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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12160
Non-Argument Calendar
________________________
D.C. Docket No. 1:96-cv-00989-CC
LAWRENCE JOSEPH JEFFERSON,
Petitioner - Appellee,
versus
GDCP WARDEN,
Respondent - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 17, 2019)
Before ED CARNES, Chief Judge, and TJOFLAT and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
Lawrence Jefferson was convicted of felony murder in 1986 and sentenced
to death by a Georgia jury. Since then, his challenge to his death sentence has
included state collateral proceedings, one previous trip in this Court, an appeal to
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the Supreme Court, and two proceedings in federal district court. Following this
considerable procedural history, we find ourselves in an uncommon situation,
resolving a petition for habeas corpus filed before the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (1996) (the “AEDPA”), and applying pre-AEDPA law to an issue
expressly formulated for us by the Supreme Court. The crux of Jefferson’s claim
is one in which we are well-versed -- that he received ineffective assistance of
counsel during the sentencing phase of his trial because his lawyers failed to
adequately investigate his mental health, and, in particular, whether he suffered
from organic brain damage at the time of the killing. Jefferson argues that he was
prejudiced by counsel’s error because it is reasonably probable that at least one of
the jurors would not have sentenced him to death if the evidence of his severe
mental impairment had been presented. Georgia law requires a life sentence unless
the jury unanimously agrees that the defendant should die.
Before we may address this claim, however, we are obligated to resolve
whether the district court properly concluded under pre-AEDPA law that the state
habeas court deprived Jefferson of a full and fair hearing when it denied his
petition, thus stripping the state court’s factual determinations of a presumption of
correctness -- the question the Supreme Court has directed us to answer. After
thorough review, and extensive fact-finding by the district court, we conclude that
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the state habeas court’s fact-finding was not entitled to deference in the pre-
AEDPA regime. The state habeas court adopted verbatim the State’s proposed
order; it offered no guidance to the Assistant Attorney General drafting the
proposed order, including how to resolve important credibility conflicts;
apparently, it did not review the order, other than signing it, dating it, and changing
the concluding sentence, notwithstanding the glaring errors it contained; and it did
so ex parte without so much as affording Jefferson a chance to challenge any of it
or propose an alternative order.
Having determined that the state habeas court’s findings are not entitled to a
presumption of correctness, we come to the more common habeas inquiry --
whether, on the factual record compiled by the district court, Jefferson suffered
ineffective assistance of counsel at the sentencing phase of his trial. We think the
district court correctly determined that Jefferson’s trial lawyers’ conduct fell
beneath an objective standard of reasonableness when they ignored the
unambiguous written recommendation of their retained psychologist that a
neuropsychological evaluation be conducted in order to rule out an organic
etiology and explain Jefferson’s mental health and behavior at the time he
committed the homicide. They also ignored a series of red flags that suggested that
Jefferson’s aberrant behavior was the result of organic brain damage sustained at
the age of two when his head was run over by an automobile.
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Finally, in light of the substantial evidence Jefferson put forward showing
that he suffers from organic brain damage that significantly affected his conduct
and impulse control at the time of the killing, we conclude that the district court
did not err in finding that Jefferson has been prejudiced by his lawyers’ deficient
performance. Among other things, the jury heard nothing about the extent of the
head injury Jefferson sustained when he was struck in the head by an automobile
as a two-year-old child; nothing about his five-day hospitalization or the headaches
and blackout spells he thereafter suffered; and nothing about the resulting frontal
lobe and neurological damage he sustained so early in his life, which likely caused
diminished impulse control, irritability and short-temperedness, intermittent
outbursts of rage, impaired judgment, and an inability to foresee the consequences
of his actions. All of this is to say that the jury was presented with a profoundly
misleading picture of Jefferson’s sentencing profile and moral culpability because
the most important mitigating circumstances were withheld. Indeed, the most
powerful explanation for an otherwise inexplicable crime -- that Jefferson suffered
from organic brain damage that severely impaired his judgment and his ability to
control his behavior -- was never presented to the jury. Thus, we affirm the
judgment of the district court and grant Jefferson’s habeas petition. He is entitled
to a new sentencing proceeding.
I.
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A.
In March, 1986, Lawrence Jefferson was found guilty of felony murder that
occurred during the commission of an armed robbery. Jefferson v. Hall, 570 F.3d
1283, 1290 (11th Cir. 2009), cert. granted, judgment vacated sub nom. Jefferson v.
Upton, 560 U.S. 284 (2010), and vacated and remanded sub nom. Jefferson v.
Warden, Ga. Diagnostic & Classification Prison, No. 07-12502, 2010 WL 3431652
(11th Cir. July 21, 2010). The basic facts surrounding the murder and Jefferson’s
trial and state habeas proceedings, which have already been detailed many times,
are not contested, and we summarize them only briefly today.
According to testimony elicited at Jefferson’s trial, the body of the murder
victim, Edward Taulbee, was spotted lying in the woods near Lake Allatoona in
North Georgia on May 2, 1985 by passing motorists. Id. at 1287. An autopsy
revealed that Taulbee sustained two lacerations above his left eyebrow, one
laceration above his forehead, one laceration above his right ear, five lacerations
on the back of his scalp, several fractured teeth, an abrasion across his face, an
abrasion across his back, skull fractures, brain bruises, and brain hemorrhaging.
Id. The medical examiner concluded that these head injuries had caused Taulbee’s
death and that he had died sometime between 5 and 11 p.m. on May 1. Id.
The ensuing police investigation discovered that Taulbee worked at Zenith
Construction Company, as did Jefferson. Id. at 1287-88. In a police interview,
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Jefferson said he had seen Taulbee leave their construction worksite around 5:30
p.m. on May 1 to go fishing. Id. at 1288. Jefferson also claimed he left shortly
thereafter, went home, and spent the evening at his apartment. Id.
The police learned from other Zenith employees that Taulbee was known to
carry large sums of money that he lent to coworkers when they needed cash. Id.
When police subsequently interviewed Jefferson’s neighbors, they discovered that,
contrary to Jefferson’s report, Jefferson had gone with Taulbee in Taulbee’s car
after work on May 1 to fish at Lake Allatoona. Id. One neighbor added that
Jefferson had returned from this outing alone and on foot, and, the next day, he
gave her an ATM card to hide. Id. Another said that he went to Jefferson’s
apartment on the evening of May 1, and Jefferson was acting “funny” and his chest
looked red. Id. at 1289. Jefferson also mentioned that his “little fat buddy was
dead,” an obvious reference to Taulbee. Id. A third neighbor revealed that he had
driven Jefferson, upon request, to Lake Allatoona on the night of May 1, and that
once there Jefferson briefly went into the woods and returned with a fishing pole,
which he threw back into the woods. He also gave a tackle box to the neighbor for
safekeeping. Later that night, Jefferson tried to make a withdrawal at an ATM
machine. Id. at 1289-90.
Thereafter, police found Taulbee’s car in a parking lot near Jefferson’s
apartment, and learned that the ATM card and tackle box Jefferson had given to his
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neighbors had belonged to Taulbee and that someone had tried to use Taulbee’s
ATM card in the early morning hours of May 2. Id. at 1289-90. Jefferson was
arrested on May 7, 1985. When police asked him why he had killed Taulbee,
oddly he replied that he didn’t need to be around other people, that he wanted to be
executed, and that he wanted to be put to sleep. Id. at 1290.
Jefferson was indicted in August, 1985 in the Superior Court of Cobb
County, Georgia, and convicted by a jury in March, 1986. At the penalty phase of
Jefferson’s trial, the State introduced evidence of Jefferson’s past offenses,
including a series of armed robberies he had committed in Louisville, Kentucky.
Id. In mitigation, Jefferson offered the testimony of two Cobb County police
officers, who testified that Jefferson had not caused problems while he was
incarcerated. Id. Jefferson’s mother testified that Jefferson had had a hard
upbringing because he grew up without a father and had to help take care of his
siblings, and that he was responsible, generous, gentle, kind, and playful as a child.
Id. at 1291. She also mentioned that Jefferson’s head had been run over by a car
when he was two years old, but she did not elaborate on this incident and was not
questioned at all about what effect the injury had on his behavior. Id. Jefferson’s
sister corroborated that Jefferson was generous and responsible, and had helped
care for his siblings when he was younger. Id. Finally, the mother of Jefferson’s
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children testified that Jefferson was a good father, was responsible and helped care
for their children. Id.
Jefferson also testified. He discussed his difficult upbringing without a
father, how he helped his mother raise his siblings, and how he left high school to
make money for his family. Id. As for the evidence of prior crimes he was said to
have committed, he generally denied having been involved in any wrongdoing. Id.
Jefferson’s trial counsel, Marc Cella and Stephen Schuster, presented closing
arguments. Their arguments developed themes that Jefferson, while a deeply
flawed individual, also had some good in him and was capable of self-
improvement; that, because of his difficult upbringing in a poor black family,
Jefferson was not as responsible for his actions as most individuals; and that
Jefferson deserved mercy. In addition to these arguments, counsel also suggested,
albeit only briefly, that Jefferson had not actually killed Taulbee and that lingering
doubt about his guilt should sway the jury’s imposition of punishment.
Following deliberations, the jury unanimously recommended that Jefferson
die, and the state court sentenced him to death. The jury found two aggravating
factors: the offense of murder was committed while the defendant was engaged in
the commission of another capital felony (i.e., armed robbery), Ga. Code Ann. §
17-10-30(b)(2) (1986); and that the offense of murder “was outrageously or
wantonly vile, horrible, or inhuman” in that it involved an aggravated battery to the
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victim, id. § 17-10-30(b)(7). Jefferson appealed and the Georgia Supreme Court
affirmed his conviction and sentence. Jefferson v. State, 353 S.E.2d 468 (Ga.
1987).
B.
Jefferson sought collateral review in Georgia state court. His petition
included a claim that he had received ineffective assistance of trial counsel because
his lawyers had failed to reasonably investigate the serious head injury he had
sustained as a two-year-old child.
During an evidentiary hearing, the state court took evidence concerning the
investigative efforts by Jefferson’s trial counsel, Cella and Schuster, into his
background. The court heard that prior to trial, defense counsel had contacted
Petitioner’s family in Louisville, Kentucky, and traveled to Kentucky to interview
family members. Counsel also retained clinical psychologist Dr. Gary E. Dudley
to conduct a mental health examination of Jefferson. Dr. Dudley submitted a
report opining that Jefferson was in the midrange level of intelligence and that any
mental deficiencies were “quite mild and in no way impair[ed] his judgment or his
decision-making capacity.” Dr. Dudley recounted, however, that during one day of
testing, Jefferson refused to cooperate with Dudley, berating him for not making an
appointment with him, but several days later, Jefferson had apologized to Dudley
and explained, “I get that way sometimes, man.” Dr. Dudley’s report noted that
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“[o]ne possibility that could not be explored because of [Jefferson’s] incarceration
has to do with the sequelae to head injury experienced during childhood [and] [i]n
my opinion it would be worthwhile to conduct neuropsychological evaluation of
this individual to rule out an organic etiology.”
However, attorney Schuster testified that when he later conferred with Dr.
Dudley about his written report, Dr. Dudley had “basically” said that “[t]here is
nothing I could testify to that would help you, if you get to the sentencing phase.”
Schuster recalled that Dudley worked in Florida in prison psychology and labeled
Jefferson as “just a criminal.” As for Dudley’s recommendation of
neuropsychological testing, Schuster recounted that Dudley “basically said it may
be a waste of time because the rest of the report . . . said that he was non psychotic,
that he was intelligent, he had a fairly high I.Q., and . . . ‘[b]ecause he denies the
alleged crime.’” According to Schuster, “Dr. Dudley didn’t pursue it and we saw
no reason to further pursue it.”
Jefferson introduced mental health evidence at the state habeas proceeding
that had not been developed at his sentencing. He offered an affidavit from Dr.
James Merikangas, a neurologist who gave him a series of tests and concluded that
it was substantially likely “that any violent behavior [Jefferson] may have engaged
in was a result of the . . . brain damage” he had suffered as a child. Jefferson also
presented an affidavit from Dr. David Price, a clinical psychologist who performed
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neuropsychological testing on him. He opined that “Jefferson has brain damage,
his brain cannot operate in the way a non-damaged brain operates, and this brain
damage in and of itself causes abnormal behavior in [] Jefferson over which he has
no or substantially limited control.”
