Foust v. Houk

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0237p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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KELLY FOUST,
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Petitioner-Appellant,
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No. 08-4100
v.
,
>
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Respondent-Appellee. -
MARK C. HOUK, Warden,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 06-02625—Jack Zouhary, District Judge.
Argued: April 26, 2011
Decided and Filed: August 25, 2011
Before: BATCHELDER, Chief Judge; MOORE and CLAY, Circuit Judges.

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COUNSEL
ARGUED: Jeffrey M. Gamso, GAMSO, HELMICK & HOOLAHAN, Toledo, Ohio,
for Appellant. Laurence R. Snyder, OFFICE OF THE OHIO ATTORNEY GENERAL,
Cleveland, Ohio, for Appellee. ON BRIEF: Jeffrey M. Gamso, Jeffrey J. Helmick,
GAMSO, HELMICK & HOOLAHAN, Toledo, Ohio, for Appellant. Laurence R.
Snyder, OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland, Ohio, for
Appellee.
MOORE, J., delivered the opinion of the court, in which CLAY, J., joined.
BATCHELDER, C. J. (pp. 32–37), delivered a separate dissenting opinion.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Petitioner Kelly Foust, a death-row
prisoner in Ohio, was convicted of murdering Jose Coreano, raping Damaris Coreano,
setting the Coreanos’ house on fire, and related offenses. At the mitigation hearing,

1
No. 08-4100 Foust v. Houk Page 2

Foust’s mother, Foust’s father, and defense psychologist Dr. James Karpawich testified
on Foust’s behalf. Although their testimony depicted an unpleasant childhood with an
emotionally distant and abusive father, their testimony pales in comparison to the
horrific accounts detailed in records from Children’s Services and in affidavits from
Foust’s siblings. The records and affidavits reveal the squalor of Foust’s childhood
home: feces on the walls; vomit on the floor; infestations of lice, cockroaches, flies, and
mice; piles of filled garbage bags, filthy clothes, and dirty dishes; little food and frequent
utility outages; children who had not bathed for a month; and conditions so vile that a
cleaning crew called the residence an “uninhabitable” “pig sty” and refused to return.
The new evidence explains how Foust’s mother, not just his father, physically and
emotionally abused Foust by, for example, calling Foust a “worthless piece of shit” when
he tried to impress his mother with good grades and a new job. The records and
affidavits document rape, incest, and sexual abuse among several of Foust’s siblings.
The new evidence also reveals Foust’s attempt to help his younger sister reshape the
family’s trajectory.

The three-judge panel that sentenced Foust to death never heard these vivid facts
because Foust’s counsel provided ineffective assistance. In preparation for the
mitigation hearing, Foust’s attorneys did not interview any potential witnesses. The
attorneys did not gather any records from Children’s Services, despite Karpawich’s
repeated reminders. The attorneys did not prepare Foust’s parents or Karpawich in
advance of their testimony at the mitigation hearing. The attorneys hired Karpawich in
lieu of a trained mitigation specialist, even though Karpawich informed the attorneys
that he was not a trained mitigation specialist.

For these reasons, we REVERSE the district court’s denial of Foust’s petition
on the basis of ineffective assistance of counsel at the mitigation hearing. We GRANT
a conditional writ of habeas corpus vacating Foust’s death sentence, unless the State of
Ohio begins a new mitigation hearing against Foust within 180 days from the date on
which this judgment becomes final.
No. 08-4100 Foust v. Houk Page 3

I. BACKGROUND

A. Underlying Crime

After Foust and his girlfriend, Janira Acevedo, ended their relationship, Acevedo
began staying at the home of her friends, Damaris Coreano and Cheyla Coreano.
Damaris’s and Cheyla’s father, Jose, also lived at the Coreanos’ home. While Acevedo
was living with the Coreanos in 2001, Foust broke in to the Coreanos’ home, which led
the Coreano family to seek a restraining order. The Coreanos were unsuccessful.

In the morning of March 31, 2001, Foust was “getting pretty wasted” and began
looking for Acevedo. State v. Foust, 823 N.E.2d 836, 845 (Ohio 2004). Foust first
looked for her at a different home, but when he could not find her, he went to the
Coreanos’ home. After entering through an “open basement window,” Foust realized
that Acevedo was not at the Coreanos’ home either. Id. Foust found Jose in his first-
floor bedroom and struck him “on the head with a claw hammer,” causing Jose’s death.
Id.

Next, Foust went upstairs to Damaris’s bedroom, where Damaris was asleep.
She awoke while Foust was on top of her with a knife at her neck. When Damaris
attempted to grab the knife, “Foust told her not to be a hero because ‘in reality heroes
die.’” Id. Foust asked Damaris where “‘the money’” was located and threatened to kill
her if she did not name its location. Id. Damaris did not know what money Foust was
referencing. She responded by saying that she had a dollar and telling Foust where her
dollar was located.

Foust asked Damaris if she was a virgin, removed her clothes, tied her hands
behind her back, and “ordered her to perform oral sex. When she refused, [Foust]
pointed his knife at her neck and asked her if she wanted her father to live. Damaris then
performed oral sex on him.” Id. Afterward, Foust vaginally raped Damaris “multiple
times.” Id. Foust left briefly, returning to vaginally rape Damaris once more. “Damaris
asked why he was ‘doing this to a Christian,’ and he replied that if she was a real
Christian, she would forgive him. Foust then ordered her to get on her knees and pray
No. 08-4100 Foust v. Houk Page 4

out loud for him.” Id. Damaris complied, praying that God would “help [Foust] realize
what he was doing. Foust told Damaris to shut up, put her back on the bed, and raped
her again.” Id. Foust put a shirt over Damaris’s head.

Foust took Damaris to her sister’s bedroom, where, despite having a shirt over
her head, Damaris saw Foust steal several items. Foust then took Damaris to the
bathroom, where he “tied her hands and feet together with shoestrings” and “tied
Damaris to the bathtub leg with a chain belt.” Id. Foust instructed Damaris not to move
and Foust left the bathroom. When he returned, he accused Damaris of moving and said
“[y]ou think I’m playing with you.” Id. He cut off one of Damaris’s braids, put his
knife to her vagina, and “threatened to slice her open if she moved.” Id.

Left alone, Damaris smelled smoke. When she removed the shirt that covered
her face, Damaris saw that her house was on fire. Foust had lit fires in the bedrooms of
Jose, Damaris, and Cheyla, driven Jose’s car two blocks, parked the car, and walked to
a friend’s house. Meanwhile, Damaris escaped from the belt that had bound her to the
bathtub. She crawled to her bedroom and used the fire that Foust had lit on her mattress
to burn the shoestrings off her wrists and ankles. After extinguishing the fire in her
bedroom, Damaris went downstairs and made a futile attempt to locate her father, who
she did not know was dead, amid the smoke.

Damaris ran to a neighbor’s home for help. By the time that police and
firefighters arrived, the home was “engulfed in flames.” Id. at 846. Damaris identified
her assailant as “‘Kelly’” to the police. Id. “Although she was unsure of his last name,
she thought it was ‘Foster or something like that.’” Id.

B. Prosecution and Preparation for the Mitigation Hearing

Foust waived his Miranda rights and confessed to breaking into the Coreanos’
home, striking Jose with a hammer, and raping Damaris. “However, Foust claimed that
he ‘didn’t intentionally want to do any harm’ and said, ‘I really don’t know what I was
doing, just trying to find out where Jani[r]a was.’” Id. (alteration omitted). Foust
No. 08-4100 Foust v. Houk Page 5

pleaded not guilty and was appointed two attorneys—Charles K. Webster and Donald
Butler—on April 13, 2001.

After waiving his right to a jury, Foust proceeded to trial on December 12, 2001
before a three-judge panel. Foust “presented no evidence during the guilt phase.” Id.
at 847. On December 14, 2001, the three-judge panel convicted Foust of the aggravated
murder of Jose Coreano; the kidnaping, rape, gross sexual imposition, and attempted
murder of Damaris Coreano; and aggravated burglary, aggravated robbery, and
aggravated arson.

Important for this appeal is the involvement of Dr. James Karpawich during this
time period. Karpawich was appointed by the trial court on June 13, 2001 as an
“independent psychiatric expert” to evaluate Foust’s “sanity at the time of the act and
competency to stand trial.” App’x Vol. 2 at 300 (Journal Entry Granting Mot. for Indep.
Psychiatric Expert). Four months later, on October 18, 2001, Foust’s attorneys requested
funds to appoint Karpawich as a “mitigation specialist,” id. at 372 (Mot. for
Appropriation of Funds for Mitigation Expert), and the court appointed Karpawich on
December 3, 2001, id. at 402.1 On December 12, 2001, Karpawich received a voicemail
from Foust’s attorneys informing him that he “should prepare to testify for the mitigation
hearing ‘in three or four days.’” App’x Vol. 3 at 1202 (Karpawich Aff. ¶ 11). (The
mitigation hearing was later postponed by 30 days.) Karpawich had not heard from
Foust’s attorneys in months. He explained via a faxed letter that counsel had never
informed him of any expectation that he would assist with the mitigation phase. The
next day, Foust’s attorneys spoke with Karpawich by phone to inform him of his
appointment as a mitigation specialist. During this conversation, Karpawich asked
whether a social worker also had been appointed to assist with the mitigation phase.
Webster said no. Karpawich “pointed out that usually there was a social worker working
on the mitigation aspect of a capital case.” Id. at 1203 (Karpawich Aff. ¶ 12).

