its finality. Cases appear in the paper, they have appeared in our office . . . where
people . . . who were found guilty, by juries . . . have later been found -- against
all reason -- to be innocent. Nothing is perfect. And the criminal justice system is
far from perfect.

....

We’re trying this case in a vacuum . . . and there’s no other murder case that’s
ever existed, there is no outside world. If that’s all there was, then this obviously
is the worst case there is, and it’s the case that has the most compelling and final
proof.

This is a circumstantial-evidence case; we have a web of circumstances, all of
which point toward Mr. Ferrell. And one of the most telling circumstances is this
absurd tale of the two gunmen. -- who committed these murders, gave him his
pistol back -- using his pistol, they committed the murders -- and then paid him,
gave him some money. That is hard to swallow. That is hard to believe. But that
is Mr. Ferrell’s story, that is what he has stuck to from the beginning.

Now, can you say, to an absolute certainty, to a life-or-death certainty . . . not a
prison-sentence certainty but a killing certainty . . . that that story is untrue? It is
a wild story. But as we all know from our daily lives, strange and peculiar and
wild things do happen; and can you be sure . . . can you be sure . . . that that story
is false and that Mr. Ferrell . . . committed these murders? Are you sure enough
to impose the death penalty? That’s the core question; that’s what Mr. McDaniel
wants to keep you from thinking about.

15
 Not surprisingly, the jury returned two death sentences on September 17,

1988. (RE13 at 1737). The jury found three statutory aggravating circumstances:

first, the murders were committed while the offender was engaged in the

commission of the offense of murder, Ga. Code Ann. § 17-10-30(b)(2); then, the

I am not ridiculing your decision. No rational jury would have found otherwise in
the guilt-innocence phase because of the ludicrousness of that story. You could
try this case a thousand times before a thousand juries and you’d get the same
result; we’ve all known that from day one. But can you be sure?

Mr. McDaniel is a brilliant orator; he has painted this case . . . in extreme terms. I
ask you to consider in the jury room the three points that I’ve raised. Is this the
worst of murder cases? Is this a death-penalty murder case? Talk about it. Talk
about cases you’ve read about. Is this that bad? This is not a self-defense case. It
is not a heat of-anger case. Those aren’t murder cases.

Think about that. Secondly, is this (indicating) an animal? Is he without hope? Is
he such a beast that he needs to be put to sleep, be killed.

That’s the second point I’d ask you to consider; and the third . . . : Are you
absolutely sure?

And after you’ve considered those four points that I’d contend are raised in the
evidence, I’d ask you to just consider one more, and that’s being merciful. It’s
true . . . that Mr. Ferrell on that night . . . assuming . . . that he did this thing . .
showed no mercy to his victims; does that preclude you as jurors from showing
it?

The law is -- and it’s here (indicating) in the charge . . . that even beyond all these
legal principles . . . contained in the charge . . . you may fix the penalty at life
imprisonment, if you see fit to do so, for any reason satisfactory to you, or
without any reason. And even if you find against Eric Ferrell on all these things .
. . I want to ask you . . . the same thing that . . . Eric’s close family members
asked you here this morning, to show mercy.

Thank you.

(RE13 at 1696-1706).

16
murders were committed while the offender was engaged in the commission of the

offense of armed robbery, Ga. Code Ann. § 17-10-30(b)(2); and, finally, the

murder of Ferrell’s grandmother was outrageously and wantonly vile, horrible or

inhuman in that it involved torture and depravity of mind, Ga. Code Ann. § 17-10-

30(b)(7). The trial court sentenced the Petitioner to death for the two counts of

murder, life imprisonment for the armed robbery count, and five years’

imprisonment for the firearm possession count. (RE13 at 1741-42).

Following his conviction and sentence, Ferrell was placed on suicide watch

in prison, from at least April 14, 1989 until February 23, 1990. (RE1 at 178).

C. The Motion for New Trial

At a subsequent evidentiary hearing conducted on defendant’s motion for a

new trial, several witnesses testified about Ferrell’s claims that he suffered from

conflict-riddled counsel, that his counsel was ineffective at the penalty phase, and

that Ferrell was constructively absent from critical portions of his trial. The

testimony was, on the whole, clumsy and profoundly incomplete.

First, Catherine Shaw, the mother of Ferrell’s two children, testified after

being subpoenaed by defense counsel. Shaw had not been called to testify during

the penalty phase, but later said that if she had, she would have told the jury that

Ferrell tried his best to take care of his kids. (RE17 at 15). But, in response to a

17
question posed by defense counsel about whether she would have asked the jury at

trial to spare Ferrell’s life, Shaw answered that she could not say. (RE17 at 22-23).

Alice Stewart, Ferrell’s counsel during the motion for new trial and on direct

appeal, testified later that “[h]ad I known she would give such damning testimony,

I would not have called her as a witness.” (RE41 at 11).

Hubert Bailey, Ferrell’s uncle, recounted at the evidentiary hearing that he

had spoken to trial counsel for the first time in the courtroom hallway before

testifying at trial, but counsel had not mentioned what Bailey should or should not

talk about. (RE17 at 63-64). Bailey could have testified at trial that he had given

advice to Ferrell “about life,” Ferrell was not a rough guy, Ferrell wanted to make

a happy home for his sons, and there had been a fire at the Ferrell home that forced

the family to lean on Ferrell’s grandmother. (RE17 at 62-76). Another of Ferrell’s

uncles, Robert Lowe, who had been in jail for Wimp Hinton’s murder, said that he

was never asked to testify at Ferrell’s trial. (RE17 at 95). Ferrell’s father, Wilbert,

added that he would have testified at the penalty phase, if asked, that Ferrell’s

death would have made his family, especially his mother, suffer. (RE18 at 262).

Ferrell’s brother, Stanley, recalled how their mother had suffered from

“nerves,” and once had a “nervous breakdown” from the stress of financial

hardship and caring for six boys. (RE17 at 99, 107-08). Stanley further testified

18
that their father was not around much when they were growing up, that the family

was very poor and experienced financial difficulties because their father “missed

appropriate” [sic] funds, even though he was working all the time, and that the

family was forced to move around a lot because they were frequently evicted from

their homes, which was upsetting, frustrating, and caused the children great shame.

(RE17 at 97-98, 101). Stanley also described how a fire consumed one of their

homes, resulting in splitting up the children afterwards. (RE17 at 100).

Mike Sheffield, one of Ferrell’s two trial counsel, who led the guilt phase of

trial, testified at the hearing as well. Sheffield said that in preparing for trial,

counsel had requested a report on Ferrell’s mental capacity by a mental health

expert, Dr. Ralph Allsopp. (RE17 at 44, 154). In addition, Ferrell had given trial

counsel a list of character witnesses; and counsel had reviewed his school and

criminal records. (RE17 at 149). Defense counsel determined that they did not

want to call Ferrell’s jailed uncles as witnesses because neither jailed uncle could

say anything favorable about Ferrell (since they both thought that Ferrell had killed

their mother), and in any event, had been in jail at the time of the murders. (RE17

at 130, 138; RE18 at 202). Counsel did not want the State to call the uncles either.

(RE18 at 203, 205).

19
 As for the seizure Ferrell suffered in court during the charge conference,

Sheffield recalled that the investigator Corder, who had developed a good

relationship with Ferrell, had said that Ferrell wanted to continue with the trial and

was alright. (RE18 at 178). Remarkably, defense counsel saw no need or basis to

seek a continuance so that the defendant could be evaluated or a mistrial. (RE18 at

178-79).

Larry Schneider, Ferrell’s other trial counsel, who led the penalty phase, also

described the trial preparation. Schneider said that before trial, Ferrell prepared a

list of 40-45 mitigation witnesses, and investigator Corder and her team

interviewed those who would talk and could be located. (RE18 at 212, 226).

Schneider recounted that he had discussed the case with a few experienced

death penalty lawyers, and because they could find no other reason for the jury not

to impose death, decided the best approach was residual doubt. (RE18 at 213,

228). Schneider viewed his strategy as arguing to the jurors that they could not be

so sure of guilt as to impose the death penalty, that there was always a possibility

of innocence, and that the victims had not been tortured. (RE18 at 220).

Schneider talked to each of the mitigation witnesses following the guilt

phase, and told them they could say anything they wanted to concerning whether

Ferrell should receive the death penalty. (RE18 at 214, 215, 228). Schneider

20
thought it would be more effective just to have people speak, rather than to instruct

them in any way. (RE18 at 216). Schneider spoke to Ferrell’s parents throughout

the case, and the investigator talked to the rest of Ferrell’s relatives. (RE18 at

220).

According to Schneider, the mental health evaluation they had requested was

limited to whether Ferrell was retarded and whether he suffered from any problems

that would affect the waivers of Miranda rights he had signed for the police.

(RE18 at 216-17). Schneider claimed that he had no reason to raise a psychiatric

defense, and did not want to give the jury concrete evidence that Ferrell was

rational and intelligent. (RE18 at 231). Schneider also claimed that after the

courtroom seizure during the charging conference, Ferrell seemed “very much in

contact with reality.” (RE18 at 234).

The limited pre-trial psychological report from Dr. Allsopp was made a part

of the record. In the report, Dr. Allsopp noted that he had met with Ferrell only

“for the purpose of reviewing his academic records and administering intelligence/

cognitive and achievement tests.” (RE1 at 151). Dr. Allsopp reported that Ferrell

“achieved a Full-Scale WAIS-R IQ of 87, in the Low Average Range of

Intellectual functioning, with a Verbal IQ of 81 and a Performance IQ of 101.”

(Id.). Dr. Allsopp also observed that “Ferrell was able to copy geometric designs

21
of progressive complexity at level consistent with that of adults who do not display

gross neurological/organic deficits.” (RE1 at 152). Dr. Allsopp concluded that

Ferrell “functions in the Low Average to Average IQ Range,” his intelligence level

and mental status at the time of assessment “would not adversely affect his ability

to understand his constitutional rights,” and “there was no indication that Mr.

Ferrell would be more likely than the average person to submit to the authority of

police officers.” (RE1 at 152).

After conducting a hearing on the motion for new trial, the state trial court

denied the motion in full. In so doing, it rejected Ferrell’s claim of a conflict of

interest based on the Office of Public Defender’s representation of both Petitioner

and his uncles, Ferrell’s claim of ineffective assistance of trial counsel at the

penalty phase, and Ferrell’s constructive absence claim, based on his argument that

he had been unconstitutionally absent from trial when he suffered a seizure. (RE1

at 261-65).

D. The Direct Appeal

On direct appeal, the Georgia Supreme Court concluded that trial counsel

had been effective and affirmed Ferrell’s convictions and sentences on March 15,

1991. Ferrell v. State, 261 Ga. 115 (1991). The Georgia Supreme Court found

that: (1) Ferrell was represented by two experienced public defenders; (2) counsel

22
filed numerous pre-trial motions, investigated the case legally and factually,

conducted an extensive voir dire examination of prospective jurors,

cross-examined state’s witnesses, presented defense witnesses, and delivered

substantial closing arguments; and (3) counsel interviewed numerous potential

witnesses in mitigation, many of whom had been furnished by the defendant, and

of the very few who would say anything favorable on the defendant’s behalf, these

testified at the trial. Based on these findings, the Georgia Supreme Court concluded

that Ferrell had failed to establish either deficient attorney performance, or a

reasonable probability that the testimony of the new witnesses would have caused

the sentencer to conclude that the balance of aggravating and mitigating

circumstances did not warrant death. Ferrell, 261 Ga. at 119-20 (citations and

quotation marks omitted). As for the conflict-of-interest claim, the state high court

observed that “[t]here was no relationship between the two separate cases of

murder, and the defendant’s uncles did not testify at, and had no information

relevant to, this trial.” Id. at 120. Accordingly, it concluded that “[t]here was no

actual conflict of interest adversely affecting trial counsel’s performance in this

case.” Id.

23
 On October 21, 1991, the United States Supreme Court denied Petitioner’s

petition for writ of certiorari. Ferrell v. Georgia, 502 U.S. 927 (1991), reh’g

denied, 502 U.S. 1051 (1992).

E. State Habeas Proceedings

On July 19, 1995, Ferrell filed a petition for writ of habeas corpus with the

state trial court, which held an evidentiary hearing on the petition on July 13, 1999.

At the hearing, the State called as a witness Alice Stewart.9 For the defense, Ferrell

submitted a voluminous number of affidavits that described in great detail Ferrell’s

many mental health issues, his impoverished and abused childhood, that he was

slow as a child, and that he always had a strong work ethic.

As for the first and most critical point, the mental health expert who

examined Ferrell before trial, Dr. Allsopp, averred that he had not been asked to

look for brain damage, that he was provided with no material from counsel other

than school records, and that he was not asked to perform any clinical interview, or

do anything else for that matter, for use in mitigation. (RE41 at 265).

Ferrell also submitted very extensive affidavits from three mental health

professionals who opined that Ferrell suffers from organic brain damage, mental

9
The only other live testimony at the hearing was also introduced by the State -- Lucia
Fletcher, the deputy warden of care and treatment at Ferrell’s prison, who testified about one of
Ferrell’s previous IQ tests. (RE40 at 67).

24
illness, an epileptic or seizure disorder, and borderline mental retardation.

Specifically, Dr. Thomas Hyde, a board-certified neurologist, and Dr. Barry

Crown, a board-certified clinical neuropsychologist, unambiguously averred that

Ferrell suffers from organic brain damage to the frontal lobes, temporal lobe

epilepsy, and bipolar disorder, is borderline mentally retarded, and attempted

suicide twice, once at the age of eleven. Dr. Hyde explained that individuals with

frontal lobe dysfunction display impaired insight and learning abilities, are more

prone to impulsive and explosive behaviors, and are more prone towards affective

instability, meaning a dysfunctional emotional or mental state. (RE41 at 43-44).

Hyde further opined that Ferrell’s frontal lobe dysfunction “to a reasonable degree

of scientific or medical certainty, is attributable to closed head injury or

neurodevelopmental factors, and existed prior to 1988.” (RE41 at 43).

Dr. Crown offered that when Ferrell “finds himself in a complex, stressful

set of circumstances, [he] cannot process the information to take the appropriate

action.” (RE41 at 75). Crown said that Ferrell has “significant impairments in

judgment and mental flexibility, which are indicative of brain damage,” (RE41 at

75), “profound problems in using sound reasoning and judgment under stressful

conditions,” (RE41 at 76), and “significant problems with simple concentration,

attention and mental flexibility” resulting in “increased impulsivity and decreased

25
ability to plan and to understand the consequences of one’s actions,” (RE41 at 77-

78). Moreover, he explained, the actions of an individual with Ferrell’s types of

impairment “are not entirely volitional,” (RE41 at 81), because “[d]uring a

complex partial seizure a person is overtaken by a powerful emotion, usually anger

or fear, by hallucinatory voices or visions, or by a vivid flashback,” and “[s]eizures

also alter the behavior which takes place between or after the seizures, or

interictally, resulting in lack of awareness, dullness, and confusion as neurofibers

in the brain readjust. Interictal effects may go on for weeks or months at a time.”

