Marcellus Williams v. Donald Roper

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 10-2579
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Marcellus S. Williams, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Donald Roper, *
*
Appellant. *
___________

Submitted: December 13, 2011
Filed: September 18, 2012 (Corrected September 21, 2012)
___________

Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.

Marcellus Williams was convicted by a jury in Missouri of the first-degree
murder of Felicia Gayle and sentenced to death. The Supreme Court of Missouri
affirmed the conviction and sentence on direct review, State v. Williams, 97 S.W.3d
462 (Mo. 2003) (“Williams I”), and subsequently affirmed the denial of his motion
for postconviction relief. Williams v. State, 168 S.W.3d 433 (Mo. 2005) (“Williams
II”). Williams petitioned for a writ of habeas corpus in the district court under 28
U.S.C. § 2254. The district court denied relief on twelve of Williams’s claims, but
granted relief on his claim of ineffective assistance of counsel at the penalty phase of
trial. The State appeals the grant of relief, and we reverse.
 I.

On August 11, 1998, Marcellus Williams drove his grandfather’s car to a bus
stop and traveled by bus to University City, Missouri. Once in University City,
Williams began looking for a house to burglarize, and came upon the home of Felicia
Gayle. After knocking on the front door and receiving no answer, Williams knocked
out a window pane near the door, reached in and unlocked the door, and entered
Gayle’s home. Williams heard water running in the shower on the second floor, so
he went into the kitchen, found a butcher knife, and waited.

Gayle finished her shower and went downstairs. Williams attacked Gayle,
stabbing and cutting her forty-three times, and inflicting seven fatal wounds.
Williams then washed Gayle’s blood from his body and concealed his bloody shirt
with a jacket. Before leaving Gayle’s home, he took Gayle’s purse, which contained,
among other things, a St. Louis Post-Dispatch ruler and a calculator, and her
husband’s laptop computer.

Williams returned to the bus stop, retrieved his grandfather’s car, and picked
up his girlfriend, Laura Asaro. Asaro noticed that Williams was wearing a jacket,
despite the summer heat. When Williams removed the jacket, Asaro noticed blood
on his shirt and scratches on his neck. Asaro questioned him, and Williams claimed
he had been in a fight. Asaro also saw a laptop computer in the car. Later that day,
Williams put his bloody clothes in his backpack and threw them into a sewer drain.

The next day, Asaro tried to retrieve some items from the trunk of Williams’s
car, but he tried to prevent her from opening it. Before he could push her away,
Asaro grabbed Gayle’s purse from the trunk. Inside the purse she found Gayle’s
Missouri state identification card and a black coin purse. Asaro confronted Williams
about the purse, and Williams confessed that he had killed Gayle. He explained in
detail how he had waited for her in the kitchen with a butcher knife, and that when

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she came downstairs, he stabbed her in the arm and neck, twisting the knife as he
went. After confessing the details to Asaro, Williams grabbed her by the throat and
threatened to kill her, her children, and her mother if she told anyone.

On August 31, 1998, Williams was arrested on unrelated charges and
incarcerated at the St. Louis City Workhouse, where he shared a room with Henry
Cole for a period of time. While watching television one evening, Cole and Williams
saw a news report about Gayle’s murder. After the news report, Williams told Cole
that he had committed the murder. Over the next few weeks, Williams and Cole had
several conversations about the crime, during which Williams provided considerable
details about the break-in and murder. After Cole was released from jail in June of
1999, he went to the University City police and told them about Williams’s
involvement in Gayle’s murder.

As a result of the information provided by Cole, University City police
contacted Asaro about the murder. Asaro told the police that Williams admitted to
her that he had killed Gayle. The police then searched Williams’s grandfather’s car
and found Gayle’s Post-Dispatch ruler and calculator. The police also recovered
Gayle’s husband’s laptop, which Williams had sold after the murder.

The State charged Williams with several offenses and sought the death penalty.
Williams was tried and convicted of first-degree murder, first-degree burglary, first-
degree robbery, and two counts of armed criminal action.

In preparation for the penalty phase of the trial, Williams’s attorneys, Joseph
Green and Chris McGraugh, hired multiple experts, including a mitigation specialist.
The mitigation specialist collected records on Williams and his family, and
introduced Green and McGraugh to Williams’s family so that the attorneys could
collect information about his childhood development and family history.

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 During the penalty phase, the State presented extensive evidence of Williams’s
criminal history. The jury heard testimony detailing a residential burglary in 1997,
armed robberies of both a doughnut shop and a Burger King in 1998, and a threat to
kill a corrections officer at the St. Louis City Workhouse in 1999. The State also
introduced certified copies of Williams’s sixteen convictions: second degree burglary
and stealing over $150 in 1988; second degree assault in 1988; second degree
burglary in 1988; two counts each of second degree burglary and stealing over $150
in 1991; first degree robbery, armed criminal action, and unlawful use of a weapon
in 2000; and first degree robbery, armed criminal action, stealing a motor vehicle, and
two counts of false imprisonment in 2000. The State completed its presentation with
victim impact evidence from Gayle’s family and friends.

In mitigation, Williams’s counsel presented evidence that Williams was a
caring and loving father, and that his execution would have a significant effect on his
family. The defense presented testimony from several of Williams’s family members
and friends, including his son, his step-daughter, his mother, his aunt, his brothers,
and others. They testified about Williams’s positive relationship with his son and
step-daughter. This evidence included testimony that the continued contact and
visitation with Williams made the children feel loved, and that Williams would
encourage the children to read and do well in school. Williams’s counsel also
attempted to present testimony from Dr. Mark Cunningham that Williams’s continued
relationship with his children would have a positive impact on them and that his
execution would have a negative impact on them, but the trial court found the
evidence inadmissible. According to Williams’s counsel, their theory of defense for
the penalty phase was residual doubt; they hoped the jury would have a lingering
doubt about Williams’s guilt and impose a life sentence.

The jury deliberated for less than two hours and returned a sentence of death.
In doing so, the jury found the existence of ten aggravating circumstances: that the
murder involved depravity of mind; that Williams committed the murder during a

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burglary; that Williams committed the murder during a robbery; that Williams
committed the murder in order to receive money or something of value from Gayle;
that Williams committed the murder in order to prevent his lawful arrest; and each of
five prior convictions committed by Williams—second degree assault in 1998, first
degree robbery in 2000 and 2001, and armed criminal action in 2000 and 2001. See
Williams I, 97 S.W.3d at 473.

Williams appealed to the Supreme Court of Missouri, which affirmed the
conviction and sentence. Id. at 466. The Supreme Court of the United States denied
Williams’s petition for a writ of certiorari. Williams v. Missouri, 539 U.S. 944
(2003).

On May 30, 2003, Williams filed a pro se motion for postconviction relief in
the Circuit Court of St. Louis County, Missouri, pursuant to Supreme Court of
Missouri Rule 29.15, and appointed counsel filed an amended motion on September
8, 2003. One of the several grounds asserted by Williams was that his trial counsel
was ineffective for failing to investigate and present mitigating evidence of
Williams’s traumatic childhood.

In support of this claim, Williams asserted that his trial counsel intended to
present expert testimony to explain Williams’s social history and criminal conduct,
but the psychologist they hired was unable to establish a rapport with Williams
because he was hired too late. According to Williams, if his counsel had properly
investigated his background, they would have uncovered and introduced the
following significant mitigating evidence: that Williams was subjected to brutally
violent physical and sexual abuse by family members; that he was abandoned and
resented by his parents; that his family condoned and encouraged criminal behavior
and substance abuse; that he came from an impoverished and dysfunctional
household; and that he was exposed to guns, drugs, and alcohol at a young age. This
evidence also would have included testimony from Dr. Donald Cross, who diagnosed

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Williams as suffering from significant mental illnesses, including depression, drug
and alcohol dependence, and post-traumatic stress disorder. According to Dr. Cross,
these disorders, which went untreated, contributed to Williams’s criminal behavior,
and Williams “was under the influence of extreme mental or emotional disturbance
and circumstantial conditions [such] that his ability to appreciate the wrongfulness
of his actions or conform his behavior to the law was substantially impaired.”

The postconviction court did not hold an evidentiary hearing on this claim, but
Williams’s trial counsel, Green, submitted an affidavit in support of Williams’s
motion. Green stated that he did not have sufficient time to prepare for Williams’s
trial, because he was having problems getting discovery from the State and was
working on another death penalty case. Green further averred that if he had obtained
a diagnosis from Dr. Cross, he would have presented the evidence at trial, along with
testimony from Williams’s family.

The postconviction court denied Williams’s petition. The court explained that
Williams alleged that trial counsel should have presented evidence to explain
mitigating factors such as Williams’s “complete social history, abusive childhood,
drug and alcohol abuse, oppositional defiant disorder, and post-traumatic stress
disorder.” The court concluded, however, that the presentation of this mitigating
evidence would have conflicted with counsel’s reasonable trial strategy of presenting
Williams as a “family man, who is innocent of such a violent murder.” The court also
ruled that there was “no reasonable probability that the omitted evidence would have
changed the result of [Williams’s] sentencing.” Williams appealed, and the Supreme
Court of Missouri unanimously affirmed. Williams II, 168 S.W.3d at 443.

On August 29, 2006, Williams filed a federal habeas corpus petition that raised
thirteen grounds for relief. The district court denied relief as to twelve of the claims,
but granted relief on Williams’s claim that his trial counsel was ineffective at the
penalty phase for failing to conduct an adequate investigation and present evidence

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regarding his background and social and medical history. The district court held that
Williams’s counsel was constitutionally ineffective, and that the decision of the
Supreme Court of Missouri was contrary to Wiggins v. Smith, 539 U.S. 510 (2003),
because “[t]rial strategy cannot excuse defense counsel’s failure to perform a
thorough investigation of a defendant’s background in a death penalty case.” The
court also determined that if the evidence of Williams’s family, social, and mental
history had been presented at trial, then there was “a reasonable probability that the
outcome of the penalty phase would have been different.”

II.