1
This motion, like others that Foust’s attorneys filed, was taken verbatim and without attribution
from an online template. Compare App’x Vol. 2 at 372–75 (Mot. for Appropriation of Funds for
Mitigation Expert), with “Hamilton County Public Defender - Orders, Motions, and Entries Template
Page,” http://www.hamilton-co.org/pub_def/orders_and_entries.htm (follow “Funding the Defense”
hyperlink; then follow “Mot. for Appropriation of Funds for Mitigation Expert” hyperlink) (2010).
No. 08-4100 Foust v. Houk Page 6

On many occasions, Karpawich recommended to Foust’s attorneys that they
(1) obtain records relating to Foust’s upbringing, (2) speak with potential witnesses, and
(3) meet with Karpawich:

! September 20, 2001: Karpawich “recommended that the
attorneys obtain a court order directing Cuyahoga County
Children’s Services to release their records related to Kelly Foust
and his family for the purpose of eventual mitigation.” Id. at
1202 (Karpawich Aff. ¶ 10).
! December 13, 2001: Karpawich faxed Foust’s attorneys a letter
in which he “reminded them that on September 20, 2011, [he]
had recommended they obtain records from Children’s Services
to be used during the mitigation phase of the Foust capital trial.”
Id. at 1202–03 (Karpawich Aff. ¶ 11).
! December 13, 2001: By phone that same day, Butler told
Karpawich that the attorneys “had not obtained a copy of the
Children’s Services records and that they had not contacted any
member of the Foust family.” Id. at 1203 (Karpawich Aff. ¶ 12).
! December 16, 2001: Webster wrote to Karpawich, saying that he
and Butler would like to meet with Karpawich at Karpawich’s
convenience. Id. at ¶ 13.
! December 21, 2001: Karpawich sent a letter to the attorneys
“recommending that they obtain records from Cuyahoga County
Children’s Services, the Cuyahoga County Jail[,] and other
sources.” Id. at 1204 (Karpawich Aff. ¶ 14).
! December 31, 2001: Karpawich sent a letter to the attorneys,
“remind[ing] them that [Karpawich] still had not received the
Children’s Services records.” He “again recommended that they
obtain Kelly’s records reflecting his time in the Cuyahoga County
jail since his arrest. Karpawich told the attorneys that he could
meet with them on January 2, 4, or 5, 2002. Id. at ¶ 15.
! January 4, 2002: Concerned because he had not heard from the
attorneys since the December 16 letter, Karpawich left a
voicemail with Webster. Webster did not return the call.
Karpawich also phoned Butler, who stated that he “had not talked
to Webster since the end of Kelly’s trial, and . . . had not obtained
any of the records [that Karpawich] had requested.” Karpawich
“recommended that [Webster] speak to witnesses for the
mitigation hearing.” Id. at ¶ 16.
! January 4, 2002: After the conversation with Butler, Karpawich
faxed a letter to both attorneys, again “recommend[ing] that they
contact Kelly’s sister GaryAnne, his mother Barbara[,] and his
father Gary Sr.” He provided telephone numbers for those three
family members and attached “four pages of notes and suggested
No. 08-4100 Foust v. Houk Page 7

questions for the attorneys to ask the witnesses.” After the fact,
Karpawich observed that the attorneys “used many of the
questions I suggested, with little deviation.” Karpawich “ended
the letter stating: ‘I am still able to meet with you tomorrow to
discuss mitigation issues.’” Id. at 1204–05 (Karpawich Aff.
¶ 17). The attorneys did not respond.
! January 5, 2002: Via fax to the attorneys, Karpawich “reiterated
[his] recommendations regarding interviewing witnesses and
getting pertinent records for mitigation.” He added that his
experience from other capital cases was that “family members
and other witnesses testified first to establish the basis for the
opinions [that Karpawich] would be stating” at the mitigation
hearing. Karpawich asked the attorneys to inform him which
witnesses would testify and what documents would be entered as
evidence. “Even though there was only one more full day before
the January 7, 2002 hearing,” Karpawich again stated that he was
available to meet with the attorneys before the hearing. Id. at
1204 (Karpawich Aff. ¶ 18). The attorneys did not respond.

In fact, counsel performed minimal work on Foust’s case during the weeks
between conviction and the mitigation hearing. Butler’s Motion, Entry, and Certification
for Appointed Counsel Fees shows that, between December 14, 2001 (the date of
conviction) and January 7, 2002 (the date of the mitigation hearing), Butler worked only
seven days and a total of 28 hours. Butler did not work any hours between December
18, 2001 and January 2, 2002. Similarly, Webster’s fee statement shows that he worked
nine days and a total of 24.5 hours between conviction and the mitigation hearing.2

In the end, the attorneys never met with Karpawich before the mitigation hearing.
The attorneys never spoke to any of Foust’s family members before the mitigation
hearing. They did not prepare Barbara or Gary to testify. Id. at 1226 (Barbara Aff. ¶ 4);
id. at 1227 (Gary Sr. Aff. ¶ 2). The attorneys never sought the Children’s Services
records that Karpawich repeatedly asked them to obtain. The attorneys never requested
funds for a substance-abuse expert to aid the defense team’s preparation for the
mitigation proceedings.

2
The fee statements were part of “the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 563 U.S. —, 131 S. Ct. 1388, 1398 (2011). The submission
and approval of the bills is reflected on the state trial court docket. App’x Vol. 2 at 4.
No. 08-4100 Foust v. Houk Page 8

C. Mitigation Hearing

The mitigation phase of trial began and ended on January 7, 2002. Three
witnesses testified on Foust’s behalf: Foust’s father, Gary; Foust’s mother, Barbara; and
Karpawich. Their testimony established that Foust, who was born in 1977, was the sixth
of eight children: GaryAnne, Gary Jr., Terrance, Julie, Jeremy, Kelly, Amy, and Kara.
Karpawich testified that Foust’s early years “were marked by a lot of violence and
instability, which had a traumatic effect on Kelly’s upbringing.” App’x Vol. 7 at
2646–47 (Karpawich Test.). In 1981, his younger sister, Kara, died of carbon monoxide
poisoning from a car malfunction. Shortly afterward, Foust and his siblings were split
up in foster care for over a year before being returned to their parents.

At home, Foust’s parents had physical fights and blamed each other for initiating
the altercations. Gary testified that Barbara sometimes “wanted to fight” and would “hit
[Gary] with stuff.” Id. at 2595 (Gary Test.). Gary said that “[m]ost of the time” he “was
just defending” himself. Id. at 2599. He admitted that he was an alcoholic, however,
and Barbara testified that Gary beat her badly. She visited emergency rooms “[s]everal
times” to receive medical care after the fights, and she “used to believe that [her] natural
skin tone was black and blue.” Id. at 2621 (Barbara Test.). Gary denied that the children
were present during their parents’ fights, but admitted that “you could hear what’s going
on whether they see it or not.” Id. at 2585 (Gary Test.). Barbara testified that her oldest
daughter “would sneak out of the house to a pay phone” to call the police during the
fights, “and sometimes . . . she was so little she had to stand on a chair or on telephone
books to reach the phone.” Id. at 2621 (Barbara Test.).

As for the treatment of the children, Gary testified that he was “overprotect[ive],”
id. at 2600 (Gary Test.), providing “a controlled environment” where the “kids were
never out of our sight,” id. at 2585. When asked whether he was physically violent
toward the children, Gary said “Yes and no,” id., and “[n]ot really,” id. at 2600, although
he acknowledged causing a “little physical, [a] little mental” abuse, id. There were
“[t]imes when [he] was mad [and] probably hit [the children] harder than [he] should
have,” but “[i]t wasn’t an everyday thing” and “three to six months” might pass between
No. 08-4100 Foust v. Houk Page 9

his drinking episodes. Id. According to Barbara, however, Gary treated the children
“[v]ery badly. He was very violent. He was always – if he wasn’t hitting, he was
screaming, he was threatening, he was ridiculing, berating them, everything they ever
did wasn’t good, nothing they ever did was okay.” Id. at 2620–21 (Barbara Test.). She
testified that Gary would “kick” the children and “strike” them with “[h]is fist[ or]
whatever he could pick up.” Id. at 2622. Barbara said that she “[o]ccasionally” struck
her children with only her hand to discipline the children. Id. at 2623. There was little
discussion of how Barbara interacted with Foust.

In comparison to his older brothers, Foust was relatively passive in the face of
his father’s abuse. Id. at 2646 (Karpawich Test.). Foust “never seemed to respond. . . .
[H]e would cry when he was young, but [he did not] fight back or retaliate . . . .” Id. at
2623 (Barbara Test.). “[H]e was the child that got lost in the shuffle because he never
did anything bad to draw attention to himself.” Id. Barbara described Foust as a
“straight A student” until seventh grade, id., when “[h]e just totally changed. It was like,
the old Kelly stopped existing and someone new took over his body.” Id. at 2625. Foust
stopped attending school, began committing crimes, and found himself in a juvenile
facility.

Hardly any testimony focused on the physical condition of the Fousts’ home.
Gary said simply that their home “wasn’t well kept.” Id. at 2586 (Gary Test.). There
was no mention of sexual abuse.

When Gary and Barbara divorced in 1985, Barbara retained custody of the
children. When Barbara was arrested in 1987 or 1988, four of the children, including
Foust, went to live with Gary; the rest stayed with their oldest sister, GaryAnne, who
was 18. During that time, Gary “pa[id] this lady $50 a week [to] t[ake] care of the kids,
g[e]t them up, put them to school, [and] fe[e]d them.” Id. at 2592. Because he had lost
his job and was recovering from his alcohol addiction, Gary felt that there “wasn’t too
much [he] could do” to raise his children. Id. When Barbara was released from custody
in 1990, Foust left Gary’s home to live with Barbara. Gary never saw Foust again until
the trial, in part due to a restraining order.
No. 08-4100 Foust v. Houk Page 10

In 1994, Terrance was shot and killed. Terrance had been Foust’s role model.
Shortly after Terrance’s death, Foust attempted to kill himself while he was in a juvenile
facility.

In sum, Karpawich testified that the “violence throughout [Foust’s] upbringing
. . . has an impact on the way he would interact with other people, especially women.”
Id. at 2648 (Karpawich Test.). Karpawich diagnosed Foust with alcohol dependence and
major depressive disorder. Id. at 2649. Karpawich testified that, “when depression is
mixed with alcohol[,] then someone’s judgment is even more significantly impaired.”
Id. at 2650. During his incarceration prior to sentencing, Foust was “a very appropriate
prisoner” who functioned well in controlled environments. Id. at 2654.