Jefferson also submitted an affidavit from Dr. Dudley contradicting
Schuster’s recollection of their interaction. In it, Dr. Dudley denied telling
Jefferson’s counsel that a neuropsychological evaluation would not be necessary or
that it would not be worthwhile. Dudley claimed that he understood that the
testing was not requested because funds were not available for it. Dr. Dudley
denied telling Schuster that Jefferson was “just a criminal,” or that he could not
help Jefferson’s case at the sentencing phase.
Jefferson also introduced affidavits from his mother and his brother. His
mother, Vera Jefferson, described the head injury he had sustained at age two,
when “a car hit him while he was playing in the alley [and] drug [sic] him across
the alley.” She said that Jefferson had “stayed in the hospital for a long time
before they let him go home. He ran heavy fevers that whole time, and the people
at the hospital told me he was very bad hurt.” After that, his mother “saw changes
in [Jefferson],” and “[h]e’d seek out quiet little places to hide a lot.” “As he got up
in age a little bit,” she noted that “he was slower than the others to pick up on
things,” and “around [the age of nine or ten], [Jefferson] started getting the
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headaches he’s been having ever since. I used to worry about him driving because
he got dizzy and his sight got blurry sometimes.” She said that before the trial,
Jefferson’s “attorneys didn’t ask me questions about what I’ve said above though,
and if they had I would have told them.”
Jefferson’s brother provided similar testimony, observing that Jefferson
“wasn’t a normal type kid[,] [h]e was a nervous type person[,] [h]e got emotional
real quick, and he cried real easy,” and that “[h]e used to sweat all the time[,]
[e]ven in the cold winter time.” His brother added that Jefferson “got headaches
bad,” was “always the sickest one in our family,” and “got dizzy a lot and he
couldn’t keep his balance good.” His brother offered that he had not been
“contacted by any of Lawrence’s attorneys before his trial.”
After holding evidentiary hearings, the state habeas court issued an opinion
that, as it turns out, was a verbatim adoption of an order proposed by the State of
Georgia. The opinion set forth factual findings, including that: (1) Jefferson’s trial
counsel, Cella and Schuster, had conducted an extensive pretrial investigation into
Jefferson’s background, knew that Jefferson had suffered a head injury at a young
age, and never saw any evidence that Jefferson had brain damage; (2) after
Jefferson’s lawyers retained Dr. Dudley to examine Jefferson, they did not seek
any further neuropsychological evaluation, because when Schuster spoke with
Dudley, “Dr. Dudley led Mr. Schuster to believe that further investigation would
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simply be a waste of time because Petitioner was not psychotic, was intelligent and
had a fairly high I.Q.” and “Dudley had described Petitioner to Mr. Schuster as
‘just a criminal’ and indicated he had no helpful testimony”; and (3) in light of
Dudley’s report and the follow up conversation, “counsel saw no need to have
further neuropsychological testing done, particularly given Petitioner’s ‘adamant’
assertion that he did not commit the crimes.”
Following its findings of fact, the state habeas court concluded that “counsel
made a strategic decision, based upon their investigation, not to present any type of
mental defense or pursue additional neuropsychological testing as counsel had
investigated this line of inquiry but found nothing helpful to the defense.” The
opinion added that the court had “specifically credit[ed] the testimony of Mr.
Schuster and Mr. Cella with regard to their efforts to investigate Petitioner’s
mental condition, both as to potential defenses to the crimes themselves as well as
mitigating evidence, and their decision not to call Dr. Dudley as a witness in
mitigation.” The opinion ultimately found no ineffective assistance of counsel:
“This Court has found counsel made a reasonable investigation into the mental
health area, obtained an independent report which was not favorable to the defense,
followed up on the suggestion of further neurological testing but then were led to
believe it would not be worthwhile, had no other evidence indicating further
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examination was warranted and simply concluded that this line of investigation
was no longer plausible.”
The Georgia Supreme Court, reviewing the trial court’s habeas order, also
rejected his claim of ineffective assistance of counsel. Jefferson v. Zant, 431
S.E.2d 110, 112-14 (Ga. 1993). Georgia’s high court noted that counsel had
“prepared extensively for a possible sentencing phase, including travelling to
Jefferson’s home in Kentucky to interview family members and obtaining a
psychological evaluation by a psychologist recommended to them . . . .” Id. at 113.
The court highlighted Dudley’s report, which had opined that Jefferson “was
impulsive, immature, had poor impulse control and would ‘pursue immediate
gratification without properly considering possible consequences,’” but “was not
psychotic or seriously mentally ill.” Id. The court then said:
The report did suggest that a neuropsychological evaluation might be
“worthwhile . . . to rule out an organic etiology.” However, in
subsequent telephone conversations with Jefferson’s attorneys, the
psychologist indicated that further examination would not likely be
beneficial because Jefferson did not have serious mental problems and
was of normal intelligence. Counsel explained that in light of this
advice, as well as their own observations of Jefferson and Jefferson’s
adamant assertion that he had not committed the crime, they
concluded that there was no reason to explore further any mental
issue, or to call the psychologist to testify in mitigation. . . .
Jefferson’s counsel investigated the possibility of mental mitigation
and concluded that there was nothing substantive to develop. The
record supports the finding that Jefferson’s counsel did not believe
and had no reason to believe, that Jefferson suffered mental
deficiencies that could have been exploited in mitigation.
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Id.
C.
Jefferson filed his Petition for Writ of Habeas Corpus in the United States
District Court for the Northern District of Georgia on April 23, 1996, and filed an
amended petition on August 27, 1998. The first time Jefferson’s case was before
the federal habeas court, the court granted in part and denied in part Petitioner’s
“corrected amended petition for a writ of habeas corpus.” The court granted
Petitioner relief as to “Petitioner’s claim that trial counsel was ineffective during
the penalty phase of trial,” while denying all of the other claims raised in the
petition. The district court determined that Jefferson’s trial counsel had performed
ineffectively when they failed to conduct a reasonable investigation of mitigating
evidence, including, in particular, mental health evidence.
On appeal, this Court reversed. Jefferson v. Hall, 570 F.3d 1283 (11th Cir.
2009), cert. granted, judgment vacated sub nom. Jefferson v. Upton, 560 U.S. 284
(2010), and vacated and remanded sub nom. Jefferson v. Warden, Ga. Diagnostic
& Classification Prison, No. 07-12502, 2010 WL 3431652 (11th Cir. July 21,
2010). We reasoned that Jefferson’s lawyers had conducted an adequate
investigation, and, in particular, were justified in declining to pursue further
neuropsychological testing or other inquiries into Jefferson’s mental health. In
reaching this conclusion, we relied in large measure on the state court’s
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unambiguous findings that Dr. Dudley had made oral statements to the effect that
further testing would likely be a waste of time and that there was nothing he could
offer that would help Jefferson at sentencing. See id. at 1309. In addition, we
noted that “Jefferson’s counsel had other substantial reasons for deciding not to
pursue neuropsychological testing” that were supported by the state court’s factual
findings, including that “neither Schuster nor Cella witnessed anything in their
frequent and extensive dealings with Jefferson to indicate that he was afflicted with
any mental disorder that might have been relevant to the murder”; that “Jefferson
had unwaveringly proclaimed his innocence”; and that “the State’s case against
him suffered from many weaknesses.” Id. at 1304-05. Throughout, our decision
relied on the factual findings made by the state habeas court, which we said were
entitled to a “a strong presumption of correctness.” Id. at 1306.
Because we’d held that Jefferson’s lawyers’ performance was objectively
reasonable, we did not consider whether Jefferson was prejudiced by his lawyers’
failure to conduct additional investigation into his mental health. Id. at 1309.
After agreeing with the state habeas courts’ rejection of Jefferson’s ineffective-
assistance-of counsel claim, we reversed the district court’s order granting in part
Jefferson’s petition and remanded for the district court to reinstate Jefferson’s
original sentence. Id. at 1311.
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Judge Carnes, however, dissented. Id. at 1311 (Ed Carnes, J., dissenting).
He reasoned that, even accepting the factual determinations made by the state
habeas court as correct, trial counsel’s failure to have further testing conducted was
unreasonable: “Knowing that his client had suffered a serious head injury as a
child and that a psychologist had issued a formal report recommending further
testing to determine if the injury had caused organic brain damage, no reasonable
attorney would have let the matter drop because of informal remarks made to him
during a telephone conversation.” Id. at 1313. Judge Carnes also explained that
Jefferson was prejudiced by his lawyers’ deficient performance, since “the jury
was deprived of the singularly most powerful explanation for the crime -- Jefferson
suffered from organic brain damage that impaired his judgment and his ability to
control his behavior.” Id.
Thereafter, the Supreme Court granted certiorari and vacated this Court’s
opinion and remanded the case. Jefferson v. Upton, 560 U.S. 284 (2010). The
Supreme Court did not address the merits of the ineffective-assistance-of-counsel
matter (that is, whether defense counsel’s conduct fell beneath an objective
standard of reasonableness, nor whether the defendant was prejudiced by counsel’s
claimed deficiency), but instead simply asked whether this Court and the district
court should have afforded deference to the state court’s findings of fact under the
prior version of 28 U.S.C. § 2254(d) that applies to Jefferson’s case. Under the
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pre-AEDPA statute, a state habeas court’s factual determinations are not entitled to
a presumption of correctness under certain circumstances, including if they are not
“fairly supported by the record”; if “the factfinding procedure employed by the
State court was not adequate to afford a full and fair hearing”; if “the applicant did
not receive a full, fair, and adequate hearing in the State court proceeding”; or if
“the applicant was otherwise denied due process of law in the State court
proceeding.” Id. at 291 (citing 28 U.S.C. § 2254(d)(2), (6), (7), (8) (1994)). The
Supreme Court questioned whether the state habeas court’s verbatim adoption of
the prosecution’s proposed order implicated the statute and stripped the state
court’s factual findings of deference.
In laying out its concerns, the Supreme Court noted that, while the verbatim
adoption by a court of findings of fact prepared by a prevailing party is often
permissible, the use of such a practice might be procedurally problematic “where
(1) a judge solicits the proposed findings ex parte, (2) does not provide the
opposing party an opportunity to criticize the findings or to submit his own, or (3)
adopts findings that contain internal evidence suggesting that the judge may not
have read them.” Id. at 294. The Supreme Court declined to decide “in the first
instance” whether, in light of these problems, “any of the exceptions enumerated
in §§ 2254(d)(1)-(8) apply in this case, especially given that the facts surrounding
the state habeas court’s process are undeveloped.” Id. (citation omitted). Instead
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the Supreme Court remanded the case to the lower courts in order to assess “the
precise nature of what transpired during the state-court proceedings” in order to
determine “whether the state court’s factual findings warrant a presumption of
correctness, and to conduct any further proceedings as may be appropriate in light
of their resolution of that issue.” Id. We, in turn, remanded the case to the district
court to perform the necessary fact-finding.
D.
On remand, the district court gathered evidence to address: (1) whether the
state habeas court afforded Jefferson a full, fair, and adequate hearing consistent
with due process, 28 U.S.C. § 2254(d) (1994); and (2) whether, based on the new
evidence submitted at the federal hearing, Jefferson received ineffective assistance
of counsel in violation of the Sixth Amendment at the sentencing phase of his trial.
Jefferson v. Sellers, 250 F. Supp. 3d 1340 (N.D. Ga. 2017).
1.
Several people were deposed concerning the adequacy of the state court
procedures: (1) Paula Smith, Assistant Attorney General and lead counsel for
Respondent during the state habeas proceedings; (2) J. Christopher Desmond, who
had been an attorney with Schreeder, Wheeler, and Flint and served as Jefferson’s
pro bono counsel during the state habeas proceedings; (3) Elizabeth Vila Rogan, an
attorney with the Georgia Resource Center who provided support to Desmond; and
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(4) Wendell Boyd English, a law clerk in the Waycross Judicial Circuit who
assisted the state habeas corpus judge, Joseph B. Newton, who passed away in
2000.
These essential facts were adduced before the district court on round two.