In an appeal from a district court’s grant of a habeas petition, we review the
district court’s legal conclusions de novo. See Jackson v. Norris, 651 F.3d 923, 925
(8th Cir. 2011). When a claim has been adjudicated on the merits in state court
proceedings, habeas relief is permissible under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), only if the state court’s
determination:

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.

Williams’s claim is governed by AEDPA and the standards set forth in
Strickland v. Washington, 466 U.S. 668 (1984), which require that a defendant
alleging a violation of the Sixth Amendment right to counsel must show both that
counsel’s performance was deficient and that the deficiency prejudiced the defendant.
Id. at 687. Because resolution of the first prong is unnecessary to our decision, we

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assume for the sake of analysis that the Supreme Court of Missouri unreasonably
applied clearly established federal law in holding that the performance of Williams’s
counsel was within “the wide range of professionally competent assistance.” Id. at
690.

A.

We focus our analysis on the second prong of Strickland—whether the alleged
deficiencies in counsel’s performance prejudiced Williams. Prejudice exists under
Strickland if there is “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. Under
AEDPA, if a Strickland claim is adjudicated on the merits in state court proceedings,
and there is no challenge to the factual determinations of the state courts, then a
federal court may grant relief only if a state court’s decision is contrary to, or an
unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1).

In the state court proceedings, the Missouri courts adjudicated both prongs of
Williams’s ineffective-assistance claim on the merits. The postconviction court
concluded first that trial counsel’s defense strategy was reasonable, and that Williams
could not establish ineffective assistance by alleging that a different strategy would
have worked better. Second, the postconviction court ruled, citing Strickland, that
“there is no reasonable probability that the omitted evidence would have changed the
result of Movant’s sentencing.” The Supreme Court of Missouri affirmed. The state
supreme court, also citing Strickland, set out the standards for a claim of ineffective
assistance of counsel, including that to establish prejudice, a movant “must show that,
but for counsel’s poor performance, there is a reasonable probability that the outcome
of the court proceeding would have been different.” 168 S.W.3d at 439. After noting
Williams’s claim that trial counsel failed to introduce sufficient evidence of his social
history and discussing trial counsel’s strategy, the state supreme court explained:
“The motion court found that an abusive childhood defense would have been

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inconsistent with the penalty phase strategy and would not have changed the jury’s
sentence. The motion court did not clearly err in denying this claim without an
evidentiary hearing.” Id. at 443.

Although the ineffective-assistance claim was adjudicated on the merits, the
district court failed to apply deference under 28 U.S.C. § 2254(d) when considering
whether Williams had established prejudice from the alleged deficient performance
of trial counsel. The district court proceeded as though the claim were subject to de
novo review under Strickland, holding that the proffered evidence, if presented at
trial, “would establish a reasonable probability that the outcome of the penalty phase
would have been different.” This was error. The proper question before the federal
courts under AEDPA is whether the decision of the Supreme Court of Missouri on
the question of prejudice was contrary to, or an unreasonable application of, clearly
established federal law. If the state court’s determination passes muster under this
standard, then Williams is not entitled to relief.

Taken together, AEDPA and Strickland establish a “doubly deferential
standard” of review. Cullen v. Pinholster, 131 S. Ct. 1388, 1410 (2011) (internal
quotation omitted). First, under Strickland, the state court must make a predictive
judgment about the effect of the alleged deficiencies of counsel on the outcome of the
trial, focusing on whether it is “reasonably likely” that the result would have been
different absent the errors. Strickland, 466 U.S. at 696. The Strickland prejudice
standard is less demanding than a more-probable-than-not standard, but the difference
is “slight and matters only in the rarest case.” Harrington v. Richter, 131 S. Ct. 770,
792 (2011) (internal quotation omitted). To satisfy Strickland, the likelihood of a
different result must be “substantial, not just conceivable.” Id. Under AEDPA, we
must then give substantial deference to the state court’s predictive judgment. So long
as the state court’s decision was not “contrary to” clearly established law, the
remaining question under the “unreasonable application” clause of § 2254(d) is
whether the state court’s determination under the Strickland standard is unreasonable,

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not merely whether it is incorrect. Id. at 785. This standard was meant to be difficult
to meet, and “even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. at 786.

In reviewing whether the state court’s decision involved an unreasonable
application of clearly established federal law, we examine the ultimate legal
conclusion reached by the court, id. at 784, not merely the statement of reasons
explaining the state court’s decision. See Gill v. Mecusker, 633 F.3d 1272, 1291-92
(8th Cir. 2011); Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir.
2002); Neal v. Puckett, 239 F.3d 683, 696 (5th Cir. 2001); Hennon v. Cooper, 109
F.3d 330, 335 (7th Cir. 1997). At least where there is no “conspicuous misapplication
of Supreme Court precedent” that makes the state court’s decision “contrary to”
clearly established law, Wright, 278 F.3d at 1256 n.3, the proper question is whether
there is “any reasonable argument” that the state court’s judgment is consistent with
Strickland. Richter, 131 S. Ct. at 788; see Premo v. Moore, 131 S. Ct. 733, 740
(2011). If the state court “reasonably could have concluded that [the petitioner] was
not prejudiced by counsel’s actions,” then federal review under AEDPA is at an end.
Moore, 131 S. Ct. at 744.

Williams argues that the state supreme court’s decision was “contrary to”
clearly established federal law, because the court characterized the decision of the
postconviction court as a finding that Williams’s proffered evidence “would not have
changed the jury’s sentence.” Williams II, 168 S.W.3d at 443. This recounting of the
postconviction court’s decision omits the phrase “reasonable probability” from the
calculus. As a consequence, Williams contends, the Supreme Court of Missouri
issued a decision contrary to Strickland and other Supreme Court precedents when
it affirmed the postconviction court’s ruling.

We reject this contention. The postconviction court recited the standard
correctly in its decision, saying there was “no reasonable probability that the omitted

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evidence would have changed the result.” The state supreme court, when framing the
inquiry on appeal, likewise recited the Strickland standard precisely, saying that a
movant must show a “reasonable probability” of a different outcome. As in
Woodford v. Visciotti, 537 U.S. 19 (2002), where the state court sometimes used the
term “probable” without the modifier “reasonable,” the Missouri court’s “shorthand
reference” to the Strickland standard later in its opinion “may perhaps be imprecise,
but if so it can no more be considered a repudiation of the standard than can [the
Supreme] Court’s own occasional indulgence in the same imprecision.” Id. at 23-24.
We are satisfied that the state courts understood the familiar Strickland standard and
issued a decision that was not contrary to established federal law. See White v. Roper,
416 F.3d 728, 732-33 (8th Cir. 2005); Stanley v. Bartley, 465 F.3d 810, 813 (7th Cir.
2006); Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 785-86 (11th Cir. 2003).

We also conclude that the decision of the Supreme Court of Missouri did not
involve an unreasonable application of Strickland, because the state court reasonably
could have concluded that Williams was not prejudiced by the alleged deficiencies
of counsel. The jury had strong reasons to choose a sentence of death over life
imprisonment. The State presented substantial aggravating evidence. The jury heard
the gruesome details of Gayle’s murder during the guilt phase. Williams stabbed her
forty-three times, inflicting seven fatal wounds and twisting the knife as he went.
And in the penalty phase, the State presented Williams’s extensive criminal record,
which included sixteen convictions, along with detailed evidence of Williams’s
multiple armed robberies and threat to kill a corrections officer. As a result, the jury
found the existence of ten statutory aggravating factors in sentencing Williams to
death.

Williams argues that the undiscovered mitigating evidence was so strong that
the state court’s determination of no prejudice was unreasonable. The new evidence
was designed to show that Williams was subjected to severe physical and sexual
abuse as a child, and was diagnosed with depression, post-traumatic stress disorder,

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and drug and alcohol dependence. According to Williams, this evidence would have
provided the jury with an explanation for Williams’s criminal history, and would have
lessened Williams’s moral culpability in the eyes of the jurors. He also argues that
the evidence would have allowed jurors to find the existence of two statutory
mitigating factors—that Williams was under the influence of extreme mental or
emotional disturbance, and that his capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the law was substantially
impaired. Mo. Rev. Stat. § 565.032.3(2), (6).

The state court, however, reasonably could have questioned the weight of
Williams’s proposed mitigating evidence. First, any testimony from Williams would
be susceptible to impeachment. In a deposition during state postconviction review,
Williams acknowledged that he had lied under oath in 1987 in order to secure a
favorable plea agreement. When asked if he would lie under oath “when it suits
[him],” he responded, “I mean, you should know better than me.” Second, any
testimony by Dr. Cross about his diagnosis of Williams could have opened the door
to additional aggravating evidence, such as Williams’s prison disciplinary record—he
committed more than 100 violations while incarcerated, including verbal and physical
altercations with inmates and corrections officers—or rebuttal from a state expert to
refute the Cross diagnoses. See Pinholster, 131 S. Ct. at 1410; Wong v. Belmontes,
130 S. Ct. 383, 389-90 (2009). The undiscovered evidence also could act as a
double-edged sword, as the jurors could have concluded that Williams was “simply
beyond rehabilitation” and a threat of future dangerousness because of his
background and mental illnesses. See Pinholster, 131 S Ct. at 1410; cf. Atkins v.
Virginia, 536 U.S. 304, 321 (2002).

A jury in a Missouri capital case is instructed to consider “whether the evidence
as a whole justifies a sentence of death or a sentence of life imprisonment without
eligibility for probation, parole, or release except by act of the governor.” Mo. Rev.
Stat. § 565.032.1(2). The postconviction record here includes the aggravating and

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mitigating evidence presented at trial and sentencing, and the new mitigating
evidence that Williams proffered in postconviction proceedings. Given the strength
of the case in aggravation and the countervailing considerations with respect to the
new mitigating evidence, we believe the Supreme Court of Missouri and the
postconviction court reasonably concluded that there was not a reasonable probability
that trial counsel’s alleged deficiencies affected the outcome of the trial.

B.