After the other witnesses had testified, Foust made an unsworn statement in
which he expressed confusion about his actions. Foust said that, on the night of the
murder, he had “a lot of unstable emotions and mixed feelings” that he “couldn’t
handle.” Id. at 2666 (Foust Statement). “The only thing” Foust was intending when he
went to the Coreanos’ home was “to seek one person that I thought would listen to me.”
Id. at 2665. He told the Coreanos that he was “sorry for everything that happened. I
didn’t mean it. It was nothing intentional. . . . I lost track, I think, of myself with the
reality around me.” Id. at 2668.

On January 11, 2002, the three-judge panel sentenced Foust to death. The panel
explained why it found Foust’s upbringing, as presented at the mitigation hearing,
insufficient to mitigate against death:

All three members of the panel were struck by the testimony of the
defendant’s parents, and of Dr. Karpawich, as to the circumstances of
Kelly Foust’s formative years: an alcoholic father verbally and
physically abusing all four of his sons; frequent fights between the
parents, accusations of adulterous conduct in the family home; all the
children sent to foster care on one occasion for several months following
the tragic accidental carbon monoxide poisoning that injured the
defendant, his mother, and three older siblings, and caused the death of
his two-year-old sister; his mother’s imprisonment for another period of
time; and finally, his parents’ rancorous divorce, which led to his father’s
enforced estrangement from the defendant for the past ten years. This
No. 08-4100 Foust v. Houk Page 11

background unquestionably helped the panel place the defendant into
context. Nevertheless, ultimately we could not conclude that it was
sufficient to mitigate the punishment for a series of criminal acts of
outrageous depravity, violence, and cruelty.

App’x Vol. 2 at 486 (Op. of Trial Judges).

D. Direct Appeal and Postconviction Proceedings

Foust appealed directly to the Ohio Supreme Court, which reweighed the
aggravating circumstances and mitigating factors. Finding that “Foust offered no
significant mitigating evidence,” the court affirmed the imposition of the death penalty.
State v. Foust, 823 N.E.2d 836, 871 (Ohio 2004).

Foust filed a petition for postconviction relief that raised, among other claims,
ineffective assistance of counsel at the penalty phase. The petition for postconviction
relief is the first time that the Ohio courts heard a complete account of Foust’s childhood.
The state trial court denied the petition for relief. The court found that the new evidence
“paints a truly grisly picture of the Foust home; however, it is a picture already painted
vividly by the testimony that was received at trial.” App’x Vol. 5 at 1710–11
(Postconviction Op.). The trial record was “replete with evidence . . . as to Kelly Foust’s
history of abuse and neglect,” showing that Foust grew up “in a ‘family that can only be
described as dysfunctional and marked by an alcoholic father.’” Id. at 1709; see also id.
at 1711. Given the testimony at the mitigation hearing, “the decision not to call
additional witnesses evidently was a tactical one, in order to avoid cumulative
testimony.” Id. at 1709. The court also found that Foust was not prejudiced because
“[i]t was rather the inhuman and gratuitous brutality of petitioner’s conduct--not any lack
of evidence as to his psyche--that was overwhelming in compelling all three judges to
reach the decision they reached both independently and unanimously.” Id. at 1711. The
Ohio Court of Appeals affirmed, State v. Foust, No. 83771, 2005 WL 2462048 (Ohio Ct.
App. Oct. 6, 2005), the Ohio Supreme Court denied review, State v. Foust, No. 2005-
2260, 108 Ohio St. 3d 1509 (2006), and the United States Supreme Court denied
certiorari, Foust v. Ohio, 549 U.S. 874 (2006).
No. 08-4100 Foust v. Houk Page 12

On March 22, 2007, Foust filed a petition for a writ of habeas corpus in the
United States District Court for the Northern District of Ohio that raised ten claims. The
district court denied the petition in its entirety and denied a certificate of appealability.
We granted a certificate of appealability on one issue: “Whether counsel rendered
ineffective assistance in the penalty phase by not obtaining a trained mitigation
specialist, not obtaining the records needed to present Foust’s life history, not
interviewing mitigation witnesses, not interviewing Dr. Karpawich in a timely manner,
and not obtaining a substance-abuse expert.” 6th Cir. 9/21/09 Order.

II. ANALYSIS

A. Standard of Review and Legal Standard

Because Foust filed his habeas petition in 2007, the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) applies to his case. Under AEDPA, we may
grant habeas petitions for claims that the state court adjudicated on the merits if that
adjudication “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1). We review the decision of the district court
de novo. Tibbetts v. Bradshaw, 633 F.3d 436, 441 (6th Cir. 2011).

Under Strickland v. Washington, Foust received ineffective assistance of counsel
if his counsel’s performance was constitutionally deficient and Foust was prejudiced as
a result. 466 U.S. 668, 687 (1984). The Supreme Court has emphasized that “even a
strong case for relief does not mean that the state court’s contrary conclusion was
unreasonable.” Harrington v. Richter, 562 U.S. —, 131 S. Ct. 770, 786 (2011). The
combined effect of Strickland and § 2254(d) is “‘doubly deferential’” review.
Pinholster, 131 S. Ct. at 1403 (quoting Knowles v. Mirzayance, 556 U.S. —, 129 S. Ct.
1411, 1413 (2009)). Put differently, “[t]he question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington, 131 S.
Ct. at 788.
No. 08-4100 Foust v. Houk Page 13

In this case, the state courts considered Foust’s claim of ineffective assistance on
its merits. The last reasoned decision of the Ohio courts on the issue of hiring a
substance-abuse expert stated that Karpawich’s testimony was an “alternative device[]
that fulfilled the same functions as the expert assistance sought.” Foust, 823 N.E.2d at
859 (internal quotation marks and alteration marks omitted). For all other components
of the ineffective-assistance claim, the Ohio Court of Appeals on postconviction review
deemed the actions and inaction of Foust’s attorneys a “tactical decision designed to
avoid cumulative testimony, which had no bearing on the outcome of the trial.” Foust,
2005 WL 2462048, at *9. We therefore afford double deference to both state-court
decisions on both prongs of the Strickland test.

B. Performance

Counsel’s performance is deficient if it “fell below an objective standard of
reasonableness,” making “errors so serious that counsel was not functioning as the
‘counsel’ guaranteed . . . by the Sixth Amendment.” Strickland, 466 U.S. at 687–88.
ABA Guidelines in effect at the time of Foust’s trial instructed attorneys to make
“‘efforts to discover all reasonably available mitigating evidence.’” Wiggins v. Smith,
539 U.S. 510, 524 (2003) (quoting ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis
added)).3 At the mitigation phase, Ohio law instructs the three-judge panel to “weigh
against the aggravating factors[] . . . ‘the history, character, and background of the
offender,’” among other items. Jells v. Mitchell, 538 F.3d 478, 495 (6th Cir. 2008)
(emphasis omitted). “Thus, to provide professionally competent assistance in Ohio
capital cases, defense counsel must conduct a reasonably thorough investigation into all
possible mitigation evidence that would present a sympathetic picture of the defendant’s
family, social, and psychological background.” Id. at 495–96.

3
We rely on Wiggins, as well as other cases that postdate the Ohio Court of Appeals’ decision
in this case, because Wiggins “did not rest on ‘new law’ but instead ‘applied the same “clearly established”
precedent of Strickland.’” Johnson v. Bagley, 544 F.3d 592, 599 (6th Cir. 2008) (quoting Wiggins, 539
U.S. at 522)).
No. 08-4100 Foust v. Houk Page 14

We afford Foust’s counsel the “‘strong presumption’ that counsel ‘made all
significant decisions in the exercise of reasonable professional judgment.’” Cullen, 131
S. Ct. at 1407 (quoting Strickland, 466 U.S. at 689–90). Even so, we cannot imagine a
reasonable argument that counsel’s inaction was strategic. Counsel’s performance was
so deficient that the Ohio Court of Appeals was unreasonable to conclude that the
attorneys’ performance satisfied the Sixth Amendment.

1. Failure to Investigate Adequately By Obtaining Records and
Interviewing Mitigation Witnesses
“[E]vidence about the defendant’s background and character is relevant because
of the belief, long held by this society, that defendants who commit criminal acts that are
attributable to a disadvantaged background . . . may be less culpable than defendants
who have no such excuse.” Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (internal
quotation marks omitted), abrogated on other grounds by Atkins v. Virginia, 536 U.S.
304 (2002). In this case, Foust’s dire upbringing formed the crux of the mitigation
strategy, yet counsel failed to investigate Foust’s upbringing in any way. Counsel’s
failures fall in two categories: failure to obtain records and failure to interview family
members.

Foust’s attorneys admit that they did not gather any of the copious Children’s
Services records that relate to Foust and his family. App’x Vol. 4 at 1353 (Butler Aff.
¶ 4); id. at 1479 (Webster Aff. ¶ 7). Both attorneys now say that they would have
introduced the records at the mitigation hearing had they obtained them. Id. We cannot
fathom why counsel failed to obtain those records. At the mitigation hearing, counsel’s
strategy was to evoke sympathy for Foust based on the deplorable conditions of his
childhood. To this end, Karpawich repeatedly reminded counsel of the importance of
gathering the records. App’x Vol. 3 at 1200–05 (Karpawich Aff. ¶¶ 10, 11, 14, 15).
There is no question that a reasonable attorney would believe records of Foust’s
childhood to be relevant to a defense about the conditions of Foust’s childhood. This
conclusion is amplified by the relative recency of Foust’s childhood, given that Foust
was only twenty-four when he committed the crimes. App’x Vol. 2 at 484 (Sent. Op.).
Nevertheless, Foust’s attorneys “failed to act while potentially powerful mitigating
No. 08-4100 Foust v. Houk Page 15

evidence . . . would have been apparent from documents any reasonable attorney would
have obtained.” Bobby v. Van Hook, 558 U.S. —, 130 S. Ct. 13, 19 (2009) (citing
Rompilla v. Beard, 545 U.S. 374, 389–93 (2005)).