(RE41 at 55).

Dr. Hyde described Ferrell’s seizures or “episodes” and their frequency this

way:

These episodes occur on a daily basis about once a day. Nothing in
particular induces them. They come on without warning. He cannot
talk during these episodes, but can be aroused by the external stimuli
of others. He appears to others to be in a daze during these episodes.
After these episodes he feels tired, disoriented and often tearful and
discouraged. He describes these episodes as being “blanking out.”
He will stop any ongoing activity, such as writing a letter during these
episodes. He has never fainted or passed out with these episodes.
There is no associated nausea or vomiting. These episodes usually
last 5 to 10 minutes. Sometimes he is in and out of these spells all day
long. The last such episode occurred on the day of this examination.
They occur more frequently with sleep deprivation, extreme
depression, situational stressors or high levels of anxiety. He has
never had an EEG. He has never had a neurological evaluation for
these episodes. They are often followed by a left frontotemporal
headache.

26
(RE41 at 36).

Neurologist Hyde then explained Ferrell’s “psychotic symptomology” in

these terms:

[Petitioner] has had intermittent depression since childhood. His
depressive episodes last anywhere from one day to several months.
During these episodes he feels unhappy, tired and pathetic. He is
frequently socially withdrawn and does not enjoy anything . . . Eric
has a significant history of suicidal ideation. He last had suicidal
thoughts two weeks prior to this evaluation. However, he does not
want to kill himself. Rather he wants God to passively “take him.”
He has attempted suicide twice in his life. At 11 years of age, he
attempted suicide when his mother was depressed and hospitalized
following a suicide attempt of her own. . . . He attributes
“supernatural happenings” to his survival. . . . He has never been
treated for depression.

. . . [H]e has [also had] episodes consistent with mania since
childhood. . . .

Obsessive-compulsive symptomalogy has also been an issue. He is
obsessed with “God and his words”. He states that he has “seen the
light.” He has seen blood streaming down from heaven, churches, and
the bride of Christ. His religious visions started in childhood. They
became understandable to him in 1989. These have occurred once or
twice a month. He also hears a small, still voice during these visions.
They do not scare him. He also has the power to heal from laying his
hands on others for the past nine years.

....

He developed auditory hallucinations at 10 years of age. These have
occurred on an infrequent basis and have not occurred in the past two
years. He has heard multiple male voices, telling him to read his
Bible and pray. He believes these voices are the voice of God. These

27
 voices have never told him to do bad things. They have never told
him to hurt himself or to hurt others. They have never threatened him.
They have told him to watch out for others who wanted to harm him.
He usually hears these voices when he is manic. He also saw angels, a
form of visual hallucinations, transiently 5 to 10 times in his life. He
last saw them one month ago. Frequently his visual hallucinations
occur when he is manic. He also has visual hallucinations as
described when discussing his hyper-religiosity. He denies any
olfactory, gustatory or tactile hallucinations. He worries that demons
can possess people’s minds. He, himself, has not been a victim of
demonic possession. He denies any ideas of reference. He denies any
paranoid or somatic delusions. He denies any delusional guilt. He
has a grandiose belief that he has “Been called by God to be a
minister” since childhood.

(RE41 at 31-34, 44). Dr. Crown also observed Ferrell’s unusual religiosity. (RE41

at 68).

According to forensic psychologist Jethro Toomer, Ferrell scored a 74 on the

WAIS-III IQ test, with a performance IQ of 70 and a verbal IQ of 79, and Toomer

concluded that “[w]ith the existence of significant deficits in adaptive functioning,

Mr. Ferrell’s score on the WAIS-III is within the range of mental retardation” --

meaning that it is below 70-75. (RE41 at 85). Toomer also concluded, like the

other experts, that Ferrell’s performance suggested organic brain damage. (RE41

at 85-86).

Ferrell’s family and friends also would have told the jury, if asked, about the

mental health problems suffered by Ferrell’s mother, Ruby. According to friends

and family, she was depressed and had attempted suicide, and was “scary” to the

28
boys. (RE41 at 138-39 (Aff. of Stanley Ferrell); see also RE41 at 233 (Aff. of

Wilbert Ferrell Jr.); RE41 at 242-43 (Aff. of Jimmy Freeman)). Indeed, records of

Ruby’s treatment at the psychiatric ward of Grady Hospital revealed that she

suffered from severe headaches, and felt unhappy, aggressive, and slept and ate

poorly. (RE54 (Grady Records 2/20/75)). According to the records, she too, like

Eric Ferrell, heard voices, had visions, and experienced “rage blackouts,” where

she did not know what she was doing. (Id.; RE41 at 124 (Aff. of Ruby Ferrell)).

She also reported urges to harm her husband and her children, which she felt

“unable to control.” (RE54 (Grady Records 3/10/75)). Ferrell’s mother

“admit[ted] to all four hallucinations . . . [--] auditory, visual, tactile, olfactory

[and] to having thought about killing self, kids, and husband on a few occasions.”

(Id.) She complained of her mind snapping and of hearing voices telling her to hit

her children. She quit her job because of fears of harming her employer’s child.

(Id.) She experienced “fugue-like states.” (Id.) She was medicated with Valium,

and given a provisional diagnosis of schizophrenia. (Id.)

A neighbor also offered that Ruby’s mental problems run in her family: “It’s

hard to put into words exactly, but there are more than a couple of folks in her

family whose elevators don’t go all the way to the top floor.” (RE41 at 242-43

(Aff. of Jimmy Freeman). Ruby Ferrell’s hospital records were consistent,

29
recording that the family history “reveals depression in the female siblings and

sociopathy in the males -- this is classic pattern for the depressive type that is

endogenous (inherited).” (RE54 (Grady Records 8/28/76)).

Ferrell’s work habits also revealed elements of bipolar disorder. His brother

Wilbert, Jr. noted that Ferrell would go on streaks where he did nothing but work:

“At times, he would get in moods where he’d stay working all day and into the

night.” (RE41 at 234 (Aff. of Wilbert Ferrell, Jr.)). Ferrell’s father noted the same

thing: “That boy would go through times when he’d work like a maniac.” (RE41

at 158). An employer noted other symptoms of Petitioner’s bipolar disorder:

He had some funny ways. He talked a lot, chattered, really, but he
moved fast too, working. He’d do what you told him to do. He had a
way of looking sometimes, like something was loose there, then he’d
snap back to you.

(RE41 at 191 (Aff. of William Kilgore)). Schoolmate Cynthia Ivey recalled

Petitioner “blabbering” and running “his mouth in overdrive,” alternated with quiet

periods. (RE41 at 194). And a neighbor described his “spells,” where “he’d just

stare off for a few seconds or so.” (RE41 at 205 (Aff. of Elaine Guthrie)).

Ruby, Petitioner’s mother, also explained that just like her, Eric Ferrell had

seen his dead grandmother’s spirit in their house while growing up. (RE41 at 122-

23). And she and her husband described how Ferrell was always going to the

emergency room when he was little because he was always falling down or getting

30
hurt. Notably, they relayed how Ferrell had been hit in the head with a 2x4 and

kept “falling out,” twice was knocked unconscious while playing ball, and had

headaches after a car accident. (RE41 at 123-24; see also RE41 at 159 (Aff. of

Wilbert Ferrell, Sr.)).

In addition to presenting testimony from family and friends, habeas counsel

offered testimony from defense counsel’s investigator, Phyllis Corder, who

provided her impressions of Ferrell’s mental health:

Looking back, I’m sure we didn’t do an adequate job of investigating
th[e mental retardation] issue.

Certainly in Eric’s case, there was evidence that he had some kind of
mental disorder. Eric was extremely religious, obsessively so. He said
God had told him not to worry, and he was confident there would be a
second coming and God would deliver him from being convicted and
sentenced to death. This preoccupation with religion adversely
effected his demeanor at trial. He laughed and smiled inappropriately
throughout the proceedings. For me, it really brought into question
his mental state, and I believe it was a signal that something was
wrong other than mental retardation. I kept wondering about it long
after the trial was over.

(RE41 at 18).

Similarly, Ferrell’s first trial counsel, August Siemon, who met with

Petitioner several times, explained that he too harbored serious questions about

Ferrell’s mental health:

I felt Eric Ferrell had mental health problems which were overt and
fairly apparent to anyone who cared to look closely. In speaking with

31
 Eric, his eyes would glance away for several seconds and then
suddenly seem to come back to you. It was not shifting eyes from
nervousness -- his face would go blank, and then would become
animated once again. He didn’t seem particularly worried about what
was happening -- his affect was wrong, given the circumstances. In
my experience, this is characteristic of people who are relatively low-
functioning, intellectually, for whatever reason. He talked about his
religious beliefs a lot also, in a very fundamentalist way. He seemed
to think God would take care of him regardless of what happened at
trial, and he talked about how God spoke to him. Additionally, the
facts of the case were so incredible you had to question Eric’s mental
functioning. Whether his story was true, or if he were the killer, why
would he carry the bullet casings around in his pocket the entire day
until he reached the police station? It seemed clear to me that . . . a
mental health defense at guilt/innocence and penalty phase was the
best avenue of investigation, and hiring a neuropsychologist would
have been my first priority.

(RE41 at 153-54) (emphasis added).

Despite this wealth of background information, investigator Corder admitted

that in preparation for trial, she had only asked statutory character evidence

questions of the potential witnesses, and only followed up with them if they said

anything positive about Ferrell. (RE41 at 17-18; RE42 at 498-515, 525-527). The

“character” worksheets listing the questions used to interview potential witnesses

contained six questions: (1) How long have you known of the Defendant?; (2) Are

you familiar with his reputation for character in the community in which he lives or

works?; (3) What is that reputation; good or bad?; (4) Have you ever heard anyone

speak ill of the Defendant?; (5) Would you believe the Defendant if he were to

32
testify under oath?; and (6) If you knew he had been charged with the crime for

which he is on trial but no verdict had been returned, would your opinion change?

(E.g., RE42 at 498-515, 525-29). The first five questions were taken from the

statute governing character evidence in Georgia, see O.C.G.A. § 24-9-84, and the

final question simply anticipates cross-examination. See Mathis v. State, 333

S.E.2d 10 (Ga. Ct. App. 1985). Generally these were the only questions asked of

the potential witnesses. (RE41 at 17).10

Ferrell also submitted affidavits from those who would have testified at

length, if asked, about his substantially abused and impoverished upbringing.

Ferrell’s brother Darrell Walker detailed the problems he and his brothers faced:

[Ferrell’s father] Wilbert had a very bad gambling problem. He was
almost never home because he was out losing money. Everybody
knew it, and it made us stand out in the neighborhood. In an area
where many people were poor, we were even worse off than others.
Every time you turned around, we were getting thrown out because he
had lost the rent money. He even borrowed money from us boys to
gamble and never paid it back.

...

Wilbert’s punishments were so abusive he’d be arrested for it now.
We lived in terror of Wilbert. Often, Wilbert would come in in the

10
The district court noted in its opinion that “the investigators did not limit themselves to
asking questions about the Petitioner’s reputation for veracity,” (D41 at 16 n.3), and this
observation is true -- a review of the record reveals that the investigators did ask the other
questions listed above, and where applicable, asked about the witnesses’ knowledge of the crime.
(RE42 at 496-532). But again, these statutory character evidence questions were generally the
only questions asked.

33
 middle of the night and wake us up to beat us. This happened so much
that we learned to put on extra pants to sleep in. Sometimes, though,
Wilbert would make us strip naked before he’d beat us, and those
were the worst. Eric bore the brunt of Wilbert’s anger for some
reason. I think it was because Eric was always a bit different from the
rest of us. . . . Eric, though, no matter how hard he tried, couldn’t
seem to live life as well as the rest of us. He had a harder time
learning things than we did, and he didn’t catch on as well.

(RE41 at 168-69). Additionally, brother Scott Walker described Wilbert’s

drinking and gambling, and how Wilbert liked to beat Scott and Eric Ferrell more

than the other boys, (RE41 at 173 (Aff. of Scott Walker)); brother Wilbert, Jr.

described how Wilbert, Sr. would wake the boys up to beat them, often for

unexplained reasons (RE41 at 233-34 (Aff. of Wilbert Ferrell Jr.)); neighbor

Catherine Edwards described how Wilbert’s gambling left the family without

money for food or rent, and led to frequent evictions (RE41 at 149-50 (Aff. of

Catherine Edwards)); neighbor Jimmy Freeman described how Wilbert’s bad

gambling problem caused the family’s evictions (RE41 at 242 (Aff. of Jimmy

Freeman)); and neighbor Johnny Shepherd described how Wilbert’s gambling left

the family dirt poor and the boys hungry (RE41 at 250-51 (Aff. of Johnny

Shepherd)).

Ferrell’s brother Stanley confirmed that “Eric was [our father’s] least

favorite,” and “received the brunt of our father’s beatings,” which “happened quite

frequently, weekly at least.” (RE41 at 136). “Eric . . . tried so hard to please our

34
father and still never received any love from him.” (RE41 at 137-38). His mother

echoed that Ferrell’s father never wanted anything to do with Ferrell, would

regularly reject him, and directed his considerable rage at Ferrell. (RE41 at 126,

128). Even Wilbert Ferrell, Sr. himself explained that “I used switches and my belt

to whip [the boys], because kids need whipping and to be chastised strongly.”

(RE41 at 158).

Stanley described the family home as “an old wooden house with a tin roof.

There was no indoor plumbing -- we had an outhouse and a couple of slop jars for

nighttime. There were exposed wires all through the house, and just a wood stove

for heat. We six boys all shared one room.” (RE41 at 132). The house was

burned to the ground while the boys were home alone when Stanley was six years

old, and the Petitioner was only five. Stanley described the fire as “devastating,”

and said that the brothers were “very, very badly shaken by this experience,” which

has had “long . . . after-effects” on the family. (RE41 at 132-33).

Besides describing the violent and chaotic poverty he grew up in, family and

friends could have given the jury a picture of Ferrell as an individual. Numerous

friends would have testified if asked about his sweet and slow nature as a child:

[Ferrell] was a nice boy, real mannerly. He was slow to catch on to
things a lot; you had to tell him over and over how to do something . .
. Even so, he never got mad or anything like that[.]