The dissent asserts that we should apply de novo review to the prejudice prong
of the Strickland claim, because “we are here presented with an explicit decision by
the state court that is an unreasonable application of clearly established federal law.”
Post, at 36-37. The dissent concludes that even though there may have been a
reasonable basis for the state court to deny relief, post, at 47, we may not consider
that basis when applying § 2254(d)(1), because the state court assertedly gave a
different reason. According to the dissent, “both state courts considered only whether
the new mitigating evidence could have fit within the family-man/residual-doubt
theory that was actually offered.” Post, at 41. On this basis, the dissent would review
de novo whether Williams was prejudiced by the alleged ineffective assistance of
counsel, and order the granting of a writ. We disagree with the dissent’s
characterization of the state court decisions and with its narrower vision of deference
under AEDPA.

The state postconviction court, after three paragraphs discussing whether trial
counsel’s performance was deficient, concluded as follows:

Movant cannot now plead ineffective assistance alleging that a different
strategy would have worked better. Furthermore, there is no reasonable
probability that the omitted evidence would have changed the result of
Movant’s sentencing. State v. Carter, 955 S.W.2d 548 (Mo. banc 1997);
Strickland v. Washington, 466 U.S. 668, 699-700 (1984).

State Ex. 33, at 802 (emphasis added).

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 “Furthermore” means “in addition to what precedes.” Webster’s Third New
International Dictionary 924 (2002). It is not a synonym of “Thus,” or “Therefore,”
the use of which might have indicated that the postconviction court’s decision on
prejudice was dependent on its analysis of counsel’s performance. In deciding
whether Williams could show prejudice, the postconviction court did not say, as the
dissent would have it, that it “considered only whether the new mitigating evidence
could have fit within the family-man/residual-doubt theory that was actually offered.”
Post, at 41. The court said “there is no reasonable probability that the omitted
evidence would have changed the result of [Williams’s] sentencing.” For all we
know, the postconviction court reached its conclusion of no prejudice after weighing
the new mitigating evidence and the aggravating factors, just as we conclude it
reasonably could have done.

The Supreme Court of Missouri, in summarizing the decision of the
postconviction court, simply combined the lower court’s two conclusions into one
sentence: “The motion court found that an abusive childhood defense would have
been inconsistent with the penalty phase strategy and would not have changed the
jury’s sentence.” 168 S.W.3d at 443 (emphasis added). The court did not say that the
postconviction court’s rulings on the two prongs were interdependent. The state
supreme court’s ultimate decision, moreover, was conclusory: “The motion court did
not clearly err in denying this claim without an evidentiary hearing.” Id. Again, for
all we know, the state supreme court determined that the aggravating factors
substantially outweighed the new mitigating evidence, and concluded for that reason
that the motion court “did not clearly err” in denying Williams’s claim without a
hearing. On the issue of prejudice, there is no material distinction between the one-
sentence unexplained conclusions of the state courts in this case and the summary
ruling at issue in Harrington v. Richter, 131 S. Ct. 770. Even on the dissent’s view
of AEDPA, therefore, Williams’s burden on the prejudice question should be to show
that “there was no reasonable basis for the state court to deny relief.” Id. at 784.

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 In any event, even assuming the state supreme court’s opinion on prejudice
should be taken to mean what the dissent suggests, we disagree with the dissent’s
view about the scope of our deference to state court decisions under AEDPA. Under
the dissent’s approach, a petitioner’s entitlement to relief may well depend on
whether the state court writes an opinion. If the state court summarily denies a claim
of prejudice, then a petitioner is required to show that there was no reasonable basis
for the state court’s decision. Richter, 131 S. Ct. at 784. But on the dissent’s view,
if the state court gives one reason for the decision, then the petitioner can obtain relief
if the specific reason articulated is not a reasonable basis to reject his claim. This
approach, which reads “unreasonable” in § 2254(d) “as having reference to the
quality of the reasoning process articulated by the state court” would “place the
federal court in just the kind of tutelary relation to the state courts that [AEDPA was]
designed to end.” Hennon, 109 F.3d at 335.

The Supreme Court’s recent decision in Premo v. Moore, 131 S. Ct. 733, is
instructive. The petitioner there pleaded guilty in state court, but argued in
postconviction proceedings that his counsel was ineffective for failing to move to
suppress a confession. The Oregon postconviction court rejected the claim and
entered an order with findings of fact and conclusions of law. Moore v. Palmateer,
No. 98C-15019 (Ore. Cir. Ct. June 19, 2000), reprinted in App. to Pet. for Cert. at
198, Moore, 131 S.Ct. 733 (No. 09-658). The Oregon Court of Appeals affirmed
without opinion, Moore v. Palmateer, 26 P.3d 191 (Or. Ct. App. 2001), and the
Oregon Supreme Court denied review, Moore v. Palmateer, 30 P.3d 1184 (Or. 2001),
so it is presumed that the postconviction court’s rationale prevailed in the state courts.
See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Mark v. Ault, 498 F.3d 775, 783
(8th Cir. 2007).

The state postconviction court in Moore reasoned as follows:

The Court notes that counsel rebutted petitioner’s complaint that counsel
should have moved to suppress petitioner’s confession. Counsel offered

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 two reasons for not filing the motion. Counsel asserts it was clear that
petitioner was not in custody when he gave his confession, noting that
petitioner “never believed that he was in custody and admitted to me that
he realized he was not in custody when he and his brothers and another
friend voluntarily came to the police department to give the recorded
statement.” Because petitioner was not in custody when he gave his
statement, there was no basis for filing a motion to suppress.

Counsel further explains that he did not move to suppress because
petitioner had previously confessed his participation in the crime to his
brother (Raymond Moore) and another friend. Both Raymond Moore
and the friend could have been called as witnesses to repeat petitioner’s
confession. A motion to suppress would have been fruitless.

The Court finds that there is very little chance that petitioner’s
confession would have been suppressed. Given petitioner’s confession,
counsel obtained the best plea offer he could for petitioner and petitioner
accepted the offer after careful consideration.

* * *

Based on the findings of fact set forth above, in the underlying criminal
proceedings resulting in petitioner’s conviction, petitioner was not
denied the right to assistance of counsel, as guaranteed by either the
United States Constitution and as articulated by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), or the
Constitution of the State of Oregon.

Moore v. Palmateer, No. 98C-15019 (Ore. Cir. Ct. June 19, 2000) (internal record
citations omitted), reprinted in App. to Pet. for Cert., supra, at 204-06; see Moore v.
Czerniak, 574 F.3d 1092, 1098 (9th Cir. 2009); see also J.A. at 139-40, Moore, 131
S.Ct. 733 (No. 09-658), 2010 WL 2569197.

When the Supreme Court considered the petitioner’s claim for relief, the Court
did not limit its analysis to the specific reasoning of the state postconviction court set

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forth above, including the findings that “there is very little chance that petitioner’s
confession would have been suppressed,” and that any “motion to suppress would
have been fruitless.” Rather, the Court concluded that “[t]he state court here
reasonably could have determined that Moore would have accepted the plea
agreement even if his second confession had been ruled inadmissible.” Moore, 131
S. Ct. at 744 (emphasis added). After explaining why that determination would have
been reasonable, the Court reiterated that “[t]he state postconviction court reasonably
could have concluded that Moore was not prejudiced by counsel’s actions. Under
AEDPA, that finding ends federal review.” Id. at 745 (emphasis added).

The dissent contends that we should grant more deference to “indeterminate”
state-court decisions than to “explicit” state-court decisions, post, at 36-38, and
argues that Moore is in the former category because the state court “did not specify”
whether its ruling was based on a determination of no deficient performance, no
prejudice, or both. See 131 S. Ct. at 740. We are not convinced that the Supreme
Court would have taken a different approach in Moore if the state court had specified
in its order that the petitioner suffered no prejudice. The Court must have assumed
for purposes of analysis that the state court reached the issue of prejudice under
Strickland, for otherwise the opinion would have examined this element of the claim
de novo. See Rompilla v. Beard, 545 U.S. 374, 390 (2005); Wiggins, 539 U.S. at 534.
The significance of Moore is that the Court focused on what the state court
“reasonably could have concluded” about prejudice, not on whether the specific
reasons articulated by the state court were a reasonable basis for denying relief on the
prejudice prong.1

1
The dissent’s reliance on Early v. Packer, 537 U.S. 3 (2002) (per curiam),
post, at 37, conflates the distinct “contrary to” and “unreasonable application” clauses
of § 2254(d)(1). See also post, at 43 (citing Frantz v. Hazey, 533 F.3d 724, 739 (9th
Cir. 2008) and Young v. Sirmons, 486 F.3d 655, 674 (10th Cir. 2007)). The Supreme
Court’s reference in Packer to “the reasoning” of state-court decisions came in a
paragraph explaining when “[a] state court’s decision is ‘contrary to’ [the Supreme
-17-
 The Eleventh Circuit addressed the scope of AEDPA in the wake of Richter
and Moore. The court affirmed a district court’s denial of habeas corpus relief, even
though the district court relied on grounds other than those articulated by the state
court. Gill, 633 F.3d at 1292. The Eleventh Circuit explained that “the statutory
language focuses on the result, not on the reasoning that led to the result.” Id. The
court therefore concluded that “[n]othing in the language of AEDPA required the
district court to evaluate or rely upon the correctness of the state court’s process of
reasoning.” Id.; see also Jardine v. Dittmann, 658 F.3d 772, 777 (7th Cir. 2011)
(“This court must fill any gaps in the state court’s discussion by asking what theories
‘could have supported’ the state court’s conclusion.”) (emphasis added) (citing
Richter, 131 S. Ct. at 786).2

As we understand Richter and Moore, the Court’s opinions were premised on
the text of § 2254(d) and the meaning of “decision” and “unreasonable application,”
not on speculation about whether the state court actually had in mind reasons that

Court’s] clearly established precedents.” Id. at 8 (emphasis added) (internal quotation
omitted). A federal habeas court may consider a state court’s reasoning in
determining whether it “‘applies a rule that contradicts the governing law set forth in
[Supreme Court] cases,’” such as where a state court deciding an ineffective-
assistance claim fails to apply Strickland altogether. Lafler v. Cooper, 132 S. Ct.
1376, 1390 (2012) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). But that
is quite different from holding that a state court’s decision involves “an unreasonable
application” of Supreme Court precedent when it is not contrary to clearly established
law, and there is a reasonable basis for the decision to deny relief.
2
To support its view that a federal court applying § 2254(d) may consider only
reasons articulated by a state court, the dissent, post, at 37-38 & n.8, 43, relies on
footnote in a different Eleventh Circuit case, Johnson v. Sec’y, DOC, 643 F.3d 907
(11th Cir. 2011). Johnson, however, concluded only that the “no reasonable basis”
language from Richter did not apply when considering Strickland prejudice in that
case, because the state court did not even rule on the prejudice prong of Strickland.
Id. at 930 & n.9 (citing Rompilla, 545 U.S. at 390, Wiggins, 539 U.S. at 534, and
Ferrell v. Hall, 640 F.3d 1199, 1224-27 (11th Cir. 2011)).
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were “reasonable” when it denied relief. But even if we assume that deference to the
state court’s decision is warranted only when there is some possibility that the court
specifically contemplated “reasonable” grounds for denying relief, the issuance of a
written opinion with deficient reasoning does not eliminate such a possibility. Just
as there is more than one way to skin a cat, there often is more than one way to
resolve an appeal, and not every possible approach makes it into an opinion. A court
may well leave the existence of alternative grounds unstated, because discussion of
those grounds is unnecessary to the decision.