Jefferson’s case was heard in the Superior Court of Butts County by Judge
Newton, who had never handled a habeas corpus action involving a capital case
previously. While the case was before him, Judge Newton held a two-day
evidentiary hearing during which the parties presented exhibits, affidavits, and live
testimony concerning, among other things, Jefferson’s claim of ineffective
assistance of counsel at the penalty phase of trial. At the conclusion of the hearing,
the state habeas court set out a briefing schedule for post-hearing briefs, giving the
Petitioner 90 days from the completion of the evidentiary hearing transcript to file
his brief; and giving the State 30 days thereafter to respond. Nothing was
mentioned about a reply brief; the judge simply said he’d “like to have everything
in by the end of September.” Petitioner filed his post-hearing brief on October 23,
1991, and Respondent filed a post-hearing brief on December 24, 1991. Jefferson,
250 F. Supp. 3d at 1345.
Sometime before August 20, 1992, Wendell Boyd English, in his capacity as
a law clerk assisting Judge Newton, and at the judge’s direction, called Assistant
Attorney General Smith, and asked the State to prepare a proposed final order
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denying Petitioner state habeas relief. English worked for all three judges in the
Waycross Judicial Circuit; as a law clerk for the circuit, he primarily worked for
Judge Elie Holton, but assisted Judge Newton with two habeas cases, one of which
was Jefferson’s. Smith did not recall if English gave her further instructions about
what to include in the order, and English testified that Judge Newton did not give
him any instructions about how Smith was to draft the order. Smith did not
consider the request unusual; she recalled that it was “standard procedure” at that
time for judges to ask the prevailing party to draft an order in state habeas cases.
But, Rogan, who had served on Jefferson’s habeas team, testified she had never,
before or after, had any experience with a judge simply requesting a proposed
order from the respondent without also requesting a proposed order from the
petitioner.
On August 20, 1992, Smith mailed English the proposed final order she’d
prepared with a cover letter. Jefferson, 250 F. Supp. 3d at 1347. Smith also sent
copies of the letter and order to Jefferson’s counsel, Desmond.1 When asked
whether she’d had the capacity to e-mail the order to Judge Newton or send him a
disk, Smith responded that she sent him a hard copy. There is no evidence that
1
We commend Assistant Attorney General Smith for bringing into the open the ex parte nature
of the communication by sending copies of the letter and order to Jefferson’s counsel, thereby
affording opposing counsel the opportunity to object and to challenge the order on that basis.
Without having done so, the matter might never have been disclosed to counsel or the Court.
Assistant Attorney General Smith acted in the best tradition of the Bar.
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Smith had any conversations or other communications with Judge Newton or
anyone else on his behalf about the contents of the proposed final order.
While English did research and read the transcript of the hearing and any
other documents forwarded to Judge Newton, he did not remember seeing any
post-hearing briefs, or having any lengthy discussion with Judge Newton about the
case. Nor did English recall ever receiving or reviewing the proposed order or
doing any research on it. When he testified that he did not remember seeing the
proposed order (despite a letter in the file indicating that it had been sent to him),
English said he thought it would have been sent directly to Judge Newton, and
admitted, “I’m flabbergasted by this. . . I would not have done that today.” He did
not explain what he would “not have done.” He added that he did not recall Judge
Newton ever asking him to review the order or to do any drafting with respect to
the order. He had nothing more to do with matter once Assistant Attorney General
Smith submitted it.
Petitioner’s state habeas counsel, Desmond, first learned of Judge Newton’s
request that Respondent’s counsel prepare a proposed final order on August 24,
1992, when he received Smith’s letter with the enclosed proposed final order for
Judge Newton’s signature. Neither Desmond nor Rogan previously had been
aware of any type of ex parte communication between the state habeas court and
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Assistant Attorney General Smith after the evidentiary hearing was held on April
22 and 23, 1991.
Desmond responded by filing a “Motion to Recuse Hearing Judge and a
Motion to Reveal Ex Parte Communications” on August 28, 1992. Counsel
objected that Judge Newton had asked only one side to submit proposed findings
of fact and conclusions of law. Desmond added that if he had been allowed to do
so, Jefferson would have offered competing findings of fact and conclusions of
law. Desmond explained that he “wanted to memorialize in the record the evident
bias and lack of care and interest in this judge doing his job. And I specifically
used the phrase, you know, ‘as is apparent from the course of events to date,
however, submission of such a proposed order from me would be an exercise in
futility as it’s evident that the Court has already made up its mind of the outcome
of this case.’”
Judge Newton summarily denied the recusal motion on September 28, 1992,
without ever inviting Petitioner’s counsel to file a competing proposed order or
competing proposed findings of fact and conclusions of law. Two days after
denying the recusal motion, Judge Newton executed an order that, except for the
concluding sentence, the date, and his signature on the final page, was identical to
the proposed order drafted by the State. During the subsequent appeal of that order
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to the Georgia Supreme Court, the parties stipulated “that the state habeas corpus
judge adopted the proposed order as his own.”
Judge Newton’s order did not correct many misspellings, grammatical
errors, or any miscitations to cases. Jefferson has since identified twenty-one
errors in the order, including a misspelling on the very first page:
1. Page 1, line 12: aggravated “battery” misspelled as aggravated
“batty”;
2. Page 5, line 9: “constitutionally” misspelled as “constitutonally”;
3. Page 9, lines 13-17: the text indicates that the indictment was
returned on August 8, 1985 and that Schuster was appointed “one day
after the indictment was returned,” which would be August 9, 1985,
but the order incorrectly lists the date as May 9, 1985;
4. Page 11, line 19: “state’s” should be “state”;
5. Page 19, line 5: “was” should be “as”;
6. Page 19, line 4: “was” should be “were” to correspond to the plural
noun “defenses”;
7. Page 20, line 2: “Petitioner” should be “Petitioner’s”;
8. Page 21, lines 6-7: “the any” should be either “the” or “any,” but
not both;
9. Page 21, lines 8-9: incorrect usage of “state’s”;
10. Page 21, line 19: “reserved” misspelled as “reservd”;
11. Page 22, lines 15-16: the case Cook v. State, 255 Ga. 565 has an
incorrect Southeastern citation, listed as 340 S.E.2d 891, when the
actual citation should be 340 S.E.2d 843;
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12. Page 22, line 21: the correct pincite to Strickland v. Washington,
466 U.S. 668, is pages 688-689 and not 668, the first page of the
decision;
13. Page 23, line 3: the word “prospective” in the Strickland quote
should be “perspective”;
14. Page 23, line 13: “statements” is misspelled as “statemets”;
15. Page 26, line 2: “institute” should be “constitute”;
16. Page 29, lines 23-25: presumably the court would have found “no
attorney error” not simply “no attorney”;
17. Page 30, line 23: “counsel’s” misspelled as “counse’s”;
18. Page 34, line 16: “crimes” misspelled as “crimed”;
19. Page 35, line 12: “remarks” misspelled as “remakrs”
20. Page 36, lines 4-5: the case Conner v. State, 251 Ga. 113, is
identified as having been decided in the year “198” but was decided in
the year “1983”; and
21. Page 37, lines 25-26: the case Daugherty v. Dugger, 839 F.2d
1426 is incorrectly cited as Daugherty v. Dugger, 839 F.2d 1246.
In addition, both the proposed order and the final order referred to the affidavit of
an attorney, Michael Hauptman, who was never contacted in connection with this
case, and no affidavit from him was ever submitted to the court. 2
2.
2
According to the state court’s order, Hauptman’s affidavit said that trial counsel’s strategy was
unreasonable, but the order rejected this suggestion since “Hauptman could not possibly know all
the non-record information which was discovered by [Schuster] and [Cella] and relied upon by
them in making their decisions in this case.”
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The federal district court also gathered its own facts about the mental health
investigation that had taken place before and after Jefferson’s trial. It held two
evidentiary hearings at which Jefferson’s trial counsel, Cella and Schuster,
testified, as did four mental health experts: Dr. Gary Dudley, Dr. James
Merikangas, Dr. David Price, and Dr. Steven Macciocchi. Jefferson, 250 F. Supp.
3d at 1354-55. Merikangas and Price were retained by Jefferson’s state habeas
counsel, and Dudley was originally retained by Jefferson’s trial counsel. The State
presented Dr. Macciocchi to rebut Jefferson’s expert witnesses. The district
court’s hearings focused primarily on the dispute concerning whether Petitioner’s
attorneys were told orally by Dr. Dudley that an investigation of Jefferson’s
traumatic head injury was unnecessary and would be a waste of time, and the
conflicting expert evidence presented by both sides concerning the state of
Jefferson’s mental health. Id. at 1355.3
Cella was the first witness. Defense counsel testified that he had been aware
of Jefferson’s head injury as he was preparing for trial because Jefferson’s mother
had told him about it. However, Cella did not follow up with her about the injury.
3
Beyond resolving these disputed facts, the district court relied on the undisputed factual
determinations made by the state habeas court in analyzing Jefferson’s ineffective assistance of
counsel claim. Id. at 1355 n.7 (“While the Court’s focus in this Order is on the mental health
investigation, the Court remains aware of the entirety of trial counsel’s efforts in investigating
mitigating evidence in preparation for the penalty phase of Petitioner’s trial. In evaluating the
performance of trial counsel, the Court considers the entire scope of the background
investigation, which is fully set forth in this Court’s prior Order and in the Eleventh Circuit’s
Opinion and altered only slightly by the facts this Court has found upon remand.”).
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Cella recalled that Jefferson was evaluated by Dr. Dudley before trial, but at the
time, Cella’s impression was that Dudley’s evaluation did not turn up any
information that would have been especially useful for Jefferson at trial. Cella did
not remember following up on Dudley’s written recommendation that Jefferson
should be tested for an organic etiology, nor did he remember speaking with
Dudley about whether any further evaluation was needed, nor, finally, was he
aware of Schuster ever having spoken with Dudley about Dudley’s evaluation.
Cella said his failure to follow up on Dudley’s report was due to “inexperience,”
and he explained that “I should have followed up on that. And had I had more -- if
this had not been my first death penalty case, I expect I would have.”
The district court also took testimony from defense counsel Stephen
Schuster. Schuster had practiced law for about ten years before representing
Jefferson, and had helped prosecute a few death penalty cases, but Jefferson’s was
his first capital case as lead defense counsel. He testified that he had seen no
indication of mental health problems in his interactions with Jefferson. And when
Schuster and Cella spoke to Jefferson’s family about his upbringing, they decided
it had been “relatively normal.”
Schuster retained Dr. Dudley to conduct a psychological evaluation of
Jefferson, and his impression, after orally discussing the report with Dudley, was
that no further evaluations would be worth conducting. Schuster claimed that
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Dudley told him that Jefferson was “a sociopath or psychopath and not to worry
about it,” and that “Mr. Jefferson was the way Mr. Jefferson was.” Schuster
maintained that “we would have asked to do [further testing] if we had been told
by Dr. Dudley, you need to do this, seriously need to do this, as opposed to a
throw-out in the report.” Schuster also noted that residual-doubt was part of his
strategy at sentencing. On cross-examination, Schuster acknowledged that he
learned before trial that his client had been hit in the head by a car as a young
child.
The Petitioner also called Dr. Merikangas to offer expert mental health
testimony. Merikangas studied medicine at John Hopkins University, and did
specialty training in neurology and psychiatry at the Yale University School of
Medicine. He also served as a chief resident in neurology at Yale. He was board
certified in Psychiatry in 1974 and board certified in Neurology in 1978. He has
some 25 years of experience specializing in neurology and psychiatry, and served
on the Yale faculty and on the American Board of Psychiatry and Neurology.
Many of Merikangas’s academic publications have focused on brain injury and
brain disease, he was named a Distinguished Life Fellow of the American
Psychiatric Association, as well as a Fellow and Founding Director of the
American Neuropsychiatric Association, and he served as an examiner for the
American Board of Psychiatry and Neurology.
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Merikangas conducted a comprehensive neurological examination of
Jefferson in May, 1989. As part of the exam, he measured Jefferson’s head, which
was above average in circumference, suggesting that Jefferson “may have had
some brain swelling.” The tests, which were not “specifically designed to
demonstrate, evaluate, and quantify brain damage,” also indicated that Jefferson
had high blood pressure, asymmetrical deep tendon reflexes, and decreased
sensitivity to pinpricks.
Dr. Merikangas reviewed Jefferson’s medical records and education records
too, as well as affidavits from Jefferson’s family and the medical reports of Drs.