35
(RE41 at 183 (Aff. of Annie Mae Dudley)).11 His mother also mentioned that

Ferrell always had a rough time in school. (RE41 at 125). And a custodian at

Ferrell’s elementary school said that Ferrell “was much slower than the other kids .

. . Like, if I told [him] to go get a chair, he would stare at me for a while until the

instruction ‘clicked’ in his head.” (RE41 at 224 (Aff. of Robert Sanders)).12

11
Others echoed these sentiments. Petitioner’s cousin remembered him as “a quiet,
well-behaved, and mannerly little boy. He seemed a bit young for his age, and . . . he tended to
play with the younger kids . . . .” (RE41 at 196 (Aff. of Catherine Sheets Bethea)). Another
cousin recalled that “he was a sweet, slow kid.” (RE41 at 221 (Aff. of Ann Walker)). Teacher
Betty Cardwell relayed that in seventh grade, Ferrell was a “super nice kid who never gave me
any trouble[, and who] was always slower than the other students.” (RE41 at 228). Teacher Ann
Jones similarly reported that Ferrell was “a smiling, happy child . . . [though he] was functioning
somewhat below level academically, especially in reading.” (RE41 at 226).

Catherine Shaw’s mother, Mrs. Charles Shaw, spoke highly of Ferrell as well:

We never knew just why [our daughter] wouldn’t marry such a fine young man . .
. Eric was really good with his children; you could just tell how much he loved
them. . . . We were real glad he took an interest in spiritual matters . . . Eric was
absolutely sincere in his beliefs and, with a lot of help, could have made a
minister. . . . The grace of God came easily to him but not the reading and the
studying.

(RE41 at 200-02) (Aff. of Mrs. Charles Shaw)).
12
Habeas counsel also presented evidence that Ferrell was always a “hard worker,” and
“was willing to work hard if you showed him exactly what to do.” (RE41 at 213-14 (Aff. of
Robert Lowe); RE41 at 125 (Aff. of Ruby Ferrell); RE41 at 158 (Aff. of Wilbert Ferrell Sr.)).
As Ferrell’s brother, Stanley, explained, “[d]espite his difficulties, one of Eric’s best qualities
was that he was a great worker. He began working when he was real small, doing neighborhood
jobs, trying to help out the family. He was always working and had a lot of pride in doing his
best to do a job right, even when he had to work harder than others to do that.” (RE41 at 140).
An employer also described Ferrell as “a good worker, and faithful.” (RE41 at 191 (Aff. of
William Kilgore)). Another person explained that although Ferrell “had a hard time learning
things easily[,] . . . eventually, after doing it enough, Eric would mostly get the hang of things. . .
. One thing for sure, Eric didn’t have a lazy bone in his body . . . .” (RE41 at 200 (Aff. of Mrs.
Charles Shaw)).

36
 Both the State and defense counsel also submitted evidence concerning

Ferrell’s counsel, Alice Stewart, who represented Ferrell during the motion for a

new trial and on appeal.13 Stewart was appointed when the Public Defender’s

Office withdrew after Ferrell’s conviction due to a potential conflict of interest

involving Ferrell’s uncles. As we’ve already noted, Alice Stewart raised an

ineffective-assistance-of-trial-counsel claim in the motion for new trial proceedings

and on appeal. She was provided with funding to hire a mental health expert but

not an investigator. (RE1 at 181).

In the oral and written testimony introduced at the state court habeas

hearing, Stewart averred that because she was attempting to identify direct appeal

issues, worked alone, and had no investigator, she “didn’t do the kind of

investigation -- it wouldn’t have been possible for me to do that that -- the kind of

investigation that somebody preparing for trial might do.” (RE40 at 51). She

further said, “I simply could not afford to leave the office and investigate the case

13
On March 10, 2008, the Georgia Supreme Court indefinitely suspended Ms. Stewart
from the practice of law for abandonment of clients, and recited her extensive disciplinary
history dating back to 1983. In re Stewart, 658 S.E.2d 573 (Ga. 2008). The opinion notes,
however, that during the time of these incidents, “Stewart may have been laboring under a
medical impairment which the State Bar has considered in the past.” Id. at 574.

37
myself, which is what was necessary to appropriately litigate an ineffective

assistance of counsel claim.” (RE41 at 3).14

Stewart did, however, hire a psychiatrist (Dr. Sheldon Cohen) to evaluate

Ferrell for competency and sanity, although she provided him only with Dr.

Allsopp’s report and the jail records. (RE41 at 9, 91). Most significantly, Stewart

did not tell Cohen anything about Ferrell’s visions, anything about his courtroom

seizure during the charge conference, or even about his mother’s nervous

breakdown -- even though she was familiar with all of this. (RE41 at 8, 9, 10). Dr.

14
She also admitted that she failed to raise trial counsel’s character-only penalty-phase
investigation:

The mitigation investigation performed by the trial attorneys consisted of getting
a list of names from Eric, and having investigators speak to them, many by phone.
In the trial attorney files, which I had access to, were a number of preprinted
forms which asked statutory character witness questions of whether the defendant
had a good reputation and whether the witness would believe him. Nowhere in the
trial attorney files did I find any evidence that witnesses were asked more than
these statutory character witness questions. However, the forms that were in the
file did show that the interviews were done asking only the questions found on the
preprinted character witness forms, many of the interviews that were done were
conducted not in person but by telephone, and the majority were conducted the
last week in August or between the two phases of trial. I asked Mr. Schneider
about these forms at motion for new trial and he said he received one page typed
reports from the investigator on each witness. When I reviewed Mr. Schneider’s
file before the motion for new trial hearing I found such described reports existed
only on names from the state’s witness list, some of whom were merely asked the
same character questions. I did not introduce those portions of the trial attorney
file showing that all of the other witnesses were asked only the statutory character
witness questions, instead of the in-depth interviews described by Mr. Schneider.
I had no tactical reason for not introducing these reports.

(RE41 at 2) (emphasis added).

38
Cohen felt the story Ferrell told him -- the same one from trial, that there was a

revenge murder, and that Ferrell could not remember the details of the crime -- was

concocted to cover up his guilt and that he was lying about not remembering, since

Ferrell apparently had not suffered from periods of amnesia before. (RE41 at 9).

Dr. Cohen performed no testing of Mr. Ferrell, but nevertheless reported to Ms.

Stewart that he appeared competent. (RE41 at 103). Cohen also reported that Mr.

Ferrell told him he heard voices, including the voice of the devil inside his head.

(RE41 at 91, 103). Stewart did nothing with this information. (RE41 at 9).

Ferrell also submitted at the state court habeas hearing Dr. Cohen’s affidavit,

which explained that he “felt Eric’s report of hearing voices could indicate

schizophrenia or other mental disorder, however, I had no background materials

indicating there was any history of mental illness.” (RE41 at 103). “If I had been

given information related to Mr. Ferrell’s history of hearing voices and

hallucinations, and history of head injuries, I would have referred him for

neuropsychological testing and would have attempted to conduct a more extensive

. . . evaluation of Mr. Ferrell.” (RE41 at 103).

On February 8, 2001, the state habeas court vacated both Ferrell’s

convictions and death sentence on the grounds of ineffective assistance of appellate

counsel in challenging trial counsel’s mitigation investigation and penalty-phase

39
presentation, and trial counsel’s conflict of interest. (RE59). As for mitigation

evidence at the penalty phase, the court concluded that Ferrell’s former trial

counsel, among other things, presented no testimony regarding Ferrell’s

background that may have served as proper mitigating evidence, even though there

was substantial mitigating evidence that could have been presented through the

testimony of the Petitioner’s family members -- including facts developed about

Petitioner’s abusive background, extreme poverty, his mother’s mental illness, his

own mental illness, his gambling and alcoholic father, and his kind personality,

strong work ethic, and other personal characteristics. (RE59 at 8-10). The state

habeas court concluded: “had this mitigating evidence been submitted to the jury,

at least Petitioner would have stood a more reasonable opportunity to obtain the

jury’s consideration and mercy.” (RE59 at 10). The court further found that

appellate counsel, in turn, also had “failed to conduct a reasonably diligent

investigation to properly identify and provide supporting evidence of the errors

committed at trial.” (RE59 at 10).

As for the conflict-of-interest claim, the state habeas trial court determined

that automatic reversal was warranted because Ferrell and his uncles had been

represented by the same counsel (the Public Defender’s Office), albeit for different

40
crimes, and his uncles had refused to be character witnesses for Ferrell because

each of them had an interest in protecting their respective plea deals with the State.

On appeal, the Georgia Supreme Court reversed the order of the trial court

and reinstated Ferrell’s convictions and sentences. Head v. Ferrell, 274 Ga. 399

(2001). In rejecting the ineffective-assistance-of-appellate-counsel claim regarding

mitigation, the state high court found that:

We note, as an initial matter, this Court’s own impression during the
direct appeal that appellate counsel had “attack[ed] virtually every
decision made by trial counsel.” [Ferrell, 401 S.E.2d at 746]. Ferrell’s
appellate lawyer testified in the habeas proceeding that she obtained
Ferrell’s file from his trial attorneys, interviewed Ferrell, spoke to his
family members, reviewed some of his school records, and
subpoenaed various other records. She also had an independent mental
health expert interview Ferrell, review the findings of the mental
health expert employed by trial counsel, and review Ferrell’s
post-conviction mental health records. At the motion for new trial
evidentiary hearing, appellate counsel attempted to show that Ferrell’s
trial attorneys had not prepared sufficiently for the sentencing phase.
Toward that end, appellate counsel presented a number of witnesses,
including some of Ferrell’s family members, the mother of his
children, and his trial counsel. Appellate counsel testified at the
habeas hearing that Ferrell’s family members were “traumatized” at
the time of the motion for new trial. This testimony is confirmed by
the testimony of Ferrell’s trial attorneys at the motion for new trial
hearing indicating that several of Ferrell’s own family members
believed that he had murdered his grandmother and cousin. Trial
counsel further testified that they had been in contact with Ferrell’s
parents from the beginning of their representation, had obtained a list
of 40 to 45 possible witnesses, had used the services of an investigator
to assist them in interviewing these witnesses, had obtained school
and prison records, had obtained a review of Ferrell by a mental health
expert regarding his possible mental retardation and his susceptibility

41
 to coercion or confusion during police questioning, and had consulted
with several persons who were well versed in death penalty trial
strategies in formulating their “residual doubt” strategy for the
sentencing phase of Ferrell’s trial. As this brief overview indicates,
Ferrell’s appellate attorney attempted to show the limits of trial
counsel’s preparation for the sentencing phase, but the evidence
actually available, most importantly the evidence of trial counsel’s
strategic decisions and attempts to develop a theory supportable by
available testimony and evidence, was not particularly favorable to
Ferrell’s claim that his trial attorneys rendered ineffective assistance.
Nevertheless, appellate counsel attempted to argue that claim on direct
appeal to the extent possible.

Id. at 404-05.

The Georgia Supreme Court also observed that the character evidence trial

counsel developed “fit well into trial counsel’s chosen sentencing phase strategy of

showing ‘residual doubt.’” Id. at 405. It then detailed specific mitigating evidence

that appellate counsel allegedly had not introduced, and found that some of this

evidence -- about his father’s gambling, the family’s poverty, the frequent

evictions, the home fire, his mother’s mental issues, and his religious commitment

-- was repetitive; some was unhelpful, since it would have shown that the brothers

were close, that Ferrell loved his grandmother, who had taken him in after the

family fire, and that the murder had “clearly exacerbated” Ferrell’s mother’s

mental difficulties; and some, such as Ferrell’s personality as a youth or his

father’s “discipline,” would not have significantly affected the jury. Id. at 406-07.

42
 As for appellate counsel’s utter failure to develop evidence of Ferrell’s

organic brain damage, mental retardation, bipolar disorder, and epilepsy, the

Georgia Supreme Court said this: “[a]ppellate counsel, like Ferrell’s trial attorneys,

performed reasonably by obtaining expert assistance in investigating the few issues

regarding Ferrell’s mental functioning that would have seemed of possible concern

to a non-expert and then foregoing arguments not supportable by the opinions of

those experts.” Id. at 407.

In addressing the conflict-of-interest claim, Georgia’s high court first noted

that it had found on direct appeal that there was no actual conflict of interest, and

that nothing presented on habeas review would have in reasonable probability

changed that conclusion. Id. at 408. The court further determined that appellate

counsel had not ineffectively presented this claim because she “ably set forth the

essential contours of the alleged conflict and supported her claim with

documentary evidence showing the nature and timing of the final adjudication in

the uncles’ cases.” Id. Conceding one “arguably significant argument raised by

Ferrell in the habeas proceeding that was not raised by appellate counsel,”

regarding “a new statement, by the uncle [Robert Lowe] who testified at the

motion for new trial hearing, that he had not wanted to get involved in Ferrell’s

case while his own case was still pending,” the court found that “this testimony

43
must be viewed in light of the extensive testimony presented at the motion for new

trial hearing indicating that the uncles refused to testify for Ferrell, not because of

any agreement with the State, but because they believed ‘adamantly’ that Ferrell

had murdered their mother.” Id. The Georgia Supreme Court concluded that

“appellate counsel cannot be regarded as having performed deficiently for failing

to explore further the testimony of that one uncle at the motion for new trial

hearing,” and thus that Ferrell’s appellate counsel did not render deficient

performance regarding the conflict of interest claim. Id. at 408-09.

As for the constructive-absence claim, the Georgia Supreme Court held that

although appellate counsel did not raise any claim concerning Ferrell’s

constructive absence from trial when he had a seizure in court, she “raised a very

similar claim on direct appeal, asserting that Ferrell was denied his right to counsel

by his allegedly impaired condition following this episode.” Id. at 410. By raising

this similar claim, the court concluded that appellate counsel did not perform

unreasonably. Id. In any event, the Georgia Supreme Court observed that “the

evidence . . . showed that Ferrell regained his composure and appeared to trial

counsel to be ‘very much in contact with reality’ and that the defense investigator

had spoken with Ferrell and reported that he was ‘all right’ and wished to continue

. . . .” Id. at 410-11.

44
F. Federal District Court Habeas Proceedings

Having struck out in the state courts, Ferrell commenced this federal habeas

corpus action pursuant to 28 U.S.C. § 2254 in the United States District Court for

the Northern District of Georgia on October 21, 2002. He raised fourteen claims,

including these: (1) penalty-phase ineffective assistance of counsel because both

trial and appellate counsel failed to conduct a thorough investigation (Claim I); (2)

ineffective assistance of counsel because of counsel’s closing argument (Claim II);

(3) ineffective assistance of counsel arising from counsel’s conflict of interest

(Claim III); (4) ineffective assistance of appellate counsel concerning Ferrell’s

constructive absence from trial (Claim V(8)); and (5) constructive absence from

trial (Claim XIV). (D1, D12). The district court denied habeas relief on all

fourteen claims. (D26, D41).