Yet a state court is not like an administrative agency to which a federal court
can remand a case for a more complete explanation. See Hennon, 109 F.3d at 335.
The granting of an application for writ of habeas corpus sets aside the judgment of
another sovereign, often many years after the proceedings are concluded, and requires
the State to begin the proceedings anew. The strong federalism considerations that
underlie AEDPA are well known: Federal habeas review “disturbs the State’s
significant interest in repose for concluded litigation, denies society the right to
punish some admitted offenders, and intrudes on state sovereignty to a degree
matched by few exercises of federal judicial authority.” Richter, 131 S. Ct. at 787
(internal quotation omitted). It is understandable that Congress would not require
state courts to choose between issuing summary rulings or filing opinions with
multiple alternative holdings in order to enjoy the full measure of deference under the
“unreasonable application” clause of § 2254(d).3

3
The dissent also suggests, post, at 39, that even if we are correct in our
understanding of AEDPA, we should nonetheless rule to the contrary, because the
Supreme Court has not yet addressed the specific question raised here. If there is
indeed an open question presented, then we perceive no thumb on the scales that
requires us to eschew the better answer. Nor does it advance the dissent’s cause to
say that our conclusion would “step ahead of the Court’s rulings,” post, at 39, for that
is true whenever the inferior courts must decide a question on which the Supreme
Court has not spoken directly, no matter which way the question is decided.
-19-
 C.

In reaching our conclusion that the decision of the state courts did not involve
an unreasonable application of Supreme Court precedent, we are mindful that a
determination about prejudice is not an exact science. The analysis requires a
predictive judgment about how jurors would consider a different record of mitigating
evidence, and then an assessment of the range of reasonableness that is available to
state courts under AEDPA. The meaning of “prejudice” and “reasonableness” are
informed by previous decisions that have considered similar problems. Therefore, we
have compared the record in this case with prior decisions of the Supreme Court that
have addressed a state court’s finding of no prejudice under AEDPA in capital cases.
An analysis of these cases, as well as precedent of this circuit, fortifies our conclusion
that the state supreme court’s decision was not unreasonable.

The Supreme Court has addressed a comparable question in three cases. In
one, Porter v. McCollum, 130 S. Ct. 447 (2009), the Court held that the state court
unreasonably determined that a petitioner had not suffered prejudice. But in that
case, the aggravating evidence did not substantially outweigh the proffered mitigating
evidence. In Porter, the undiscovered case in mitigation included evidence of the
defendant’s “heroic military service” during the Korean War, his resulting brain
abnormality and educational difficulties, his struggles to regain normality upon return
from war, and his childhood history of physical abuse. 130 S. Ct. at 454. The
aggravating evidence, on the other hand, was limited to three factors: that the
defendant was previously convicted of a violent felony, that the murder was
committed during a burglary, and that the murder was committed in a cold,
calculated, and premeditated manner. Id. In this case, the scale tips more heavily
toward aggravation: the jury found ten aggravating factors, including a much more
extensive criminal history, and Williams presented a less compelling case in
mitigation.

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 The evidence presented in this case is more similar to the record in two cases
where the Supreme Court, applying AEDPA, has rejected challenges to state court
decisions finding no prejudice under Strickland. In Woodford v. Visciotti, the Court
denied relief despite substantial, undiscovered mitigating evidence of the petitioner’s
dysfunctional family background and psychological abuse, because the jury was
presented with strong aggravating evidence, including that the murder was an
execution-style killing during a preplanned armed robbery, and that the defendant had
been convicted of several prior violent crimes. 537 U.S. at 26. In Cullen v.
Pinholster, the Court denied relief, relying on its view that the proffered mitigating
evidence was of questionable value. New testimony from a psychiatrist would have
opened the door to rebuttal testimony, and new evidence of the defendant’s
dysfunctional family—serious substance abuse, mental illness, and
criminality—might have caused the jury to conclude that the defendant was beyond
rehabilitation. 131 S. Ct. at 1409-10.4

The record in this case also resembles the record in Link v. Luebbers, 469 F.3d
1197, where this court denied relief on a claim of ineffective assistance. The
petitioner in Link presented substantial undiscovered mitigating evidence similar to
the evidence presented by Williams: several instances of physical, sexual, and
emotional abuse during the defendant’s childhood; alcohol and drug abuse beginning

4
In Williams v. Taylor, 529 U.S. 362, the Court held that the petitioner was
entitled to relief on his Strickland claim, but four Justices did not apply a deferential
standard of review under AEDPA, and simply reached an “independent judgment”
that there was a reasonable probability of a different outcome. Id. at 387, 399
(opinion of Stevens, J.). Only two Justices concluded that the state court
unreasonably applied Strickland under the interpretation of § 2254(d)(1) that we must
follow. Id. at 416 (opinion of O’Connor, J.). Williams also relies on Sears v. Upton,
130 S. Ct. 3259 (2010), Rompilla v. Beard, 545 U.S. 374, Wiggins v. Smith, 539 U.S.
510, and Simmons v. Luebbers, 299 F.3d 929 (8th Cir. 2002), but the prejudice
analysis in those cases was not governed by the deferential review that applies under
AEDPA.
-21-
during adolescence; and a diagnosis of post-traumatic stress disorder. Id. at 1201.
The State in Link, as here, presented a strong case in aggravation, which included the
defendant’s extensive criminal history involving multiple rapes and several other
violent crimes. Id. at 1200-01. Viewing the record as a whole, and assessing the
significance of the new mitigating evidence, this court concluded that “the likelihood
of a different outcome had the evidence been presented is not sufficient to undermine
our confidence in the verdict reached by the jury.” Id. at 1205. It was reasonable for
the state courts to reach the same conclusion here.

* * *

The Supreme Court of Missouri ruled that Williams did not establish prejudice
resulting from allegedly deficient performance by trial counsel. For the foregoing
reasons, we conclude that the state court’s decision was neither contrary to, nor an
unreasonable application of, clearly established federal law. The district court did not
consider the prejudice question through the deferential lens of AEDPA, and this was
reversible error. The judgment is reversed, and the case is remanded with directions
to dismiss the petition for writ of habeas corpus and to enter judgment for the
respondent.

MELLOY, Circuit Judge, dissenting.

The majority concludes that, even assuming the state court unreasonably
applied the first prong of Strickland v. Washington, 466 U.S. 668 (1984), we must
defer to their determination that no prejudice occurred under AEDPA. Because I
believe the state court's prejudice determination was based on both an unreasonable
application of clearly established federal law and an unreasonable determination of
the facts, I dissent.

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 I disagree with the majority's articulation of the AEDPA standard to evaluate
the question of prejudice related to counsel's failure to investigate and present
mitigating evidence about Williams's troubled background. The majority concludes
that it would have been reasonable for a state court to determine that the mitigating
evidence was outweighed by the aggravating factors of Williams's crime. However,
that is not what the state court determined. The state court decided that the mitigating
evidence would have been inconsistent with the theory counsel actually presented at
sentencing. The state court thus concluded that Williams was not prejudiced by
counsel's failure to present that evidence because the evidence was inconsistent with
counsel's penalty-phase strategy, even though the strategy was not adopted after a
constitutionally sufficient investigation into Williams's background. The state court's
prejudice determination is, in this respect, both an unreasonable application of
Strickland and based on an unreasonable determination of the facts. The state court's
judgment cannot survive § 2254(d) analysis simply because, as the majority
concludes, "a reasonable state court" might have determined for a different reason
that Williams was not prejudiced. Furthermore, the cases cited by the majority do not
support such a broad proposition.

I describe this disagreement in more detail below. However, because my
conclusion requires a finding that Williams established the first Strickland prong, and
because the majority merely assumed that the first prong was met for the sake of
analysis, I first set forth further procedural history relevant to Williams's claim.

I. Background

On May 30, 2003, Williams filed for postconviction relief pursuant to Supreme
Court of Missouri Rule 29.15, alleging, inter alia, several instances of ineffective
assistance of counsel. The only issue directly relevant to the current appeal was
Williams's claim that counsel failed to investigate and present evidence that he was
the victim of an abusive childhood and that he suffered from mental deficiencies. In

-23-
support of this argument, Williams offered the affidavit of Dr. Cross, who described
how family members and a church deacon sexually abused Williams as a child, how
Williams grew up in a violent household with repeated physical abuse, how he
suffered from borderline mental retardation before dropping out of school, and how
he grew up and dealt with issues of mental illness, such as post-traumatic shock,
depression, and drug addiction. Attorney Joseph Green, who handled the penalty
phase of Williams's trial, later stated that counsel was not aware of the details of
abuse contained in Cross's affidavit.