Counsel also failed to interview any of Foust’s siblings. App’x Vol. 3 at 1213
(Amy Aff. ¶ 26); id. at 1221 (Julie Aff. ¶ 11)4; id. at 1224 (Jeremy Aff. ¶ 10). Amy,
Julie, and Jeremy have submitted affidavits saying that they would have testified on
Foust’s behalf. Id. at 1206–24.5 In addition, the attorneys did not interview Foust’s
parents before they testified at the mitigation hearing. Gary “never received an
explanation about what mitigation was” and no one discussed his testimony or possible
questions that the prosecutor might ask. Id. at 1228 (Gary Aff. ¶ 6). Barbara received
“a half-ass explanation of mitigation[ that] was real high-pressure,” id. at 1225 (Barbara
Aff. ¶ 3), and counsel “never discussed the specifics of” her testimony or what questions
the prosecution or defense might ask, id. at 1226 (Barbara Aff. ¶ 4).

Although counsel interviewed Foust a few times, the only other information that
they had prior to the mitigation hearing was “four pages of notes and suggested questions
for the attorneys to ask the witnesses” that Karpawich prepared and faxed to the
attorneys on January 4, 2002—the last business day before the mitigation hearing was
scheduled to begin. Id. at 1204 (Karpawich Aff. ¶ 17).6

4
In his post-trial affidavit, Karpawich omits Julie from the list of family members whom he
interviewed. App’x Vol. 4 at 1204 (Karpawich Aff. at ¶ 17). Inconsistently, Karpawich testified at the
mitigation hearing that he “interviewed” Julie, App’x Vol. 7 at 2645 (Karpawich Test.), while his written
mitigation report says that he only “contacted” Julie, App’x Vol. 5 at 2074 (Karpawich Report). The
mitigation report uses the term “contacted” to refer to Gary as well, id., and Gary testified that his
conversation with Karpawich “lasted for about ten minutes,” App’x Vol. 4 at 1228 (Gary Aff. at ¶ 5). It
is feasible that Karpawich contacted Julie for a similarly short period of time that did not constitute an
interview. What is undisputed, though, is that defense counsel never contacted or interviewed Julie.
5
GaryAnne’s affidavit does not expressly say that she (1) was not interviewed by the defense
attorneys and (2) was willing to testify. Karpawich’s testimony is that he interviewed GaryAnne. No one
contends, however, that GaryAnne was interviewed by the defense attorneys.
6
Karpawich’s Mitigation Evaluation report is dated Saturday, January 5, 2002. Although he says
that he “gave this report to the attorneys beforehand,” it appears that he gave the report to the attorneys
on January 7, 2002, on the morning of the mitigation hearing itself. App’x Vol. 3 at 1205 (Karpawich Aff.
¶ 19).
No. 08-4100 Foust v. Houk Page 16

The Ohio Court of Appeals, which provided the last reasoned decision on the
issue, characterized the omission of the Children’s Services records and sibling
testimony from the mitigation hearing “a tactical decision.” Foust, 2005 WL 2462048,
at *9. That description is nonsensical because “counsel did not even take the first step
of interviewing witnesses or requesting records.” Porter v. McCollum, 558 U.S. —, 130
S. Ct. 447, 453 (2009). Foust’s “counsel chose to abandon their investigation at an
unreasonable juncture, making a fully informed decision with respect to sentencing
strategy impossible.” Wiggins, 539 U.S. at 527.

This is not a case like Van Hook, in which counsel simply “fail[ed] to dig deeper”
into the defendant’s background. 130 S. Ct. at 19. Foust does not contend that his
counsel should have sought information “from more distant relatives” such as a
“stepsister, two uncles, and two aunts.” Id. Indeed, Foust’s counsel failed to interview
anyone or seek any Children’s Services records. The Court in Porter itself draws this
distinction to distance the facts from those of Van Hook. Porter, 130 S. Ct. at 453; see
also Jells, 538 F.3d at 493 (finding ineffective assistance based on counsel’s “brief”
interviews of only three family members and the “[in]sufficiently probing questions” that
counsel asked at those interviews).

Although we afford strong deference to Foust’s attorneys, we also find it
inconceivable that Foust’s attorneys chose not to interview Foust’s parents and siblings
on account of potential damage to Foust’s defense. In Pinholster, evidence of the
defendant’s childhood neglect would have damaged a “family sympathy” mitigation
defense. 131 S. Ct. at 1404. Foust’s counsel were not making a family-sympathy
defense. To the contrary, counsel elicited from the parents themselves information about
how they failed to care for Foust. Exploring Foust’s background by interviewing his
family and by finding Children’s Services records could only have aided counsel’s
strategy of exposing the horror of Foust’s childhood. In addition, the defense in
Pinholster was based primarily around the petitioner’s mother, giving the attorneys good
reason to limit their investigation of other family members. Foust’s upbringing,
however, was characterized by parental failure and neglect, making the siblings’
No. 08-4100 Foust v. Houk Page 17

experiences more relevant than what parents might choose to admit about their own
failings. Failure to conduct the investigation was deficient performance.

2. Failure to Interview Karpawich

Counsel’s failure to interview Karpawich about his investigation and findings
was also deficient performance. In death penalty cases, Karpawich “usually talk[s] with
the attorneys (and frequently the mitigation specialist) before the trial begins so that [he]
can share [his] findings and obtain a full understanding of the case in preparation of [his]
testimony at mitigation.” App’x Vol. 3 at 1202 (Karpawich Aff. ¶ 8). Those meetings,
according to Karpawich, are crucial to “determine how the information [he] obtained and
analyzed can be used at the client’s trial and mitigation.” Id. In this case, however,
Karpawich had “no discussion with the attorneys about Kelly Foust prior to
[Karpawich’s] testimony.” Id. (emphasis added). Karpawich’s affidavit makes clear that
he was willing to meet with counsel up to and including the day before the mitigation
hearing. Id. ¶ 18.

By neither interviewing Karpawich about his investigation nor conducting any
independent investigation, Foust’s attorneys in effect delegated to Karpawich, who is not
an attorney, the strategic decisionmaking about how to present Foust’s mitigation
defense. Counsel’s conduct thereby differs from the types of representation of which the
Supreme Court has approved. See Van Hook, 130 S. Ct. at 18 (holding that attorneys did
not perform deficiently because they “contacted their lay witnesses early and often,”
were “in touch with one” expert witness “more than a month before trial, and . . . met
with the other for two hours a week before the trial court reached its verdict”). By
abrogating decisionmaking responsibility, Foust’s attorneys “were not in a position to
make . . . reasonable strategic choice[s].” Wiggins, 539 U.S. at 536. Counsel’s
performance fell short of “prevailing professional norms” and the minimum
representation that the Sixth Amendment guarantees. Strickland, 466 U.S. at 688.
No. 08-4100 Foust v. Houk Page 18

3. Failure to Hire Specialists

a. Trained Mitigation Specialist

Even the appointment of Karpawich, a clinical psychologist who is not a trained
mitigation specialist, was suspect. Although defense teams do “not have a specific
obligation to employ a mitigation specialist, they d[o] have an obligation to fully
investigate the possible mitigation evidence available.” Jells, 538 F.3d at 495. The
failure to hire a trained mitigation specialist is particularly troublesome when “counsel’s
awareness” of the client’s difficult background “should have alerted them that further
investigation by a mitigation specialist might [have] prove[n] fruitful.” Id. at 496.

Karpawich alerted counsel to the fact that most death-penalty investigations
include a mitigation specialist, which he was not. App’x Vol. 3 at 1203 (Karpawich Aff.
¶¶ 12, 13). Based on Karpawich’s “experience[,] . . . a mitigation specialist or social
worker is important for a thorough and comprehensive development of family history
and collection of records.” Id. at 1202 (Karpawich Aff. ¶ 8); accord id. at 1231 (Dorian
Hall7 Aff. ¶ 13) (explaining that capital defense teams generally include a mitigation
specialist in addition to a psychologist). In response, the state contends that a person
who disclaims specialization in the field of mitigation cannot then assert with authority
that a mitigation specialist should have been appointed. The state’s argument is not
sound. It does not take a specialist to know that specialists exist. Even if Karpawich
were qualified as a mitigation specialist, he did not fulfill that role because he was
unable to collect Children’s Services records and did not conduct thorough or sufficient
interviews with Foust’s family.

Given the nature of Foust’s mitigation defense and his counsel’s failure either to
consult regularly with Karpawich about his investigation or to conduct an independent
investigation, failing to hire a trained mitigation specialist was deficient performance.

7
Dorian Hall has “been employed as a mitigation specialist by the Office of the Ohio Public
Defender since August 1988 and ha[s] served as the supervisor of the mitigation section since August
1994.” Id. at 1229 (Dorian Hall Aff. ¶ 1). She has “been involved in the investigation and/or preparation
of over one hundred and fifty death penalty cases at both the trial and appellate levels in the states of Ohio
and Indiana.” Id. at 1230 (Dorian Hall Aff. ¶ 4).
No. 08-4100 Foust v. Houk Page 19

b. Substance-Abuse Expert

With regard to hiring a substance-abuse expert, however, the state courts were
not unreasonable in finding that counsel’s performance was adequate. On direct appeal,
the Ohio Supreme Court stated that Karpawich’s testimony was an “alternative device[]
that . . . fulfilled the same functions” that a substance-abuse expert would have served.
823 N.E.2d at 859. Karpawich had “testified that Foust was diagnosed with ‘alcohol
dependence.’” Id. Karpawich’s written report, which was introduced into evidence,
stated that “Foust reported ‘abusing alcohol heavily around the time of the present
offenses.’” Id.