The district court issued a certificate of appealability (“COA”) concerning

“the denial of [Petitioner’s] constitutional right to effective assistance of counsel at

the sentencing phase of his trial and because of a potential conflict of interest.”

(D51 at 1-2). We granted Ferrell’s motion to expand the COA, allowing him to

raise two additional claims: Ferrell’s “virtual absence from trial” due to seizure,

and his appellate counsel’s failure to raise that issue on direct appeal.15

15
Ferrell’s initial motion did not ask this Court to expand the COA to include the claim
regarding trial counsel’s effectiveness at sentencing phase closing arguments (Claim II), and in

45
 This timely appeal followed.

II.

Since Ferrell filed his federal habeas petition after April 24, 1996, Section

2254(d) governs this proceeding. Wilcox v. Fla. Dep’t of Corr., 158 F.3d 1209,

1210 (11th Cir. 1998). Accordingly, a court may grant habeas relief only if a state

court decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,”

or was “based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state

court decision is “contrary to” clearly established law if the court arrived at a

conclusion opposite to the one reached by the Supreme Court on a question of law

or the state court confronted facts that are “materially indistinguishable” from

Supreme Court precedent but arrived at a different result. Williams v. Taylor, 529

U.S. 362, 405 (2000). A state court decision is an “unreasonable application” of

clearly established law if the state court identifies the correct governing legal rule

ruling on Ferrell’s initial motion, we clarified that only Claims I, III, V, and XIV, as presented to
the district court, were properly before us. Instead of moving for reconsideration to ask this
Court to expand the COA to cover the closing argument, Ferrell filed his briefs on the merits
arguing not only Claim I (as it pertained to the sentencing phase), Claim III, Claim V, Issue 8
and Claim XIV, but also Claim II. Only after the State pointed out in its briefing that Claim II
was not properly before this Court did Ferrell move to “clarify and/or expand” the COA. We
denied his belated motion. We nevertheless consider this claim, in substance, because it is
plainly an integral part of Ferrell’s claim that trial counsel was ineffective at the penalty phase.

46
from the Supreme Court’s holdings but unreasonably applies it to the facts of the

particular defendant’s case. Id. at 407. A state court’s factual findings are

presumed correct unless they are rebutted by clear and convincing evidence. 28

U.S.C. § 2254(e)(1).

Ferrell’s two main arguments concern the ineffectiveness of trial counsel at

the penalty phase, and the ineffectiveness of appellate counsel in conducting the

same search for mitigating evidence to present in support of a motion for a new

trial and on direct appeal. To succeed on these Sixth Amendment claims, Ferrell

must show both deficient performance and prejudice: he must establish first that

“counsel’s representation fell below an objective standard of reasonableness,” and

then that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984); accord Wiggins v. Smith, 539 U.S.

510, 521-522 (2003); Darden v. Wainwright, 477 U.S. 168, 184 (1986). “The

question of whether an attorney’s actions were actually the product of a tactical or

strategic decision is an issue of fact, and a state court’s decision concerning that

issue is presumptively correct.” Provenzano v. Singletary, 148 F.3d 1327, 1330

(11th Cir. 1998). However, “the question of whether the strategic or tactical

47
decision is reasonable enough to fall within the wide range of professional

competence is an issue of law not one of fact.” Id.

Under AEDPA, we accord deference to a state court’s determinations on

both Strickland prongs -- performance and prejudice -- so long as the state court

reached the merits of the petitioner’s claim, and reached both prongs of the

Strickland analysis. Moreover, we are instructed to afford state court habeas

decisions a strong presumption of deference, even when the state court adjudicates

a petitioner’s claim summarily -- without an accompanying statement of reasons.

Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 780, 784 (2011); Wright v.

Sec’y for Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002); see also Renico v.

Lett, ___ U.S. ___, 130 S. Ct. 1855, 1862 (2010) (“AEDPA . . . imposes a highly

deferential standard for evaluating state-court rulings . . . and demands that

state-court decisions be given the benefit of the doubt.” (citations and internal

quotation marks omitted)).

Where the state court did not reach the merits of the claim, however,

“federal habeas review is not subject to the deferential standard that applies under

AEDPA to ‘any claim that was adjudicated on the merits in State court

proceedings,’” and instead, “the claim is reviewed de novo.” Cone v. Bell, __ U.S.

__, 129 S. Ct. 1769, 1784 (2009). In deciding whether a state court actually

48
reached the merits of a claim, the Supreme Court has also instructed us that we

should presume “the state court adjudicated the claim on the merits in the absence

of any indication or state-law procedural principles to the contrary.” Harrington,

131 S. Ct. at 784-85 (citations omitted). There is an “indication . . . to the

contrary” where, for example, the state court has denied the petitioner’s claim on

only one prong of the Strickland test, and, therefore, we review de novo the prong

that the state court never reached. See, e.g., Rompilla v. Beard, 545 U.S. 374, 380,

390 (2005); Wiggins, 539 U.S. at 534.

In this case, no one disputes that the Georgia Supreme Court expressly found

that Ferrell had failed to satisfy the first Strickland prong -- whether trial or

appellate “counsel’s representation fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688. We, therefore, accord AEDPA

deference to both determinations.

A more difficult question arises, however, when we turn to the state court’s

prejudice determinations. On direct appeal, the Georgia Supreme Court squarely

found that Ferrell failed to establish Strickland prejudice from trial counsel’s

performance, although the record before the state court was sharply limited to the

“new” mitigating evidence appellate counsel introduced with the motion for new

trial. On habeas review, the Georgia Supreme Court said that it was not revisiting

49
the earlier determinations about trial counsel. The Georgia Supreme Court also

reviewed a radically expanded record of mitigating evidence. And, notably, the

state’s high court cited many times to the expanded record and to trial counsel’s

performance in rendering its ruling about appellate counsel’s performance. See,

e.g., 274 Ga. at 406-07 (reviewing the mitigating evidence presented in the habeas

record -- including the father’s gambling problem and the father’s physical abuse

of the children, the burning of the family home, and the mother’s depression and

mental health problems -- to conclude that “[t]hese facts indicate that neither trial

nor appellate counsel rendered ineffective assistance”).

None of this is surprising because the state court could not effectively

review appellate counsel’s performance in challenging trial counsel’s effectiveness

in mitigation without re-examining trial counsel’s performance as well. We are

hard pressed to see how appellate counsel could have performed ineffectively here

if trial counsel had adequately and constitutionally performed its tasks in the first

place. See DeYoung v. Schofield, 609 F.3d 1260, 1283 (11th Cir. 2010)

(observing that in order to ascertain whether appellate counsel was ineffective in

failing to raise, or in inadequately raising, a claim of trial-counsel ineffectiveness, a

court must “review the merits of the omitted [or inadequately raised] claims”);

Owen v. Sec’y for Dep’t of Corr., 568 F.3d 894, 915 (11th Cir. 2009) (holding that

50
if issues are without merit, “any deficiencies of [appellate] counsel in failing to

raise or adequately pursue them cannot constitute ineffective assistance of

counsel”).

In other words, whether appellate counsel failed to properly challenge trial

counsel’s mitigation inquiry focuses on essentially the same corpus of evidence

and the same legal questions underlying trial counsel’s effectiveness -- which

strategies did trial counsel pursue, were those strategies reasonable under the

circumstances, and what kinds of penalty-phase evidence was developed, or could

reasonably have been developed. Those are exactly the questions the Georgia

Supreme Court answered on habeas review, sometimes explicitly, and sometimes

implicitly. See, e.g., 274 Ga. at 405 (“Ferrell’s trial attorneys, as this Court

implicitly found on direct appeal, acted with reasonable professional judgment in

focusing largely on the mitigation theory of ‘residual doubt’ and presenting

testimony consistent with that theory . . . Ferrell’s appellate attorney attempted to

show the limits of trial counsel’s preparation for the sentencing phase, but the

evidence actually available, most importantly the evidence of trial counsel’s

strategic decisions and attempts to develop a theory supportable by available

testimony and evidence, was not particularly favorable to Ferrell’s claim that his

trial attorneys rendered ineffective assistance.”) (emphasis added); id. at 407

51
(“Appellate counsel, like Ferrell’s trial attorneys, performed reasonably by

obtaining expert assistance in investigating the few issues regarding Ferrell’s

mental functioning that would have seemed of possible concern to a non-expert

and then foregoing arguments not supportable by the opinions of those experts.”)

(emphasis added); id. (reviewing the mitigating evidence presented in the “trial

record, the motion for new trial record, and the habeas record” to conclude that

“[t]hese facts indicate that neither trial nor appellate counsel rendered ineffective

assistance”). And it did so based on the entire record. See id. at 406-07 (detailing

evidence from the trial (e.g., Ferrell’s religious commitment), the motion for new

trial (e.g., the burning down of Ferrell’s house), and the habeas hearing (e.g.,

“testimony of three mental health professionals suggesting that Ferrell suffers from

organic brain damage, mental illness, an epileptic or seizure disorder, and mental

retardation”)).

Since the Georgia Supreme Court reviewed the entire record on habeas

review and necessarily revisited trial counsel’s effectiveness, and expressly and

repeatedly reaffirmed its Strickland conclusions about trial counsel, we review its

prejudice determination concerning trial counsel’s performance through the prism

of AEDPA deference. Affording the Georgia Supreme Court’s decisions “the

benefit of the doubt,” Renico, 130 S. Ct. at 1862, we think the wise course here is

52
to examine the Georgia Supreme Court’s determinations about trial counsel in this

way. (Nevertheless, under the operative facts and circumstances of this case, our

determination about prejudice would be exactly the same, whether measured under

the more exacting standards contained in AEDPA or under de novo review.)

The Georgia Supreme Court never reached the prejudice prong, however,

when it examined appellate counsel’s performance. Indeed, when addressing the

new mental health evidence, its analysis stopped after determining only that the

appellate lawyer performed reasonably. It never discussed, mentioned or

suggested the question of whether this evidence would have led to the reasonable

probability that the motion for a new trial would have been granted. The Georgia

Supreme Court simply wrote: “Appellate counsel, like Ferrell’s trial attorneys,

performed reasonably by obtaining expert assistance in investigating the few issues

regarding Ferrell’s mental functioning that would have seemed of possible concern

to a non-expert and then foregoing arguments not supportable by the opinions of

those experts.” 274 Ga. at 407.

The Georgia Supreme Court’s habeas decision is similar to the state habeas

decision reached in Wiggins, where the Maryland Court of Appeals concluded its

Strickland analysis by discussing only the reasonableness of counsel’s

performance; it never addressed prejudice. Wiggins v. State, 724 A.2d 1, 17 (Md.

53
1999) (ending its discussion by saying “[i]t was not unreasonable for [counsel] to

choose not to distract from their principal defense with evidence of appellant’s

unfortunate childhood”). Just as in Wiggins, “our review is not circumscribed by a

state court conclusion with respect to prejudice,” since the Georgia Supreme Court

did not reach this prong of Strickland. And just as in Wiggins we have no state

court judgment to afford deference. Accordingly, we evaluate this element de

novo, just as the district court did. See 539 U.S. at 534.16 (But again, even if we

were to review the matter through the lens of AEDPA deference, our conclusion

would be the same.)

III.

A. Trial counsel’s performance was unreasonable.

At the outset, we turn to the Georgia Supreme Court’s conclusion on direct

appeal (and reiterated on habeas review) that trial counsel’s performance in

presenting mitigating evidence during the sentencing phase was not

constitutionally deficient. 261 Ga. at 120. It is almost axiomatic by now that

16
Since the Georgia Supreme Court repeatedly discussed trial counsel’s performance on
habeas (and since we conclude below that the Georgia Supreme Court unreasonably ruled that
appellate counsel did not perform ineffectively in developing the record on trial counsel’s
ineffectiveness), we consider, for purposes of both the trial-counsel and appellate-counsel
claims, the full record that was before the Georgia Supreme Court when it ruled on the appellate-
counsel claim. Cf. Cullen v. Pinholster, __ S. Ct. __, 2011 WL 1225705, *11 n.12 (Apr. 4,
2011) (assuming without deciding that in considering an ineffectiveness claim, it would review
“all of the evidence that Pinholster ever submitted in state habeas,” including the evidence he
submitted during both rounds before the state supreme court).

54
“strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable,” but those made after “less than

complete investigation” are reasonable only to the extent that reasonable

professional judgment supports the limitations on investigation. Strickland, 466

U.S. at 690-91; accord Wiggins, 539 U.S. at 527-28 (finding ineffective assistance

where “counsel chose to abandon their investigation at an unreasonable juncture,

making a fully informed decision with respect to sentencing strategy impossible”);

Ford v. Hall, 546 F.3d 1326, 1333-34 (11th Cir. 2008) (holding that in evaluating

the reasonableness of an investigation into mitigating circumstances “a court must

consider not only the quantum of evidence already known to counsel, but also

whether the known evidence would lead a reasonable attorney to investigate

further”) (citations and quotation marks omitted); Williams v. Allen, 542 F.3d

1326, 1337 (11th Cir. 2008) (holding that “the decision to limit an investigation

must flow from an informed judgment”) (citations and quotation marks omitted).

In this case, trial counsel conducted a profoundly incomplete investigation,

and its judgment to so sharply limit its inquiry fell far outside the wide range of

professional competence. As we see it, the Georgia Supreme Court’s conclusion to

the contrary amounted to “an unreasonable application of . . . clearly established”

Supreme Court law. 28 U.S.C. § 2254(d)(1).

55
 1.

For starters, we find unreasonable the conclusion that “Ferrell’s trial

attorneys . . . performed reasonably by obtaining expert assistance in investigating

the few issues regarding Ferrell’s mental functioning that would have seemed of

possible concern to a non-expert and then foregoing arguments not supportable by”

Allsopp’s opinion. 274 Ga. at 407. To the contrary, the record amply establishes

that trial counsel’s mental health investigation was unjustifiably and unreasonably

circumscribed. While trial counsel hired Dr. Allsopp as an expert, the mental

health evaluation they requested from him was limited to answering only two

questions: whether Ferrell was mentally retarded and whether he suffered from any

problems that may have affected his waiver of rights for the statements he gave to

the police. (RE18 at 216). Based on this sharply limited inquiry, Dr. Allsopp

opined only that Ferrell had low average to average intelligence, was not retarded,

and had a sufficient level of intelligence and mental status at the time of

assessment that would not adversely affect his ability to understand his

constitutional rights.