The state postconviction motion court granted an evidentiary hearing for
Williams's postconviction appeal, but limited the testimony to Williams's claim that
counsel was ineffective for failing to allow him to testify. The court did not grant
Williams's motion for a hearing specific to the new mitigation evidence. Despite this
limitation, some of the testimony happened to be directly relevant to his failure-to-
investigate claim, though the evidence on that issue was not fully developed on the
record. During the hearing, both Green and co-counsel Chris McGraugh testified
about the strategy used during trial and sentencing. In addition, Williams submitted
a deposition that indicated what he would have testified to at sentencing. Green
explained that counsel "had several theories at penalty phase. We had some that were
developed and some that were underdeveloped." Post Conviction Relief Hr'g Tr. at
93:18–20, Mar. 12, 2004. Green described the central theory as "residual doubt,"
though they also tried to demonstrate Williams's positive impact on his family. Green
indicated that he had wanted to demonstrate Williams's ability to adjust to
incarceration, but never fully developed that theory.

At the hearing, Green was not asked about Dr. Cross's affidavit. Green was
asked about Williams's deposition, which included statements about an abusive
childhood, but Green had not read Williams's deposition before the hearing. Green
testified generally about the importance of using social and mental history as
mitigating evidence during sentencing—in Green's experience, he found that this

-24-
evidence was important to humanize a defendant—but Green never demonstrated any
knowledge about Williams's abusive childhood.

On cross-examination, the state asked Green whether evidence of an abusive
childhood might have conflicted with the residual doubt strategy used during
sentencing. Green's answers indicate that he did not see a direct conflict.

Q: Now, with residual doubt as a theory in the second phase, aren't
you then going to try and portray the Defendant in the most
favorable light to the jury as you can? In other words, you don't
want to portray him as being a mean, spiteful, vengeful angry-
type person, do you, having been abused as a child?

A: Okay. In my mind, those are two different questions.

Id. at 123:5–12. Rather than describe evidence of abuse as something that would
create problems for his theory at sentencing, Green suggested that "[t]here's a number
of different ways [evidence of abuse] can be used in mitigation." Id. at 138:24–25.
Williams's postconviction counsel asked Green generally about why information
about abuse would be important during sentencing:

Q. And the fact that Marcellus testified about abuse in his
deposition, I know you haven't read that, would that be something
that you would want the jury to hear, that the abuse may have had
something to do with his later behavior if you had an expert to
testify to that?

A. Yes, if I could show a nexus, yes.

Q. And why would that be important?

A. Well, if it—why it would be important to show the nexus?

Q. Yes, for the jury to hear this.

-25-
 A. Oh, sure. It gives an explanation as to how he became to be the
person that they see before them, you know, and that to some
extent to give the jury an understanding that had maybe society or
the government or somebody interceded before at that point, we
may not be here today.

Or another way is to give the jurors an explanation that if it is an
abuse problem, now that it's been identified as a problem — this
to this individual, a doctor may testify that now we have been
able to identify the cause of it we can start treating it and alleviate
this problem. There's a number of different ways that can be used
in mitigation.

Q. But did you explore those ways in Marcellus' case, or did you
want to?

A. I—well, I definitely wanted to explore them, and to what extent
we explored them, I think we made an attempt to do that; but I
don't think we finished our attempt, though.

Id. at 138:2–139:6. On re-cross, the state again tried to question whether describing
a defendant as a victim of abuse as a child would conflict with a residual doubt
strategy:

Q. If you went into the abuse to explain to the jury, well, maybe if it
wasn't for all the abuse as a child maybe we wouldn't be here
today, what you're doing is—aren't you conceding that he
committed the murder? As a result of this abusive background
you allege?

A. If you take that position with it, right. If you're trying to explain
who the person is that's before them today, I think is the wording
I used, and it doesn't necessarily mean that you're conceding the
murder. If you're just saying this is why—because you have all
this other criminal history that's before the jury.

-26-
 So if you're just to say why is this a guy who constantly finds
himself incarcerated and charged with crimes? Well, because he
has an addiction problem, or because he's been abused and has a
frontal lobe problem or, you know, whatever the reason may be.
It doesn't necessarily mean you're conceding the act of guilt for
the murder; it just explains the person who sits before you.

Id. at 139:20–140:13. All of the questions put to Green about childhood abuse, and
all of Green's answers, appear to be hypothetical. Green does not discuss Williams's
abusive childhood in particular, and none of Green's answers suggest he knew of any
details of abuse.

During the hearing, Green also testified that he had hired a mitigation expert,
Jeff Eno, to obtain child development and family history. Green described Eno as the
man who helped set up his interviews with Williams's family members. Green also
testified that Eno helped him "get some child development and family history," id. at
93:14–15, but there is no indication that either Eno or Green learned anything about
the abusive childhood or mental retardation described in Cross's affidavit. Green also
said that he hired a psychologist, Mark Cunningham, to diagnose Williams's future
dangerousness. There is no indication, however, that Cunningham investigated or
knew about Williams's abusive childhood. See id. at 100. It does appear that Green
knew something about Williams's history of trouble in school, but he did not offer a
reason for not pursuing that possible mitigating evidence.

Q. As you were aware that Marcellus had problems in school as early as
kindergarden [sic], would it have been helpful to have expert testimony
to explain Marcellus's behavior before going to prison and as a child
growing up and what was involved in those?

A. Yes, that always can be a hedge.

Q. Did you have a strategic reason for not seeking that type of evidence?

-27-
 A. As I sit here now, I can't think of any.

Id. at 100:20–101:3.

After the hearing, the state motion court denied Williams's motion to vacate the
judgment and sentence. The motion court appeared to accept the truth of Dr. Cross's
affidavit, but did not discuss the affidavit's particulars. The court considered the issue
of childhood abuse to be mooted by Green's chosen strategy during sentencing. The
motion court found that evidence of abuse "would have defied trial counsel's
reasonable trial strategy of presenting Movant as a family man, who is innocent of
such a violent murder." State's Ex. 33 at 802 (hereinafter "Postconviction Order").
The court stated that Williams was not permitted to argue a different theory would
have worked better and that "there is no reasonable probability that the omitted
evidence would have changed the result of Movant's sentencing." Id. at 802–03.

Williams then filed a motion for reconsideration and offered a sworn affidavit
from Green about what Green would have testified to had Williams been allowed to
address the failure-to-investigate claim. Green stated that he "ran out of time"
investigating Williams's case because of his work on another capital trial at the same
time. Green Aff. at ¶ 35. Acting as sole counsel in the other capital case, Green "had
to prepare for trial during the same period I was preparing for Marcellus'[s] trial," and
because a motion to continue Williams's trial was denied, Green admitted that he "did
not have sufficient time to thoroughly prepare for Marcellus'[s] trial." Id. at ¶ 23–24.
Green stated that he had reviewed Dr. Cross's affidavit and that, had he obtained Dr.
Cross's diagnosis during Williams's penalty-phase case, he would have put it before
the jury. Green stated that such evidence would have been important because "it
would have provided explanations for his prior criminal history" and would have
presented him in "a more sympathetic picture . . . than the facts surrounding the

-28-
crime." Id. at 31–32. The motion court struck Green's affidavit, finding it to be an
improper attempt to expand the record.5

The Supreme Court of Missouri affirmed the motion court's denial of relief.
The court predicated its decision on the rule that "[t]he selection of witnesses and
evidence are matters of trial strategy, virtually unchallengeable in an ineffective
assistance claim." Williams v. State, 168 S.W.3d 433, 443 (Mo. 2005). The
Supreme Court of Missouri then approved the lower court's reasoning, and stated:
"The motion court found that an abusive childhood defense would have been
inconsistent with the penalty phase strategy and would not have changed the jury's
sentence. The motion court did not clearly err in denying this claim without an
evidentiary hearing." Id. The Supreme Court of Missouri did not address whether
counsel had or had not met its duty to investigate.

II. Ineffective Assistance

As the majority noted, the state motion court concluded that Williams's counsel
had employed a reasonable penalty-phase strategy and that Williams could not
establish ineffective assistance of counsel by arguing that a different strategy would
have worked better. The Supreme Court of Missouri similarly concluded that the
presentation of evidence was "virtually unchallengeable" as a matter of trial strategy.
Id. at 443. However, for a state court to conclude that counsel reasonably employed
a strategy without assessing whether that strategy was supported by thorough
investigation—or a reasonable and informed decision to cut short a thorough
investigation—is an unreasonable application of Supreme Court precedent. A finding
in this case that there was either a thorough investigation or an informed decision to

5
The state argued below that, because it was struck by the state motion court,
this affidavit was not properly part of the record. At oral argument, however, the
state conceded that the affidavit appeared to be part of the record considered by the
Supreme Court of Missouri and is thus properly part of the record before us.
-29-
cut short such an investigation would be an unreasonable determination of the facts.
The Supreme Court of Missouri's decision that counsel's performance was not
deficient thus fails either prong of § 2254(d).

A. Reasonable trial strategy must be based on thorough investigation

It is unassailable that under the prevailing professional norms at the time of
Williams's trial, counsel had an "obligation to conduct a thorough investigation of the
defendant's background." Williams v. Taylor, 529 U.S. 362, 396 (2000) (hereineafter
"Terry Williams"); Strickland, 466 U.S. at 691 ("[C]ounsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary."). While it may be proper for counsel to choose not to
investigate all claims that a defendant urges him to advance if counsel believes such
claims to be meritless, the Supreme Court has explained that "strategic choices made
after less than complete investigation are reasonable [only] to the extent that
reasonable professional judgments support the limitations on investigation."
Strickland, 466 U.S. at 690–91. "[I]f limiting the investigation was not reasonable,
then neither was the subsequent strategic choice. '[S]trategy resulting from lack of
diligence in preparation and investigation is not protected by the presumption in favor
of counsel.'" Antwine v. Delo, 54 F.3d 1357, 1367 (8th Cir. 1995) (quoting Kenley
v. Armontrout, 937 F.2d 1298, 1304 (8th Cir. 1991)). This duty was especially
important in Williams's case, where the prosecution had indicated from the start that
they would pursue the death penalty. See Antwine, 54 F.3d at 1367 ("'Given the
severity of the potential sentence and the reality that the life of [the defendant] was
at stake, we believe that it was [counsel's] duty . . . to collect as much information as
possible about [the defendant] for use at the penalty phase of his state court trial.'"
(quoting Hill v. Lockhart, 28 F.3d 832, 845 (8th Cir. 1994))).