Foust speculates that an expert could have testified about “the genesis of Foust’s
addiction, its effect on his judgment and impulsivity, and how it lessens his culpability.”
Appellant Br. at 35. While Karpawich’s testimony could have been more expansive, his
testimony was not dramatically different from this speculation about what a substance-
abuse expert could offer. Foust has not offered any evidence that a substance-abuse
expert could have added any other information. Thus, the Ohio Supreme Court did not
act contrary to or unreasonably apply Supreme Court precedent on the sub-claim about
the substance-abuse expert.

4. Summary of Performance Prong

We recognize that we must “affirmatively entertain the range of possible reasons
[Foust]’s counsel may have had for proceeding as they did.” Pinholster, 131 S. Ct. at
1407 (internal quotation marks omitted). However, “‘strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.’” Wiggins, 539 U.S. at
528 (quoting Strickland, 466 U.S. at 690–91). Put differently, “an unreasonably
truncated mitigation investigation is not cured simply because some steps were taken
prior to the penalty-phase hearing and because some evidence was placed before the
jury.” Johnson v. Bagley, 544 F.3d 592, 602 (6th Cir. 2008) (citing Rompilla, 545 U.S.
at 382–83, in which the Supreme Court found an investigation unreasonable even though
No. 08-4100 Foust v. Houk Page 20

the attorneys spoke to the defendant, five family members, and three mental-health
witnesses).

Foust’s attorneys acted similarly to the attorneys in Johnson. In that case, we
concluded that counsel failed adequately to investigate and present Johnson’s family
history, even though a doctor “testified at the mitigation hearing that Johnson’s family
unit was ‘someplace between terrible and chaotic,’ that [the defendant’s] neighborhood
was ‘less than optimal,’ and that [his mother] ‘was abusing drugs heavily at the time of
Johnson’s birth.” 544 F.3d at 602 (internal alteration marks and citations omitted).
Although Foust’s counsel presented some evidence at the mitigation hearing, their
investigation was inadequate. Without acquiring rudimentary details, Foust’s attorneys
could not have made a reasonable professional judgment to limit their investigation.
There is simply no strategic reason for Foust’s counsel not interviewing family members,
not obtaining records, not consulting with Karpawich, and not hiring a mitigation
specialist. Because there is no reasonable argument that Foust’s attorneys lived up to the
minimum standard of representation that the Sixth Amendment ensures, the Ohio Court
of Appeals unreasonably applied Strickland.

C. Prejudice

Deficient performance prejudices the defense if “[c]ounsel’s errors [were] so
‘serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’”
Harrington, 131 S. Ct. at 787–88 (quoting Strickland, 466 U.S. at 687). In other words,
but for the error, there must be “a substantial, not just conceivable, likelihood of a
different result.” Pinholster, 131 S. Ct. at 1403. “To assess th[e] probability” that Foust
would have received a different sentence had his counsel not performed deficiently, “we
consider ‘the totality of the available mitigation evidence—both that adduced at trial, and
the evidence adduced in the habeas proceeding’—and ‘reweig[h] it against the evidence
in aggravation.” Porter, 130 S. Ct. at 453–54.

“[I]n order to establish prejudice, the new evidence that a habeas petitioner
presents must differ in a substantial way—in strength and subject matter—from the
evidence actually presented at sentencing.” Hill v. Mitchell, 400 F.3d 308, 319 (6th
No. 08-4100 Foust v. Houk Page 21

Cir.), cert. denied, 546 U.S. 1039 (2005). In other cases, we have found prejudice
because the new mitigating evidence is “different from and much stronger than the
evidence presented on direct appeal,” “much more extensive, powerful, and
corroborated,” and “sufficiently different and weighty.” Goodwin v. Johnson, 632 F.3d
301, 328, 331 (6th Cir. 2011). We have also based our assessment on “the volume and
compelling nature of th[e new] evidence.” Morales v. Mitchell, 507 F.3d 916, 935 (6th
Cir. 2007). If the testimony “would have added nothing of value,” then its absence was
not prejudicial. Van Hook, 130 S. Ct. at 19. In short, “cumulative mitigation evidence”
will not suffice. Landrum v. Mitchell, 625 F.3d 905, 930 (6th Cir. 2010), petition for
cert. filed (Apr. 4, 2011) (10-9911).

The Ohio Court of Appeals found that the testimony presented at the mitigation
hearing already “portrayed the abusive and dysfunctional home life of Foust, the history
of abuse by Foust’s father, and Foust’s alcohol dependency.” Foust, 2005 WL 2462048,
at *9. In that court’s view, the new evidence merely “reiterate[d] what a dismal home
life Foust endured as a child.” Id. We find this conclusion unreasonable. The testimony
at the mitigation hearing “only scratched the surface of [Foust]’s horrific childhood.”
Johnson, 544 F.3d at 602. Far from being cumulative, the new evidence paints an
altogether different picture of Foust’s childhood. The new evidence would have given
Foust a substantial likelihood of receiving a different sentence.

1. Whether Evidence Not Presented at the Mitigation Hearing
Would Have Been Cumulative
a. Squalor and Chaos of the Foust Home

In 1980, when Foust was nearly three years old, he and his siblings were removed
from their home because of their mother’s arrest. Cuyahoga County Welfare Department
records describe the condition of the home on the day that the children entered state
custody: “the home had a strong stench from feces (human and animal) which was all
around, smeared on walls and clothing in piles on the floor. There were garbage bags
full all around and flies.” App’x Vol. 3 at 1039. On another day, “[t]he stench was
strong, as the door was open a small amount.” Id. at 1040. Finding clean clothes for the
No. 08-4100 Foust v. Houk Page 22

children was a “difficult task” because “the rooms were in complete disorder.” Id. at
1039. “The children stated they had not been fed the night before or that day.” Id. “The
baby[, Amy,] had a severe diaper rash and loose bowels. Jeremy and Kelly were in
diapers which were dirty.” Id. The notes also describe the children as “basically dirty”
and “dirty and dissheveled [sic].” Id. at 1039–40. Their clothes were “in poor repair and
dirty.” Id. at 1040. Another record from 1980 reports that “there was vomit on the floor
in their apartment.” Id. at 1123.

These miserable conditions persisted throughout Foust’s childhood. In 1985,
when Foust was eight, a social worker visited the Foust home. Although the social
worker knew from the Fousts’ social-services record that their “homekeeping standards”
were “submarginal,” the social worker was “shocked at the total deprivation and
pre[]ponderance of filth, indicating the absence of any standard of housekeeping. The
home . . . was a lice infested, canine feces factory with no hot water and little food for
9 children and one adult.” Id. at 1033. The social worker “immediately” turned to the
Homemaking Department of the Department of Human Services for cleaning services.
Id. After one visit, however, the Homemaking Department determined that it could

no longer provide service, as requested, in the future. The home has 2
cats, 2 dogs, mice and fleas jumping everywhere. There are animal feces
also everywhere. The children appear to have lice and are scratching due
to the infestation of fleas. There is also very little food in the home [and
no] hot water. The children are dirty and in need of baths. This case is
being denied ongoing service due to uninhabitable living conditions. . . .
[W]e feel that these children being left in this home continue to be at risk.

Id. at 1036. Another worker called the home a “pig sty.” Id.

The siblings’ affidavits support this dire depiction. Amy described their home
as “filthy,” with “cockroaches and mice everywhere. No one did dishes,” and “there was
always a pile of dirty dishes.” Id. at 1206 (Amy Aff. ¶ 2). The home did not have gas
or hot water when a social worker visited in 1985, id. at 1033, and Amy said that gas and
electricity were “routinely turned off,” id. at 1206 (Amy Aff. ¶ 2).
No. 08-4100 Foust v. Houk Page 23

Foust’s parents also neglected to perform other household duties. Foust’s mother
“never cooked for us kids. If you were hungry, you had to make something for yourself
or you would starve.” Id. at 1206–07 (Amy Aff. ¶ 2). Amy also said that Barbara “never
did the laundry”:

When all the clothes were dirty, [Barbara] would go to Goodwill and get
a couple bags of clothes. When those clothes got dirty, she would go
back to Goodwill and get more bags of clothes. There were piles of
clothes in the basement. Once, when I was ten years old, I went to the
basement to do some laundry but couldn’t because fleas were in the
clothes and they bit me all over my legs.

Id. at 1207 (Amy Aff. ¶ 3). The children “were not required to take baths” and could “go
for a month without a bath, if [they] wanted to.” Id.

Passing references at the mitigation hearing to minor maladies in no way
conveyed the abysmal condition of Foust’s childhood home. Gary testified that the
home “wasn’t well kept.” App’x Vol. 7 at 2586 (Gary Test.). Karpawich’s mitigation
evaluation said merely that Foust’s mother “did not clean the home and . . . the children
suffered from head lice,” App’x Vol. 5 at 2076 (Karpawich Report), and his oral
testimony never broached the subject. Because the facts adduced at the mitigation
hearing on this point were neither numerous nor detailed, we conclude that the new
evidence is substantially different and not cumulative.

b. Maternal Abuse and Neglect

When Foust “tried to impress” his mother by attaining “good grades,” Barbara
responded: “‘You’re still a worthless piece of shit.’ Later, when [Foust] got a job, [his]
mother responded the same way.” App’x Vol. 3 at 1207–08 (Amy Aff. ¶ 6). Barbara
insulted her children in many contexts; for example, she derided Amy by calling her a
“stupid whore” who could not “do anything right.” Id. These facts contrast starkly with
the trial evidence, in which Barbara reflected on a time when Foust earned good grades
by saying that Foust had “‘blossomed.’” App’x Vol. 5 at 2077 (Karpawich Report).
Barbara’s disapproval would have stung Foust strongly because of his earlier attachment
to his mother. After Kara died in 1980, social services reported that the three-year-old
No. 08-4100 Foust v. Houk Page 24

Foust “is the most obviously disturbed by the recent trauma in the family.” App’x Vol.
3 at 1038. Foust was “very attached to his mother and d[id] not relate well to strangers.
He cr[ied] when approached by anyone other than his mother.” Id. A different
evaluation described Foust as a “withdrawn” child who “clung” to his mother. Id. at
1040.