Notably, Allsopp had not been asked to look for evidence of brain damage,

was provided no material from counsel other than school records, and was not

asked to perform a clinical interview, or do anything else for possible use in

56
mitigation. In fact, Allsopp’s marching orders focused only on Ferrell’s ability to

interact with the police; counsel did not ask, nor did Allsopp look for whether

Ferrell had any mental illness that may have affected him during the crime.

Counsel’s use of Allsopp was unreasonably constricted in this case because of the

wide range of mental health issues other than retardation and competency that

could have been relevant (and were relevant) to Ferrell’s mitigation investigation,

and the many red flags that had been raised about Ferrell’s mental health

throughout the proceeding. See Blanco v. Singletary, 943 F.2d 1477, 1503 (11th

Cir. 1991) (“[T]here is a great difference between failing to present evidence

sufficient to establish incompetency at trial and failing to pursue mental health

mitigating evidence at all. One can be competent to stand trial and yet suffer from

mental health problems that the sentencing jury and judge should have had an

opportunity to consider.”).

This record reveals numerous, obvious indicators that should have led

counsel to pursue a more comprehensive mental health investigation. To begin

with, Ferrell’s first lawyer, August Siemon, worked only briefly with Ferrell but

still strongly suspected that Ferrell suffered from mental health problems that were

“overt and fairly apparent to anyone who cared to look closely.” He explained

that: (1) Ferrell’s eyes would glance away for several seconds and suddenly come

57
back, as though his face would go blank, and then become animated once again;

(2) Ferrell did not seem particularly worried about what was happening -- his affect

was wrong, given the circumstances; (3) he talked about his religious beliefs

excessively, thought God would take care of him, and talked about how God had

spoken to him; and (4) the facts of the case were so incredible one had to question

Ferrell’s mental functioning, especially since Ferrell carried the bullet casings

around in his pocket the entire day until he reached the police station and they were

discovered on his person.

Similarly, defense counsel’s investigator, Phyllis Corder -- on whom

Ferrell’s trial counsel heavily relied for investigating both phases of trial --

observed that “there was evidence that [Ferrell] had some kind of mental disorder”

because he (1) was obsessively religious, and spoke directly with God, who told

him not to worry, and (2) had a strange demeanor at trial, laughing and smiling

inappropriately throughout the proceedings, which brought into question his

mental state, and indicated that something was wrong other than mental

retardation.

Moreover, and perhaps more significantly, during the trial itself, Ferrell had

a seizure, causing him to fall onto the floor, shake and speak gibberish. When it

ended, it seemed to investigator Corder that Ferrell did not know what had

58
happened, or indeed that anything had in fact happened. The episode was

described by her this way: Ferrell “fell onto the floor, shaking and speaking

gibberish. Really, it sounded like a foreign language[,] like speaking in tongues . .

. . There was no question in my mind that this was a genuine seizure.” In fact,

Corder thought that “the trial should have been stopped and Eric should have been

examined medically or had some sort of evaluation, but it all happened extremely

quickly.” Both defense lawyers, Schneider and Sheffield, testified that they too

had witnessed the seizure. Remarkably, defense counsel never sought so much as

a continuance to determine if there was some mental health issue that caused the

seizure or to evaluate the defendant’s mental health further.

Nor, despite Ferrell’s obvious mental disabilities, did defense counsel ever

ask any of Ferrell’s family -- the ones who were called to testify anyway -- about

any topics related to Ferrell’s mental health. Yet, as this record fully describes,

these witnesses could have testified about how Ferrell had visions and suffered

depression, how a young Ferrell had received multiple head injuries and ensuing

hospitalizations, how Ferrell exhibited manic moods, when he would never stop

working, how “slow” Ferrell was and how long it took him to catch on to things, or

how Ferrell’s mother suffered from mental health problems (including suicidal

ideations) as well. But counsel never bothered to ask the very witnesses who

59
appeared before the court to testify about anything that would have illuminated

Ferrell’s mental state.

In the face of these obvious indicators that Ferrell had substantial mental

health issues, we cannot say it was reasonable for the Georgia Supreme Court to

conclude that trial counsel performed adequately and effectively in limiting their

mental health mitigation investigation in the way that they did, or in failing to

follow up on Ferrell’s mental health as their representation proceeded.

What’s more, because counsel did not seek any non-character mitigating

evidence from the list of witnesses Ferrell gave them, counsel did not learn from

these witnesses as well things that would have compelled them to dig deeper into

the defendant’s mental health. Thus, for example, an employer and a neighbor

described in their habeas affidavits how Ferrell would have “spells, where he’d just

stare off for a few seconds or so,” and “had a way of looking sometimes, like

[something] was loose there, then he’d snap back to you.” Similarly, the habeas

affidavits of Ferrell’s brother Wilbert Jr., his father, an employer, and a friend

described Ferrell’s manic moods, when he would “stay working all day and into

night,” or would “chatter” and run “his mouth in overdrive,” as contrasted with his

“quiet” moods. Likewise, testimony from his brother Darrell and an employer

described how Ferrell “was always a bit different from” the other children, and had

60
“funny ways.” His brothers, two of his teachers, and a friend described how

“slow” Ferrell was, and how long it took him to catch on to things.

Ferrell’s mother and father also described how Ferrell made repeated trips to

the hospital as child when he once was hit in the head by a 2x4, twice was knocked

unconscious while playing ball, and had headaches after a car accident. Ferrell’s

mother Ruby described how, like her, Ferrell had seen his dead grandmother’s

spirit in their house while growing up. In addition, a neighbor described how

mental health issues ran in Ruby’s family. And finally, Ruby’s hospital records

confirmed that she heard voices, had visions, experienced “rage blackouts,” felt

urges to harm her children, and had suicidal ideations. This record -- providing, at

the very least, anecdotal evidence of Ferrell’s brain damage, epilepsy, and bipolar

disorder -- undoubtedly would have given counsel still more reason to investigate

Ferrell’s mental health.

In fact, in conducting the non-expert investigation -- which sought to

interview 40-45 witnesses -- the investigators asked only statutory character

evidence questions of the potential witnesses, and followed up only if they said

anything positive about Ferrell. (RE41 at 17-18). In particular, Corder and others

asked the witnesses about Petitioner’s reputation in the community. (RE42 at

498-515, 525-27). Yet, the range of relevant mitigation evidence is far wider than

61
reputation. See Brownlee v. Haley, 306 F.3d 1043, 1070 (11th Cir. 2002)

(mitigating evidence includes “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.”) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978));

see also Porter v. McCollum, __ U.S. __, 130 S. Ct. 447, 452-53 (2009) (holding --

in a case in which the penalty phase took place in 1988, the same year as Ferrell’s -

- that “[i]t is unquestioned that under the prevailing professional norms at the time

of Porter’s trial, counsel had an ‘obligation to conduct a thorough investigation of

the defendant’s background’”) (quoting Williams, 529 U.S. at 396); Bobby v. Van

Hook, 130 S. Ct. 13, 17 (2009) (recognizing that in 1985, the ABA standards --

which we can look to as “guides” provided that “[i]nformation concerning the

defendant’s background, education, employment record, mental and emotional

stability, family relationships, and the like, will be relevant [to a mitigation

investigation], as will mitigating circumstances surrounding the commission of the

offense itself”). Because Ferrell’s counsel failed to conduct a mitigation

investigation beyond Ferrell’s character, they failed to uncover additional, obvious

evidence of serious mental illness, further compounding our conclusion that the

Georgia Supreme Court’s failure to find their mitigation investigation deficient

was unreasonable.

62
 2.

Not only did counsel’s unreasonably constricted mitigation investigation fail

to uncover relevant mental health evidence in Ferrell’s favor, it is also troubling for

several other reasons. First, had counsel asked any questions beyond Ferrell’s

character, they would have discovered compelling evidence of his abused and

impoverished childhood. According to his brothers and neighbors, Ferrell’s father

Wilbert had a serious gambling problem that profoundly affected the family. His

brothers and mother also explained how their father used to beat the boys

regularly, sometimes stripped naked, and how Ferrell was unloved by his father

and bore the brunt of his father’s considerable anger. Even Wilbert Sr. admitted he

beat his sons with whips and strops. Ferrell’s brothers and neighbors also relayed

how the Ferrells lived in run-down shacks, how they were repeatedly evicted from

their homes, how when the defendant was only five one of these homes burned to

the ground, and how the boys often went hungry. And his brothers and neighbors

revealed that Ferrell’s mother Ruby was depressed all the time, that she, like the

defendant, had attempted suicide, that she had nerve problems, that she would shut

herself off, and that she was “scary” to the boys.

Second, the very witnesses who were called by the defense to testify at

Ferrell’s trial -- his parents and brother Stanley -- could have provided detailed

63
information about his deeply troubled mental health and his childhood if they had

ever been asked. So even if, as counsel claimed, they could not have found other

witnesses to testify for Ferrell in mitigation, they could have elicited significant,

and powerful, additional mitigating evidence from the witnesses who were willing

to testify, and did testify on Ferrell’s behalf, if counsel had only asked these

witnesses about the defendant’s background and childhood.

Third, this is not a case where Ferrell’s counsel reasonably believed that it

would have been useless to follow up on Ferrell’s background. All they learned

during their investigation was that their character investigation was not productive.

But they found nothing to suggest that an investigation into Ferrell’s background

and upbringing would have been useless, or opened the door to potentially

damaging rebuttal evidence. See Wiggins, 539 U.S. at 525 (“Indeed, counsel

uncovered no evidence in their investigation to suggest that . . . further

investigation would have been fruitless[.]”). Other than relying on the investigator,

trial counsel themselves did not speak with any penalty-phase witnesses, or

potential witnesses, aside from the parents, until “immediately following the guilt-

innocence phase, while the jury was out.” (RE18 at 214).

Fourth, counsel claimed that they chose “residual doubt” as a strategy only

because they could find no other reason to offer the jury not to impose death.

64
(RE18 at 213). This explanation is not persuasive. The long and the short of it is

that defense counsel had nothing else to rely on because they looked for nothing

else. See Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir. 1995) (citing a long

line of decisions showing that “our case law rejects the notion that a ‘strategic’

decision can be reasonable when the attorney has failed to investigate his options”)

(internal citations and quotation marks omitted); see also Sears v. Upton, 130 S. Ct.

3259, 3265 (2010) (“[T]hat a theory might be reasonable, in the abstract, does not

obviate the need to analyze whether counsel’s failure to conduct an adequate

mitigation investigation before arriving at this particular theory prejudiced [the

petitioner].”). By failing to conduct any reasonable investigation into the

defendant’s background and upbringing, defense counsel’s post-hoc justification

for their residual doubt defense -- that they could find no alternative sentencing

strategy -- is completely undermined, and fails to explain adequately why they

unreasonably limited their mitigation investigation.

Put simply, because of counsel’s limited character investigation -- which

asked, essentially, only whether Ferrell was trustworthy and had a good reputation

-- counsel did not uncover readily available mitigating evidence of Ferrell’s

powerful mental health issues or his abused and difficult childhood, and failed to

adequately utilize the witnesses who did testify on his behalf. Nor did counsel’s

65
approach reveal anything to suggest that a more comprehensive investigation

would have been fruitless.

3.

As we see it, the conclusion that trial counsel did not perform ineffectively is

even more unreasonable when measured against the actual approach trial counsel

employed at sentencing. We recognize, as the State argues, that “residual doubt”

can be a valid approach, especially where, as here, Petitioner’s witnesses were also

the victims’ family members. “Creating lingering or residual doubt over a

defendant’s guilt is not only a reasonable strategy, but ‘is perhaps the most

effective strategy to employ at sentencing.’” Parker v. Sec’y for the Dep’t of Corr.,

331 F.3d 764, 787-88 (11th Cir. 2003) (quoting Chandler v. United States, 218

F.3d 1305, 1320 (11th Cir. 2000) (en banc)); see also Tarver v. Hopper, 169 F.3d

710, 715-16 (11th Cir. 1999). Thus, the time and effort an attorney expends in

preparing the guilt phase of a capital case may continue to aid with the sentencing

phase. See Parker, 331 F.3d at 787 (citing Tarver, 169 F.3d at 715).

But in this case, it is hard to say that counsel pursued much of a “residual

doubt” strategy at sentencing. See Smith v. Spisak, 130 S. Ct. 676, 691 (2010)

(Stevens, J., concurring) (“[S]urely, a strategy can be executed so poorly as to

render even the most reasonable of trial tactics constitutionally deficient under

66
Strickland.”). Most importantly, their “residual doubt” theory was powerfully

undercut by the very nature of the closing argument defense counsel made at the

penalty phase. As the record shows, defense counsel told the jury in closing

argument: (1) that Ferrell’s basic story presented by the defendant himself from the

witness stand that two gunmen killed the victims in a revenge killing with his gun,

and then gave him back his revolver along with some money, was “absurd,” “hard

to swallow,” “hard to believe,” “wild,” and “ludicrous” (RE13 at 1704-15); (2) that

the jurors had to find only one aggravating factor for the death penalty, that they

“unquestionably” had already done so, and that they could legitimately sentence

Ferrell to death (RE13 at 1697); (3) that counsel had the “unpleasant duty” of

arguing that two deaths “by execution” did not warrant the death penalty (RE13 at

1699); (4) that the crime was in fact an enormous one, based upon his experience

(RE13 at 1699); and (5) that this was a circumstantial evidence case in which all

the circumstances pointed toward Ferrell’s guilt. (RE13 at 1704).

Moreover, nearly every time defense counsel seemed to suggest residual

doubt -- either by saying that the jury did not know what happened in that house

that day, or by asking the jury if they were sure Ferrell committed the crime --

counsel immediately retreated, by saying that “we don’t know why” and Ferrell

“isn’t going to tell us,” by “assum[ing]” that Ferrell did it, or by reiterating that

67
Ferrell’s story of innocence was “absurd,” “hard to swallow,” “hard to believe,”

“wild,” and “ludicrous.” (RE13 at 1698-99). Counsel even went so far as to

declare to the jury that “[n]o rational jury would have found otherwise in the

guilt-innocence phase because of the ludicrousness of that story. You could try

this case a thousand times before a thousand juries and you’d get the same result;

we’ve all known that from day one.” (RE13 at 1699 (emphasis added)). By no

reasonable calculus can we say that this argument was consonant with a residual

doubt claim.