Price and Dudley. According to Merikangas, Dudley’s findings, like the
discrepancy between Jefferson’s verbal and performance intelligence (“IQ”) test
scores suggested “that [there] may be some brain damage.” Merikangas agreed
with Dudley’s recommendation that further neuropsychological testing was
needed. Dr. Merikangas added that Dr. Price found right hemisphere and frontal
lobe brain damage. Merikangas emphasized that all of the information and testing
he relied on would have been available in 1985 and 1986 when Jefferson was
indicted and tried.
Based on all the relevant materials, Dr. Merikangas opined that he had “no
doubt” that Jefferson suffers from brain damage, “probably localized in the right
hemisphere in the frontal lobes of the brain.” Merikangas testified that the likely
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cause of the brain injury was the car accident. According to Merikangas, a brain
injury like Jefferson’s can make someone short-tempered and irritable; prone to
headaches; unable to exercise sound judgment or control his impulses; and unable
to foresee the consequences of his actions. Merikangas observed that people with
brain injuries have the “potential for transient outbursts of rage that are totally
inconsistent with” their ordinary behavior, and that symptoms can worsen with
time.
Merikangas opined in his affidavit in the state habeas court that the
neurological damage “has had a profound and lifelong impact on Mr. Jefferson’s
behavior.” Dr. Merikangas said that “[t]he damage produce[d] features including
attention deficit disorder, learning disabilities, affective instability, markedly
diminished impulse control, transient outbursts of rage which are totally
inconsistent with his normal behavioral pattern, impaired social judgment,
significant cognitive impairment, apathy, indifference, suspicion, and paranoid
ideation. Mr. Jefferson’s brain damage is clearly of the acquired, post-traumatic
type. Persons with such severe cognitive disabilities have reduced moral
culpability for acts generally, are more likely to fall victim to substance abuse, and,
when intoxicated, are certain to be much more symptomatic.”
In federal district court, Merikangas reiterated that Jefferson’s injury made
him less able to control his behavior than healthy individuals, and thus, less
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morally culpable for his criminal misconduct. Jefferson also had “a diminished
capacity to conform his conduct to the requirements of the law.” As Merikangas
explained, if “[Jefferson] hit someone over the head with a log, it might have been
a momentary fit of rage, which was not as controllable by someone who is
impaired as it would be in a normal person, who would have simply spoken to that
man and had worked it out in other ways.” Merikangas offered that the absence of
psychopathic or sociopathic tendencies in Jefferson made it all the more likely that
any occasional, violent behavior was the result of a closed head injury and brain
damage.
On cross-examination, Merikangas admitted that his forensic involvement in
death penalty cases was almost exclusively on the defense side, that he has only
testified as an expert for the prosecution on at most two occasions, that he has
personal objections to the death penalty, and that he has given many speeches
about how to defend against a death sentence. The government also elicited that
Merikangas’s evaluation was based on relatively limited information, and that he
had not reevaluated Jefferson since the initial evaluation in 1989.
The petitioner also offered the testimony of Dr. Gary Dudley. He received a
Ph.D. in clinical psychology from the University of Miami and practiced as a
psychologist for forty years. Dudley was contacted in 1985 by Jefferson’s lawyers
and retained to perform a psychological evaluation. The examination consisted of
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a general intelligence test and a couple of personality tests, and revealed that
Jefferson scored 94 on the verbal IQ test and 108 on the performance portion of the
test. Dudley agreed with Merikangas that the discrepancy between these scores
was significant, and opined that it “was instrumental in [his] recommendation to
pursue neuropsychological assessment” because a discrepancy like this suggests
brain impairment. Dudley noted that Jefferson had a learning disability, which
could be caused by a brain injury, and that Jefferson was likely to be impulsive and
not prone to giving forethought to his actions, both of which are symptoms of
frontal lobe damage. Dudley said that during one of his visits with Jefferson the
defendant became noticeably agitated and confused for no apparent reason. He
had provided the results of his tests to Jefferson’s lawyers in a written report.
Dudley testified that he had little recollection of the conversations he had
with Cella and Schuster at the time of Jefferson’s trial. However, he confirmed
that he had “suggested that neuropsychological evaluation would be appropriate”
to determine if Jefferson suffered from brain damage of some kind. He flatly
denied ever telling anyone on Jefferson’s defense team that neuropsychological
testing would be a “waste of time”; he never “back[ed] off” of his written
recommendation that further testing should be conducted; he never “retreat[ed]”
from that recommendation; or ever reported that the testing was not necessary.
Nor did he recall ever telling Jefferson’s lawyers that he would not be of any help
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to them at sentencing. Rather, Dudley explained that he “assumed that additional
testing would be done and then that testimony would be relevant rather than mine.”
He also denied ever telling Jefferson’s lawyers that Jefferson was “just a criminal.”
Finally, Dudley testified that the testing later conducted by Dr. David Price is just
what he had in mind when he recommended further neuropsychological testing.
On cross-examination, Dudley acknowledged that he had no recollection of
any specific conversation he may have had with Jefferson’s lawyers about the
contents of his report. But on redirect he insisted that he would not have included
any recommendation in his written report that he didn’t stand by and that he
wouldn’t have told Jefferson’s lawyers that further testing would be a waste of
time.
The petitioner also offered the expert testimony of Dr. David Price. Price
received a Ph.D. in clinical psychology from Auburn University and received
specialized training in treating brain injuries. With extensive experience as an
expert witness, he has testified for both sides in criminal cases. Price conducted
neuropsychological testing on Jefferson in 1991, including administering the
Wechsler Adult Intelligence Scale, the Wide Range Achievement Test, the
Denman Neuropsychology Memory Scale, the Halstead-Reitan Category Test, and
the Luria-Nebraska Neuropsychological Battery, all of which were considered state
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of the art neuropsychological tests at the time Jefferson took them. 4 A few of these
tests indicated that Jefferson suffered from organic dysfunction. Notably,
Jefferson scored at a fourth-grade level in spelling and a sixth-grade level in math
on the intelligence tests, suggesting that he had not benefited from his 11th grade
education as much as would have been expected. Another test indicated that
Jefferson has some memory impairment.
In addition to the testing, Price reviewed affidavits from Jefferson’s family,
school and hospital records, and the submissions from Dudley and Merikangas.
Price noted that Jefferson’s family members reported that Jefferson would cry as a
child because of severe, chronic headaches and had blackout spells where he would
actually become unconscious, and which may have been petit mal seizures.
Jefferson’s school records showed that he had a low IQ. Price was troubled by the
hospital records of Jefferson’s hospitalization following his automobile accident,
finding that a five-day hospital stay was a long time and was further indication that
Jefferson had sustained a severe traumatic head injury.
4
Dr. Price’s testing regime differed from the testing that Dr. Merikangas conducted. The district
court explained that “[a]s a neuropsychologist, Dr. Price quantified Petitioner’s brain functions to
give a catalog of performance, whereas Dr. Merikangas, as a neurologist, was equipped to use
hands-on, physical testing to ascertain causes.” Jefferson, 250 F. Supp. 3d at 1360. Merikangas
articulated the difference this way: “The psychological testing [done by Price], a lot of it is
interview or talking to the person and pencil and paper kinds of tests . . . most of it . . . is thought
testing rather than the hands-on physical testing, which [a] neurologist does. [A] neurologist,
being a medical doctor, is equipped to look for lots of medical and traumatic conditions, whereas
the neuropsychologists are simply quantifying what’s there without necessarily in regard to what
the causes are or to treatment.”
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Like Dr. Merikangas, Price found the IQ discrepancy in Dudley’s testing to
be highly significant. According to Price, when one hemisphere of the brain is
operating more efficiently than the other, there may be an organic problem or brain
dysfunction.
Upon completing his tests and reviewing the relevant materials, Price opined
that Jefferson had suffered a brain injury and had chronic organic dysfunction.
Jefferson suffered from frontal lobe damage that likely was caused by the
automobile accident when Jefferson was a two-year-old child. Price had opined in
his affidavit in state habeas court that Jefferson’s “brain damage has significant
and far reaching implications for [him] because such damage compromises [a]
patient’s ability to act in a normal and acceptable manner, often without warning or
explanation.” Indeed, said Price, the sequelae from Jefferson’s head jury would
have “profoundly alter[ed] Mr. Jefferson’s ability to plan and coordinate his
actions, to be aware of the consequences of his behavior, and to engage in
premeditated or intentional acts.” In district court, Price again explained that an
organic brain injury like Jefferson’s could cause someone to have problems with
self-control inhibition, irritability, judgment, planning and understanding
consequences. In the case of Jefferson’s brain injury, Price believed that Jefferson
suffered from a substantial loss of self-control, which typically results in agitated
behavior.
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By way of example, Price explained that Jefferson had refused to cooperate
with Dudley on one occasion, which is an indication of what happens to the
Petitioner in novel and stressful situations and is fully consonant with a substantial
loss of self-control.
Price also explained that a brain injury suffered by a two-year-old is
demonstrably more significant than one in an adult because a two-year-old’s brain
is continuing to develop. A two-year-old’s brain injury has substantially more
potential to alter cognitive development and cause impairment in neurometabolic
function, communication, and development of the frontal lobes.
Finally, Dr. Steven Macciocchi, the State’s rebuttal expert witness, testified.
Macciocchi has a Ph.D. in clinical psychology from the University of Louisville
and completed a one-year internship and a one-year fellowship specializing in
clinical neuropsychology at the University of Virginia School of Medicine. He has
worked as an assistant professor in neurology at the University of Virginia, and as
an adjunct associate professor at the University of Georgia and the Emory
University School of Medicine. Most of Macciocchi’s research has been in the
area of brain injury, while his clinical work has involved a more diverse subject
matter.
Macciocchi performed a neuropsychological evaluation of Jefferson, which
consisted of various tests designed to examine intellectual functioning, problem
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solving, executive skills, tension concentration, language, and memory. He also
reviewed Jefferson’s medical and school records, affidavits from Jefferson’s
family, and Merikangas’s, Price’s, and Dudley’s expert reports, and conducted an
interview with Jefferson. Macciocchi’s testing determined that Jefferson has an
average level of IQ of 93, but also found a significant discrepancy in Jefferson’s
verbal and performance IQ scores. However, unlike Drs. Dudley, Price, and
Merikangas, Macciocchi said that this discrepancy was not indicative of brain
injury, though he acknowledged that in the late 1980s, experts would have
interpreted that result as a sign of brain dysfunction. The testing also revealed,
according to Macciocchi, that Jefferson was between low-average and average in
terms of executive functioning. Many of Macciocchi’s other tests revealed average
or low-average performance.
After interviewing Jefferson, Macciocchi concluded that Jefferson did not
exhibit any behavior to support a diagnosis of frontal lobe disorder. Macciocchi
agreed that Jefferson likely has a learning disability, but did not agree that he
consequently suffers from brain damage. Macciocchi testified that Jefferson’s
injury at age two did not lead to the kind of symptoms associated with moderate-
to-severe brain injuries that result in lifelong behavioral issues. Although
Macciocchi could not rule out the possibility of brain injury, he opined that it was
unlikely that Jefferson suffered this kind of injury.
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Drs. Merikangas and Price heavily critiqued Dr. Macciocchi’s report. For
one thing, Dr. Merikangas said that Macciocchi was not qualified to conduct
neurological testing because he was neither a neurologist nor a medical doctor.
Merikangas disputed Macciocchi’s opinion that Jefferson’s ability to conform his
conduct to the requirements of structured environments suggested that he did not
suffer from brain damage; according to Dr. Merikangas, people with brain damage
usually do well in structured environments, and only have problems when dealing
with more chaotic, unstructured situations. Merikangas discounted Macciocchi’s
and Cella’s testimony that their interactions with Jefferson were normal as being
largely irrelevant because people with brain injuries may be perfectly capable of
controlling their behavior under most circumstances.
Nor was Merikangas impressed with the observation that the car accident
had not fractured Jefferson’s skull, since, he opined, many individuals suffer brain
injuries from a forceful impact on the skull, even when the skull does not fracture.
As for Macciocchi’s suggestion that the relatively short hospital stay after the car
accident meant the injury was not severe, Merikangas countered that five days is a
long hospital stay for a child and indicated that serious complications were
involved. Merikangas maintained that Macciocchi’s report did not make him
question any of his conclusions.