In addition to emotional abuse, Barbara perpetrated physical abuse. She
“punished” the children by beating them with a belt, throwing items such as shoes,
dishes, and food at the children, “smacking” them “across the face,” and sending the
children to bed hungry. Id. at 1207 (Amy Aff. ¶ 5). In 1992, Amy expressed fear of
“wear[ing] a belt because her mother will beat her with it.” Id. at 1055 (Intake Referral
Form). Barbara’s violence extended to her treatment of Gary Sr., at whom she “would
throw pots and pans” as well as “bottles.” Id. at 1219–20 (Julie Dep. ¶ 4).

Although testimony at the mitigation hearing showed that Gary Sr. had substance
abuse problems, the new evidence shows that Barbara did as well. As of 1985, she was
an “alcoholic” who “has not attempted to quit” drinking. Id. at 1164 (Social Services
Notes). Amy states in her affidavit that her mother “spent a lot of time drinking at bars”
and would “return home in a drunken stupor” or “return home to smoke marijuana or
take pills before passing out. Id. at 1212 (Amy Aff. ¶ 21).

These particular facts are small pieces of more systemic neglect. A social worker
noted that “Mrs. Foust had problems in functioning” and “appeared to be in a daze.” Id.
at 1039. Amy described her mother as “an embarrassment. I always wondered how she
could sit there, look at her children suffer, and not do anything about it.” Id. at 1207
(Amy Aff. ¶ 4). Amy has no contact with her mother but does not “miss her.” Id.

She’s the kind of mother you regret. She makes you sad - she could do
so much better, if she cared. It’s disgusting to think about. When I was
about five years old, our mother decided she wasn’t going to be a wife
and mother anymore. She moved next door with a man named Randy
Kipp. She would sneak in and out of our house so that I wouldn’t see her
and cry for her not to leave.
No. 08-4100 Foust v. Houk Page 25

Id. External observers witnessed Barbara’s neglect as well. One social worker “could
never understand how Barbara Foust, . . . residing two blocks away[,] could remain
absent and never inquire about her children.” Id. at 1033 (6/21/88 Notes).

Barbara resisted much-needed intervention from social services. On one
occasion in 1984, Barbara threatened to shoot any social worker who came to her home.
Id. at 1080. In 1988, a social worker observed that the Fousts “have always scapegoated
social services agencies, the courts[, and] their children.” Id. at 1033.

At the mitigation hearing, the testimony accredited the abuse and neglect to
Foust’s father, never revealing that Foust’s mother perpetrated the same types of harm.
The testimony at the mitigation hearing “misled” the three-judge panel into believing
that Foust had “a stable influence in [his] life who did everything she could to help him.”
Johnson, 544 F.3d at 604.8 The reality was more grim. We conclude that the evidence
about emotional and physical abuse from Foust’s mother is not cumulative, and its effect
is strong because of the loss of both parents’ support. Cf. Sutton v. Bell, No. 03-5058,

8
On the question of how Foust’s mother interacted with Foust, the dissent accuses of us “‘gross
distortion’” of the record. Dissent at 37 (quoting Bobby v. Van Hook, 130 S. Ct. at 18). We emphatically
disagree. At no point do we suggest that the mitigation panel was deluged with evidence of Barbara’s
affection. The key point is that the evidence at the mitigation hearing pinned all abuse on Gary, while
showing that Barbara was another parent involved in Foust’s life who was not abusive. This juxtaposition
itself was misleading. Moreover, at mitigation, the only evidence about how Barbara interacted with Foust
was Karpawich’s report, which stated that Barbara took pride in how Foust had “blossomed” when he
attained good grades. App’x Vol. 5 at 2077 (Karpawich Report). As explained above, that claim is belied
by the new evidence, meaning that the three-judge panel was misled.
In addition, the evidence that the dissent cites does not support its conclusion. First, that Foust’s
early upbringing was “marked by a lot of violence and instability” says nothing about how Barbara
behaved, much less her dealings with Foust. App’x Vol. 7 at 2646. Karpawich’s testimony that “[t]here
was no stability in the home” was regarding “parents fighting, . . . frequent moves,” and “the chaos.” Id.
at 2648.
Second, we find wholly irrelevant that, “although Kelly had sent [Barbara] numerous letters
[after] his arrest for Jose Coreano’s murder, she had just ‘left them sit [sic] on [her] T.V.” Dissent at 37
(citing App’x Vol. 7 at 2637 (Barbara Test.)) (alteration in dissent). What happened after the crime has
scant relationship to the factors that influenced Foust to commit the crime. Far from showing longstanding
neglect, it seems that Barbara’s inaction was a result of shock and her “ang[er] at Kelly” for the crime.
Id.; see also id. at 2638 (“I just don’t think I could deal with seeing him in jail.”).
Third, the dissent notes that Barbara “mismanaged the family’s finances,” “failed to pay the bills
on time,” and was arrested for “writing bad checks.” App’x Vol. 5 at 2076 (Karpawich Report). A mother
can be derelict in financial responsibilities without being abusive and neglectful of her child. Isolated and
temporary absences are not always evidence of neglect. Gary accused Barbara of being “mentally
unstable” and having affairs. Barbara, in turn, said that Gary was the one who abused her and that her
actions were in self-defense. Spats between parents say little about whether a mother abused and neglected
her child. Finally, Karpawich’s letter said that Foust “raised concerns about his mother” in a sentence
between topics of bipolar disorder and asthma. Id. at 2079 (Karpawich Report). Even if those five words
could be construed to show Foust’s doubts about Barbara’s mental stability—and they cannot—certainly
they did not raise the issue of Barbara’s abuse and neglect of Foust.
No. 08-4100 Foust v. Houk Page 26

— F.3d —, 2011 WL 2207315, at *9 (6th Cir. June 8, 2011) (discounting mitigation
evidence because Sutton, the petitioner, had “one constant and positive influence: his
grandmother, who raised him and adequately provided for him”).

c. Incest and Sexual Abuse in Foust’s Home

In 1988, when Foust was 11 years old, Amy “found Gary Jr. raping Julie.”
App’x Vol. 3 at 1209 (Amy Aff. ¶ 11). Foust and Jeremy also “heard them having sex.”
Id. at 1223 (Jeremy Aff. ¶ 8). Several of the siblings informed Barbara and “the case
went to Juvenile Court.” Id. at 1209 (Amy Aff. ¶ 11). However, the charges were
dropped after Barbara “made Julie change her story,” Gary Jr. threatened Julie with a
gun, and Gary Jr. kicked Barbara in the stomach in front of all of the children. Id. at
1209 (Amy Aff. ¶ 11).

Later, Amy also became a victim of sexual abuse in the Fousts’ home. Jeremy
molested Amy beginning when Amy was 10 years old. Id. at 1210 (Amy Aff. ¶ 15).
When Amy sought help, her mother “slapped [her] . . . for reporting the abuse.” Id. In
addition, “Gary Jr. pulled a gun” on Amy, telling her that he would not “hesitate to
shoot” her if she tried to report the abuse again. Id. Amy escaped the Foust home by
running away to a shelter. She “spent the rest of [her] teenage years in residential
children’s centers, psychiatric hospitals, and foster care.” Id. at 1211 (Amy Aff. ¶ 16).
During a home visit in 1994, however, Amy “woke up with Jeremy on top of [her,]
trying to rape [her] with a knife to [her] throat.” Id. (Amy Aff. ¶ 18); see also id. at 1064
(Hotline Referral Form). Julie, who awoke to Amy’s screams, witnessed the assault.
Amy attempted suicide after the attack.

We conclude that the evidence about sexual abuse in Foust’s home is a new
subject matter that was not addressed at the mitigation hearing. At that hearing,
Karpawich testified that Foust “experienced violence throughout his upbringing, which
has an impact on the way he would interact with other people, especially women.”
App’x Vol. 7 at 2648 (Karpawich Test.). However, Karpawich never mentioned that the
No. 08-4100 Foust v. Houk Page 27

cause may have been sexual abuse to which Foust was exposed.9 Although the victims
of the sexual abuse were Foust’s sisters, Foust’s acclimation to sexual abuse of women
is particularly relevant because rape was one of the aggravating circumstances that
supported the death penalty. Foust, 823 N.E.2d at 868–69; cf. Phillips v. Bradshaw, 607
F.3d 199, 217–19 & n.2 (6th Cir. 2010) (finding that evidence about sexual abuse of the
petitioner’s siblings—of which Phillips apparently was unaware—and speculation about
sexual abuse of the petitioner had no “specific causal nexus” to the petitioner’s rape of
a “helpless toddler”), cert. denied, 131 S. Ct. 1605 (2011).

d. Good Acts That Foust Performed

Foust “made a big difference in [Amy’s] life” because he convinced her to stop
strip dancing and cease using drugs. App’x Vol. 3 at 1213 (Amy Aff. ¶ 24). Amy’s
description of how Foust intervened on her behalf is insightful: “Kelly cried as he
begged me to stop . . . dancing, drugging, and drinking. . . . He said he was crying
because I was turning out just like the rest of my family.” Id. “Because of Kelly,” Amy
quit her job at a strip club and became a waitress. Id. Although Julie’s affidavit asserts
that Amy “is back to her old tricks – drinking, drugging[,] and stripping,” id. at 1220
(Julie Aff. ¶ 5), Foust’s success in reforming Amy is not the point. Amy’s affidavit
shows that Foust was attempting to fix—and, at least for a time, succeeded in
fixing—some of the faults that he saw in his family.

Years earlier, Foust also “saved [a] baby from being shot” during a drive-by
shooting at the Fousts’ home. Id. at 1212 (Amy Aff. ¶ 22). GaryAnne’s young daughter
was in a swing near the middle of the room. Foust “jumped toward the baby” and
“pushed the swing toward the wall and away from the bullet, which lodged in the wall
a few inches from the baby’s swing.” Id.