Indeed, in other cases where courts have accepted the efficacy of residual

doubt defenses, actual residual doubt was urged by defense counsel. Thus, to

illustrate, in Hammond v. Hall, 586 F.3d 1289, 1334 n.18 (11th Cir. 2009), we

noted that “[a]t sentencing Hammond’s trial counsel did argue residual doubt to the

jury, not exclusively but forcefully,” and cited the following statements in support:

(1) “[The prosecutor] wants you to think that he’s sitting here with all this

evidence. Where is it? Where is it? That’s what he wants you to believe”; (2) “[The

prosecutor] wants you to convict this man and say how vicious he is, because he

came into this court and said I am not guilty of murder. I did not kill anyone. And I

haven’t killed anyone”; and (3) “[A]nything [the defendant’s] been involved with,

there may have been some violent acts, but there was an absence of one thing, and

68
that was a death. But there was not an absence of death with [the other assailant],

was there? [The other assailants] are the two that was behind this entire act, but

they want this man to pay for it.” Similarly, in DeYoung v. Schofield, 609 F.3d

1260, 1278 (11th Cir. 2010), counsel argued residual doubt by “tr[ying] to paint

[another individual] as being in control on the night of the murders, and to suggest

other persons may have been involved.”

In this case, counsel’s argument can more accurately be described as

evincing a “mercy-despite-guilt strategy” -- asking the jury to spare Ferrell’s life,

even if he did it. Counsel asked the jury to consider that he had seen even more

egregious homicides than the murder of a grandmother and cousin, that Ferrell is

not “completely” the animal who should be “snuffed out for the protection of

society,” and that they could be merciful even if Ferrell had not been. (RE13 at

1701-02). And counsel’s argument expressly raised for the jury the question

hovering over the entire trial, why Ferrell did it -- the very question that could have

been answered by the powerful mitigating mental health evidence easily developed

later. Counsel repeatedly emphasized that no one knew why Ferrell had committed

the murders, and questioned why Ferrell “who, to all accounts, loved these folks

that he murdered . . . who is not a mad-dog killer, had never done this sort of thing

before -- why would he do this?” (RE13 at 1702; see also RE13 at 1698). Even

69
though counsel asked “why” Ferrell may have committed the almost inexplicable

double murder of his beloved grandmother and his fifteen-year-old cousin, counsel

never conducted an investigation that would have begun to answer this question,

and never offered the jury the slightest reason.

In addition to counsel’s closing argument, counsel’s preparation for

sentencing did little to further their alleged “residual doubt” strategy. As we’ve

noted already, Schneider admitted that he did not advise the testifying witnesses

about the nature of his inquiry. (RE18 at 214-16, 228). The witnesses later said

that they had no idea about what kinds of material they could present in mitigation.

Although Ferrell’s mother, father, uncle, and brother Stanley actually testified that

they did not believe Ferrell committed the murders, counsel did not so much as

make a single reference to their testimony in his closing argument.

In short, the record before us establishes that counsel at most pursued a half-

hearted residual doubt defense, and then eviscerated that defense with his

observations about the inadequacy of defendant’s explanations. The real thrust of

the defense at sentencing was not residual doubt, but rather, mercy.

4.

All in all, we conclude that the Georgia Supreme Court’s ultimate ruling that

trial counsel’s performance was not ineffective is an unreasonable application of

70
Strickland. As the Supreme Court has held, “strategic choices made after less than

complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.” Wiggins, 539

U.S. at 528. In Wiggins, where the record showed that “counsel put on a

halfhearted mitigation case,” id. at 526, the Supreme Court found unreasonable the

“the scope of counsel’s investigation,” where counsel failed to expand their

investigation beyond the presentence investigation report and one set of records

they obtained. Id. at 528-29. The Supreme Court explained:

Counsel’s . . . decision to end their investigation when they did was
neither consistent with the professional standards that prevailed in
1989, nor reasonable in light of the evidence counsel uncovered in the
social services records -- evidence that would have led a reasonably
competent attorney to investigate further. Counsel’s pursuit of
bifurcation until the eve of sentencing and their partial presentation of
a mitigation case suggest that their incomplete investigation was the
result of inattention, not reasoned strategic judgment. In deferring to
counsel’s decision not to pursue a mitigation case despite their
unreasonable investigation, the Maryland Court of Appeals
unreasonably applied Strickland. Furthermore, the court partially
relied on an erroneous factual assumption. The requirements for
habeas relief established by 28 U.S.C. § 2254(d) are thus satisfied.

Id. at 534.

So too here: counsel ignored the many red flags concerning the available

mitigating evidence about Ferrell’s mental health, including his visible facial

movements, strange “affect” or “demeanor,” obsessive religious beliefs, odd

71
behavior following the crime, and most notably, the seizure he had in front of

counsel and the court during the trial. Counsel also utterly failed to investigate

Ferrell’s upbringing, for no apparent reason, which would have uncovered

evidence about Ferrell’s impoverished and abused childhood, and troubled mental

health. It is obvious from this record that defense counsel could not have made a

fully informed decision when settling on their “strategy,” hardly pursued a residual

doubt strategy in Ferrell’s defense in any event, and failed to investigate mitigating

evidence even though it could have provided the jury with a plausible answer to

many of the questions they raised and supported the mercy defense they actually

ended up using. As a result, Ferrell was deprived of the effective assistance of

counsel during the penalty phase of his trial. Because the Georgia Supreme Court

deferred “to counsel’s decision not to pursue a mitigation case despite their

unreasonable investigation,” Wiggins, 539 U.S. at 534, its conclusion that trial

counsel performed effectively was an objectively unreasonable application of

Strickland.

B. Trial counsel’s performance resulted in prejudice.

In order to sustain a Sixth Amendment claim of ineffective counsel, Ferrell

must also establish prejudice -- that but for counsel’s unprofessional performance,

there is a reasonable probability the result of the proceeding would have been

72
different. See Strickland, 466 U.S. at 694. “It is not enough for the [petitioner] to

show that the errors had some conceivable effect on the outcome of the

proceeding,” because “[v]irtually every act or omission of counsel would meet that

test.” Id. at 693. Nevertheless, a petitioner “need not show that counsel’s deficient

conduct more likely than not altered the outcome in the case.” Id. Rather, where,

as here, a petitioner challenges a death sentence, “the question is whether there is a

reasonable probability that, absent the errors, the sentencer . . . would have

concluded that the balance of aggravating and mitigating circumstances did not

warrant death.” Id. at 695; Putman v. Head, 268 F.3d 1223, 1248 (11th Cir. 2001).

We presume a reasonable sentencer. See Williams v. Allen, 542 F.3d 1326, 1342

(11th Cir. 2008) (citing Strickland, 466 U.S. at 695 (“[T]he idiosyncracies of the

particular decisionmaker, such as unusual propensities toward harshness or

leniency[,] . . . are irrelevant to the prejudice inquiry.”)).

The Supreme Court has instructed that “[i]n assessing prejudice, we reweigh

the evidence in aggravation against the totality of available mitigating evidence.”

Wiggins, 539 U.S. at 534. “In that process, what matters is not merely the number

of aggravating or mitigating factors, but their weight.” Reed v. Sec’y, Fla. Dep’t

of Corr., 593 F.3d 1217, 1240-41 (11th Cir. 2010).

73
 With this in mind, we conclude that the Georgia Supreme Court

unreasonably determined that there was no reasonable probability of a different

outcome at trial had the jury heard the totality of mitigating evidence. First and

foremost, the “new” mitigating evidence is consistent, unwavering, compelling,

and wholly unrebutted. As the Georgia Supreme Court accepted on habeas review,

three mental health professionals averred that Ferrell suffers from organic brain

damage, bipolar disorder, an epileptic or seizure disorder, and borderline mental

retardation. In addition, the record shows that Ferrell’s father regularly abused his

children, especially Ferrell, waking them in the middle of the night to beat them,

sometimes stripped naked, with razor strops, fan belts, and old used belts. The

family also lived in fear of loan sharks and those to whom their father owed

gambling debts. And Ferrell’s mother suffered from clinical depression, suicidal

ideations, rage blackouts, and urges to physically hurt her children.

Second, the evidence of Ferrell’s mental illness measurably weakens the

aggravating circumstances found by the jury. As argued by the prosecutor, Ferrell

killed his grandmother, an elderly woman, and his cousin, a fifteen-year-old boy; it

was a senseless crime, since he killed his sleeping cousin; it was coldblooded,

execution-style, and planned out; and Ferrell appeared unaffected afterwards. In

particular, the prosecutor emphasized that “after executing his grandmother and his

74
cousin, [Ferrell] walked slowly up the street to his mother’s house . . . fixed a cup

of hot chocolate . . . plopped down on the couch, watched TV with the remote . . .

and dozed off for a while.” (RE13 at 1670-96). Following this argument, the jury

found two statutory aggravators of felony murder, and one statutory aggravator

because the murder of Petitioner’s grandmother was outrageously and wantonly

vile, horrible or inhuman in that it involved torture and depravity of mind.

However, the experts consistently maintained (again without any rebuttal)

that organic brain damage to Ferrell’s frontal lobe has led to impaired insight,

impaired judgment, increased impulsiveness and explosiveness, emotional and

mental dysfunctions, decreased ability to plan and understand consequences, and

inability to process information in stressful situations. The experts further opined

that due to Ferrell’s temporal lobe epilepsy, he is hyperreligous and hypergraphic,

has grandiose ideations, takes actions that are sudden, unplanned and undirected, is

overtaken by powerful emotions (anger or fear), hallucinations or flashbacks, and

has altered behavior after seizures that results in dullness, unawareness and

confusion.

Cumulatively, say the experts, Ferrell has increased impulsivity, decreased

sound judgment, and takes actions that are not entirely volitional. Thus, the mental

health expert opinions would have served to reduce the volitional nature of the

75
crime, as well as Ferrell’s ability to plan and act rationally, and as a result,

undercut the senselessness and cold-blooded nature of the crime as stressed by the

prosecutor, and, importantly, explain Ferrell’s odd, disaffected behavior

afterwards. Significantly, all of these circumstances would have been relevant as

mitigating evidence under Georgia law, which instructs the judge and jury in a

capital case to consider “any mitigating circumstances” in determining whether to

impose the death penalty. Ga. Code Ann. § 17-10-30(b).17

Third, because defense counsel did not pursue much of a residual doubt

defense, instead mostly focusing on mercy, mitigating evidence of Ferrell’s mental

health and childhood would have easily and directly supported the approach

counsel offered at sentencing. Similarly, counsel’s repeated questions to the jury

about why Ferrell had committed the crime could have been answered by

17
The proposition that the mitigating evidence of Ferrell’s mental illness would have
measurably weakened the aggravating circumstances found by the jury finds further support in
case law. For example, in Williams, the petitioner presented on habeas evidence of his
childhood, “filled with abuse and privation,” and of his borderline mental retardation. 529 U.S.
at 397-98. The Supreme Court concluded that this evidence “might well have influenced the
jury’s appraisal of his moral culpability,” and was “consistent with the view that in each case his
violent behavior was a compulsive reaction rather than the product of cold-blooded
premeditation.” Id. The Court further observed that “[m]itigating 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.” Id. See also Hardwick v. Crosby, 320 F.3d 1127, 1164
(11th Cir. 2003) (“[P]sychiatric mitigating evidence not only can act in mitigation, it also could
significantly weaken the aggravating factors.”). The record of Ferrell’s mental health issues --
including unwavering evidence of his organic brain damage, bipolar disorder, seizure disorder,
and mental retardation -- is at least as troubling as the type of evidence described in Williams,
where the defendant suffered repeated head injuries, and might have had “mental impairments
organic in origin.” 529 U.S. at 370.

76
providing mitigating evidence about his mental health. Instead, defense counsel’s

argument had little to support it, and raised questions for the jury that counsel was

wholly unable to answer, which only made Ferrell’s actions appear all the more

incomprehensible.

Fourth, the testimony from witnesses at the penalty phase of Ferrell’s

original trial actually was very sparse. Five family members averred that they did

not believe Ferrell committed the murders; his father maintained that Ferrell did

not get into any juvenile trouble; his mother and brother asked the jury to have

mercy on him; and his brother said that Ferrell loved the victims, and had

committed himself to Christ before the murders. (RE13 at 1632-35). As a result,

the jury heard absolutely nothing about the substantial mitigating evidence that we

have described in detail. As far as the jury knew, Ferrell did not suffer from brain

damage; his emotional stability, impulse control, and judgment were perfectly

normal; he could plan and understand the consequences of his actions as easily as

the next person. The jury labored under a profoundly misleading picture of

Ferrell’s moral culpability because the most important mitigating circumstances

were completely withheld from it.

For these reasons, we conclude that the Georgia Supreme Court

unreasonably determined there was no reasonable probability that the outcome of

77
the penalty phase would have been different had the jury heard the totality of

mitigating evidence. Ferrell has satisfied both Strickland’s performance and

prejudice prongs. Accordingly, we reverse the district court’s decision and grant

habeas relief on Ferrell’s ineffective-assistance-of-trial-counsel claim at the penalty

phase.

IV.

Ferrell also claims that his appellate counsel rendered ineffective assistance

in perfecting a motion for a new trial and the appeal. A petitioner alleging

ineffective assistance of appellate counsel “must show that counsel’s performance

was so deficient that it fell below an objective standard of reasonableness as well

as demonstrate that but for the deficient performance, the outcome of the appeal

would have been different.” Black v. United States, 373 F.3d 1140, 1142 (11th

Cir. 2004); see also Clark v. Crosby, 335 F.3d 1303, 1312 n.9 (11th Cir. 2003)

(“[T]he only question under the prejudice prong of the Strickland test is whether

there was a reasonable probability that the appellate court, [had appellate counsel

not been deficient,] . . . would have granted [the petitioner] a new trial.”).

A. Appellate counsel’s performance was unreasonable.

We turn then to the Georgia Supreme Court’s conclusions -- rendered on

habeas review -- that: (1) Ferrell’s appellate counsel did not perform ineffectively

78
in obtaining and presenting testimony about Ferrell’s background in support of his

motion for a new trial; and, (2) appellate counsel performed reasonably by

obtaining expert assistance in investigating Ferrell’s mental functioning. 274 Ga.

at 405, 407. We conclude, however, under the circumstances surrounding this case

that Stewart’s investigations into Ferrell’s mental health and background were

inadequate and unreasonable, appellate counsel’s performance was undeniably

ineffective, and the Georgia Supreme Court’s conclusions were unreasonable.