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Dr. Price likewise found nothing in Macciocchi’s report that caused him to
question his diagnosis or opinions. Price pointed out that in scoring Jefferson on
various psychological and intelligence tests, Macciocchi had used
“demographically corrected” norms, which are norms that take into account factors
like race, age, education, and gender in assessing a person’s test score. This is in
contrast to the methodology employed by Dr. Price, who used “absolute” norms
provided by the test manufacturers, which are standardized norms that don’t take
into account demographic characteristics in scoring. Notably, the norms used by
Macciocchi would not have been available at the time of Jefferson’s trial because
they were not published until after 1991. These norms modify a person’s score in
order to incorporate things like education level, race, age, and gender in light of
how adults who have developed normally and who possess particular demographic
traits score.
Dr. Price explained that because “demographically corrected normative
standards are based upon performances of adults who have developed normally . . .
and have . . . no known history of brain injury or disease[,] [i]t follows logically
that such norms should be used with great caution, if at all, to identify acquired
brain dysfunction in patients who have developmental disorders.” Price’s
comment about the limited efficacy of using norms as a diagnostic tool came from
the doctors who had designed the test in the first place. Thus, according to Price,
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Macciocchi’s use of the demographically corrected norms on Jefferson, someone
who suffered a known head injury in early childhood, reflected an improper
method of assessing whether Jefferson suffers from organic brain dysfunction.
3.
Following the evidentiary hearings, the district court issued an opinion
determining, first, that the state habeas court had not afforded Jefferson a full, fair,
and adequate hearing consistent with due process, and, thus, that the state habeas
court’s findings were not entitled to a presumption of correctness. Jefferson v.
Sellers, 250 F. Supp. 3d 1340, 1354 (N.D. Ga. 2017). After developing the record
and carrying out the fact-finding set forth in the Supreme Court’s remand order,
the district court applied the prior version of 28 U.S.C. § 2254(d)(2), (6) and (7) --
the statutory provisions the Supreme Court deemed particularly relevant to
Jefferson’s case. The district court concluded that the fact-finding procedure
employed by the state habeas corpus court was fundamentally unfair, and,
therefore, declined to apply the presumption of correctness to its findings of fact.
Once the district court determined that the state court’s findings of fact did
not warrant any deference, it turned to the task of resolving the factual disputes
involved in Jefferson’s ineffective-assistance-of-counsel claim. First, the court
found that Dr. Dudley’s statement that he never backed away from his written
recommendation that additional neuropsychological testing would be worthwhile
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was more credible than Schuster’s claim that Dudley orally had dismissed further
testing because it would be a waste of time. In making this finding, the district
court cited to the demeanors of Schuster and Dudley during the evidentiary
hearings, the absence in Schuster’s billing records of any notation that he spoke to
Dudley by phone, Cella’s testimony contradicting Schuster’s about whether they
talked to Dudley, and inconsistencies between Schuster’s testimony at the state
habeas court evidentiary hearings and his testimony at the district court’s
evidentiary hearings.
Second, the district court found Jefferson’s experts to be more credible and
convincing than the State’s rebuttal expert. The court expressed considerable
skepticism about Dr. Macciocchi’s testimony because, among other things, he had
no medical expertise in neurology and because he used improper norms in scoring
Jefferson’s test results. The district court also emphasized that “Macciocchi’s
report did not in any way cause Dr. Merikangas or Dr. Price to doubt the
conclusions they reached.” As a result, the district court concluded that Jefferson
had presented “a compelling case that he suffers (and suffered) from organic brain
damage.”
Based on these findings, the district court determined that Schuster and Cella
had provided deficient performance, placing great emphasis on the fact that
counsel had ignored an “unqualified recommendation” from their retained
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psychologist that further neuropsychological testing should be done. The district
court also concluded that counsel’s actions had prejudiced Jefferson, emphasizing
the compelling evidence of organic brain damage that likely would have changed
how the sentencing jury saw Jefferson’s moral culpability, would have weakened
the aggravating factors the jury relied on, and would have been largely consistent
with the defense strategy actually pursued at the sentencing phase.5 The court
vacated Jefferson’s death sentence and ordered a new sentencing proceeding.
The Warden has timely appealed from the district court’s order, arguing that
the court erred in both determining that no presumption of correctness was
warranted, and in finding Jefferson’s trial counsel constitutionally ineffective.
III.
Because Jefferson filed his habeas corpus petition on April 23, 1996, one
day before AEDPA’s effective date, we review his claims under the standards
5
The district court summarized its conclusion this way:
The bottom line is that Petitioner had his head run over by a car when he was only
two years of age, and he suffered a traumatic injury to his head as a result. While
the opinions of Petitioner’s experts regarding the impact of this traumatic injury
had on Petitioner are not due to be accepted without critique or careful
consideration, especially in light of the challenges Respondent has raised, a jury
should have had an opportunity to hear and consider those opinions. Due to trial
counsel’s deficient performance, Petitioner’s sentencing jury had no such
opportunity. Based on this Court’s careful review of the mental health evidence
presented by both Petitioner and Respondent, Petitioner has satisfied the Court
that there is a reasonable probability that at least one juror would have found the
mental health evidence presented compelling enough to vote against death . . . .
Jefferson, 250 F. Supp. 2d at 1383-84 (footnote omitted).
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found in the pre-AEDPA statute. Bradshaw v. Stumpf, 545 U.S. 175, 182 (2005);
Lindh v. Murphy, 521 U.S. 320, 323 (1997). Questions of law and mixed
questions of law and fact resolved by state habeas courts are reviewed de novo,
while factual findings made by the state habeas courts are presumed to be correct
unless one of eight exceptions enumerated in § 2254(d) applies. 6 Freund v.
6
The pre-AEDPA version of Section 2254(d) read this way:
(d) In any proceeding instituted in a Federal court by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court, a determination
after a hearing on the merits of a factual issue, made by a State court of competent
jurisdiction in a proceeding to which the applicant for the writ and the State or an
officer or agent thereof were parties, evidenced by a written finding, written opinion, or
other reliable and adequate written indicia, shall be presumed to be correct, unless the
applicant shall establish or it shall otherwise appear, or the respondent shall admit --
(1) that the merits of the factual dispute were not resolved in the State court
hearing;
(2) that the factfinding procedure employed by the State court was not
adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court
hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the
person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his
constitutional right, failed to appoint counsel to represent him in the State court
proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the
State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State
court proceeding;
(8) or unless that part of the record of the State court proceeding in which the
determination of such factual issue was made, pertinent to a determination of
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Butterworth, 165 F.3d 839, 861 (11th Cir. 1999) (en banc). If one of the
exceptions is found, the state court’s fact-finding is stripped of a presumption of
correctness. Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1335 (11th Cir.
2004) (citations omitted). The petitioner then must establish “the facts necessary
to support his claim by only a preponderance of the evidence.” Id.
Findings of fact made by the district court are reviewed for clear error.
Williams v. Turpin, 87 F.3d 1204, 1209 (11th Cir. 1996). A factual finding may be
reversed for clear error only when the Court is “left with a definite and firm
conviction that a mistake has been committed.” United States v. Rothenberg, 610
F.3d 621, 624 (11th Cir. 2010). “If the district court’s findings of fact are plausible
in light of the record viewed in its entirety, the court of appeals must accept them
even if it is convinced that had it been sitting as the trier of fact, it would have
the sufficiency of the evidence to support such factual determination, is
produced as provided for hereinafter, and the Federal court on a consideration
of such part of the record as a whole concludes that such factual determination
is not fairly supported by the record:
And in an evidentiary hearing in the proceeding in the Federal court, when due
proof of such factual determination has been made, unless the existence of one
or more of the circumstances respectively set forth in paragraphs numbered (1)
to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted
by the respondent, or unless the court concludes pursuant to the provisions of
paragraph numbered (8) that the record in the State court proceeding,
considered as a whole, does not fairly support such factual determination, the
burden shall rest upon the applicant to establish by convincing evidence that
the factual determination by the State court was erroneous.
28 U.S.C. § 2254 (emphases added).
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weighed the evidence differently.” United States v. Fidelity Capital Corp., 920
F.2d 827, 836 n. 36 (11th Cir. 1991) (quotation omitted).
“[B]oth the performance and prejudice components of the [ineffective
assistance of counsel] inquiry are mixed questions of law and fact,” and we review
them de novo. Strickland v. Washington, 466 U.S. 668, 698 (1984); DeBruce v.
Comm’r, Alabama Dep’t of Corr., 758 F.3d 1263, 1266 (11th Cir. 2014). We also
review the reasonableness of a strategic decision de novo, Provenzano v.
Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998), while the antecedent inquiry of
whether the action was in fact a strategic one, rather than the result of neglect, is a
question of fact, and the district court’s determination in that respect is presumed
to be correct unless it’s clearly erroneous, Horton v. Zant, 941 F.2d 1449, 1462
(11th Cir. 1991).
IV.
A.
Our first task, then, is to determine whether the state habeas court’s factual
findings are entitled to a presumption of correctness. We hold they are not.
The district court conducted an extensive hearing to address the essential
question about the state habeas court proceedings posed by the Supreme Court, and
thereafter, made detailed findings. It began by finding that the order adopted by
Judge Newton was drafted exclusively by the State pursuant to an ex parte request
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made by Newton’s law clerk to Assistant Attorney General Smith. Jefferson, 250
F. Supp. 3d at 1351. Moreover, the district court found that the state habeas court
did not provide any drafting instructions or guidance as to his own findings and
conclusions, other than simply telling the Assistant Attorney General at the highest
order of generality that the proposed order should deny habeas relief. Id. The
district court also found that Judge Newton did not ask the Petitioner to submit his
own proposed factual findings and conclusions of law, and that the state judge did
not so much as inform the Petitioner of the request he had made of the Assistant
Attorney General. Id.
The district court also observed that a comparison between Assistant
Attorney General Smith’s proposed order and the order ultimately adopted by the
state habeas court shows that Judge Newton “uncritically accepted findings
prepared without judicial guidance.” The state court order referenced an attorney’s
affidavit that was never submitted in the case and the order contained at least
twenty-one typographical errors that Judge Newton either never saw or
overlooked. Id. (quotation omitted). The district court expressly found that:
“These errors and issues invited the reasonable inferences that Judge Newton failed
to review the proposed order submitted by Ms. Smith before executing the final
order and failed to review the relevant evidence.” Id.
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We can find no clear error in the district court’s fact findings,7 and we agree
that Jefferson was deprived of a full and fair hearing under § 2254(d). The version
of § 2254(d) at play in this case dates back to 1966, when Congress “enacted an
amendment to the federal habeas statute [28 U.S.C. § 2254] that was an almost
verbatim codification of the standards delineated in Townsend v. Sain[, 372 U.S.
293 (1963), overruled on other grounds by Keeney v. Tamayo–Reyes, 504 U.S. 1
(1992)].” Jefferson, 560 U.S. at 290. Townsend, for its part, had addressed the
proper standards for federal courts to apply to evidentiary hearings in federal
habeas corpus cases. It held that “[w]here the facts are in dispute, the federal court
in habeas corpus must hold an evidentiary hearing if the habeas applicant did not
receive a full and fair evidentiary hearing in a state court, either at the time of the
trial or in a collateral proceeding.” Townsend, 372 U.S. at 312. It then laid out
various factors to consider when deciding whether a petitioner had received “a full
and fair evidentiary hearing in a state court,” id. at 313, most of which appeared
word-for-word in Congress’s subsequent codification in § 2254(d). 28 U.S.C. §
2254(d) (1966).
Sometime later, in Anderson v. Bessemer City, 470 U.S. 564 (1985), the
Supreme Court considered, in a Title VII case, the significance of a trial court’s
7
The State takes issue with a handful of the district court’s findings, but we are unimpressed.
Most of the State’s arguments simply quibble with the district court’s characterization of the
record, and fail to point to any clear error in the findings.
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adoption of one party’s proposed findings of fact and conclusions of law. Id. at
572. While criticizing the practice generally, the Supreme Court held that the
district court’s adopted proposed order in that case did not require more stringent
appellate review because: (1) the court itself had provided the framework for the
proposed findings when it issued its preliminary memorandum, which set forth its
essential findings and directed petitioner’s counsel to submit a more detailed set of
findings consistent with them; (2) the respondent had been provided and availed
itself of the opportunity to respond at length to the proposed findings; and (3) the
court did not “simply adopt petitioner’s proposed findings: the findings it
ultimately issued -- and particularly the crucial findings regarding petitioner’s
qualifications, the questioning to which petitioner was subjected, and bias on the
part of the committeemen -- vary considerably in organization and content from
those submitted by petitioner’s counsel.” Id. at 572-573.