9
The dissent says that evidence of incest and sexual abuse is cumulative because it “prove[s] a
point that [Foust] already made”: “that Foust grew up learning that violence toward women was normal.”
Dissent at 35 (citing evidence that Gary had affairs with other women and physically abused Barbara).
The dissent interprets “subject matter” (or, in the dissent’s terminology, “point”) too narrowly. Sexual
abuse is different than consensual affairs. Sexual abuse is different than physical abuse. And sexual abuse
of children is different than physical abuse of parents. The distinction between sexual abuse and physical
abuse is all the more pronounced because rape—not a consensual affair and not physical abuse—was an
aggravating factor in this case. The evidence is not cumulative.
No. 08-4100 Foust v. Houk Page 28

Because nothing at the mitigation hearing indicated that Foust had performed
these or any other positive acts, we conclude that this evidence is not cumulative. See
Sutton, 2011 WL 2207315, at *8 (identifying “positive or redeeming” qualities as one
factor that may make newfound mitigation evidence overwhelming).

e. Paternal Abuse and Neglect

Some of the evidence about Gary’s abuse is cumulative. For example, Gary
stabbed the family’s dog to death in front of the children. App’x Vol. 3 at 1223 (Jeremy
Aff. ¶ 5). Evidence at the mitigation hearing showed that Gary was violent and abusive,
however, and this is only one vivid example. Also, Foust points to his father’s failure
to provide heat, jackets, and food in 1986 when he and his brothers lived with their
father. Gary Jr. also sometimes stole food stamps to sell for drugs. Trial evidence,
however, showed that Foust’s father spent “money on alcohol while the family lacked
basic needs.” App’x Vol. 5 at 2075 (Karpawich Report). Despite adding some detail,
these pieces of new evidence are not substantially different.

However, Gary’s neglect of Foust’s physical injuries is newly documented in
Jeremy’s affidavit:

When Kelly was 6 or 7 years old, he was ordered to get our father a cup
of hot water. Kelly spilled the water on himself which gave him a
serious burn to his shoulder. Kelly asked to go to the hospital but my
father told him ‘Fuck you. Stand in the corner.’ My brothers Gary Jr.,
Terrance[,] and myself came up with a plan to help Kelly. Gary Jr.
distracted our father while Terrance and I grabbed pork chops out of the
freezer and put them under Kelly’s shirt to cool the burn.

Id. at ¶ 6. In contrast, at the mitigation hearing, the prosecutor emphasized that the
testimony showed “no specific instances in which the defendant was ever abused by his
father.” App’x Vol. 7 at 2671 (Prosecutor’s Closing Statement). The prosecutor said
he could not “recall hearing one single isolated incident where any particular physical
abuse took place involving Kelly and his dad,” and “f[ou]nd” that fact “to be particularly
interesting.” Id. We conclude that the evidence of how Gary neglected Foust in
physically injurious ways is not cumulative.
No. 08-4100 Foust v. Houk Page 29

2. State’s Responses

To dispute the allegations of prejudice, the state makes several arguments. First,
Foust’s postconviction petition was heard by the Honorable Stuart A. Friedman, the
same judge who presided over the three-judge panel that sentenced Foust to death. The
state emphasizes Judge Friedman’s postconviction finding that additional mitigating
evidence would not have altered the panel’s decision. In Schriro v. Landrigan, the
Supreme Court found it “worth noting . . . that the judge presiding on postconviction
review was ideally situated to make [a particular] assessment because she is the same
judge that sentenced Landrigan . . . .” 550 U.S. 465, 476 (2007). Landrigan is
inapplicable to the case before us because Ohio law requires unanimity among a three-
judge panel for a sentence of death. Thus, “any one of the three judges alone could have
prevented imposition of the death penalty.” Dickerson v. Bagley, 453 F.3d 690, 699 (6th
Cir. 2006). Judge Friedman’s view that the aggravating factors were too extreme for any
mitigators to overpower them tells us little about how the other two judges might have
viewed the new evidence, even if we were to give controlling weight to Judge
Friedman’s post-hoc remarks. Our role is to decide whether Judge Friedman’s
conclusion was reasonable, and we find that it was not.

Second, the state attacks the credibility of some of the new witnesses, citing
“derogatory comments” that GaryAnne made about her siblings, Jeremy’s incarceration
at the time of trial, and Barbara’s testimony that Julie had “a lot of issues.” Appellant
Br. 34–36. The state contends that the testimony of GaryAnne in particular would have
been “possibly damaging.” Id. at 36. Yet the fact “[t]hat someone may make a bad
witness is no explanation for not interviewing her first.” Johnson, 544 F.3d at 600.
Moreover, the state admits that the facts of Foust’s upbringing were “uncontested.”
Appellant Br. at 37. At issue was not the credibility of the depiction of Foust’s
upbringing, but the categories and details that the depiction included. In fact, the
troubled adult lives of Foust’s siblings would bolster Foust’s claim that his childhood
home was toxic.
No. 08-4100 Foust v. Houk Page 30

Third, the state proposes that Foust was not prejudiced by his counsel’s failure
to obtain the Children’s Services records because the documented events took place
before Foust was born or before he was three years old. The state is partly correct as to
timing. The record shows the Fousts’ long history of neglecting their children that
predated Foust’s birth. Some of those facts shed light on the environment in which Foust
was raised. The facts that we have cited, however, took place after Foust was born and
at various times during his childhood.

Fourth, we agree with the state that the failure to admit records from the
Department of Youth Services did not prejudice Foust. Karpawich testified that Foust
behaved well and obtained good grades during his time in the juvenile facility.
Karpawich also testified that Foust behaved well in the controlled environment of the
prison where Foust resided while awaiting trial. App’x Vol. 7 at 2654–55. These are
not new facts, nor are they ones on which we base our holding.

3. Reweighing the Mitigating and Aggravating Factors

Although Foust’s childhood was the subject of testimony at the mitigation
hearing, the Supreme Court has “never limited the prejudice inquiry under Strickland to
cases in which there was only ‘little or no mitigation evidence’ presented” at the
mitigation hearing. Sears v. Upton, 561 U.S. —, 130 S. Ct. 3259, 3266 (2010). The
Supreme Court, in fact, has found prejudice in cases in which counsel presented “a
superficially reasonable mitigation theory during the penalty phase” but later evidence
revealed counsel’s failings. Id. at 3266.

In this case, counsel presented some evidence at the mitigation hearing, but the
evidence in no way conveyed the horror of Foust’s childhood or Foust’s attempt to
combat his family history by helping Amy. By 1988, a social worker concluded that
“[t]he Foust family has a continuous social services history of mental neglect,
non[-]nurturance, drug and alcohol usage, substandard living habitats[,] and an overall
defiant, confrontational lifestyle that has developmentally delayed and conceivably
retarded any reasonable expectations one . . . might wish for the Foust children.” App’x
Vol. 3 at 1032. This type of evidence reveals far more than “minor additional details.”
No. 08-4100 Foust v. Houk Page 31

Van Hook, 130 S. Ct. at 20. The new information “picture[s Foust’s] childhood . . . very
differently from anything defense counsel had seen or heard.” Rompilla, 545 U.S. at
390. Had the full information been available to the three-judge panel who sentenced
Foust to death, there is a reasonable probability that one judge would have opted to
sentence Foust to life imprisonment.

We acknowledge that “[t]he aggravating circumstances were, as the state court
suggested, overwhelming.” Sutton, 2011 WL 2207315, at *8. Foust’s crime was
heinous. Powerful aggravating circumstances, however, do not preclude a finding of
prejudice, even when our review is constricted to assessing the reasonableness of how
the state court weighed the mitigating and aggravating factors. See, e.g., Mason v.
Mitchell, 543 F.3d 766, 769 (6th Cir. 2008) (finding prejudice even though the petitioner
raped a woman and beat her to death using “a blood-stained board with protruding
nails”); Jells, 538 F.3d at 484–85 (finding prejudice even though the petitioner abducted
a woman and her child, beat the mother to death in front of the child, and dumped her
body and abandoned the crying child at a junkyard). The new evidence about Foust’s
family history is overwhelming, and it undermines reasonable confidence in the
reliability of Foust’s death sentence.

III. CONCLUSION

Despite Foust’s gruesome crime, there is a reasonable probability that, had the
three-judge panel heard the true horror of Foust’s childhood, at least one of the judges
would not have sentenced Foust to death. The Ohio Court of Appeals’s conclusion to
the contrary was unreasonable, and the district court erred when it denied Foust’s
petition. On the issue of ineffective assistance of counsel, we REVERSE the judgment
of the district court and GRANT a conditional writ of habeas corpus vacating Foust’s
death sentence, unless the State of Ohio commences a new penalty-phase trial against
Foust within 180 days from the date on which this judgment becomes final.
No. 08-4100 Foust v. Houk Page 32

_________________

DISSENT
_________________

ALICE M. BATCHELDER, Chief Judge, dissenting. This case involves heinous
wrongdoing, both on the part of Foust and on the part of those who were charged with
his care as a young child. There is no doubt that Foust endured a truly horrific
childhood. And I cannot disagree with the majority’s conclusion that his counsel
performed deficiently for failing to conduct further investigation during the mitigation
phase.1 However, I do not agree with the majority that the Ohio Court of Appeals’
conclusion that Foust was not prejudiced as a result of his counsel’s performance was
unreasonable.

The majority has determined that “[t]he new evidence about Foust’s family is
overwhelming, and it undermines reasonable confidence in the reliability of Foust’s
death sentence.” The majority then concludes that the Ohio Court of Appeals’ contrary
determination is unreasonable. The majority reaches this conclusion only by distorting
the factual record and by conflating fair-minded disagreement with unreasonableness.
Without determining whether any reasonable argument could support the state court’s
decision that Foust was not prejudiced, the majority evaluates the evidence and makes
its own conclusion. It then pronounces “unreasonable” that with which it disagrees. But
the Supreme Court has made clear that “an unreasonable application of federal law is
different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S.
362, 410 (2000). Our task is not to determine whether or not we agree with the state
court. Rather, our task is to determine whether “there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” See Harrington v. Richter, 131 S.