Neither the Supreme Court of Missouri, nor the motion court that it affirmed,
discussed the clearly established federal law about counsel's duty to investigate. This

-30-
is not, in itself, a problem. The Supreme Court has stated that § 2254(d) does "not
require citation of our cases—indeed, it does not even require awareness of our cases,
so long as neither the reasoning nor the result of the state-court decision contradicts
them." Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). However, both state
courts clearly applied a standard concerning the introduction of mitigating evidence
at trial—a strategic decision—rather than the investigation of that evidence in the first
place—a constitutional duty. This is an unreasonable application of Strickland.

Strickland did say that strategic decisions were "virtually unchallengeable."
What the Supreme Court actually said in full, however, was that "strategic choices
made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation." 466 U.S. at 690–91 (emphasis
added). Strickland makes it clear that the reasonableness of a strategic decision is
dependent on the reasonableness of counsel's investigation into possible mitigating
evidence. Furthermore, "a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances." Id. at 691.

The Court further explained the analysis of strategic decisions and reasonable
investigations in Wiggins v. Smith, 539 U.S. 510 (2003). There, the Court applied
AEDPA deference to a similar state-court rejection of relief where "the Maryland
Court of Appeals appears to have assumed that because counsel had some information
with respect to petitioner's background . . . they were in a position to make a tactical
choice not to present a mitigation defense." Id. at 527. The Court explained,
however, that such a choice could not be based on assumptions about counsel's
investigations; a court must first assess the reasonableness of an attorney's
investigation by considering,

-31-
 not only the quantum of evidence already known to counsel, but also
whether the known evidence would lead a reasonable attorney to
investigate further. . . . Strickland does not establish that a cursory
investigation automatically justifies a tactical decision with respect to
sentencing strategy. Rather, a reviewing court must consider the
reasonableness of the investigation said to support that strategy.

Id. Wiggins makes clear that a state court's failure to assess the reasonableness of
counsel's investigation of possible mitigating factors meets the AEDPA
"unreasonable application" prong. Id. at 528 ("The Court of Appeals' assumption that
the investigation was adequate thus reflected an unreasonable application of
Strickland. As a result, the court's subsequent deference to counsel's strategic
decision not 'to present every conceivable mitigation defense,' despite the fact that
counsel based this alleged choice on what we have made clear was an unreasonable
investigation, was also objectively unreasonable." (internal citations omitted)). By
failing to analyze the reasonableness of counsel's investigation, both the Supreme
Court of Missouri and the state motion court failed to apply clearly established
federal law.

B. The record does not reflect a constitutionally sufficient investigation

Even if the Supreme Court of Missouri had not unreasonably assumed that
counsel met its constitutional duty to investigate in Williams's case and had
specifically found that a sufficient investigation supported a decision not to introduce
evidence about Williams's childhood, such a finding would be an unreasonable
determination of the facts under § 2254(d)(2). There is no evidence in the record that
counsel chose to avoid evidence of an abusive childhood or mental deficiencies at
sentencing. Green testified about his intent to conduct investigation about Williams's
history, but he admits that he was not able to complete this investigation—in his
words, he "ran out of time." Even when confronted with the state's view that
evidence of Williams's abusive childhood might conflict with other evidence Green
offered at sentencing, Green testified that he thought evidence of abuse still could

-32-
have been useful, had he been aware of it at sentencing. Green's testimony at the
hearing and his later affidavit both support the district court's conclusion that
counsel's family-man/residual-doubt strategy became a strategy by default and was
not adopted after a reasonable decision to avoid evidence of Williams's childhood.

The state argues on appeal that counsel did investigate Williams's social
history, and therefore counsel's decision not to present it at sentencing was part of a
reasonable trial strategy. To support this argument, the state points to Green's hearing
testimony, where he talked about Jeff Eno, the mitigation specialist he had hired, and
Mark Cunningham, a psychologist. But the record does not demonstrate that either
Eno or Cunningham presented Green with any evidence of Williams's abusive
childhood. Even if Green did learn something about an abusive childhood, it would
have been objectively unreasonable not to pursue such leads. In Wiggins, the Court
reviewed the performance of counsel who had some information about his client's
social history; for example, a presentencing report and a report from the Department
of Social Services that included information about the defendant's troubled childhood.
The Court still found that it was "unreasonable in light of what counsel actually
discovered" to not pursue those leads and expand the investigation of his social
history. 539 U.S. at 525.

When presented with some evidence of an abusive childhood,

any reasonably competent attorney would have realized that pursuing
these leads was necessary to making an informed choice among possible
defenses. . . . Indeed, counsel uncovered no evidence in their
investigation to suggest that a mitigation case, in its own right, would
have been counterproductive, or that further investigation would have
been fruitless; this case is therefore distinguishable from our precedents
in which we have found limited investigations into mitigating evidence
to be reasonable.

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Id. (citing, inter alia, Strickland, 466 U.S. at 699); see also Rompilla v. Beard, 545
U.S. 374, 389 (2005) (ineffective assistance where counsel failed to investigate
mitigating information that would have been apparent from documents any reasonable
attorney would have obtained). Even if the state is right that counsel knew something
about Williams's abusive childhood, it would have been unreasonable for the state
court not to hold an evidentiary hearing to directly assess the reasonableness of
counsel's decision not to investigate further.6

Although it might be reasonable, after a thorough investigation of Williams's
background, to decide to present Williams "as a family man, who is innocent of such
a violent murder," instead of presenting evidence of his troubled childhood, Green

6
The state argues that the record is underdeveloped and does not sufficiently
demonstrate that Green had not investigated into or known about Williams's abusive
past before adopting a his penalty-phase theory. The state believes that "absent
definitive evidence in the record of what trial counsel knew and when he knew it
about Williams' actual childhood background . . . it is reasonable to conclude that the
presumption that counsel acted within the wide range of professional competence has
not been overcome." Reply Br. at 13. While I believe there is sufficient evidence in
the record to affirmatively demonstrate that counsel's investigation was lacking, the
state's argument can be rejected as contrary to Supreme Court precedent. Strickland
established that, although "a heavy measure of deference to counsel's judgments" is
due, any "particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances." 466 U.S. at 691. The state court denied
Williams's request for an evidentiary hearing on his failure-to-investigate claim. Any
absence of information in the record about counsel's decisions is not due to a lack of
diligence on Williams's part. Deference to counsel's decisions would not justify the
denial of an evidentiary hearing when the sufficiency of counsel's investigation is in
question. See Sinisterra v. United States, 600 F.3d 900, 907 (8th Cir. 2010)
(remanding a federal habeas claim for an evidentiary hearing because "counsel had
an obligation to conduct a thorough background investigation and to exercise
reasonable, professional judgment in determining the mitigation evidence to present
during the penalty phase of [petitioner's] trial. [Petitioner] argues that counsel failed
to meet those obligations, and the record does not affirmatively refute the factual
assertions upon which [petitioner's] claim is based." (internal citations omitted)).
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never admitted to making such a decision. After denying Williams an evidentiary
hearing on this issue, which could have revealed more details about counsel's actual
decisions in preparing trial strategy, the state court merely assumed that such a
decision had been made. "When viewed in this light, the 'strategic decision' the state
courts and respondents all invoke to justify counsel's limited pursuit of mitigating
evidence resembles more a post hoc rationalization of counsel's conduct than an
accurate description of their deliberations prior to sentencing." Wiggins, 539 U.S. at
526–27; see also Harris v. Reed, 894 F.2d 871, 878 (7th Cir. 1990) ("Just as a
reviewing court should not second guess the strategic decisions of counsel with the
benefit of hindsight, it should also not construct strategic defenses which counsel
does not offer.").

III. Prejudice

The majority concludes that, even if the Supreme Court of Missouri
unreasonably applied federal law, we must defer to its decision that Williams was not
prejudiced. I strongly disagree. Both state courts explicitly misapplied the first
Strickland prong. Their prejudice determination was premised on this misapplication
because both state courts failed to assess how a constitutionally insufficient
investigation—rather than a conscious and informed decision not to introduce
evidence—might prejudice a defendant. Furthermore, the state court erroneously
concluded that the mitigating evidence could only have been introduced in
conjunction with counsel's decision to present Williams as a family man who was
actually innocent of the crime, even though Green directly contradicted this
contention in an evidentiary hearing. Because the state court both unreasonably
applied clearly established federal law and unreasonably determined the facts in light
of the evidence presented in state proceedings, § 2254(d) does not bar habeas relief
for Williams. Rather, Williams has established a reasonable probability that, but for
his counsel's ineffective assistance, his sentence would have been different.

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 A. The majority misapplies the AEDPA standard

Instead of reviewing whether the prejudice decision actually offered by the
Supreme Court of Missouri was either an unreasonable application of clearly
established law or rested upon an unreasonable determination of the facts, the
majority looks at whether a reasonable state court could have concluded that Williams
was not prejudiced by the deficiencies of counsel. Although such a standard of
review is appropriate in some AEDPA cases, it is not appropriate in a case like this
one, where a state court has clearly explained its decision on the merits; this is a
subtle, but vitally important distinction.

The majority correctly states that "the proper question is whether there is 'any
reasonable argument' that the state court's judgment is consistent with Strickland."
Supra at 10. However, in determining what "judgment" should be considered, the
majority distinguishes "decisions" from a state court's explanation of its reasons. This
distinction comes from a line of cases that deal with how the AEDPA standard
applies to state courts' summary, unexplained, or indeterminate denials, and does not
justify ignoring reasons given by a state court to support its decision. Unlike in the
cases cited by the majority, the present case does not involve a state court's failure to
offer an explanation for its rejection of post-conviction relief, see Harrington v.
Richter, 131 S. Ct. 770, 788 (2011); Wright v. Sec'y for Dep't of Corr., 278 F.3d
1245, 1254 (11th Cir. 2002), nor is it a case where a state court offered only "sparse
or otherwise unsatisfactory" explanation for its decision, see Wright, 278 F.3d at 1254
n.2 (describing Neal v. Puckett, 239 F.3d 683, 696 (5th Cir. 2001) and Hennon v.
Cooper, 109 F.3d 330, 335 (7th Cir. 1997)). It is true that a petitioner challenging a
summary or unexplained denial "can satisfy the 'unreasonable application' prong of
§ 2254(d)(1) only by showing that 'there was no reasonable basis' for" the state court
decision. Cullen v. Pinholster, 131 S. Ct. 1388, 1402 (2011) (quoting Harrington,
131 S. Ct. at 784). However, unlike in the summary denial cases, we are here

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presented with an explicit decision by the state court that is an unreasonable
application of clearly established federal law.