Notably, Judge Newton did not provide a preliminary memorandum
outlining his essential findings of fact or conclusions of law. Nor did he state
anything in open court about how he viewed the case. Indeed, he did not provide
any guidance to the Assistant Attorney General about how the proposed order was
to be drafted or what was to be included, except simply telling the State that the
proposed order should deny habeas relief. Moreover, the state habeas judge did
not afford Jefferson any opportunity to respond to Smith’s proposed order, nor did
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he inform Jefferson that a request had been made of the Assistant Attorney General
to prepare proposed findings of fact and conclusions of law. Even after Petitioner
learned from Smith of the ex parte request, Judge Newton still did not provide him
an opportunity to offer criticism of the proposed order or to submit his own
proposed order. Finally, other than altering the concluding sentence and including
the date and his signature, Judge Newton made no changes to the proposed order,
notwithstanding the many glaring errors it contained.
Neither this Court nor the Supreme Court has ever reviewed the
consequence of an adopted verbatim opinion in the context of the prior version of
§§ 2254(d)(2), (6), and (7) (1966) -- which is exactly what the Supreme Court
directed us to do here. 8 In the remand order, the Supreme Court determined that
our earlier opinion had erred by “treating § 2254(d)(8) as the exclusive statutory
exception, and by failing to address Jefferson’s argument that the state court’s
procedures deprived its findings of deference.” Jefferson, 560 U.S. at 292-93
(emphasis omitted). It instructed us to address whether the state court’s
“factfinding procedure,” “hearing,” and “proceeding” were “full, fair, and
adequate,” under other provisions of the statute, citing §§ 2254(d)(2), (6), (7)
8
The closest we’ve come was when we reviewed whether a verbatim adopted order violated §
2254(d)(6), in Brownlee v. Haley, 306 F.3d 1043 (11th Cir. 2002), but there we said that “the
extensive record from the Rule 32 proceedings in this case ‘eliminates any doubt about the [trial]
judge’s involvement in the matter and careful analysis of . . . [the] evidence.’” Id. at 1067 n.19
(citation omitted). Thus, Brownlee did not raise the same concerns that the Supreme Court
flagged in this case, nor can we find any assurances here like the ones we cited to in Brownlee.
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(1966). Id. It suggested that based on the facts -- that the proposed order was
solicited ex parte, Jefferson was not given an opportunity to contest the proposed
order or offer an alternative one, and internal evidence in the order suggested the
state habeas judge did not review it -- the state habeas court might not have
afforded Jefferson fair process, which would strip from its factual determinations
the presumption of correctness under § 2254(d) (1966). Id. at 294.
To the extent the State claims the district court construed the pre-AEDPA §
2254(d) too broadly, we disagree. The district court considered § 2254(d)(2), (6),
(7), individually and in concert, just as the Supreme Court directed on remand and
as we’ve done before. See Stokes v. Singletary, 952 F.2d 1567, 1573-74 (11th Cir.
1992); Wesley v. Alabama, 488 F.2d 30, 31-32 (5th Cir. 1974); Lane v.
Henderson, 480 F.2d 544, 545 (5th Cir. 1973).
As for the State’s argument that the Georgia Supreme Court’s review of and
deference to the state habeas trial court’s findings cleared up any procedural
irregularities that may have inhered in the trial court’s findings in the first instance,
the Georgia Supreme Court’s decision does not contain any findings of fact
separate from those made by the state trial court that are entitled to § 2254(d)
(1966)’s presumption of correctness. For starters, the critical finding -- whether
Jefferson’s trial counsel or his psychologist was more credible -- is not the kind of
factual finding entitled to the presumption when made by an appellate court. See
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Cabana v. Bullock, 474 U.S. 376, 388 n.5 (1986) (noting that the presumption
would not apply to “credibility determinations that could not be accurately made
by an appellate court on the basis of a paper record”). Moreover, the Georgia
Supreme Court did not engage in any new factfinding in Jefferson’s appeal, but
instead gave deference to the state habeas trial court’s fact findings under Georgia
state law. See Jefferson, 431 S.E.2d at 112 (applying Ga. Code Ann. § 9-11-52,
which provides that “[f]indings shall not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses”). In any event, the United States Supreme Court’s
remand order makes clear that in resolving “the legal status of the state court’s
factual findings,” it was concerned about the procedure used, not just the result
reached, and the Georgia Supreme Court’s review did not remove the taint of
procedural irregularity involved in the state habeas trial court’s fact finding.
Taking all of this together, we agree with the district court that the factual
record compels the conclusion that Jefferson did not receive a full and fair hearing
in his state court habeas proceeding. We, therefore, hold that the state court’s
factual findings were not entitled to a presumption of correctness under pre-
AEDPA law.
We neither hold nor imply that if this were a post-AEDPA case the state
court’s adoption of the order in these same circumstances would affect the
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presumption of correctness afforded by 28 U.S.C. § 2254(e)(1) (1996) or the
deference provided factual determinations by § 2254(d)(2) (1996). See Jones v.
GDCP Warden, 753 F.3d 1171, 1183 (11th Cir. 2014) (explaining that the
Supreme Court’s decision in Jefferson “never could have held, nor did it presume
to hold, that this kind of adopted order is not entitled to AEDPA deference”); see
also Rhode v. Hall, 582 F.3d 1273, 1281–82 (11th Cir. 2009) (Where both sides
had opportunity to present the state habeas court with their version of the facts, the
court’s verbatim adoption of the State’s proposed order, which petitioner
contended selectively used and mischaracterized evidence, did not deprive the
findings of AEDPA deference.).
B.
We come then to the substantive question underlying this case: whether,
based on new evidence submitted at the federal hearing, along with all of the other
evidence adduced earlier, Jefferson received ineffective assistance of counsel in
violation of the Sixth Amendment at the sentencing phase of his trial. The Sixth
Amendment entitles a criminal defendant to a lawyer, and that right includes the
right to effective counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).
Claims of ineffective assistance of counsel are governed by the well-established
principles found in Strickland v. Washington, 466 U.S. 668 (1984). To prevail
under Strickland, a petitioner must make two showings: first, he must establish that
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counsel’s representation “fell below an objective standard of reasonableness”; and
second, “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Darden v.
Wainwright, 477 U.S. 168, 184 (1986) (quotations omitted). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
We are especially cautious in evaluating ineffective assistance of counsel
claims since “it is all too easy to conclude that a particular act or omission of
counsel was unreasonable in the harsh light of hindsight.” Bell v. Cone, 535 U.S.
685, 702 (2002). We therefore evaluate ineffective assistance claims from the
perspective of the time of trial because “a more rigid requirement ‘could dampen
the ardor and impair the independence of defense counsel, discourage the
acceptance of assigned cases, and undermine the trust between attorney and
client.’” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (quoting Strickland, 466
U.S. at 690).
Nevertheless, where a petitioner has established that his lawyer’s actions fell
below an objectively reasonable standard of performance and that such
ineffectiveness rendered his trial fundamentally unfair, he is entitled to relief even
in spite of the substantial deference that we show to the decisions of trial counsel.
See Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc).
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On the record now before us, we are satisfied that Jefferson has made that
showing.
1.
A lawyer’s duty to render effective assistance of counsel necessarily
includes the duty to undertake appropriate investigations in support of the
decisions he makes and the actions he takes at trial. Strickland, 466 U.S. at 691
(“[C]ounsel has a duty to make reasonable investigations.”). As the Supreme
Court has explained, “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.” Id. at 690-91. In other words, when a limited
investigation was performed, our inquiry under Strickland’s first prong focuses on
the reasonableness of the decision to curtail investigative efforts. See Grayson v.
Thompson, 257 F.3d 1194, 1225 (11th Cir. 2001) (“[E]ven when trial counsel’s
investigation and presentation is less complete than collateral counsel’s, trial
counsel has not performed deficiently when a reasonable lawyer could have
decided, under the circumstances, not to investigate or present particular
evidence.”). Where the decision to place limits on an investigation represents a
strategic choice, it is “accorded a strong presumption of reasonableness.” Mills v.
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Singletary, 63 F.3d 999, 1021 (11th Cir. 1995). If, however, the failure to engage
in further investigation was the result of neglect or oversight, no presumption of
reasonableness attaches, and we are far more likely to find deficient performance.
See Baxter v. Thomas, 45 F.3d 1501, 1513 (11th Cir. 1995); Middleton v. Dugger,
849 F.2d 491, 493-94 (11th Cir. 1988); Harris v. Dugger, 874 F.2d 756, 763 (11th
Cir. 1989); Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir. 1987).
We now hold that Jefferson’s lawyers’ performance fell beneath an objective
standard of reasonableness. The outcome of Jefferson’s appeal is different the
second time around. The essential facts as found by the district court on remand
establish that Jefferson’s trial counsel inexplicably ignored the clear written
recommendation of their retained psychologist to seek further neuropsychological
evaluation in order to rule out an organic etiology.
As we’ve recounted, Schuster testified before the district court that he spoke
with Dudley after Dudley had evaluated Jefferson and, on the basis of that
discussion, he concluded that a neuropsychological evaluation of Jefferson would
not be worthwhile. Schuster claimed that Dudley told him that Jefferson “was a
sociopath or a psychopath and not to worry about it,” and that “Mr. Jefferson was
the way Mr. Jefferson was.” Schuster also said that he believed the line in
Dudley’s written report recommending further testing was just a “throw-out in the
report.”
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Dudley, however, told a very different story. According to the doctor’s
testimony in federal court, he never backed off his written recommendation for
further testing that he included in his written evaluation of Jefferson. He denied
ever telling Schuster that further testing was unnecessary and also denied ever
saying that Jefferson was “just a criminal.” Dudley explained that at the time he
submitted his report to Schuster and Cella he “assumed that additional testing
would be done.” Dudley’s testimony was also consistent with his affidavit filed in
the state habeas court, which denied telling Jefferson’s counsel that a
neuropsychological evaluation would not be necessary or that it would not be
worthwhile.
The district court weighed the testimony, found Dudley more credible, and
chose to accept his account of what happened. Its decision to do so was not clearly
erroneous. A district court’s plausible weighing of contradictory testimony will
not be second-guessed on appeal. See United States v. Garcia, 890 F.2d 355, 359
(11th Cir. 1989); Childrey v. Bennett, 997 F.2d 830, 834 (11th Cir. 1993). We are
therefore presented with these facts: Jefferson’s counsel retained a psychologist
who examined the Petitioner and recommended that neuropsychological testing be
conducted to determine whether he suffered from organic brain damage as a result
of his head being run over by a car when he was two years old. Yet his lawyers
ignored this unambiguous recommendation and failed to obtain any additional
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testing. The injury was so severe he was hospitalized for five days, left with a
cranial indentation and an abnormally enlarged skull, and suffered frontal lobe and
neurological damage.
Without any explanation for counsel’s failure to pursue further testing, the
district court found that trial counsel acted out of neglect rather than as the product
of strategic judgement. We cannot say that this finding is clearly erroneous. For
one thing, without Schuster’s testimony, the State can point to no strategic reason
for why Dudley’s recommendation was ignored. Worse still, on remand the
district court heard testimony from Jefferson’s other attorney, Cella, who claimed
that the actual reason why no neuropsychological testing had been scheduled was
because of inexperience on counsel’s part. Cella admitted that “I should have
followed up on [Dudley’s recommendation]. And had I had more -- if this had not
been my first death penalty case, I expect I would have.”
In the past, we’ve held that the failure to engage in further investigation was
the result of neglect -- rather than a strategic decision -- on very similar facts. In
DeBruce, trial counsel obtained a competency report detailing the defendant’s
difficult and deprived upbringing that contradicted his mother’s account of his
childhood as being healthy and uneventful. 758 F.3d at 1274. Rather than
investigating the claims made in the report, trial counsel ignored it. Id. at 1275. In
determining that counsel acted out of neglect rather than on account of any tactical
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consideration, we explained that “counsel’s testimony during the state collateral
proceedings made clear that his failure to conduct adequate investigation was not
the result of a strategic decision, but rather a result of the lack of time as he
scrambled to prepare for [petitioner’s] capital trial.” Id. Similarly, in Harris v.