To begin, Stewart was a sole practitioner who had never handled a motion

for a new trial in a capital case. (RE40 at 57). Stewart complained at the

evidentiary hearing that trial counsel’s expert, Allsopp, had rendered nothing more

than a pretrial competency determination. (RE40 at 47-48). But as this ample

record shows, she herself had asked her expert psychiatrist, Dr. Cohen, only to

determine Ferrell’s competency and sanity at the time of trial. (RE41 at 2, 91).18

Cohen was given Dr. Allsopp’s earlier report and a copy of Dekalb County jail

18
There is nothing in the record establishing that Stewart asked Dr. Cohen to look
beyond competency and sanity. Stewart’s very own testimony admitted that she had asked
Cohen “to determine if Eric was sane at the time of the offense and whether he was competent to
stand trial and understand Miranda.” ( RE41 at 9). Indeed, Dr. Cohen consistently averred that
Stewart had asked him “to determine if Mr. Ferrell was competent to stand trial and understand
his Miranda rights, and whether he was sane at the time of trial. She was attempting to ascertain
whether trial counsel had used their mental health expert effectively.” (RE41 at 91). He further
reiterated that “because my evaluation was limited to competency and sanity, I did not assess
Mr. Ferrell’s intellectual functioning.” (RE41 at 103 (emphasis added)). The record is clear that
Cohen understood that his task was to determine Ferrell’s competency and sanity.

79
records reflecting that Ferrell was on suicide watch. Cohen reported that Mr.

Ferrell told him he heard voices, including the voice of the devil inside his head.

(RE 41 at 91, 103).

Yet Stewart did nothing with the information Cohen had given her. Stewart

put it this way: “I did not know what to do with the information Dr. Cohen had

given me so I simply did nothing with it.” (RE41 at 9). Moreover, Stewart did not

follow up with Dr. Cohen, even though she knew from her conversations with

Ferrell’s mother Ruby that Ferrell had seen visions in the past, (RE41 at 9), she

knew about Ferrell’s seizure during the penalty phase of trial, (RE41 at 9, 10), and

she knew about Ruby’s nervous breakdown. (RE41 at 8).

Notably, she did not tell Cohen about any of these facts (RE41 at 10) -- facts

that would have informed Dr. Cohen’s mental evaluation. Dr. Cohen later

expressly averred that Ferrell’s report of hearing voices is consistent with

schizophrenia, the manic phase of bipolar disorder, and temporal lobe epilepsy, or

complex partial seizure disorder, but unfortunately, he “had no background

materials indicating there was any history of mental illness.” (RE41 at 103).

Cohen added that “[i]f I had been given information related to Mr. Ferrell’s history

of hearing voices and hallucinations, and history of head injuries, I would have

referred him for neuropsychological testing.” (RE41 at 103).

80
 Since Stewart withheld these powerful “red-flags” from Cohen, it was an

unreasonable application of Strickland for the Georgia Supreme Court to excuse

Stewart’s performance simply by suggesting that she raised issues “that would

have seemed of possible concern to a non-expert and then fore[went] arguments

not supportable by the opinions of those experts,” and that “she performed as a

reasonable attorney would have by obtaining a mental health expert to meet with

Ferrell, to review the findings of the mental health expert employed by trial

counsel, and to examine the mental health records created during Ferrell’s

incarceration.” 274 Ga. at 407.

Unlike many cases in our circuit, this is not a case where counsel had no idea

that the petitioner may have had mental health issues. Cf. Housel v. Head, 238

F.3d 1289, 1296 (11th Cir. 2001) (counsel not ineffective for failing to pursue

mental health investigation where counsel observed nothing unusual about the

petitioner’s behavior, and even testified that the petitioner was one of counsel’s

“most intelligent” clients); Holladay v. Haley, 209 F.3d 1243, 1252 (11th Cir.

2000) (counsel not ineffective for failing to pursue mental health investigation

where counsel found the petitioner to be cooperative, articulate, and affable);

Williams v. Head, 185 F.3d 1223, 1239 (11th Cir. 1999) (counsel not ineffective

for failing to pursue mental health investigation where counsel had no problems

81
communicating with the petitioner, found the petitioner to be intelligent, attentive,

cooperative, polite, and interested in what was happening, and found that petitioner

asked intelligent questions and responded intelligently to counsel’s questions).

In sharp contrast, Stewart knew many things that readily implicated Ferrell’s

mental health issues -- including his visions, his seizure in open court, his mother’s

nervous condition, and the fact that he was on suicide watch -- yet only requested,

and subsequently received, a competency and sanity evaluation from the expert.

We can discern no reasonable basis for suggesting that the limits Stewart placed on

her investigation of Ferrell’s mental health were reasonable. In fact, as a result of

Stewart’s failure to provide initially relevant information to Dr. Cohen, his report

failed to address compelling information concerning Ferrell’s mental health at the

motion for a new trial.

It was also unreasonable to conclude that Stewart’s “other” mitigation

investigation was not deficient. Stewart presented three of the same family

members who had testified at trial in an attempt to show that they could have

provided mitigating testimony. But Stewart did not elicit the kind of mitigating

evidence that she claimed she sought to establish -- even though she knew about

some mitigating facts of Ferrell’s life, including the father’s gambling and the

family’s dire poverty (RE41 at 8), and these very witnesses could have testified

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about them. Thus, for example, Ferrell’s uncle, Hubert Bailey, was not asked

about the father’s gambling, or how the family had no food or could not pay rent,

even though he described these circumstances in his state habeas affidavit. Stewart

never elicited from Ferrell’s brother, Stanley, that their father gambled and drank,

that the family received threats from gambling debts, or that the gambling left the

family unable to pay rent or buy food or clothes, even though he described these

circumstances in his state habeas affidavit. She did not even elicit any testimony

from Wilbert Sr. himself about his gambling. So even though Stewart was aware

of certain mitigating aspects of Ferrell’s background, she unreasonably did little, if

anything, to uncover or elicit further mitigating evidence.

Stewart failed to develop this mitigating evidence even though it was readily

available and she had every reason to inquire further. Stewart even pointed out

during Stanley’s testimony in the motion for new trial hearing that trial counsel had

not explained to Stanley that “it would be helpful to illustrate what you were

saying with any facts . . . about Eric’s growing up.” (RE17 at 110). But Stewart

herself never used the interview sheets to track down the witnesses and ask them

these “helpful” questions about Ferrell’s “growing up.”

Nor, more importantly, did she dig deeper with the witnesses she did have.

Had she done so, by asking the very family members who testified for her, relevant

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mitigating evidence -- about the effects of the mother’s serious mental illness, the

direness of their situation, or the father’s continued beatings of Ferrell -- would

have come to light. In particular, Ferrell’s brother Stanley could have testified that

“Eric was [our father’s] least favorite,” and “received the brunt of our father’s

beatings,” which “happened quite frequently, weekly at least.” (RE41 at 136).

Even Wilbert Ferrell, Sr. himself could have revealed that “I used switches and my

belt to whip [the boys], because kids need whipping and to be chastised strongly.”

(RE41 at 158). Additionally, Stewart knew that one of the witnesses -- Eletha

Dunans -- had told trial counsel’s investigator good things about Ferrell, yet trial

counsel never followed up with her. (RE42 at 527, RE41 at 2). But Stewart did not

follow up with her either, and as a result, could not directly counter trial counsel’s

testimony that there was no one who said anything favorable who was not called to

testify. (RE18 at 223). Stewart has offered no reason for failing to delve into any

of these facts.

In addition, Stewart affirmatively presented harmful testimony when she

called Catherine Shaw, the mother of Ferrell’s children, to testify. Stewart asked

Shaw on the stand whether she would have asked the jury at trial, had she testified,

to spare Ferrell’s life, and Shaw responded that she could not say. Stewart

recognized later that “I was completely surprised by her statement that she did not

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know whether she supported life or death for Eric. Had I known she would give

such damning testimony, I would not have called her as a witness.” (RE41 at 10-

11). By calling Shaw without knowing in advance what she might say, Stewart

elicited still further damaging testimony that was added to the record.

Stewart also failed to speak with the investigator Phyllis Corder regarding

how the defense prepared for mitigation at sentencing, even though she knew

Corder had conducted virtually all of the investigation herself. (RE40 at 52-53).

Nor did Stewart so much as reference the limited nature of the inquiry conducted

by Corder or the limited witness sheet questions Corder employed.19

Quite simply, Stewart did not perform like any reasonable appellate counsel

would have, and the Georgia Supreme Court’s conclusions that Stewart did not

19
Stewart also failed to make a written argument on any of these points before the state
trial court. Stewart testified that “the issue of mental health expert and ineffectiveness of
counsel” was “discuss[ed]” and “was apparent on the record with Dr. Allsopp’s report,” and that
she raised both “the issue that [trial counsel] didn’t prepare their mitigation witnesses properly
for the sentencing phase of the trial,” and “the issue that they didn’t present certain witnesses
during mitigation phase of the trial, such as school teachers.” (RE40 at 56). However, as the
record shows, Stewart raised the issue of ineffectiveness in the motion for new trial, but did not
detail any of the particulars (other than mentioning “the conflict of interest issue”), and instead
said that she would “fil[e] a supplemental brief to address the particular areas raised by the
testimony or other evidence which comes out at the hearing.” (RE1 at 195). In her supplemental
brief, she asked the court to analyze “whether there was full investigation on various issues or
facets at trial, whether the actions of counsel were reasonable in light of any articulated strategy
on specific parts of the trial,” or were unreasonable. (RE1 at 241). But the remainder of the
brief did not otherwise explain the mitigating evidence claim; it focused only on conflict of
interest. (RE1 at 242-47).

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render ineffective assistance of counsel in investigating Ferrell’s mental health,

abused background, and upbringing are unreasonable applications of Strickland.

B. Appellate counsel’s performance was prejudicial.

As we have explained, we review de novo whether Ferrell failed to establish

Strickland prejudice from appellate counsel’s performance because the Georgia

Supreme Court did not address the issue at all on habeas review. We conclude, as

we did earlier in the trial counsel context, that Ferrell has established prejudice.

First and foremost, the record of mitigating testimony presented in the motion for

new trial hearing was limited. Notably, there was no testimony at the motion for

new trial stage about: (1) the father’s beatings, how he woke the children up,

stripped them, and beat them for no reason in the middle of the night, and how he

singled out Ferrell for special abuse; (2) the father’s drinking and gambling, how

the family lived in fear of loan sharks and those to whom the father owed money,

and how the gambling got the family repeatedly evicted; (3) Mrs. Ferrell’s rage

blackouts, urges to kill her children, and suicide attempt and its effect on the

children; (4) Ferrell’s attempted suicide at age 11, following his mother’s

attempted suicide; (5) how deeply the fire affected the boys; (6) the family’s

hunger, lack of clothing, and tin roof shack without indoor plumbing; (7) Ferrell’s

history of traumatic losses of consciousness and head injuries; or, most

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significantly, (8) Ferrell’s mental health disabilities, or the effects of these

disabilities on his behavior.

In addition, some of the testimony Stewart elicited at the motion for new

trial was inaccurate and left a false impression. Thus, for example, Ferrell’s

brother Stanley said their father “missed appropriate funds” -- which sounded like

some accounting error, rather than rampant gambling that left the family destitute

and often homeless. Cf. Williams, 542 F.3d at 1342 (finding prejudice where,

among other things “evidence introduced in the Rule 32 proceedings contradicted

factors expressly relied upon by the trial judge as grounds for imposing the death

penalty”). Similarly, Stewart did not ask Wilbert Ferrell about his gambling and its

attendant hardships on the family, and instead elicited testimony that he worked

two jobs, one for twenty years, and the other for fourteen.

In short, appellate counsel Stewart failed to present significant mitigating

evidence about Ferrell’s upbringing and mental health, although it was readily

available if counsel had inquired further. Again, the totality of mitigating evidence

in this case is very significant, when compared to the aggravators. And again, we

conclude that there was a reasonable probability that the outcome of his motion for

new trial would have been different. Moreover, even if measured against AEDPA

deference, we would still find on this record, if the Georgia Supreme Court is

87
thought to have implicitly reached the issue of appellate counsel’s prejudice, that

the court’s conclusion was an unreasonable one.

Since Ferrell has established both Strickland factors -- deficient performance

and prejudice -- we reverse the district court’s ruling on his ineffective-assistance-

of-appellate-counsel claim, and grant the habeas petition for this reason as well.20

V.

Lastly, Ferrell claims that his constitutional rights were violated because the

Public Defender’s Office that represented him also represented his two uncles,

Robert and Fred Lowe, who had killed Wimp Hinton a few weeks before Ferrell

killed his grandmother (the uncles’ mother) and his cousin. The Lowe brothers

lived with their mother, and Ferrell’s theory of defense from the start was that

someone else had killed his grandmother and cousin in revenge for the earlier

murder committed by his uncles. Ferrell also points out that during trial, his uncle

Fred arranged for Wimp Hinton’s son, Tony Hinton, to testify for the prosecution

in Ferrell’s trial that the Hinton family held no animosity for the Ferrell family,

undermining Ferrell’s revenge killing defense. Like the district court before us, we

20
Inasmuch as we have granted Ferrell habeas relief from his sentence, we have no
occasion to address his claim that due to the seizure he sustained in court, he was constructively
absent from the courtroom at sentencing.

88
are unpersuaded that the Georgia Supreme Court’s determinations were

unreasonable.

The Sixth Amendment guarantees criminal defendants the right to the

effective assistance of counsel. Strickland, 466 U.S. at 686; Hamilton v. Ford, 969

F.2d 1006, 1011 (11th Cir. 1992), cert. denied, 507 U.S. 1000 (1993). A lawyer

who represents multiple defendants with conflicting interests cannot provide

sufficient legal assistance to satisfy the Sixth Amendment’s command. Holloway

v. Arkansas, 435 U.S. 475, 481 (1978). “[W]hen counsel is burdened with a

conflict of interest, she ‘breaches the duty of loyalty, perhaps the most basic of

counsel’s duties’ and has therefore failed to provide effective assistance of

counsel.” Hamilton, 969 F.2d at 1011 (quoting Strickland, 466 U.S. at 692).

A. The state trial court conducted an adequate inquiry into the conflict
issue.

In Holloway, the United States Supreme Court held that a criminal

defendant who objects to his representation based on a conflict of interest prior to

trial need not demonstrate the existence of actual prejudice. 435 U.S. at 490-91.

The Court recognized that when counsel represents conflicting interests, actual

prejudice to the defendant can be extraordinarily difficult to demonstrate, as “the

evil . . . is in what the advocate finds himself compelled to refrain from doing, not

only at trial but also as to possible pretrial plea negotiations and in the sentencing

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process.” Id. at 490. Since Holloway, we have held that “where there is both a

timely objection and the trial court fails to appoint separate counsel or to inquire

adequately into the possibility of a conflict of interest, the reversal will be

automatic.” Hamilton, 969 F.2d at 1012 (emphasis in original).