The majority cites no authority that would require—or for that matter,
allow—us to cure this defect in the state court's reasoning by looking for some other
reasonable basis upon which the state court could have denied Williams's claim.
While AEDPA may not require state courts to explain their decisions, it does not
allow federal courts to ignore a state court's explanation that fails to meet the AEDPA
standard. See Harrington, 131 S. Ct. at 786 ("Under § 2254(d), a habeas court must
determine what arguments or theories supported or, as here [i.e., where the state court
provided no rationale], could have supported, the state court's decision; and then it
must ask whether it is possible fairminded jurists could disagree that those arguments
or theories are inconsistent with the holding in a prior decision of [the Supreme]
Court.")7 ; Packer, 537 U.S. at 8 (noting that § 2254(d) does "not require citation of
[Supreme Court] cases—indeed, it does not even require awareness of [Supreme
Court] cases, so long as neither the reasoning nor the result of the state-court
decision contradicts them." (emphases added)); Wright, 278 F.3d at 1256 n.3 ("The
failure of a state court to set out its reasoning is not equivalent to the conspicuous
misapplication of Supreme Court precedent."); Johnson v. Sec'y, DOC, 643 F.3d 907,
930 n.9 (11th Cir. 2011) (noting that "[t]he Court's instruction from Harrington" that
a petitioner must show there was no reasonable basis for a summary denials "does not
apply here because the Florida Supreme Court did provide an explanation of its

7
The state argues that Harrington requires us to ask whether fairminded jurists
could disagree that there was no prejudice in this case. This argument makes the
same mistake as that in the majority's holding. Instead, Harrington requires us to ask
whether fairminded jurists could disagree that the arguments or theories supporting
the state court's decision were inconsistent with clearly established federal law, as
decided by the Supreme Court. See 131 S. Ct. at 786.
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decision")8 . To defer to a hypothetical conclusion rather than the conclusion actually
offered by the state court, as the majority now does, is to create an even more
heightened standard than has been previously acknowledged in AEDPA cases.

The majority asserts that Premo v. Moore, 131 S. Ct. 733 (2011), supports its
position that deference to unstated hypothetical conclusions is required even in the
face of clearly articulated but unreasonable applications of Supreme Court precedent.
The United States Supreme Court in Premo, however, expressly characterized the
state-court judgment under review as being indeterminate in its rationale. Id. at 740
("The state court did not specify whether this [rejection of a Strickland claim] was
because there was no deficient performance under Strickland or because Moore
suffered no Strickland prejudice, or both."). The Supreme Court did not suggest that
it was disregarding a state court's articulation of an unreasonable application of
clearly established Supreme Court precedent. In fact, nothing in the lower state court

8
In fact, in Johnson, the Eleventh Circuit determined that de novo review of
prejudice was required given the Florida Supreme Court's unreasonable application
of the deficient-performance prong of Strickland. Johnson stated in full:

The Supreme Court's recent decision in Harrington, where the state
supreme court had issued a summary order denying relief, tells us that
"[w]here a state court's decision is unaccompanied by an explanation,
the habeas petitioner's burden still must be met by showing there was no
reasonable basis for the state court to deny relief." The Court's
instruction from Harrington does not apply here because the Florida
Supreme Court did provide an explanation of its decision which makes
clear that it ruled on the deficiency prong but did not rule on the
prejudice prong, and it is also clear that the trial court's ruling on the
prejudice prong did not address counsel's investigation and presentation
of non-statutory mitigating circumstances evidence. Johnson II, No. CR
80–101 at 3–4. As a result, we are still required to follow the Court's
instructions from Rompilla and Wiggins and conduct a de novo review.

643 F.3d at 930 n.9 (internal citation omitted).
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opinion in the Premo case as quoted by today's majority seems to suggest an
unreasonable application of any Supreme Court precedent. In any event, I find it
unnecessary to look behind the Supreme Court's own clear characterization of the
state court record in Premo.

Notwithstanding the extensive discussion of Premo, then, the fact remains that
the majority today expands the scope of AEDPA deference beyond the limits
previously imposed by statute or by Supreme Court precedent. Even if the majority
is correct that this newly articulated and greater degree of AEDPA deference may
someday become the next step in the Supreme Court's habeas jurisprudence, I do not
share the majority's willingness to pioneer a path for this type of broader sanctioning
of unreasonable applications of existing law. I believe instead that the Supreme
Court itself should be the source of such new statements of law and that lower courts
and intermediate courts like ours should be not only transparent in our actions when
we step ahead of the Court's rulings, but hesitant to take such steps.

Here, Williams's claim for post-conviction relief was clearly adjudicated on the
merits by the Supreme Court of Missouri. The state court clearly concluded that
Williams was not prejudiced by his counsel's performance. The reason offered for
this conclusion is equally clear: "The motion court found that an abusive childhood
defense would have been inconsistent with the penalty phase strategy and would not
have changed the jury's sentence. The motion court did not clearly err in denying this
claim . . . ." 168 S.W.3d at 443; see Postconviction Order at 802 ("This evidence
would have defied trial counsel's reasonable trial strategy of presenting Movant as a
family man, who is innocent of such a violent murder. Movant cannot now plead
ineffective assistance alleging that a different strategy would have worked better.").
As explained above, this reasoning about "reasonable trial strategy" is based on an
unreasonable application of Strickland.

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 B. The Supreme Court of Missouri failed to consider how a deficient
investigation could prejudice a defendant

The fact that the state courts correctly recited Strickland's prejudice standard,
as identified by the majority, supra at 10, does not satisfy our review of whether the
state court reasonably applied that standard. See Sears v. Upton, 130 S. Ct. 3259,
3264 (2010) ("Although the court appears to have stated the proper prejudice
standard, it did not correctly conceptualize how that standard applies to the
circumstances of this case."). Here, the state court's prejudice determination reflects
a misunderstanding about how counsel's failure to investigate affected the penalty-
phase strategy to begin with.

Wiggins makes clear that it is objectively unreasonable for a state court to defer
to a "strategic decision" unsupported by reasonable investigation. 539 U.S. at 528.9
Furthermore, the reasonableness of a penalty-phase strategy is irrelevant to whether
the investigation supporting it was reasonable. Sears, 130 S. Ct. at 3265 n.10 ("[T]he
reasonableness of the theory is not relevant when evaluating the impact of evidence

9
The majority does not believe that Wiggins is relevant to our review of the
state court prejudice determination because the review of Strickland's second prong
in Wiggins was not governed by AEDPA deference. Supra at 21 n.4. While I would
agree that any case offering de novo prejudice review would provide poor guidance
under a "no reasonable basis" standard, see, e.g., Cullen, 131 S. Ct. at 1410–11
(discounting the usefulness of de novo prejudice reviews in determining
reasonableness of a summary habeas denial), that is not the proper standard for a case
where a state court affirmatively misapplies clearly established federal law. Wiggins
is important to our review because it demonstrates how a failure to investigate affects
a penalty-phase strategy. Had the state courts not affirmatively misapplied Supreme
Court precedent and still concluded that no prejudice occurred, I would agree that
§ 2254(d) would prevent us from granting habeas relief. Because both state courts
based their prejudice determination on a misunderstanding of the first Strickland
prong that Wiggins declared objectively unreasonable under deferential AEDPA
review, see 539 U.S. at 527, Wiggins is relevant to our prejudice analysis.
-40-
that would have been available and likely introduced, had counsel completed a
constitutionally adequate investigation before settling on a particular mitigation
theory.") Yet the prejudice determination of both state courts deferred to what they
considered a reasonable mitigation strategy, despite not considering the adequacy of
the investigation supporting that strategy.

Both courts viewed the theory that was actually presented at sentencing as a
reasonable one and concluded that Williams was not permitted to "plead ineffective
assistance alleging that a different strategy would have worked better."
Postconviction Order at 802; 168 S.W.3d at 443 (declining to review counsel's trial
strategy because it was "virtually unchallengeable in an ineffective assistance claim").
Thus, instead of weighing the mitigating evidence against the aggravating factors, as
the majority now does, both state courts considered only whether the new mitigating
evidence could have fit within the family-man/residual-doubt theory that was actually
offered. The state motion court concluded that evidence of Williams's troubled
childhood would have "defied trial counsel's reasonable trial strategy" because it
would have "been tantamount to a concession of guilt" and portrayed him as "angry,
aggressive, and violent." Postconviction Order at 802. The Supreme Court of
Missouri agreed with the motion court that such a portrayal "would have been
inconsistent with the penalty phase strategy and would not have changed the jury's
sentence." 168 S.W.3d at 443.

This is not only an unreasonable deference to an unreasonable strategy based
on unreasonable investigation, but it is also contradicted by counsel's own testimony.
The motion court concluded that offering the new mitigation evidence "would have
been tantamount to a concession of guilt," and thus would have "defied" counsel's
strategy; however, Green testified before that court that introducing evidence of
Williams's troubled background wouldn't "necessarily mean you're conceding the act
of guilt for the murder; it just explains the person who sits before you." Hr'g Tr. at

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140:11–13.10 This is also contrary to Supreme Court precedent. See Wiggins, 539
U.S. at 535 ("While it may well have been strategically defensible upon a reasonably
thorough investigation to focus on [defendant's] direct responsibility for the murder,
the two sentencing strategies are not necessarily mutually exclusive.").