Dugger, 874 F.2d 756 (11th Cir. 1989), rather than offering a strategic justification
for their failure to investigate the defendant’s background, “[e]ach lawyer testified
that he believed that the other was responsible for preparing the penalty phase of
[the] case,” meaning that neither attorney looked into the defendant’s background
for mitigating evidence. Id. at 763. Under these circumstances we determined that
trial counsel’s ignorance of crucial evidence “resulted not from an informed
judgment, but from neglect,” and, therefore, we did not apply the presumption of
reasonableness that would otherwise attach to strategic decisions. Id. And in
Armstrong v. Dugger, 833 F.2d 1430 (11th Cir. 1987), a panel of this Court made a
similar determination where trial counsel “explicitly testified that [he did not
make] in any way a strategic or tactical decision” to limit investigation but rather
that his failure to investigate was a result of inexperience. Id. at 1433.
The State argues nevertheless that defense counsel’s actions should be
regarded as strategic because they pursued a residual doubt defense at the penalty
phase, and thus had no need for neuropsychological evidence to mount their case.
However, the penalty phase transcript shows that Jefferson’s lawyers did not
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emphasize residual doubt at sentencing, indeed they only barely mentioned it in
passing; rather they focused on Jefferson’s hard upbringing, the need to show
Jefferson mercy, and the idea that Jefferson was not fully responsible for his
actions. The following excerpts from Schuster’s and Cella’s arguments give an
accurate flavor of what arguments they made:
“Jefferson was a poor black kid who grew up with a lot of other poor black
kids who didn’t have anywhere to go, had very few positive influences in
their lives.”
…
“We could go down into Atlanta and pick out at random any black 17-year-
old we wanted to, and we’d get an arrest record very similar to Lawrence
Jefferson’s.”
…
“[Jefferson] doesn’t have [a] history of violence. He has a good work record.
. . . He is ambitious. Came all the way down here to find work to support his
family better than he was able to up there in Louisville. That shows
ambition. It shows a sense of caring for people that he loves.”
…
“You know, Lawrence’s background, his life experience, has caused him to
strike out at a defenseless person, such as Ed Taulbee, that he killed without
necessity, and y’all found that. But aren’t we as a society better than that?”
…
“We are asking you, please, look in your hearts, find some understanding,
some love, some compassion for Lawrence.”
It’s true that defense counsel also made a few brief allusions to residual
doubt at Jefferson’s sentencing. For instance, Schuster made the remark that “you
[may] find a man guilty beyond a reasonable doubt, but that’s not all doubt.”
Counsel also noted that there were no eye witnesses to the crime, no guilty plea,
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and “no evidence of any consciousness of guilt.” However, these remarks were
few and far between, and did not form the foundation of the closing arguments.
Instead, the argument made at Jefferson’s sentencing hearing is comparable
to the “halfhearted mitigation case” put forward in Wiggins v. Smith, 539 U.S. 510
(2003), which “did not focus exclusively on [the defendant’s] direct responsibility”
but rather also involved references to the defendant’s difficult upbringing, albeit
without fully developing the facts relevant to a plea for mercy. Id. at 526. On
those facts, the Supreme Court rejected the argument that defense counsel had
made a strategic decision to focus on direct responsibility, and instead reasoned
that “the ‘strategic decision’ [] respondents . . . 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.” Id. at 526-27.
The same can be said here. Invoking a residual doubt strategy in order to
justify the decision to forgo further neuropsychological testing as a strategic choice
is unconvincing since counsel can barely be said to have employed a residual doubt
defense. And what’s more, as we lay out later, the very evidence they failed to
pursue would have powerfully bolstered the limited mitigation case they did
present, to explain the contradiction between Jefferson’s background and the
murder, and the compassion they sought from the jury.
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We recognize that deficient performance is an objective inquiry, meaning
that even if trial counsel acted out of inexperience or neglect, his actions would
still not constitute ineffective assistance of counsel if we can say that a reasonable
attorney could have acted as he did. Gordon v. United States, 518 F.3d 1291,
1301-02 (11th Cir. 2008) (“Because [the Strickland] standard is objective, it
matters not whether the challenged actions of counsel were the product of a
deliberate strategy or mere oversight. The relevant question is not what actually
motivated counsel, but what reasonably could have motivated counsel.”). Thus,
the subjective failings of Cella and Schuster are not dispositive. Jefferson still
must show that no reasonable attorney would have behaved as defense counsel did
in this case. Chandler, 218 F.3d at 1315 (“[A] petitioner must establish that no
competent counsel would have taken the action that his counsel did take.”).
He has done so here. Importantly, the Supreme Court has explained that a
“failure to investigate thoroughly [that stems] from inattention, not strategic
judgment,” serves to “underscore[] the unreasonableness of counsel’s conduct.”
Wiggins, 539 U.S. at 526. The failure of Jefferson’s trial counsel to arrange for
neuropsychological testing resulted in the exact kind of non-strategic decision that
underscores the unreasonableness of their conduct. As we’ve said many times,
“[a] failure to investigate can be deficient performance in a capital case . . . when
counsel ignores ‘red flags’ that any reasonable attorney would perceive as
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demanding further investigation.” Housel v. Head, 238 F.3d 1289, 1294 (11th Cir.
2001). So, in Cunningham v. Zant, 928 F.2d 1006 (11th Cir. 1991), we found
deficient performance where trial counsel was aware that the defendant had
suffered a near-fatal head injury but failed to seek any expert assessment of the
potentially mitigating evidence associated with the injury. Id. at 1018. Similarly,
in DeBruce, this Court found deficient performance where trial counsel failed to
follow up on information contained in a competency report about the defendant
where the report indicated that the defendant’s background was deeply troubled.
758 F.3d at 1274. As the Court explained, trial counsel “unreasonably ignored”
the report, particularly since its contents contradicted other evidence the defense
lawyer had gathered, which would have put any reasonable attorney on notice that
more investigation was needed. Id. at 1275. Again in Williams v. Allen, 542 F.3d
1326, 1340 (11th Cir. 2008), we found deficient performance where “the
information that trial counsel did acquire would have led a reasonable attorney to
investigate further” but where trial counsel failed to do so. Id. at 1340. In
particular, the Court found that no reasonable attorney would have curtailed his
investigation into the defendant’s troubled background where both a PSI and a
report from a retained psychologist indicated that the defendant had a history of
mental health problems. Id. “To the contrary, the many red flags . . . would have a
prompted a reasonable attorney to conduct additional investigation.” Id.
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Here too the particular circumstances were of the kind that would’ve
impelled any reasonable lawyer toward further, more robust investigation. Cella
and Schuster knew Jefferson had suffered a serious head injury as a child. He had
a visible, prominent scar across his skull and his head was asymmetrical. Counsel
knew Jefferson had had an unusual interaction with Dudley, when he first refused
to cooperate with him and later explained, “I get that way sometimes, man.”
Counsel also knew that when he was arrested, Jefferson acted strangely, telling
police that he didn’t need to be around other people, that he wanted to be executed,
and that he wanted to be put to sleep. In fact, Cella testified at the state habeas
hearing that he knew, before trial, that Jefferson had admitted during his
interrogation by police officers that:
I don’t need to be around people . . . . I talk to myself. I ain’t crazy. I
don’t know nothing. I got hit by an auto when I was a kid. I had
another dream and saw the man in my dream. I call myself Tony. I
don’t think I am two people. How quick can I be put to sleep? I don’t
feel anything about this. Do you believe in Heaven and Hell? . . . I
want to be put to sleep . . . . I want to be executed.
Jefferson, 570 F.3d at 1290. And, most importantly, counsel had received
Dudley’s written report, which made a crystal clear, uncontroverted
recommendation that further neuropsychological testing would be worthwhile. To
all these red flags, defense counsel turned a blind eye, without citing anything
remotely suggesting that further testing would have impaired their case.
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These facts make Jefferson’s case noticeably different from other cases
where a failure to engage in further investigation, even where red flags were
present, did not render counsel ineffective. In Housel v. Head, 238 F.3d 1289
(11th Cir. 2001), for instance, this Court did not find deficient performance even
though trial counsel failed to pursue additional mental health investigation and
knew that the defendant had suffered a serious head injury in a car accident. Id. at
1296. There, defense counsel had not observed any unusual behavior in their
interactions with the defendant, and they had already had two psychological
evaluations conducted, “neither of which offered any encouragement to proceed
further.” Id. Here, in sharp contrast, the psychologist who evaluated Jefferson
expressly recommended further testing, and did so in writing, and while Jefferson’s
lawyers had not personally observed any unusual behavior from Jefferson, they
were aware that Dr. Dudley and the investigating police officers had.
Moreover, even if trial counsel “prepared extensively” for the sentencing
phase in other ways -- by, for instance, traveling to Louisville, interviewing many
of Jefferson’s family members and acquaintances, and consulting with death
penalty specialists from the ACLU and the Southern Poverty Law Center -- it is
still clear that the decision to forgo neuropsychological testing was an
unreasonable one and in no way justified by the other unrelated steps they took.
The Supreme Court has held that “defense counsel’s efforts to find mitigating
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evidence by other means [does not] excuse[] them” from inquiring into evidence
highly relevant to sentencing that “[n]o reasonable lawyer would forgo”
examining. Rompilla v. Beard, 545 U.S. 374, 388-90 (2005); see also Bobby v.
Van Hook, 558 U.S. 4, 11 (2009) (explaining that while extensive investigation
can sometimes excuse the decision to not investigate further, in other cases even a
wide-ranging investigation will not be enough where the need for further
investigation “would have been apparent from documents any reasonable attorney
would have obtained”).
So, while the record before this Court the second time around is largely the
same as it was a decade ago, it has changed in a few critical respects. Most
importantly, the State can no longer offer any explanation for why Cella and
Schuster failed to follow up on Dudley’s recommendation. The district court’s
factual finding completely eliminates the claim that Dr. Dudley told Schuster it
would be a waste of time to examine Jefferson any further, that Jefferson was just a
criminal, and that Dudley would be of no help to Jefferson at sentencing. Absent
any reasonable explanation, Cella and Schuster’s actions are not entitled to the
presumption of reasonableness that attaches to strategic decisions. And without
this presumption, it seems to us clear that no reasonable attorney would have failed
to have Jefferson tested for organic brain damage when there were so many red
flags calling out for further investigation and where the results of that inquiry in no
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way undermined the defense they actually presented. Because the limits Cella and
Schuster placed on their investigation were unreasonable, their actions at the
penalty phase of Jefferson’s trial fell below the standard of constitutionally
effective lawyering.
2.
Having found deficient performance, we turn to whether there is a
reasonable probability that Jefferson suffered prejudice at the penalty phase of his
trial. “In assessing prejudice, we reweigh the evidence in aggravation against the
totality of available mitigating evidence.” Wiggins, 539 U.S. at 534. We weigh all
of the good and all of the bad. “In that process, what matters is not merely the
number of aggravating or mitigating factors, but their weight.” Reed v. Sec’y, Fla.
Dep’t of Corr., 593 F.3d 1217, 1240-41 (11th Cir. 2010). “[W]e have held that a
petitioner is prejudiced where the mitigation evidence omitted by counsel’s
deficient investigation ‘paints a vastly different picture of the petitioner’s
background than that created by’ the actual penalty-phase testimony.” DeBruce,
758 F.3d at 1276 (quoting Williams, 542 F.3d at 1342).
To put the doctrine in terms specific to Jefferson’s case, because Georgia
requires that the jurors unanimously recommend death in order for the trial judge
to impose the death penalty, Hill v. State, 301 S.E.2d 269, 270 (Ga. 1983), the
relevant inquiry is whether “there is a reasonable probability that at least one juror
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would have struck a different balance.” Wiggins, 539 U.S. at 537. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1326 (11th Cir. 2013). We
conclude that there is a reasonable probability that at least one juror on Jefferson’s
original sentencing jury would have struck a different balance and decided against
imposing the death penalty had the jury been presented with the powerful evidence
that Jefferson suffers from organic brain damage and its sequalae.