1
I do not join the majority’s broader discussion of defense counsel’s performance, nor am I
confident that Cullen v. Pinholster, 131 S. Ct. 1388 (2011), permits us to consider defense counsel’s fee
statements under these circumstances. Although the fee statements were before the state trial court, Cullen
permits us to consider only “the record that was before the state court that adjudicated the claim on the
merits.” Id. at 1398. We are reviewing the decision of the Ohio Court of Appeals—the court that
adjudicated Foust’s Strickland claim on the merits—and there is nothing in the record indicating whether
the fee statements were part of that court’s record. Cullen simply does not make clear whether or not we
should assume that the record before the state trial court was part of the record of the court whose decision
we are reviewing.
No. 08-4100 Foust v. Houk Page 33

Ct. 770, 788 (2011) (emphasis added). Because I believe that there are reasonable
arguments to support the state court’s determination, I respectfully dissent.

“The standards created by Strickland and § 2254(d) are both ‘highly deferential,’
and when the two apply in tandem, review is ‘doubly’ so.” Id. (citations omitted). In
order to prevail under Strickland, a petitioner must show (1) that his “counsel’s
representation fell below an objective standard of reasonableness,” and (2) that the
petitioner was prejudiced by counsel’s performance. Strickland v. Washington, 466 U.S.
668, 687-88, 691 (1984). To prove prejudice, a petitioner must demonstrate “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. A petitioner must meet
both prongs of Strickland, and the court may address them in either order. Id. at 697 (“If
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”).

The state court’s decision simply cannot be called an unreasonable application
of Strickland. Much of the evidence that the majority characterizes as “new” is
substantially similar to evidence that was presented to the three-judge panel (evidence,
I would add, that the three-judge panel specifically found to be insufficient to outweigh
the statutory aggravators, see App’x Vol. 2 at 503 (Trial Ct. Op.)). The remaining
evidence, which is arguably not cumulative, does not compel the conclusion that Foust’s
death sentence was unreliable.

“[I]n order to establish prejudice, the new evidence that a habeas petitioner
presents must differ in a substantial way—in strength and subject matter—from the
evidence actually presented at sentencing.” Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir.
2005) (emphasis added) (surveying cases in which habeas petitioners claimed prejudice).
Although Foust now presents more detailed (and therefore arguably stronger) mitigation
evidence, most of his evidence simply does not differ in subject matter from that which
the sentencing panel heard in the first instance.
No. 08-4100 Foust v. Houk Page 34

For example, the new evidence about the condition of Foust’s childhood home
is more vivid and detailed than what the three-judge panel heard at sentencing. At
sentencing, Gary Foust testified that the home was not well-kept and that the children
were “pretty much [] on their own.” Dr. Karpawich’s report indicated that Barbara Foust
did not clean the house and that “the children suffered from head lice.” Those
characterizations are euphemistic when compared to Social Services’ description of a
“lice infested, canine feces factory” with little food and no hot water. Yet this evidence,
despite being more detailed than what the three-judge panel heard, does not establish
prejudice because it does not differ in subject matter from the evidence actually
presented. The panel already knew about the unclean and unsanitary state of Foust’s
childhood home. It was therefore not an unreasonable application of Strickland for the
state court to conclude that Foust was not prejudiced by his attorneys’ failure to present
this evidence. See Hill, 400 F.3d at 319.

As for evidence of incest and sexual abuse among Foust’s siblings, it is true that
this evidence, specifically, was not presented at sentencing. However, it is still
cumulative in the sense that Foust presents it now to prove a point that he already made
before the three-judge panel. Foust argues that this new evidence would have
demonstrated that he was brought up in an atmosphere which normalized violence
toward women. But the panel knew that Foust grew up learning that violence toward
women was normal.2 Barbara Foust testified that Gary Foust abused her so frequently
that she “believe[d] [her] natural skin tone was black and blue.” Dr. Karpawich reported
to the panel that Foust’s sister, Garyanne, believed as a child that “men would not get
arrested . . . for beating up their wives.” The panel heard ample evidence of the frequent
and severe physical and emotional abuse that went on in the Foust household, abuse
which Dr. Karpawich testified had “an impact on the way [Foust] would interact with
other people, especially women.” The evidence of incest and sexual abuse among
Foust’s siblings is another example of the violence that Foust witnessed toward women;

2
In terms of deviant sexual behavior, the panel learned that Gary Foust would frequently bring
women home from a bar and banish his wife (Foust’s mother) from the bedroom. Obviously this is not
so severe as violent incest among siblings, but it establishes that the panel was aware that Foust grew up
in an atmosphere where violence and deviant sexual behavior were commonplace.
No. 08-4100 Foust v. Houk Page 35

although sexual abuse is a specific type of physical violence and abuse, both types of
evidence prove the same point, and that point was presented to the three-judge panel.
This evidence simply does not “add[] up to a mitigation case that bears no relation” to
the one actually put before the panel. See Rompilla v. Beard, 545 U.S. 374, 393 (2005).

Nor is the evidence of Gary Foust’s neglect of Foust’s physical injuries either
stronger or different from what was presented at sentencing. At sentencing, defense
counsel presented evidence of Gary Foust’s violence and abuse towards his family, and
specifically towards Foust—including that Gary was a violent alcoholic; frequently beat
his wife and children; inflicted especially strong abuse on his sons, including Foust; and
that his children, including Foust, were “terrified” of him.3 Gary Foust admitted that
there were times when he “probably hit [his children] harder than [he] should have,” and
Barbara Foust testified that Gary Foust would strike the boys with his fist or “whatever
he could pick up,” and also kick them. The panel learned that, unlike his siblings who
would retaliate, Foust was afraid to fight back and merely took the abuse quietly. In
light of this evidence, I simply cannot agree with the majority that Gary’s Foust’s neglect
of Foust’s physical injuries is not cumulative. Gary Foust’s indifference towards Foust’s
physical injuries is illustrative of his abusive and violent nature. In many ways, the
evidence that was actually presented is more compelling than the newly documented
evidence: it is hard to see how neglecting a child’s physical injuries is worse than
actually causing similar injuries.

Although much of the evidence that the majority cites is in fact cumulative, some
of the evidence that Foust’s counsel failed to present arguably does differ in both
strength and subject matter from the evidence that was presented to the panel. Foust’s
attempts to reform his sister Amy and his act of “saving a baby’s life” were not presented

3
To bolster its conclusion that Foust was prejudiced, the majority cites the prosecutor’s closing
statement, that he could not “recall hearing one single isolated incident where any particular physical abuse
took place involving [Foust] and his dad.” See Maj. Op. 35 (quoting App’x Vol. 7 at 2671). In light of
the ample evidence that Gary Foust specifically abused Foust, the prosecutor’s statement can only be
considered a criticism of the level of detail presented regarding Gary Foust’s abuse. Although the evidence
that Gary Foust neglected Foust’s burns on one occasion is indeed more detailed and specific, it cannot
establish prejudice because it is insufficiently different from the evidence that was actually presented. See
Hill, 400 F.3d at 319.
No. 08-4100 Foust v. Houk Page 36

at the sentencing phase; and indeed, the picture of Foust’s character that was presented
“offer[ed] nothing in mitigation.” See Ohio v. Foust, 823 N.E.2d 836, 870 (Ohio 2004).

Further, the evidence presented at mitigation did not portray the extent of abuse
and emotional abandonment that Foust suffered from his mother. However, neither was
the three-judge panel “misled” into believing that “Foust has ‘a stable influence in his
life who did everything she could to help him.’” See Maj. Op. at 25 (alteration omitted)
(quoting Johnson v. Bagley, 544 F.3d 592, 604 (6th Cir. 2008)). Quite the contrary,
defense counsel presented evidence establishing the utter lack of any stability in Foust’s
life (the family was “marked by a lot of violence and instability, which had a traumatic
effect on Kelly’s upbringing”); (“There was no stability in the home.”). Specifically
with respect to Barbara Foust, the panel heard that she was incarcerated when Foust was
a young child, was mentally unstable, had extramarital affairs with various men, was
violent toward Gary Foust, did not clean the house, neglected the family finances, and
did not pay the bills. They also learned that Foust himself believed his mother had
mental problems. Further, contrary to the majority’s claim that the three-judge panel
was led to believe Barbara Foust did everything she could to help her son, Barbara Foust
told the panel that, although Kelly had sent her numerous letters since his arrest for Jose
Coreano’s murder, she had just “left them sit [sic] on [her] T.V.” In light of the evidence
that was presented, the majority’s claim that the panel was “misled” into believing that
Barbara Foust was a stable and encouraging influence is a “gross distortion.” See Bobby
v. Van Hook, 130 S. Ct. 13, 18 (2009) (per curiam) (characterizing the Sixth Circuit’s
misrepresentation of the factual record as a “gross distortion”).

Even in light of the new evidence—regarding Foust’s redeeming acts and his
mother’s emotional abandonment and abuse—the state court’s determination that Foust
suffered no prejudice cannot be called unreasonable. The mitigating evidence in this
case is indeed compelling, but so are the statutory aggravators: murder during the course
of an aggravated burglary, aggravated robbery, kidnapping, aggravated arson, rape, and
attempted murder. I simply cannot agree with the majority that the Ohio Court of
Appeals unreasonably applied Strickland when it concluded that Foust suffered no
No. 08-4100 Foust v. Houk Page 37

prejudice from his counsel’s failure to present additional mitigation evidence. To say
that reasonable people cannot disagree as to whether Foust was prejudiced is the epitome
of unreasonableness. Cf. Harrington, 131 S. Ct. at 786 (“A state court’s determination
that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists
could disagree’ on the correctness of the state court’s decision.”).

I respectfully dissent.