Furthermore, the assumption that the mitigation evidence would "defy" or be
"inconsistent with" the strategy employed by counsel at sentencing unreasonably
assumes that this evidence could only have been introduced in concert with the
family-man/residual-doubt theory, even though a thorough investigation into
Williams's background might have persuaded counsel to offer the new mitigation
evidence instead of the theory that was actually presented. See Wiggins, 539 U.S. at
535 (noting that "a reasonable attorney might well have chosen to prioritize the
mitigation case over" the doubt strategy actually employed at sentencing). The fact
that neither state court considered this possibility is further evidence of a failure to
recognize the importance of a thorough and competent investigation as required by
Strickland. This is why the state court determination that no prejudice occurred is
both an unreasonable application of Strickland, as well as an unreasonable
determination of the facts.

C. We must weigh de novo the mitigating evidence against the aggravating
factors

The majority may be correct that it would have been reasonable for the state
court to conclude that there was not a reasonable probability that the new mitigating
evidence would have changed the outcome of Williams's trial. The case against
Williams was strong. In light of the state court's unreasonable application of

10
It is not a reasonable determination of the facts for the court to concoct a
decision between two purportedly-mutually-exclusive options when counsel never
testified to making such a decision. See Wiggins, 539 U.S. at 526–27; Harris, 894
F.2d at 878.
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Strickland, however, we do not defer to what a reasonable state court might have
decided. Instead, we must now conduct a de novo review of whether Williams
suffered prejudice. See Johnson, 643 F.3d at 930 n.9 (de novo review of prejudice
is required where there has been an unreasonable application of Supreme Court
precedent); see also Frantz v. Hazey, 533 F.3d 724, 739 (9th Cir. 2008) (en banc)
("To identify a § 2254(d)(1) 'contrary to' error, we analyze the court's actual reasoning
. . . . Identification of such an error is not the end of a federal habeas court's analysis
. . . . Instead, pursuant to § 2254(a) and pre-AEDPA standards of review, we must
also evaluate de novo the petitioner's constitutional claims, without limiting ourselves
to the reasoning of the state court."); Young v. Sirmons, 486 F.3d 655, 674 (10th Cir.
2007) ("Because the [state court] applied a legal principle that is contrary to clearly
established federal law in evaluating [Petitioner's] ineffective assistance claim—as
the state concedes—no deference is given to the [state court's] decision under 28
U.S.C. § 2254(d). Thus, the district court properly reviewed this claim de novo.").

In assessing whether Williams was prejudiced by his counsel's deficient
performance, we must ask "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." Strickland, 466 U.S. at 695. This
review "do[es] not require a defendant to show 'that counsel's deficient conduct more
likely than not altered the outcome' of his penalty proceeding, but rather that he
establish 'a probability sufficient to undermine confidence in [that] outcome.'" Porter
v. McCollum, 130 S. Ct. 447, 455–56 (2009) (quoting Strickland, 466 U.S. at
693–94). "In assessing prejudice, we reweigh the evidence in aggravation against the
totality of available mitigating evidence." Wiggins, 539 U.S. at 534.

In his post-conviction appeal, Williams submitted evidence that he was
sexually abused as a child, that he grew up in a violent household with constant
physical abuse, that he suffered from borderline mental retardation before dropping
out of school, and that he grew up and dealt with issues of mental illness, such as

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post-traumatic shock, depression, and drug addiction. Had the jury been presented
with mitigating evidence of Williams's abusive childhood and mental impairments
instead of the family-man/residual-doubt strategy that was actually offered at
sentencing, it would have been considering evidence of a completely different
character than that which it actually considered. This is not a case where the newly
discovered mitigation evidence was merely duplicative of evidence that was
presented, see Paul v. United States, 534 F.3d 832, 842 (8th Cir. 2008), or where the
post-conviction court disbelieved the evidence favorable to the defendant, see Roll
v. Bowersox, 177 F.3d 697, 700–01 (8th Cir. 1999). This is not a case where the new
evidence "would barely have altered the sentencing profile presented to the
sentencing judge." Strickland, 466 U.S. at 700. The court does not have to determine
whether the evidence would have more likely than not altered the outcome; it need
only establish a probability sufficient to undermine confidence in the outcome.
Porter, 130 S. Ct. at 455–56. I believe Williams has demonstrated sufficient evidence
to undermine that confidence.

The state now argues that the new mitigating evidence is of only negative
value. The state believes that the evidence of his abusive and violent childhood
would portray Williams as a bad man, an irredeemable monster. It is possible that a
jury might adopt the state's interpretation of the evidence; however, that interpretation
conflicts with longstanding Supreme Court views on the use of such evidence. See
Terry Williams, 529 U.S. at 398 (noting that a "graphic description of [defendant's]
childhood, filled with abuse and privation, or the reality that he was 'borderline
mentally retarded,' might well have influenced the jury's appraisal of his moral
culpability"); Penry v. Lynaugh, 492 U.S. 302, 319 (1989) ("[E]vidence about the
defendant's background and character is relevant because of the belief, long held by
this society, that defendants who commit criminal acts that are attributable to a
disadvantaged background . . . may be less culpable than defendants who have no
such excuse."), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304
(2002).

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 I agree with the district court that, "[i]n light of the overwhelming amount of
aggravating evidence that was proffered by the state, the jury would not think worse
of Williams based on evidence of his dysfunctional youth and mental issues." Order
at 32; see also Simmons v. Luebbers, 299 F.3d 929, 938–39 (8th Cir. 2002) ("By the
time the state was finished with its case, the jury's perception of [Defendant] could
not have been more unpleasant. Mitigating evidence was essential to provide some
sort of explanation for [Defendant's] abhorrent behavior."). Indeed, even if some of
the mitigating evidence might have proved harmful to Williams in the end, that does
not prevent us from finding there is a reasonable probability that the evidence would
have changed the outcome of his sentence. See Terry Williams, 529 U.S. at 396
(finding prejudice even though "not all of the additional evidence was favorable to"
the defendant); see also Porter, 130 S. Ct. at 455 (rejecting as unreasonable a state
court's determination that negative aspects of petitioner's military history would
undermine positive aspects of mitigating evidence).

The majority is correct that the state presented strong aggravating evidence
against Williams. I agree with the majority that the mitigating factors in Williams's
case may not be as strong as those in Porter, nor the aggravating factors as weak.
However, because the other cases compared by the majority applied a deferential "any
reasonable basis" standard that is not appropriate for this case, those cases are not
useful guides for determining whether the evidence in this case is sufficient to
undermine our confidence in the outcome. For instance, this case is wholly unlike
Woodford v. Visciotti, 537 U.S. 19 (2002), where the Supreme Court deferred to a
state-court decision that the petitioner suffered no prejudice from counsel's
inadequacy in the face of the aggravating factors the state court explicitly described
as "overwhelming" and "devastating." Id. at 26.11 Although the majority now weighs

11
Similarly, Link v. Luebbers, 469 F.3d 1197 (8th Cir. 2006), also cited by the
majority, dealt with a state court that explicitly weighed the new mitigating evidence
against the aggravating factors and concluded that there was no reasonable
probability that a jury would have come to a different result had the mitigating
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the mitigating evidence against the aggravating factors in Williams's case, it does this
in the first instance.

Nor is this case like Cullen v. Pinholster, where the state-court decision was
nothing more than a summary denial. Because the state court had not explained its
decision in that case, the petitioner could "satisfy the 'unreasonable application' prong
of § 2254(d)(1) only by showing that 'there was no reasonable basis' for the California
Supreme Court's decision." 131 S. Ct. at 1402 (quoting Harrington, 131 S. Ct. at 784).
Unlike in Cullen or Harrington, the state court in Williams's case did not issue a
summary denial or fail to explain its reasoning for finding no prejudice.

I believe the more relevant cases for our prejudice review are Wiggins,
Rompilla, and Simmons, which the majority dismisses as irrelevant because "the
prejudice analysis in those cases was not governed by the deferential review that
applies under AEDPA." Supra at 21 n.4. While it is true that those cases conducted
de novo review of Strickland prejudice, they are more useful guides to us in the face
of an objectively unreasonable state-court prejudice determination than are cases like
Woodford or Cullen, where a petitioner failed to meet the standard set forth in
§ 2254(d). Because we need not defer to the state court's unreasonable application
of Strickland, we still must decide in the first instance whether the ineffectiveness of
Williams's counsel undermines our confidence that, but for counsel's deficient
performance, the jury would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death. I believe Williams, like the
petitioners in Wiggins, Rompilla, and Simmons, has demonstrated sufficient evidence
to undermine that confidence.

evidence been introduced. Id. at 1204. Link is thus distinguishable for the same
reason as Woodford.
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 IV. Conclusion

In his post-conviction appeal, Williams submitted evidence that he was
sexually abused as a child, that he grew up in a violent household with constant
physical abuse, that he suffered from borderline mental retardation before dropping
out of school, that he grew up and dealt with issues of mental illness, such as post-
traumatic shock, depression, and drug addiction. His appeal alleged that his trial
counsel was ineffective for not investigating or presenting any of this possible
mitigating information at sentencing. His counsel has stated that he did not know this
information, that he would have used this information had he known it, and that he
had no strategic reason for not using it. Based on clearly established federal law,
counsel's performance was constitutionally ineffective.

The state-court determination that Williams was not prejudiced by counsel's
failure to present this information is also objectively unreasonable. The Supreme
Court of Missouri did not assess how a failure to investigate can undermine counsel's
"strategic decisions" during the penalty phase. To find that Williams was not
prejudiced because the new evidence would have "defied" or been "inconsistent with"
the otherwise adopted strategy is an unreasonable conclusion based on an
unreasonable premise.

The majority may offer a sensible explanation of why a hypothetical state court
could have been reasonable if it had found the mitigating evidence offered by
Williams might not have changed the outcome of his sentence. However, that
explanation was not offered by either state court in this case. A reasonable
hypothetical decision does not cure the objectively unreasonable explanation that the
Supreme Court of Missouri did put forward, even under AEDPA's strict standard.
Under a proper application of Strickland, I believe Williams has presented evidence
that establishes a probability sufficient to undermine confidence in the outcome of his

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sentence. I would therefore affirm the district court's decision to grant the habeas
petition.
______________________________

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