As the record shows, the Petitioner raised a timely objection to his

representation by counsel encumbered by an alleged conflict of interest. At several

hearings, Ferrell expressed objection to being represented by the Public Defender’s

Office. In response to Ferrell’s first objection, the court asked trial counsel to

investigate and determine by the following day whether they believed they could

represent Petitioner conflict-free. (RE2 at 6). At the next proceeding, on April 8,

1988, the trial court inquired further of trial counsel. (R3 at 3-4). Schneider

answered the court this way:

It does not appear that we have a conflict of interest in the case that
would bar us from representing him. The only possible complication
would involve a related murder case . . . in which Mr. Ferrell’s uncles
are defendants . . . that happened only a few days before this incident .
. . [in] which Mr. Snead of our office represents those defendants. But
I don’t believe there is any obstacle at this point to our representing
him.

(RE3 at 4). The trial court then inquired whether the uncles participated “in any

way, shape or form in this case.” Id. Trial counsel responded:

No, sir. No, sir. The two defendants in that case were in jail at the time
this occurred . . . . There are indications that . . . there may be a

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 connection, in that this defendant has made statements indicating that .
. . . the victim in the first case . . . his family or associates may have
been involved . . . in a retaliation murder in this case. It’s at an early
stage of development, Your Honor, and I don’t believe that would
cause a conflict; I think the . . . position of . . . the two defendants in
the first case . . . and the defendant in this case would be consistent
and not in conflict . . . .

(RE3 at 4-5).

Following another objection raised by Ferrell, the trial court instructed

defense counsel: “I’ll take note of what you told us, and I’ll ask that Mr. Schneider

talk to Mr. Siemon, and see if that presents any kind of particular problem.” (RE3

at 7).21 After yet another objection by Ferrell, the trial court explained that trial

counsel had been instructed to investigate the matter and report back to the court

about whether there was any conflict. (Id. at 7-8). At the close of the April 8

hearing, the trial court further instructed counsel: “Make sure that all witnesses are

interviewed. It may be necessary to interview those two uncles, as a matter of fact,

to find out what the story is for sure, as well as any other potential witnesses in this

case.” (RE3 at 14-15).

On July 29, 1988, at a pre-trial hearing, defense counsel informed the court

that the Lowe brothers’ cases were still pending in trial court and that in the event

21
There is no indication that Schneider ever spoke with Siemon. However, there is
nothing to suggest that Siemon would have had any peculiar information about the Public
Defender’s representation of both Ferrell and his uncles.

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the State sought to call either of them as witnesses at Ferrell’s trial, then counsel

would have a conflict of interest because then they would be required to

cross-examine the Public Defender’s other clients. (RE7 at 16-17). The trial court

observed that since the State did not intend to call either of the uncles at Ferrell’s

trial, there did not appear to be any conflict. (Id. at 17). Ferrell’s counsel later

testified that they considered it a strategic victory for the defense that neither of the

Lowe brothers would be called by the State.22

The facts are clear that the trial court, on numerous occasions, inquired into

any potential conflict of counsel, and that trial counsel also investigated and

reported to the trial court about any potential conflicts they could foresee. Courts

generally defer to the judgment of the defense lawyer concerning the existence or

absence of a disabling conflict. Mickens v. Taylor, 535 U.S. 162, 167-68 (2002);

22
Counsel Sheffield testified during the motion for new trial hearing that the Lowe
brothers were “firmly convinced that the story that [Petitioner] was telling was not true and that
they both believed pretty adamantly, that [Petitioner] in fact had done the killing.” (RE17 at
130). Pretrial investigation notes from Ferrell’s counsel also established that Robert Lowe did
not believe Petitioner’s story was credible. (RE42 at 518). Robert Lowe added that Petitioner
“lies a lot,” and that “[Petitioner] used to take his family’s monthly rent money and pay only half
to the landlady, and they got evicted.” (Id.; id. at 517 (Fred saying same)). Robert Lowe also
relayed that “he would help in any way, but he couldn’t lie for [Petitioner]” and “he believed
[Petitioner] did the murders.” (Id. at 519). Fred Lowe told defense counsel, “I know [Petitioner]
killed my mama,” and that he could not appear as a witness for him. (Id. at 517). Robert Lowe
also completely discounted the revenge theory observing that no one had ever made any threats
to his mother or to any of the family, and that while he was in jail he spoke to his mother twice a
day and she never said anything about being afraid and having any problems with anyone. (Id. at
518-519). After interviewing Robert and Fred Lowe, and rather early during their investigation,
defense counsel “became convinced that [they] didn’t want to call [Robert or Fred Lowe] as
witnesses because they were not gonna be favorable.” (RE17 at 131, 138).

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Holloway, 435 U.S. at 485. The primary reason for according deference is that an

“attorney representing two defendants in a criminal matter is in the best position

professionally and ethically to determine when a conflict of interest exists or will

probably develop in the course of a trial.” Holloway, 435 U.S. at 485. Moreover,

as an officer of the court, defense counsel has an obligation to promptly and

honestly advise the court of a discovered conflict of interest. Id. at 486. In this

case, Ferrell made the request for investigation of conflict. Defense counsel came

to the reasoned conclusion that no disabling conflict existed and that no separate

representation was required.23

Ferrell’s defense counsel concluded that there would be no conflict if the

prosecution chose not to call either of the uncles to testify. While we have not

addressed this precise situation, defense counsel’s conclusion finds support in other

caselaw. See, e.g., United States v. McCullah, 76 F.3d 1087, 1099 (10th Cir. 1996)

(finding adequate inquiry where potential witness causing potential conflict was

23
Ferrell argues that because he raised the issue himself, rather than his counsel, the
principle of generally deferring to counsel’s judgment should not apply. However, there is no
reason that counsel, knowing the facts of the representations, could not investigate and report
back to the court, even where the defendant raised the conflict. Because this issue focuses on the
trial court’s inquiry into the conflict, and necessarily depends on the lawyer’s unique knowledge
of both representations (rather than on the reasonableness of the lawyer’s performance -- an
issue the courts regularly assess), it raises different questions than were raised in United States v.
Nicholson, 611 F.3d 191 (4th Cir. 2010), where the court discounted deferring to the lawyer
when determining whether an actual conflict existed by exploring the reasonableness of
counsel’s alternative defense strategy.

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disqualified from testifying). Still, other courts have concluded that a potential

conflict is not created simply because of the representation of defendants by

different attorneys in the same Public Defender’s Office. See, e.g., United States v.

Trevino, 992 F.2d 64, 66 (5th Cir. 1993) (“The potential for such conflicts,

however, does not necessarily exist when . . . codefendants are represented by

different attorneys, albeit in the same public defender office.”). In this case, the

trial court, after repeated inquiry, accorded some deference to the defense

counsel’s appraisal of the potential for conflict, and then reasonably concluded that

no conflict barred defense counsel from representing Ferrell.

Nor are we persuaded by Ferrell’s argument that the court should have

reinvestigated the conflict issue midway through trial, when witness Tony Hinton

testified at his uncle Fred’s behest. As the record shows, the court repeatedly

asked counsel to investigate; counsel represented that there was no conflict at the

time; and counsel never told the court that anything had changed, even at the time

of Hinton’s testimony. The trial court was entitled to defer to counsel’s judgment,

especially where, as here, there is nothing to suggest that Hinton’s testimony, even

if at Fred’s behest, raised any conflict issue.

Ferrell speculates nevertheless that Fred Lowe pleaded to reduced charges

because he procured Hinton’s testimony. He points out that before his trial, Fred

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was facing voluntary manslaughter charges, but ultimately pleaded (one month

after Ferrell’s conviction) to involuntary manslaughter, facing a difference of 10

years of prison exposure. However, Ferrell has offered no evidence that Fred’s

assistance with Hinton’s testimony was connected in any way to his plea bargain.

Rather, the police file indicated that the murder of Wimp Hinton resulted from a

drunken fight during a card game, and no one knew that Wimp Hinton had been

stabbed until after the fact. (RE43 at 697-98, 700-09). Witnesses at the scene

described it as a mutual fight, and one witness said that Wimp was “always trying

to get something started.” (RE43 at 708). Given the facts surrounding that crime,

along with the nature and circumstances surrounding the plea bargains, there is

precious little in this record to suggest that Fred’s assistance with Hinton’s

testimony was related to his case.

Ferrell also claims that his trial counsel could have cross-examined Hinton

as to why Fred asked him to testify or could have asked Fred himself. But since

the record shows that Fred fully believed Ferrell killed his mother, there was no

reason for counsel to explore Fred’s motivations for procuring Hinton’s testimony,

even if that line of questioning would have been permitted.

In short, the Georgia Supreme Court’s ruling that the trial court’s inquiry

into potential conflict, and its reliance on defense counsel’s representations, were

95
sufficient to meet the requirements of the Sixth Amendment was not an

unreasonable application of clearly established Supreme Court law.

B. Nor did Ferrell establish any actual conflict of interest.

In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Supreme Court held that to

establish an ineffective assistance of counsel claim stemming from a conflict of

interest where there was no objection at trial, a defendant “must demonstrate that

an actual conflict of interest adversely affected his lawyer’s performance.” Id. at

348. Two steps are required in this analysis: determining first, whether an actual

conflict existed, and then, whether the conflict had an adverse effect on

representation. Buenoano v. Singletary, 74 F.3d 1078, 1086 (11th Cir. 1996).

According to Cuyler, a conflict must be actual, not merely speculative; the mere

possibility of conflict does not constitute a Sixth Amendment violation. Id.;

McConico v. Alabama, 919 F.2d 1543, 1546 (11th Cir. 1990); Smith v. White, 815

F.2d 1401, 1404 (11th Cir. 1987), cert. denied, 484 U.S. 863 (1987). Ferrell

contends that, even if the inquiry into the potential conflict was sufficient to satisfy

the standard outlined in Holloway, an actual conflict of interest rendered his trial

counsel’s assistance ineffective under Cuyler.

We have adopted the following test to determine whether actual conflict can

be discerned:

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 We will not find an actual conflict unless [the defendant] can point to
specific instances in the record to suggest an actual conflict or
impairment of [her interest]. The defendant must make a factual
showing of inconsistent interests and must demonstrate that the
attorney made a choice between possible alternative courses of action,
such as eliciting (or failing to elicit) evidence that favors an interest in
competition with that of the defendant. If [the attorney] did not make
such a choice, the conflict remained hypothetical.

Buenoano, 74 F.3d at 1086 n.6 (quoting Smith, 815 F.2d at 1404 (internal citations

and quotation marks omitted)).

Ferrell cites out-of-circuit case law to suggest that actual conflict can be

established by circumstantial evidence, or, where there is a clear suggestion from

an attorney’s conduct that a conflict exists. No circumstantial evidence or clear

suggestion of a conflict can be found here. Ferrell has offered only speculation of

an actual conflict based on the fact that his counsel never questioned the Lowes on

the stand about their motivation for getting Hinton to testify and never cross-

examined Hinton about Fred Lowe’s motivation for procuring his testimony.

There is ample evidence, however, to support his counsel’s explanation that

preventing the Lowes from testifying at all was a strategic victory for the defense.

Again, the pretrial investigation forms reported that both Fred and Robert Lowe

told counsel that they believed Ferrell had committed the murders. Sheffield

testified, and the Georgia Supreme Court found as a fact, that it was his

understanding that the Lowes brothers were “firmly convinced that the story that

97
[Petitioner] was telling was not true and that they both believed pretty adamantly,

that [Petitioner] in fact had done the killing.” (RE17 at 130). Even when

approached by appellate counsel well after he reached a plea agreement with the

State, Fred Lowe remained “hostile” and refused to cooperate with her. (RE40 at

41). And in his state habeas affidavit, Robert Lowe explained that he told Ferrell’s

trial counsel he thought “Eric did it because there was no way I wanted to get

involved in Eric’s case with my case still pending,” (RE41 at 216).

Lowe never said that he didn’t believe Ferrell killed his mother, or that he

didn’t testify because of some deal with the State, or because of advice from his

counsel. Nor did Fred Lowe ever submit an affidavit on habeas that attested to any

of Ferrell’s claims. In short, there is nothing in the record to undermine trial

counsels’ stated view that they did not want the Lowes to testify because each of

them believed Ferrell had committed the murders. Nor does the record support

Ferrell’s speculation that Fred procured Tony Hinton’s testimony because of some

deal with the State.

The record also does not support Ferrell’s claim that conflict somehow

prevented defense counsel from cross-examining Hinton about Fred’s motivation

for soliciting Hinton’s testimony. As an initial matter, it is unclear that Hinton

would have even been permitted under the hearsay rules to testify about Fred

98
Lowe’s motivations. But in any event, as we’ve detailed, the evidence does not

show that Fred solicited Hinton’s testimony for any reason other than because he

believed Ferrell killed his mother.

Moreover, Ferrell’s suggestion that Hinton’s testimony -- that his family was

not seeking retribution from the Lowe family, thereby undercutting Ferrell’s

defense theory -- was “devastating” is meritless. Indeed, Hinton’s testimony was,

at best, self-serving because it suggested only that Hinton had nothing to do with

the murders of Ferrell’s grandmother and cousin. This can hardly be characterized

as “devastating.”

Finally, there is no merit to Ferrell’s claim that questioning the Lowes about

their motivations was so important that it would have outweighed any harm from

the Lowes repeatedly stated view that Ferrell killed their mother. As we see it, the

Lowes’ testimony that they believed their nephew killed their mother would have

far outweighed any purported benefit from establishing that they were biased or

that their bias resulted in Hinton’s testimony, or in telling the police to look for a

gun at Ferrell’s home (which, in any event, is irrelevant since Ferrell admitted he

had the gun). In short, we do not see how Ferrell has shown that there was any

actual conflict resulting from being represented by the Public Defender’s Office.

The Georgia Supreme Court’s holding was neither contrary to nor an unreasonable

99
application of clearly established Supreme Court law. And, since Ferrell has not

shown any error in the Georgia Supreme Court’s rejection of his conflict-of-

interest claim, he cannot establish that appellate counsel rendered ineffective

assistance of counsel in presenting this claim.

VI.

In sum, we reverse the district court’s order insofar as it denied habeas relief

on Ferrell’s claim of ineffective assistance of trial and appellate counsel in

investigating and presenting mitigating evidence at the penalty phase, but affirm

the district court’s denial of his conflict-of-counsel claim.

REVERSED IN PART, AND AFFIRMED IN PART.

100