First, as we’ve mentioned, the evidence of brain damage that would have
been introduced had Jefferson’s counsel performed in a constitutionally effective
manner would have profoundly changed the character of the penalty phase of the
proceedings by fundamentally transforming Jefferson’s sentencing profile. This
sort of mitigation evidence is precisely the kind that may establish prejudice at the
penalty phase. In DeBruce, for example, a panel of this Court found prejudice
where trial counsel’s deficient performance gave the defendant’s jury “almost no
reason to spare his life as demonstrated by the paucity of mitigating evidence
actually presented during the penalty phase.” 758 F.3d at 1278. The Court noted
that, as we explained then in finding prejudice, the sentencing jury had been
presented with testimony that the defendant had had a somewhat impoverished but
otherwise unremarkable childhood and had even briefly attended college, when the
reality was that the defendant had struggled in school and dropped out at the age of
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sixteen; he had been the recipient of severe, and nearly daily beatings from his
siblings when he was younger; he grew up in a rough neighborhood where he
witnessed the stabbing of one of his neighbors; he attempted to commit suicide on
multiple occasions; and, finally, he had been treated for mental impairments. Id. at
1276. As the Court explained in finding prejudice, “adequate investigation would
have enabled counsel to correct a positively misleading sentencing profile, and to
present a vastly different picture than that created by the actual trial testimony.”
Id. (quotation omitted).
In this case the sentencing profile actually presented at Jefferson’s trial
compared with what would have been presented if Jefferson’s trial counsel had
performed a proper investigation is striking. To illustrate, the thrust of the
defendant’s closing arguments was that Jefferson had had a tough childhood; that
although he was flawed, had an “attitude problem,” and was not a “good guy,”
Jefferson was not an evil person and was capable of change; and that the jury
should therefore have compassion and spare his life. Cella also invoked
Jefferson’s hardscrabble background. Cella added that Jefferson’s upbringing
made him no different than the many others who’ve grown up under difficult
circumstances, saying that “Jefferson was a poor black kid who grew up with a lot
of other poor black kids who didn’t have anywhere to go, had very few positive
influences in their lives.” Similarly, Schuster reminded the jury that Jefferson had
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grown up in poverty, and that although Jefferson was “responsible for his acts” and
had “failed himself,” and the jury should show him mercy.
The evidence presented at the penalty phase also offered a fairly
unremarkable portrait of Jefferson and his background. The only mention of his
head injury at sentencing came from a fleeting remark his mother made about the
incident, and neither Schuster nor Cella even mentioned it in their closing
arguments. And Jefferson himself was not asked any questions about his mental
health when he took the stand.
In sharp contrast to the arguments and evidence actually presented, the
testimony of Drs. Price and Merikangas, and Jefferson’s mother and brother
developed on collateral review paints a dramatically different portrait of who
Jefferson is and what he was responsible for. In their telling, Jefferson suffers
from organic brain damage. After the accident, Jefferson experienced severe,
chronic headaches that made him cry, in addition to blackout spells that may have
been petit mal seizures. The effects of this brain damage likely manifested in an
inability to control his impulses and exercise sound judgment and meaningfully set
him apart from an unimpaired person. It also makes it harder for Jefferson to deal
with difficult or chaotic situations. Moreover, his mental impairments potentially
resulted in “transient outbursts of rage” that are incongruous with Jefferson’s
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ordinary behavior. In short, his organic brain damage “has had a profound and
lifelong impact on Mr. Jefferson’s behavior.”
There is a powerful difference between someone who grew up poor and
without a father and a person who grew up suffering from organic brain damage
yielding debilitating mental impairments that worsened into adulthood. There is an
even bigger difference between someone who has an “attitude problem” and
someone whose frontal lobe was permanently damaged at a young age and who is
therefore not capable of controlling his impulses or reactions to external stimuli at
critical moments. The new mitigation evidence that almost surely would have
been uncovered had Jefferson’s lawyers acted on Dr. Dudley’s recommendation
not only would have bolstered the mitigation evidence already available but also
would have dramatically transformed the sentencing profile presented to the jury.
DeBruce, 758 F.3d at 1276; see also Brownlee, 306 F.3d at 1074.
Relatedly, the dramatically different sentencing profile created by the new
mitigating evidence substantially weakens the aggravating factors relied on by the
jury at sentencing. See Middleton v. Dugger, 849 F.2d 491, 495 (11th Cir. 1988)
(“[P]sychiatric evidence . . . has the potential to totally change the evidentiary
picture by altering the causal relationship that can exist between mental illness and
homicidal behavior. Thus, psychiatric mitigating evidence not only can act in
mitigation, it also could significantly weaken the aggravating factors.” (quotation
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omitted)). A closely analogous example can be found in Ferrell v. Hall, 640 F.3d
1199 (11th Cir. 2011), where this Court found prejudice in substantial part because
“evidence of [the defendant’s] mental illness measurably weaken[ed] the
aggravating circumstances found by the jury.” Id. at 1234. In Ferrell, the
sentencing jury relied on two aggravating factors -- that the murder was committed
during the commission of a felony and was “outrageously and wantonly vile,
horrible or inhuman in that it involved torture and depravity of mind.” Id. at 1235.
In evaluating prejudice, this Court examined these factors in light of the mitigating
evidence introduced on collateral review and determined that the aggravators were
significantly undermined by the expert testimony that the defendant suffered from
organic brain damage, which caused “increased impulsivity, decreased sound
judgment, and [] actions that are not entirely volitional.” Id. As we explained,
“the mental health expert opinions would have served to reduce the volitional
nature of the crime, as well as Ferrell’s ability to plan and act rationally, and as a
result, undercut the senselessness and cold-blooded nature of the crime as stressed
by the prosecutor.” Id.
Nearly identical aggravating factors to those found in Ferrell were found by
the jury that sentenced Jefferson -- that the offense of murder was committed while
the defendant was engaged in the commission of another capital felony (i.e., armed
robbery), Ga. Code Ann. § 17-10-30(b)(2) (1986); and that the offense of murder
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“was outrageously or wantonly vile, horrible, or inhuman” in that it involved an
aggravated battery to the victim, id. § 17-10-30(b)(7). See Ferrell, 640 F.3d at
1210. Jefferson’s expert witnesses likewise testified that Jefferson suffers from
organic brain damage to the frontal lobe, which likely caused increased
impulsivity, executive functioning problems, the inability to think with
forethought, and unsound judgment. All of which would have provided for the
first time a plausible explanation for an otherwise inexplicable and senseless crime.
What’s more, this evidence also undermined the aggravator that the murder was
committed in an “outrageously or wantonly vile, horrible, or inhuman” manner.
The mitigating evidence developed on collateral review also weakened the
sentencing jury’s rationale for imposing the death penalty by reducing Jefferson’s
moral culpability for the crime. As the Supreme Court has instructed, evidence of
a troubled background and “diminished mental capacities” is “relevant to assessing
a defendant’s moral culpability.” Wiggins, 539 U.S. at 535. Thus, for example, in
Porter v. McCollum, 558 U.S. 30 (2009), the Court found prejudice, in part,
because evidence of a “brain abnormality” not presented at sentencing would have
allowed the jury to “accurately gauge [the defendant’s] moral culpability.” Id. at
41. Similarly, in Ferrell we found prejudice because the jury was never presented
with evidence that the defendant “suffer[ed] from brain damage” affecting his
“emotional stability” and “impulse control,” and the jury “labored under a
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profoundly misleading picture of [the defendant’s] moral culpability because the
most important mitigating circumstances were completely withheld from it.”
Ferrell, 640 F.3d at 1236. And in DeBruce, we found prejudice where “passing
mention of [the defendant’s] treatment for a mental disorder” meant that the jury
did not hear “particularized characteristics of [the defendant’s] heavily
disadvantaged background and upbringing” that would have been “relevant to
assessing [the] defendant’s moral culpability.” DeBruce, 758 F.3d at 1276.
Here too the jury was deprived of extensive evidence tending to show that
Jefferson suffers from brain damage that, significantly, made it difficult for him to
control his behavior. The experts expressly testified that Jefferson is less morally
culpable for his actions precisely because he is less able to control himself than
would an unimpaired individual. The mitigation evidence developed on collateral
review bears directly on Jefferson’s moral culpability and appreciably weakens
whatever reasons the jury had for imposing a death sentence.
Moreover, there are no countervailing considerations in this case suggesting,
as we’ve observed elsewhere, that the new mitigation evidence developed on
collateral review would have exerted anything other than a salutary effect -- and a
powerful one at that -- on the evidence actually presented and the arguments made
by Jefferson’s lawyers. See generally Chandler, 218 F.3d at 1319 (“Considering
the realities of the courtroom, more is not always better. Stacking defenses can
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hurt a case.”); Collins v. Francis, 728 F.2d 1322, 1348 (11th Cir. 1984) (finding no
ineffective assistance where a defense proposed on collateral review would have
“conflicted” with the strategy employed at trial).
As this record makes abundantly clear, the mitigating evidence that was
presented at Jefferson’s sentencing trial was brief and weak. Aside from a passing
remark from Jefferson’s mother about his head injury, no evidence was presented
to the jury about mental impairment. See also Stephens v. Kemp, 846 F.2d 642,
653-54 (11th Cir. 1988) (finding prejudice, where all the sentencing jury heard
about the defendant’s mental problems were a few comments from his mother
about his occasionally bizarre behavior; counsel’s failure to more fully develop the
evidence on mental health “undoubtedly diminished” the impact the mother’s stray
comments had on the jury).
The new mitigation evidence developed collaterally would have been largely
consistent with the mitigation evidence arguments actually presented. Defense
counsel’s closing argument focused on painting a sympathetic portrait of Jefferson,
pleading for mercy, and suggesting that Jefferson’s hard upbringing meant that he
was less responsible for his actions. Substantial evidence of brain damage surely
would have been compatible with this defense. See Ferrell, 640 F.3d at 1235
(finding prejudice, in part, “because defense counsel did not pursue much of a
residual doubt defense, instead mostly focusing on mercy, [meaning that]
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mitigating evidence of Ferrell’s mental health and childhood would have easily and
directly supported the approach counsel offered at sentencing”).
It is of course true, as this Court recognized in Jefferson’s previous appeal,
that presenting extensive evidence regarding Jefferson’s brain damage would have
been in some tension with Jefferson’s claims to innocence both at trial and during
sentencing than his more generalized pleas for mercy were. See Jefferson v. Hall,
570 F.3d at 1307. However, the dangers posed by any potential inconsistency of
presenting this evidence at the sentencing phase after trial counsel had argued
innocence at the guilt phase seem to be relatively insignificant in this case. In
Jones v. Dugger, 928 F.2d 1020 (11th Cir. 1991), this Court found no ineffective
assistance of counsel because the presentation of mitigating evidence would have
created inconsistencies with other elements of trial counsel’s defense strategy, and
the “small benefit” of presenting the mitigating evidence was far outweighed by
the risk of inconsistency. Id. at 1028. Here, in sharp contrast, the benefit of
presenting the new and powerful forensic evidence would have been anything but
small -- as we’ve detailed, evidence of Jefferson’s brain damage would have
dramatically altered Jefferson’s sentencing profile and given the jury a compelling
reason not to impose the death penalty.
Nor can we say that testimony from the State’s expert, Dr. Macciocchi,
would have measurably damaged Jefferson’s case. Indeed, Macciocchi had no
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medical expertise in neurology, was not a licensed physician, and, as Jefferson’s
experts pointed out, he used improper norms in scoring Jefferson’s test results.
Some of what he relied on would not even have been available at the time of
Jefferson’s sentencing. And, according to Drs. Merikangas and Price,
Macciocchi’s report did not in any way cause them to doubt their conclusions.
The long and short of it is that there is a reasonable probability that, had
Jefferson’s counsel conducted a proper investigation and presented to the jury the
extensive evidence of organic brain damage that such an investigation would have
uncovered, at least one juror who would have reached a different judgment. The
fundamental transformation of Jefferson’s sentencing profile catalyzed by the
mitigation evidence developed on collateral review; that such evidence
substantially undermined the aggravating factors relied on by the jury; and that the
new evidence does not conflict with the weak mitigation evidence actually
presented all lead us toward this conclusion: Jefferson has established that his
Sixth Amendment right to the effective assistance of counsel was violated, and he
is entitled to a new sentencing proceeding.
AFFIRMED.
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